If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.

(a)
(1) Whoever kills or attempts to kill another person, with intent to—
(A) prevent the attendance or testimony of any person in an official proceeding;
(B) prevent the production of a record, document, or other object, in an official proceeding; or
(C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings;
shall be punished as provided in paragraph (3).

(2) Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to—
(A) influence, delay, or prevent the testimony of any person in an official proceeding ... shall be punished as provided in paragraph (3).

...

(c)  Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.

(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from—
(1) attending or testifying in an official proceeding ...  shall be fined under this title or imprisoned not more than 3 years, or both. ...

(k) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

The offense of conspiracy punishes the mere agreement with another to commit a crime, whether or not the object-crime is completed. All that is required is that a defendant knowingly enter into an agreement with another to commit a crime and “join[] in the illegal agreement with the intent of helping it succeed in its criminal purpose.” United States v. Svoboda, 347 F.3d 471, 479 (2d Cir. 2003).

Some conspiracy provisions, notably 18 U.S.C. § 371, require that one conspirator—but not each conspirator—commit an “overt act” toward accomplishing the crime. Other federal conspiracy statutes, such as 21 U.S.C. § 846, do not require any act beyond the agreement. United States v. Shabani, 513 U.S. 10 (1994) (noting also that the Sherman Act does not require an overt act for antitrust conspiracies). The over act requirement, however, is a minimal hurdle for prosecutors and easily proven--evidence of any insignificant or preliminary action can suffice.

As you have seen, when an object-crime is completed, federal defendants are often charged with both the crime of conspiracy and the underlying substantive crime (or crimes) that was the object of the agreement. In cases with multiple defendants—including corporate defendants and the firm’s employees or agents—often some defendants are liable for substantive offenses as accomplices, i.e., by aiding and abetting the principal actor. Federal law provides for accomplice liability in 18 U.S.C. §2(a): “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” The classic formulation of mens rea standard for accomplice liability in federal law comes from United States v. Peoni, 100 F.2d 401 (2d Cir. 1938) (L. Hand, J.):

To establish aiding and abetting liability, the government must prove that the defendant “associate[d] himself with the venture …, participate[d] in it as in something he wishe[d] to bring about, and [sought] by his actions to make it succeed.”

Importantly, one liable as an accomplice must personally take some action to “associate himself” or “participate in” the principal’s crime. (That action need not be as much conduct as would be required for attempt liability, although unfortunately federal courts sometimes use “substantial step” to describe the quantum of conduct required both for accomplices and attempts. See United States v. Hernandez-Orellana, 539 F.3d 994, 1006-07 (9th Cir. 2008).)

When an object-crime of a conspiracy has been completed, conspiracy liability and accomplice liability for the substantive crime often travel together because the mens rea requirements for the two bases of liability are similar—or at least it is true that proof of mental states for each frequently is inferred from proof of the same conduct. See United States v. Singh, 922 F.2d 1169, 1173 (5th Cir. 1991) (“Typically, the same evidence will support both a conspiracy and an aiding and abetting conviction.”).

The common function or effect of complicity and conspiracy liability is that they both provide ways to extend criminal liability to people who were the not principal actors who committed the substantive offense. Federal conspiracy law does this in another way as well. Pursuant to the Pinkerton doctrine, one conspirator can be liable even for substantive crimes committed by co-conspirator even that were not the object of their agreement, and even if they did aid in those particular crimes, or indeed even have the required mens rea for those offenses. Federal courts describe Pinkerton doctrine as “a means of apportioning criminal responsibility for the commission of substantive offenses” when one “participat[es] in a conspiracy that leads a confederate to engage in” that offense. United States v. Ashley, 606 F.3d 135, 140 (4th Cir. 2010). As you read Pinkerton, pay attention to the criteria for a defendant’s liability for crimes that his co-conspirator commits without his assistance or advance agreement.

Pinkerton v. United States, 328 U.S. 640 (1946)

JUSTICE DOUGLAS delivered the opinion of the Court.

Walter and Daniel Pinkerton are brothers who live a short distance from each other on Daniel's farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $ 500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $ 500 and given a two year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals….

A single conspiracy was charged and proved. Some of the overt acts charged in the conspiracy count were the same acts charged in the substantive counts. Each of the substantive offenses found was committed pursuant to the conspiracy. Petitioners therefore contend that the substantive counts became merged in the conspiracy count, and that only a single sentence not exceeding the maximum two year penalty provided by the conspiracy statute (Criminal Code § 37, 18 U. S. C. § 88) could be imposed. Or to state the matter differently, they contend that each of the substantive counts became a separate conspiracy count but, since only a single conspiracy was charged and proved, only a single sentence for conspiracy could be imposed. They rely on Braverman v. United States, 317 U.S. 49.

In the Braverman case the indictment charged no substantive offense. Each of the several counts charged a conspiracy to violate a different statute. But only one conspiracy was proved. We held that a single conspiracy, charged under the general conspiracy statute, however diverse its objects may be, violates but a single statute and no penalty greater than the maximum provided for one conspiracy may be imposed. That case is not apposite here. For the offenses charged and proved were not only a conspiracy but substantive offenses as well.

Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U.S. 354, 355-356; Gebardi v. United States, 287 U.S. 112, 121-122. Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another's crime. Gebardi v. United States, supra. But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy, has little vitality in this country. It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. Clune v. United States, 159 U.S. 590, 594-595. A conviction for the conspiracy may be had though the substantive offense was completed. See Heike v. United States, 227 U.S. 131, 144. And the plea of double jeopardy is no defense to a conviction for both offenses. Carter v. McClaughry, 183 U.S. 365, 395 [1902]. It is only an identity of offenses which is fatal. See Gavieres v. United States, 220 U.S. 338, 342…. A conspiracy is a partnership in crime. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253. It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, 238 U.S. 78, 88 [1915]:

"For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered."

… Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, [798 F. 911, 913 (5^th Cir. 1924)],"If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it." The agreement to do an unlawful act is even then distinct from the doing of the act.

 It is contended that there was insufficient evidence to implicate Daniel in the conspiracy. But we think there was enough evidence for submission of the issue to the jury.

There is, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained, although there was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. The question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it.

 Daniel relies on United States v. Sall, [116 F.2d 745 (3d Cir. 1940)]. That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive offense even though it was committed in furtherance of the conspiracy. The court held that, in addition to evidence that the offense was in fact committed in furtherance of the conspiracy, evidence of direct participation in the commission of the substantive offense or other evidence from which participation might fairly be inferred was necessary.

We take a different view. We have here a continuous conspiracy. There is here no evidence of the affirmative action on the part of Daniel which is necessary to establish his withdrawal from it. Hyde v. United States, 225 U.S. 347, 369. As stated in that case, "Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending. And we think, consciously offending, offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence." Id., p. 369. And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that "an overt act of one partner may be the act of all without any new agreement specifically directed to that act." United States v. Kissel, 218 U.S. 601, 608. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U.S. 632, 657-658. A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy. Cochran v. United States, 41 F.2d 193, 199-200. Yet all members are responsible, though only one did the mailing. Cochran v. United States, supra; Mackett v. United States, 90 F.2d 462, 464; Baker v. United States, 115 F.2d 533, 540; Blue v. United States, 138 F.2d 351, 359. The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. Johnson v. United States, 62 F.2d 32, 34. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under § 37 of the Criminal Code, 18 U. S. C. § 88. If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.

A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. But as we read this record, that is not this case. Affirmed.

JUSTICE JACKSON took no part in the consideration or decision of this case [because he took leave from his Supreme Court position to serve a U.S. prosecutor at the Nuremberg trials following World War II.].

JUSTICE RUTLEDGE, dissenting in part.

The judgment concerning Daniel Pinkerton should be reversed. In my opinion it is without precedent here and is a dangerous precedent to establish.

Daniel and Walter, who were brothers living near each other, were charged in several counts with substantive offenses, and then a conspiracy count was added naming those offenses as overt acts. The proof showed that Walter alone committed the substantive crimes. There was none to establish that Daniel participated in them, aided and abetted Walter in committing them, or knew that he had done so. Daniel in fact was in the penitentiary, under sentence for other crimes, when some of Walter's crimes were done.

There was evidence, however, to show that over several years Daniel and Walter had confederated to commit similar crimes concerned with unlawful possession, transportation, and dealing in whiskey, in fraud of the federal revenues. On this evidence both were convicted of conspiracy. Walter also was convicted on the substantive counts on the proof of his committing the crimes charged. Then, on that evidence without more than the proof of Daniel's criminal agreement with Walter and the latter's overt acts, which were also the substantive offenses charged, the court told the jury they could find Daniel guilty of those substantive offenses. They did so.

 I think this ruling violates both the letter and the spirit of what Congress did when it separately defined the three classes of crime, namely, (1) completed substantive offenses; (2) aiding, abetting or counseling another to commit them; and (3) conspiracy to commit them. Not only does this ignore the distinctions Congress has prescribed shall be observed. It either convicts one man for another's crime or punishes the man convicted twice for the same offense….

The old doctrine of merger of conspiracy in the substantive crime has not obtained here [in the United States]. But the dangers for abuse, which in part it sought to avoid, in applying the law of conspiracy have not altogether disappeared. Cf. Kotteakos v. United States, post, p. 750. There is some evidence that they may be increasing. The looseness with which the charge may be proved, the almost unlimited scope of vicarious responsibility for others' acts which follows once agreement is shown, the psychological advantages of such trials for securing convictions by attributing to one proof against another, these and other inducements require that the broad limits of discretion allowed to prosecuting officers in relation to such charges and trials be not expanded into new, wider and more dubious areas of choice. If the matter is not generally of constitutional proportions, it is one for the exercise of this Court's supervisory power over the modes of conducting federal criminal prosecutions ….

I think that power should be exercised in this case with respect to Daniel's conviction. If it does not violate the letter of constitutional right, it fractures the spirit. United States v. Sall, supra. I think the ruling in that case was right, and … should be followed here. Daniel has been held guilty of the substantive crimes committed only by Walter on proof that he did no more than conspire with him to commit offenses of the same general character. There was no evidence that he counseled, advised or had knowledge of those particular acts or offenses. There was, therefore, none that he aided, abetted or took part in them. There was only evidence sufficient to show that he had agreed with Walter at some past time to engage in such transactions generally. As to Daniel this was only evidence of conspiracy, not of substantive crime.

The Court's theory seems to be that Daniel and Walter became general partners in crime by virtue of their agreement and because of that agreement without more on his part Daniel became criminally responsible as a principal for everything Walter did thereafter in the nature of a criminal offense of the general sort the agreement contemplated, so long as there was not clear evidence that Daniel had withdrawn from or revoked the agreement. Whether or not his commitment to the penitentiary had that effect, the result is a vicarious criminal responsibility as broad as, or broader than, the vicarious civil liability of a partner for acts done by a copartner in the course of the firm's business.

Such analogies from private commercial law and the law of torts are dangerous, in my judgment, for transfer to the criminal field.… Guilt there with us remains personal, not vicarious, for the more serious offenses. It should be kept so….

JUSTICE FRANKFURTER, reserving judgment on the question of double jeopardy, agrees in substance with the views expressed in this dissent.

Courts have worked hard to carve out a buyer-seller “exception” to conspiracy law, similar in theory to the long-established exceptions in the common law for accomplice liability for the victim of crimes such as extortion or blackmail. United States v. Parker, 554 F.3d 230, 534-36 (2d Cir. 2009), represents one important context in which federal courts have narrowed conspiracy liability by excluding buyers (most commonly of illicit drugs) from liability based on their agreement to purchase drugs from a seller:

As a literal matter, when a buyer purchases illegal drugs from a seller, two persons have agreed to a concerted effort to achieve the unlawful transfer of the drugs from the seller to the buyer. According to the customary definition, that would constitute a conspiracy with the alleged objective of a transfer of drugs. Our case law, however, has carved out a narrow exception to the general conspiracy rule for such transactions. Under [our case law], notwithstanding that a seller and a buyer agree together that they will cooperate to accomplish an illegal transfer of drugs, the objective to transfer the drugs from the seller to the buyer cannot serve as the basis for a charge of conspiracy to transfer drugs.

This exception from the customary standards of conspiracy preserves important priorities and distinctions of the federal narcotics laws, which would otherwise be obliterated. The federal scheme of prohibition of controlled substances distinguishes importantly between, on the one hand, distribution of a controlled substance, which is heavily punished, and, on the other, possession or acquisition of a controlled substance, which is punished far less severely, if at all. (No doubt, considerations underlying this distinction include a policy judgment that persons who acquire or possess illegal drugs for their own consumption because they are addicted are less reprehensible and should not be punished with the severity directed against those who distribute drugs[)].... At the same time, inchoate offenses, such as conspiracy and attempt are generally punished in the same manner and with the same severity as the completed offense. See 21 U.S.C. §846 (“Any person who attempts or conspires to commit an offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense”). Therefore, if an addicted purchaser, who acquired drugs for his own use and without intent to distribute it to others, were deemed to have joined in a conspiracy with his seller for the illegal transfer of the drugs from the seller to himself, the purchaser would be guilty of substantially the same crime, and liable for the same punishment, as the seller. The policy to distinguish between transfer of an illegal drug and the acquisition or possession of the drug would be frustrated. The buyer-seller exception thus protects a buyer or transferee from the severe liabilities intended only for transferors.... On the other hand, if we consider a hypothetical seller who is running a profit-motivated business of selling drugs in wholesale amounts, this seller may well realize that his buyers’ ability to buy and pay for substantial amounts of drugs, and hence, his profit, will depend on the buyers’ ability to resell. The business of selling wholesale quantities depends on the ability of the customers to resell. A seller in such circumstances may well share with the buyer an intention that the buyer succeed in reselling and may be seen as having a stake in the buyer’s resale. In such case, the liability of buyer and seller for having conspired together to transfer drugs would depend not on the seller’s mere knowledge of the buyer’s intent to retransfer, but on a further showing of the seller’s interest, shared with the buyer, in the success of the buyer’s resale.

For another example of this doctrine from a different circuit, see United States v. Colon, 549 F.3d 565 (7th Cir. 2008).

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

GRUBB, District Judge. The plaintiffs in error were tried and convicted in the District Court for the Eastern District of Texas for conspiracy. The indictment contained three counts. The plaintiffs in error were convicted only on the counts numbered 1 and 2. These counts charged an offense under section 6 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1089 [Comp. St. § 10170]), while the third count charged an offense under section 37 of the Penal Code (section 10201). Under counts 1 and 2, proof of an overt act was not required to convict. These counts charged the plaintiffs in error, together with others, some of whom pleaded guilty, and three of whom were acquitted, with conspiracy to resist the enforcement of a law of the United States, viz. the Selective Service Act, approved May 18, 1917 (40 Stat. 76, c. 15 [Comp. St. 1918, §§ 2019a, 2019b. 2044a-2044k]), by resisting by force the calling of registrants, in Rains County, Tex., and by resisting state or government officers who might attempt to arrest such persons for failing to comply with the law, and by procuring arms and ammunition necessary to prevent by force the drafting of persons of said county, who had registered, into the military service of the United States.

There are 22 errors assigned. The questions presented by them are three: First, whether there was evidence in the record sufficient to show a conspiracy on the part of the 17 plaintiffs in error of the kind charged in the first counts of the indictment; second, whether the plaintiffs in error abandoned any conspiracy they may have formed, before guilt attached to them; third, whether the District Judge charged correctly upon the law of accomplice evidence.

The evidence is voluminous. It related to what happened at two meetings—one at New Home schoolhouse on a Sunday night, and the other at Sandy Eddy on the following Monday afternoon—and to the subsequent purchase of weapons by some of the plaintiffs in error. The holding of the meetings was not in dispute, nor the presence of the plaintiffs in error at one or both of them. The purpose of the meetings, the extent of participation of the various plaintiffs in the error in them, and the abandonment of the project at the second meeting, as claimed by plaintiffs in error, and the purpose for which some of the plaintiffs in error procured guns after the two meetings, were the disputed questions of fact. The government offered substantial evidence tending to show that the plaintiffs in error were at the New Home schoolhouse meeting, and that at that meeting inflammatory speeches were made, directed against the drafting of young men who had registered and the sending of them to France to fight Germany, and that two votes were taken at that meeting—one in which the younger men within the draft age participated, to the effect that they would prefer to die at home to dying in France, and the other, in which the older men, who were over the draft age, alone participated, to the effect that they would stand behind the younger men in the carrying out of their resolve.

In connection with the seditious remarks testified to have been made at the first meeting preceding the taking of the two votes and the evidence tending to show a guilty sense of having violated the law, and the suspicion of the presence of a spy, the jury might well have found from the government's evidence that a conspiracy to forcibly resist the Selective Service Act was there intended and formed. It is true that the witnesses for the defendants, if believed, gave an entirely different and an innocent complexion to the meeting. The defendants' evidence tended to show that the meeting was open and public, and not secret. Its purpose, according to the defendants' evidence, was merely to discuss a supposed overdraft in Rains county, and to take steps to secure a contribution to pay the expenses of a committee, which had gone to Austin the preceding day to attempt to secure an adjustment of the overdraft, and it was claimed by defendants that nothing seditious was spoken at the meeting; the discussion being confined to the question of the overdraft and the expense attending its adjustment. The determination of the correct version of the purpose of and of what happened at the New Home schoolhouse meeting was for the jury, and they determined it upon substantial evidence adversely to the contentions of the plaintiffs in error.

The New Home schoolhouse meeting adjourned to meet the next afternoon at the place of the plaintiff in error, Will Orear, at Sandy Eddy. The plaintiffs in error assert that the record fails to show that a completed conspiracy was formed at the first meeting, and contend that tentative discussion does not constitute a conspiracy in law. We are of the opinion that the votes taken at the first meeting might have been interpreted by the jury as an agreement on the part of those present and voting to resist the draft law by those subject to draft, and to aid those subject to draft in forcibly resisting it by those who were beyond the draft age. The conspiracy may have been smaller in numbers than the attendance at either of the meetings, and yet the inner conspiracy would fasten guilt upon the conspirators, though others who attended the meetings were innocent. We think it was open to the jury to find that plaintiffs in error were parties to the conspiracy, because of what the government's evidence tended to show transpired at the New Home schoolhouse.

The District Judge charged the jury that, in order to convict the defendants, they must believe from the evidence that the conspiracy was complete, and not merely tentative. It is true that at the subsequent meeting at Sandy Eddy little was added to the government's case. The meeting assembled at the place designated at the first meeting, and was addressed by a lawyer named Berzette, who advised them, according to the government's contention, that their assembly might be held to be a violation of the law, and on this advice the meeting dispersed, without doing anything further. The defendants' contention was that Berzett advised the meeting that the committee that went to Austin had returned with the report that Rains County had been treated fairly in the draft, and, upon receipt of this information, the people dispersed and went home satisfied.

The government's evidence tended to show that the plaintiff in error John Trumble, after Berzett had spoken, called an informal meeting and with some of the plaintiffs in error renewed the design of resisting the draft by force, if it became necessary. If the government established a conspiracy in which the plaintiffs in error participated, by what took place at the New Home schoolhouse meeting, the crime was then completed and the guilt of the plaintiffs in error was then fixed beyond repentance, and a subsequent dissolution of the conspiracy and an abandonment of the project at the Sandy Eddy meeting, if it had occurred, would not have relieved plaintiffs in error from criminal responsibility.

Section 6 of the Penal Code does not base conspiracy on the doing of an overt act, as does section 37 of the Penal Code. It is, in this respect, like the Sherman Anti-Trust Act …. Under that act the Supreme Court held that common-law conspiracies were made punishable, and that it did not make "the doing of any act other than the act of conspiring a condition of liability." Nash v. United States, 229 U.S. 373. Withdrawal from the conspiracy after its formation would not exculpate from guilt, under the charge made in the only counts upon which the plaintiffs in error were found guilty. We are not to be understood as holding that the evidence as to what transpired at the Sandy Eddy meeting indicated an abandonment of the project upon the part of the plaintiffs in error, though it may as to some of those who attended.

The evidence of the government as to what happened after the Sandy Eddy meeting had broken up, and in the group around the defendant John Trumble, is corroborated by the evidence, which shows the subsequent procuring of high-power guns by some of the plaintiffs in error. The sufficiency of the explanation of the purposes for which these guns were procured, given by the plaintiffs in error, who were concerned in procuring them, was for the jury. The coincidence of so many of them having procured rifles immediately after the meeting and having made two trips to Dallas, 80 miles distant, in the automobile of the plaintiff in error Pffer Orear, and the subsequent hiding of the guns by the plaintiff in error Will Orear, in connection with the explanations given by him and by his father of the purpose for which he hid them, left plenty of room for the jury to have inferred that they were procured for the purpose charged by the government, and testified to by those of the defendants who entered pleas of guilty and who testified for the government.

We think there was sufficient evidence introduced on the trial to justify the jury in finding that an illegal conspiracy to forcibly resist the draft had been consummated; that it had not been abandoned, at least by the plaintiffs in error (if that were necessary to be shown), but had been carried out by some of the plaintiffs in error to the extent of getting guns to that end.

The court charged the jury that—

"In weighing the evidence of those defendants who are testifying for the government, you should have due regard to the fact that they have each pleaded guilty to the indictment, as well as to the fact of their being defendants, though not on trial. You are directed to weigh carefully their testimony, and cautioned against placing too firm a reliance upon it, unless the same should be corroborated by testimony of witnesses other than principals, or by other facts and circumstances that verify their testimony in material particulars."

In the federal courts, the testimony of accomplices may be sufficient to convict, in the absence of corroboration. Diggs and Caminetti v. United States, 242 U.S. 471. In this case there was in fact corroboration of facts proven by witnesses other than participants in the conspiracy. The charge of the District Judge was all that the plaintiffs in error were entitled to upon the subject of accomplice testimony. It pointed out with sufficient clearness what witnesses were to be treated as accomplices—those who testified for the government and who had either entered pleas of guilty to the indictment, or who were shown to have been principals in the conspiracy by the evidence.

We find no error in the record, and the judgment is affirmed.

WOLVERTON, District Judge.

… The next question presented for consideration is whether the trial court committed error in refusing to grant defendants' motion for a directed verdict, on the ground that the testimony does not show the commission of the offense charged. The testimony is all in the record, and it is for the court to say whether it is sufficient to carry the case to the jury for their determination.

In the trial court's charge to the jury, the two counts of the indictment were consolidated and treated as one offense. To this manner of treating the case there seems to have been no objection, by either the government or the defendants. Proceeding upon this theory, the particular charge against defendants is that they conspired to oppose by force, and to prevent, hinder, and delay, the execution of the joint resolution of Congress of April 6, 1917, declaring that a state of war existed between the United States and the Imperial German government, authorizing the President to employ the entire naval and military forces of the United States and the resources of the government, and pledging the resources of the country for bringing the conflict to a successful termination; also the National Defense Act of June 3, 1916, section 57 of which provides that:

"The militia of the United States shall consist of all able-bodied male citizens of the United States and all other able-bodied males who have or who shall have declared their intention to become citizens of the United States, who shall be more than eighteen years of age, and, except as hereinafter provided, not more than forty-five years of age, and said militia shall be divided into three classes, the National Guard, the naval militia, and the unorganized militia." Comp. St. § 3041.

And section 79:

"If for any reason there shall not be enough voluntary enlistments to keep the reserve battalions at the prescribed strength, a sufficient number of unorganized militia shall be drafted into the service of the United States to maintain each of such battalions at the proper strength." Comp. St. § 3044q.

And also the act of January 21, 1903, as amended by the act of May 27, 1908, which authorizes the President, whenever the United States is in danger of being invaded by a foreign nation, to call forth the state militia to repel such invasion.

Keeping this statement in mind as a premise, we will give attention to the evidence. Let us emphasize, before proceeding, that force is an essential element of the offense, and likewise in the charge, and that mere solicitation or entreaty, without a purpose of applying or using force to accomplish the ends sought to be attained, is without the intendment of section 6 of the Penal Code, under which the indictment is drawn.

In the latter part of April and early in May, 1917, meetings were assembled in Seattle, Wash., under the auspices of an association of persons known as the "No Conscription League." At these meetings there was prepared and adopted by the league a circular entitled "No Conscription, No Involuntary Servitude, No Slavery." Twenty thousand of these circulars were printed, and persons attending the meetings circulated them in certain parts of the city, going from house to house and leaving them as they passed along. The circular reads as follows:

"'Neither Slavery, nor INVOLUNTARY SERVITUDE, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.'

"The above is a part of the organic Constitution of the United States. The President and Congress have no authority to set it aside. That can only be done by a majority vote of the Legislatures of three-fourths of the separate states. For the President and Congress to do it is to usurp the powers of autocrats and if unresisted means the abandonment of democracy and the destruction of the republic.

"We, signing this, are native-born citizens, within the age limit set for the first compulsory draft. They will make an army of us and send us to compel you to enter the second draft, and some more of you to enter the third draft and so on until freedom is dead. Wake up! Stand by us now, for when we have become an army we will have ceased to think and we will shoot you if told to shoot you! Just so it is expected that we will shoot and kill our brothers in other lands and that we will die to restore the rapidly vanishing values to the investments of Wall Street bankers escaping service themselves -- a plutocracy whose good fortunes we do not share, but for which we have suffered enough.

"Resist! Refuse! Don't yield the first step toward conscription. Better to be imprisoned than to renounce your freedom of conscience. Let the financiers do their own collecting. Seek out those who are subject to the first draft! Tell them that we are refusing to register or to be conscripted and to stand with us like men and say to the masters: 'Thou shalt not Prussianize America!'

"We are less concerned with the autocracy that is abroad and remote than that which is immediate, imminent and at home. If we are to fight autocracy, the place to begin is where we first encounter it. If we are to break anybody's chains, we must first break our own, in the forging. If we must fight and die, it is better that we do it upon soil that is dear to us, against our masters, than for them where foreign shores will drink our blood. Better mutiny, defiance and death of brave men with the light of the morning upon our brows, than the ignominy of slaves and death with the mark of Cain, and our hands spattered with the blood of those we have no reason to hate.

"SEATTLE BRANCH NO CONSCRIPTION LEAGUE, P.O. Box 225.

"Where is it written in the Constitution -- that you may take the children from their parents -- and compel them to fight the battles of any war in which the folly or the wickedness of the government may engage?"

The testimony tends to show that the defendant Wells was present at two or more of these meetings, and took part in discussions pertaining to the circular. He took the copy to the printer and had it printed, corrected the proof, and paid for the printing, part of it from his own funds, and part through collections made at one of the meetings. He also directed the delivery of the printed circulars at the hall where a later meeting was held, and himself distributed some of the circulars. Sadler was present at at least one of the meetings, that of May 11, 1917, and took part in the discussions along with Wells. The "No Conscription" circulars were on the table in the assembly room at the time, and a number of persons took them away for distribution, but that Sadler took any of them away with him does not seem to be confirmed. Morris Pass attended two or more of the meetings, and at one acted as secretary, collected part of the money to pay for printing the circulars, and turned what he collected and that which came into his hands for that purpose over to Wells. He also distributed some of the circulars. Joe Pass was present at one or two of the meetings, took part in the discussion respecting the circular, and tacitly assented to its distribution. We have not attempted a survey of all the testimony adduced at the trial.

The defendants contend that the purpose of the circular was to oppose the passage of the conscription act, then pending in Congress, peaceably and without the use of force in any way, and the testimony for defendants seems to support the view that the discussions at these meetings took that turn. If force was to be employed, the fact must be deduced from the wording of the circular and the activities of the defendants in procuring its adoption and distribution among the people in Seattle. What was said in the discussions that took place pertaining to the nature and character of the document to be adopted has not been shown, except in a general way, and no other language of a seditious nature has been shown to have been uttered by the defendants, or any of them, unless the resolution that was introduced by Wells at the Labor Temple in Seattle, and adopted, demanding exemption from military service on the ground of conscientious scruples, can be so construed. We consider the inquiry, however, aside from the effect and purpose of this resolution.

Attention should be directed more particularly to the wording of the latter clauses of the circular beginning with "Resist! Refuse!" It will thus be seen that the language urging resistance to conscription is very strong, breathing defiance to the constituted authorities, and, considering along with it the energy displayed in procuring the adoption and wide distribution of the circular, there would seem to be scope for reasonable men to draw the inference that it was intended, by those who were instrumental in its preparation and distribution, that force should be employed, if requisite, against the carrying into effect of the declaration of war by Congress, in pursuance of which Congress was proceeding to put the Selective Draft Act upon the statute, and to oppose by force the authority of the President in putting into execution the law respecting the militia, as referred to in the indictment, and the laws themselves carrying such authorization. We think, therefore, the evidence was sufficient upon which to submit the cause to the jury. It was not necessary to show that force was actually employed, but only that there was a conspiracy entered into that contemplated the employment of force, as a means to the accomplishment of a common purpose to oppose the execution of a law of the United States, or the authority of the government to prosecute the war.

Objection was interposed to the admission of a resolution that was introduced by Wells, on May 23, 1917, at a meeting of the Central Labor Council in the city of Seattle, wherein organized workers, among other things, demanded of the government exemption from military service of all those who had conscientious objections to the war, as prejudicial. It had a tendency to show Wells' attitude of mind towards the Conscription Act, at least, and was admissible for that, if for no other purpose.

Another objection was interposed to the admission of the testimony of one Fraser, to the effect that he found one of the circulars on the front porch of his home, within a block of the boundary line of the Ft. Lawton military reservation, and that he showed it to a Mrs. Knight, also as prejudicial to defendants. It was proper to show the extent to which the circulars had been distributed, and this evidence was pertinent to that purpose.

While the defendant Wells was on the witness stand, he was asked:

"What steps were taken by the local branches, by yourself and other members, with reference to opposing the Conscription Act?"

 The government having objected, witness was not permitted to answer, and this is assigned as error. The local branches referred to were branches of a national organization of Socialists known as the "American Union against Militarism." Wells had testified that he had taken part in the movement, and had attended meetings of the local branch at different places in Seattle. The meetings were held before the declaration of war. The witness continued:

"The whole purpose of the society and of the defendant was to get before the people the opinions offered by those who were favorably disposed in their point of view to this movement to place it before Congress. This society continued its agitation up to the time it was seen that the country was about to get into the war. From that time until the declaration of war they confined their efforts to trying to bring about an honorable avoidance of the war. After war was declared by the United States, the society ceased all opposition to the war itself. After the war was declared, the organization kept together, because it was thought there would be many occasions which would arise from time to time which would require the liberty of the people to be safeguarded. It was thought that conscription would quite likely become one of the issues, and that the society and its members should endeavor to prevent the enactment of such a law."

Wells having testified fully touching the organization known as the "American Union against Militarism," it was not essential to inquire in detail as to what was done at the local branches and by the members thereof touching the Conscription Act. He was permitted to explain fully what part he took in opposing that act, and the inquiry sought to be made could not appreciably help him or the other defendants. Otherwise, the issue sought to be injected into the trial was collateral in its scope, and irrelevant.

It further developed that the defendant Wells, in his opposition to the adoption of the Conscription Act, wrote letters to members of Congress, and especially to Congressman Dill, who wrote defendant in reply. Counsel sought to introduce the letter from Dill, but was not permitted by the court to do so. The declared purpose in introducing the letter was to show that Dill agreed with Wells in his views on conscription, and that Wells was acting in good faith in opposing the measure. If it was relevant for him to show that others agreed with him, it should have been done by the sworn testimony of other witnesses. It was wholly incompetent to prove the fact by unsworn ex parte statements of the kind.

Anna Louise Strong, a witness for defendants, was asked as to the purpose of the local branch of the general organization of the Union against Militarism. She was not permitted to answer, over the objections of the government, and error is assigned. It was explained by defendants' counsel that the question was preliminary, for the purpose of leading up to other questions. The exception is without merit, for the reason that it is not stated what the witness would have testified in answer to the question, and the court is not advised as to the relevancy of the matter sought to be elicited.

Frank B. Greene, who was a stenographer and engaged in the Secret Service department of the United States, being called as a witness for the government, testified that he, with others, interviewed defendants Joe and Morris Pass in New York, and that at the time he took what was said at the interview in shorthand, and subsequently transcribed it. He related what the Pass brothers said to him, which testimony was admitted in evidence without objection. Joe and Morris Pass were witnesses in their own behalf, and while on the stand (and especially Joe Pass) disputed the correctness of Greene's testimony touching parts of the interview in New York. Greene was recalled in rebuttal, and interrogated as to Joe Pass' rendition of the interview, and the government was thereupon permitted, over objection, to introduce the transcript of the notes of the interview in evidence. The action of the court in this respect is also assigned as error. Technically the transcript should not have gone in, because the notes of the interview could be used by Greene only for one purpose, namely, that of refreshing his memory in case he was unable to testify from his independent recollection, and not as substantive testimony of what was said there. But the field of the interview seems to have been quite fully covered by Greene and the Pass brothers, and for this reason it is not apparent wherein the defendants have been injured by the introduction of the notes themselves. The error was therefore harmless. The exception saved to the refusal of the court to permit Greene to testify as to what the notes contained was without merit, as the notes showed for themselves what they contained.

We come now to the instructions of the court. ... The first two of the exceptions saved are directed to the following portions of the charge:

"If you believe or if you have reasonable doubt as to whether the 'No Conscription' circular set out in the indictment and admitted in evidence did not purpose to oppose by force or incite others to oppose by force and hinder and delay the President in the execution of the joint resolution of Congress, then, of course, you will not consider it in that connection. But if you believe beyond a reasonable doubt that the purpose and effect of the circular was to incite others by force to oppose, hinder, and delay the execution of such resolution, then such defendants who entered into such conspiracy would be guilty. In this connection I think I should say that the defendants are presumed to know the law, and cannot shield themselves behind ignorance of the law. The law requires that all persons know what the law is. You are also instructed that every person is presumed to intend the natural consequences or results of his acts deliberately or knowingly done.

"As stated, the indictment charges the defendants with conspiring to oppose by force the authority of the United States, and to hinder and delay the execution of its laws. You are instructed that this is an element which must be established by the testimony on the part of the government by the same degree of proof.

"Force need not be actual physical force manifested by the defendants, but must be such conduct, either acts, statements, invitations, or solicitations, the evident purpose of which is to incite others to the use of forcible resistance in hindering or delaying the government of the United States in the execution of its laws. It is not essential that the object of the conspiracy should actually have been accomplished, or that force should actually have been used. Nor is it essential that the conspirators should have agreed upon the precise method of employing force or the weapons or instruments of such force. If a conspiracy was formed, and the use of force was the natural or necessary means of accomplishing the object of the conspiracy, and if its use was necessarily incident to the carrying out of the plan of the conspiracy, whether that force should be used by the defendants, or only by those persons who should be induced to co-operate with them, then the defendants would be guilty of the offense charged. Nor can the effect of the circular be neutralized or limited by any motive or purpose or intent not communicated with the circular. Nor could what Webster or any one else said enter into this issue, or limit the effect of the circular, if the natural and reasonable conclusion to be deduced from the circular in evidence and what was done with it was to incite by force opposition to the law of the United States as charged.

 "I think I should say in this connection, in view of the suggestions during the trial and argument, that you are not concerned in this case whether the war is right or not. We are at war now. There are only two sides to the war. One side is in favor of this country; the other side is against it. The policy of the government has been declared and established, and no person can by force do anything that will hinder or delay the government in carrying out that policy set out and defined in the resolution referred to in the indictment. The defendants are not charged with being against or in favor of the war, but with conspiracy by force to oppose, hinder, or delay the government of the United States in the execution of the resolution passed by the Congress with relation to the war and in carrying it to a successful termination."

The criticism directed to the first of these instructions is to that portion whereby the court told the jury that the defendants were "presumed to know the law and cannot shield themselves behind the ignorance of the law. The law requires that all persons know what the law is." It is urged that the publication of the circular in question could not be construed as inherently felonious per se, and that in criminal law every person is not presumed to know the law to such a degree as to impose upon him a felonious purpose when in fact he might have been ignorant of the law and have had no such purpose. Counsel discusses the publication of the circular as if it were directed against the Conscription Act, which had not then been adopted by Congress. Such was not the case, and such was not the theory of the prosecution, or the court. Indeed, the court elsewhere plainly told the jury that the conspiracy, if any were formed, could not be made to offend against the Conscription Act of May 18, 1917. The court gave no such intimation as that the publication of the circular was felonious per se. What the court said to the effect that defendants were presumed to know the law is common knowledge, and, when construed in connection with the entire charge, is not susceptible of the construction that counsel are disposed to place upon it.

Further criticism is directed to the expression of the court that "every person is presumed to intend the natural consequences of his own act." This is a common instruction given in cases where the deliberate act of the defendant, by natural consequence, is to do an injury to another or to the government, and, as applied to this case, it has relation to the deliberate publication of a seditious circular. It is urged that the instruction was prejudicial, and that, while it is correct as an abstract legal proposition, it should not have been given in this case, citing Hibbard v. United States, 172 Fed. 66, 96 C.C.A. 554, 18 Ann. Cas. 1040, in support of the argument. That case, however, is one for devising a scheme with intent to defraud, and is clearly distinguishable from one like this. To show this, we need only quote from the opinion of the court on rehearing:

"The error consists in applying it [the instruction] to a case wherein, apart from the intent, the act is colorless; color being thereby imparted, not to the intent by the color of the act, as the law implies, but to the act itself by the color borrowed from the intent. In cases like this where the act itself is, apart from the intent, colorless, the color of the intent must be proven as any other element of criminality is proven."

 The present case is not one of that nature. It should be said that here the court elsewhere told the jury that this presumption was not conclusive, but probatory in character, and should be considered with all the other elements disclosed by the testimony in the cause. There was no error in giving the instruction.

As it relates to the second part of the instructions above quoted, the criticism is directed to that particular clause where the court said:

"Nor can the effect of the circular be neutralized or limited by any motive or purpose or intent not communicated with the circular."

Standing alone, of course, this excerpt does not express the full or explicit meaning which the court designed to convey; but when read in connection with the clause following, and especially with what the court said on the subject of intent, the criticism loses its potency. Nor is the criticism of the court's instruction relative to the force essential to be manifested by defendants entitled to greater weight. The instruction on that subject is, in our opinion, a clear exposition of the law as applicable.

… Finding no error in the record, the judgment of the trial court will be affirmed.

INDICTMENT

The Grand Jury charges that, at all times material to this Indictment, on or about the dates and times stated below:

Introduction

The Transfer of Presidential Power in the United States

1.The United States Constitution and federal statutes codify the procedures and dates governing the transfer of presidential power in the United States. The Twelfth Amendment requires presidential electors to meet in their respective states and certify “distinct lists of all” persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each.” It further requires that the Vice President “shall, in the presence of the Senate

 and House of Representatives, open all the certificates and the votes shall then be counted.” Title [3, Section 15 of the United States Code provides that the United States Congress must convene during a joint session proceeding (“the Joint Session”) at 1:00 p.m. “on the sixth day of January succeeding every meeting of the electors,” with the Vice President presiding, to count the electoral votes, resolve any objections, certify their validity, and announce the result (“Certification of the Electoral College vote”). The Twentieth Amendment provides that the terms of the President and Vice President shall accordingly end at noon on the 20th day of January, “and the terms of their successors shall then begin.”

Plot to Oppose by Force the 2020 Lawful Transfer of Presidential Power

2. The 2020 United States Presidential Election (“Presidential Election”) occurred on

 November 3, 2020. As of November 7, 2020, the incumbent President Donald J. Trump was

projected to have lost the Presidential Election.

3. After the Presidential Election, ELMER STEWART RHODES conspired with his co-defendants, introduced below, and other co-conspirators, known and unknown to the Grand Jury, to oppose by force the lawful transfer of presidential power. RHODES, a resident of Granbury, Texas, was the founder and leader of the Oath Keepers, a large but loosely organized [collection of individuals, some of whom are associated with militias. Some members of the Oath Keepers believe that the federal government has been coopted by a cabal of elites actively trying to strip American citizens of their rights. Though the Oath Keepers will accept anyone as members, they explicitly focus on recruiting current and former military, law enforcement, and first-responder personnel. The organization's name alludes to the oath sworn by members of the military and police to defend the Constitution “from all enemies, foreign and domestic.” On their website, the “Oath Keepers declare they will not obey unconstitutional orders.”

4. RHODES and certain co-conspirators, to include selected regional leaders, planned 1to stop the lawful transfer of presidential power by January 20, 2021, which included multiple ways to deploy force. They coordinated travel across the country to enter Washington, D.C., equipped themselves with a variety of weapons, donned combat and tactical gear, and were prepared to answer RHODES'S call to take up arms at RHODES'S direction. Some co­conspirators also amassed firearms on the outskirts of Washington, D.C., distributed them among “quick reaction force” (“QRF”) teams, and planned to use the firearms in support of their plot to stop the lawful transfer of presidential power.

Oath Keepers Attack the United States Capitol on January 6, 2021

5. Beginning in late December 2020, via encrypted and private communications applications, RHODES and various co-conspirators coordinated and planned to travel to ' Washington, D.C., on or around January 6, 2021, the date of the Certification of the Electoral College vote. RHODES and several co-conspirators made plans to bring weapons to the area to support the operation. The co-conspirators then traveled across the country to the Washington, D.C., metropolitan area in early January 2021.

6. On January 6, 2021, the Joint Session convened at the Capitol building for the Certification of the Electoral College vote.

7. A large crowd began to gather outside the Capitol perimeter as the Joint Session got underway at 1:00 p.m. Crowd members eventually forced their way through, up, and over United States Capitol Police barricades and advanced to the building's exterior fa9ade. Shortly after 2:00 p.m., crowd members forced entry into the Capitol by breaking windows, ramming open doors, and assaulting Capitol Police and other law enforcement officers.

8.Around that time, RHODES entered the restricted area of the Capitol grounds and directed his followers to meet him at the Capitol.

9. Around 2:30 p.m., KELLY MEGGS, KENNETH HARRELSON, JESSCA WATKINS, JOSEPH HACKETT, DAVD MOERSCHEL, and other Oath Keepers members and affiliates—many of whom were wearing paramilitary clothing and patches with the Oath Keepers name, logo, and insignia-marched in a “stack” formation (“Stack One”) up the east steps of the Capitol to the area outside of the Capitol Rotunda Doors. At the time, the doors were closed and guarded by Capitol Police officers. Stack One joined a mob of people, some of whom attacked officers and tried to enter the Capitol while yelling, among other things, “Take their shields” and “Our house” Attackers assaulted officers using pepper spray, flagpoles, and numerous improvised weapons and projectiles. They also disarmed the officers by stealing their shields and pushing them away from the Rotunda Doors. At 2:38 p.m., the doors were breached, and Stack One stormed into the Capitol alongside the mob. During the attack on the Capitol, the Rotunda Doors and surrounding facade suffered damage worth thousands of dollars.

10. Once inside the Capitol, Stack One entered the Rotunda and then split up. Half of Stack One tried to push their way through a line of law enforcement officers guarding a hallway that led to the Senate Chamber. Law enforcement officers forcibly repelled their advance. The participants in this half of Stack One regrouped in the Rotunda and then left the building. The other half of Stack One headed toward the House of Representatives, in search of Speaker of the House Nancy Pelosi. They did not find Speaker Pelosi and ultimately left the building.

11. Later, another group of Oath Keepers and associates, including JOSHUA JAMES, ROBERTO MINUTA, and BRJAN ULRJCH, formed a second “stack” (“Stack Two”) and

breached the Capitol grounds, marching from the west side to the east side of the Capitol building land up the east stairs. At around 3:15 p.m., JAMES and MINUTA breached the same Rotunda doors that Stack One previously entered, and ULRJCH followed shortly thereafter. Once inside, JAMES and MINUTA forced their way past law enforcement officers trying to guard the Rotunda. JAMES and MINUTA started shouting at officers to “get out” of” my Capitol.” JAMES violently pulled at and pushed his way past officers, forcing officers to deploy chemical spray in an effort to stop JAMES, MINUTA, and others from progressing into the Rotunda.

12. While certain Oath Keepers members and affiliates inside of Washington, D.C., breached the Capitol grounds and building, others remained stationed just outside of the city in QRF teams. The QRF teams were prepared to rapidly transport firearms and other weapons into Washington, D.C., in support of operations aimed at using force to stop the lawful transfer of presidential power. The QRF teams were coordinated, in part, by THOMAS CALDWELL and EDWARD VALLEJO.

RHODES'S Co-Conspirators

13. The Oath Keepers members and affiliates who conspired with RHODES included the defendants listed below and others:

Stack One

1. KELLY MEGGS was a resident of Dunnellon, Florida, who was the head of the Florida chapter of the Oath Keepers and used the monikers “Gator 1” and “OK Gator 1,” and led Stack One into the Capitol on January 6, 2021;
2. KENNETH HARRELSON was a resident of Titusville, Florida, who assisted MEGGS in organizing the Florida Oath Keepers, used the moniker “Gator 6,” and served as the “Ground Team lead” for Stack One;
3. JESSCA WATKINS was a resident of Woodstock, Ohio, who led the Ohio team of Oath Keepers at the Capitol on January 6, 2021, and who used the monikers “Captain” and “Cap”;
4. JOSEPH HACKETT was a resident of Sarasota, Florida, who used the monikers “Ahab” and “Faith”; and
5. DAVID MOERSCHEL was a resident of Punta Gorda, Florida, who used the ‘moniker “Hatsy.”

Stack Two

1. JOSHUA JAMES wasa resident of Arab, Alabama, who used the moniker “Hydro,” and served as the leaderof Stack Two on January 6, 2021;
2. ROBERTO MINUTA was a resident of Hackettstown, New Jersey, who coordinated directly with RHODES and assisted JAMES in leading Stack Two on. January 6, 2021; and
3. BRAN ULRCH was a resident of Guyton, Georgia, who used the monikers “Molon Labe” and “Bilbo.”

Quick Reaction Force Leaders and Coordinators

1. THOMAS CALDWELL was a resident of Berryville, Virginia, who used the monikers “CAG,” “Spy,” and “CAG Spy”; and
2. EDWARD VALLEJO was a resident of Phoenix, Arizona.

COUNT ONE (18 u.s.c. § 2384)

(Seditious Conspiracy)

14. Paragraphs 1 through 13 of this indictment are re-alleged and incorporated as though set forth herein.

The Conspiracy

15. From in and around November 2020, through in and around January 2021, in the District of Columbia and elsewhere, the defendants,

ELMER STEWART RHODES,

KELLY MEGGS,

KENNETH HARRELSON,

JESSCA WATKINS,

JOSHUA JAMES,

ROBERTO MINUTA,

JOSEPH HACKETT,

DAVD MOERSCHEL,

BRAN ULRCH,

THOMAS CALDWELL, and

EDWARD VALLEJO,

did knowingly conspire, confederate, and agree, with other persons known and unknown to the

Grand Jury, by force to prevent, hinder, and delay the execution of any law of the United States.

Purpose of the Conspiracy

16. The purpose of the conspiracy was to oppose the lawful transfer of presidential

power by force, by preventing, hindering, or delaying by force the execution of the laws governing the transfer of power, including the Twelfth and Twentieth Amendments to the Constitution and Title 3, Section 15 of the United States Code.

Manner and Means

17.The conspirators carried out the conspiracy through the following manner and means, among others:

1. Preparing for and coordinating travel to Washington, D.C., to use force to stop the lawful transfer of presidential power;
2. Organizing into teams that were prepared and willing to use force and to transport firearms and ammunition into Washington, D.C.;
3. Recruiting members and affiliates to participate in the conspiracy;
4. Organizing trainings to teach and learn paramilitary combat tactics;
5. Bringing and contributing firearms, ammunition, and related equipment to the QRF staging areas outside Washington, D.C.;
6. Bringing and contributing paramilitary gear, weapons, and supplies-including knives, batons, camouflaged combat uniforms, tactical vests with plates, helmets, eye protection, and radio equipment-to the Capitol grounds;
7. Breaching and attempting to take control of the Capitol grounds and building on January 6, 2021, in an effort to prevent, hinder, and delay the Certification of the Electoral College vote;
8. Using force against law enforcement officers while inside the Capitol on January 6, 2021;
9. Continuing to plot, after January 6, 2021, to oppose by force the lawful transfer of presidential power; and
10. Using websites, social media, text messaging, and encrypted messaging applications to communicate with co-conspirators and others.

Acts in Furtherance of the Conspiracy November 2020

18. Beginning in November 2020, RHODES began disseminating messages on

 encrypted applications that encouraged his co-conspirators to oppose by force the lawful transfer of presidential power. For example:

1. On November 5, 2020-two days after the Presidential Election-RHODES sent a message to an invitation-only, end-to-end encrypted group chat on the application Signal, titled, “Leadership intel sharing secured” (“Leadership Intel Chat”), which, at that point, included MEGGS and others. n his message, RHODES urged his followers to refuse to accept the election result and stated: “We aren't getting through this without a civil war. Too late for that. Prepare your mind, body, spirit.”
2. On November 7, 2020-the date that President Trump was projected to have lost the Presidential Election-RHODES wrote to the Leadership Intel Chat: “[W]e must now do what the people of Serbia did when Milosevic stole their election. - Refuse to accept it and march en-mass on the nation's Capitol.” He then sent a link to a Bitchute.com video titled “STEP BY STEP PROCEDURE, HOW WE WON WHEN MLOSEVC STOLE OUR ELECTONS.” RHODES continued:

I am in direct context with the Serbian author of that video. His videos are excellent. Here is his written advice to us:

“- Peaceful protests, good, well played round 1

- A complete civil disobedience, they are not your representatives. They are FOREGN puppet government.

- Connect with the local police and start organize by neighborhoods to stay safe (we didn't need this step)

- We swanned the streets and started confronting the opponents. know, not nice, but it must be done if the institutions stop to exist

- Millions gathered in our capital. There were no barricades strong enough to stop them, nor the police determined enough to stop them

- Police and Military aligned with the people after few hours of fist­ fight

- We stormed the Parliament

- And burned down fake state Television!

WE WON”

Later, on November 10, 2020, RHODES publicly published this plan of action under the headline “WHAT WE THE PEOPLE MUST DO” on the Oath Keepers website in a “Call to Action”

19. On November 9, 2020, RHODES held a private GoToMeeting-an online meeting site that allows users to host conference calls and video conferences via the Internet-limited to Oath Keepers members, titled, “Oath Keepers National Call - Members Only,” which was

attended by MEGGS, HARRELSON, WATKINS, HACKETT, and others, including a person whom RHODES appointed as the operation leader for January 6, 2021. During the meeting,

RHODES outlined a plan to stop the lawful transfer of presidential power, including preparations for the use of force, and urged those listening to participate.

20. Immediately after that meeting, MEGGS sent a message to an invitation-only Signal group chat titled, “OKFL Hangout” (“OKFL Hangout Chat”)-including HARRELSON, HACKETT, MOERSCHEL, and others-stating, “Anybody not on the call tonight. We have been issued a call to action for DC. This is the moment we signed up for”). WATKINS also sent messages to several people whom she referred to in her phone as “recruits,” informing them about a “military style basic” training class her militia was organizing for the beginning of January 2021 to get these recruits “fighting fit by inauguration.”

21. On November 9, 2020, CALDWELL reached out to RHODES to provide the results of a lengthy “recce” [reconnaissance] trip he had taken into Washington, D.C., and to coordinate planning with RHODES for an upcoming “op” in Washington, D.C.

22. On November 22, 2020, the Florida chapter of the Oath Keepers-including MEGGS, HARRELSON, HACKETT, and others-held a training on “unconventional warfare.”

December 2020

23. On December 11, 2020, RHODES sent a message to an invitation-only Signal

group chat titled, “Dec 12 DC Security/Leadership,” which included JAMES, MINUTA, and others. RHODES stated that if President-Elect Biden were to assume the presidency, “It will be a

bloody and desperate fight. We are going to have a fight. That can’t be avoided.”

24. On December 12, 2020, the North Carolina chapter of the Oath Keepers held a training session that, according to the leader of the chapter, would be focused on:

vehicle operations, road blocks, vehicle recovery, convoy operations, ... setting up hasty ambushes,, and reacting to ambushes, but the first thing we are going to do is fall into a formation when we assemble.... WATKINS planned to, but did not, attend that training.

25. On December 14, 2020—the same day that presidential electors from each state

land the District of Columbia cast their votes in the Presidential Election—RHODES published a letter on the Oath Keepers website advocating for the use of force to stop the lawful transfer of

presidential power.

26. The same day, RHODES sent a similar message to an invitation-only Signal group chat titled, “Oath Keepers of Georgia.” ULRCH responded, “Well I'm not a soldier but I'm focused and stayed at a holiday inn once so it's game on time”

27.On December 19, 2020, HACKETT sent an email to another member of Stack One with the subject line, “test.” n the email, HACKETT wrote, “ believe we only need to do this

when important info is at hand like locations, identities, Ops planning.” Attached to the email was a photograph that showed cursive handwriting on a lined notepad that stated, “Secure Comms Test.

Good talk tonight guys Rally Point in Northern Port Charlotte at Grays if transportation is possible. All proton mails. May consider an RP that won't burn anyone. Comms - work in progress. Messages in cursive to eliminate digital reads. Plans for recruitment and meetings.”

28.Also on December 19, 2020, MINUTA messaged another individual, “Oath 'Keepers president is pretty disheartened. He feels like it's go time, the time for peaceful protest is 1over in his eyes. was talking with him last night.”

29.On December 21, 2020, JAMES posted a message to the Leadership Intel Chat,which at that point included MEGGS, JAMES, WATKINS, and others, stating, “SE Region is

creating a NATONAL CALL TO ACTON FOR DC JAN 6TH.... 4 states are mobilizing[.]”

When he did not receive an immediate response, JAMES posted, “DD NO ONE HEAR ME 3 STATES ARE MOBLZNG TO DC Everyone in this channel should understand the

magnitude i just sent”.

30.On December 22, 2020, in an interview with a regional Oath Keepers leader,

RHODES stated that if President-Elect Biden were able to assume the presidency, “We will have

to do a bloody, massively bloody revolution against them. That's what's going to have to happen.”

He urged President Trump to use military force to stop the lawful transfer of presidential power, describing January 6, 2021, as “a hard constitutional deadline” to do so.

31. On December 23, 2020, RHODES published another open letter on the Oath

Keepers website. RHODES explained, “tens of thousands of patriot Americans, both veterans and non-veterans, will already be in Washington D.C., and many ofus will have our mission-critical gear stowed nearby just outside D.C.” RHODES stated in the open letter that he and others may have to “take to arms in defense of our God given liberty.”

32. On December 23, 2020, JAMES sent RHODES'S letter to a co-conspirator and told lhim the letter was required reading.

33. RHODES continued advocating for the use of force to stop the lawful transfer of

 presidential power with MEGGS, HARRELSON, HACKETT, MOERSCHEL, and others in the OKFL Hangout Chat. 34.On December 25, 2020, MEGGS messaged the OKFL Hangout Chat, in reference to the Joint Session, “We need to make those senators very uncomfortable with all of us being a few hundred feet away.” RHODES then wrote, “ think Congress will screw him [President Trump] over. The only chance we/he has is ifwe scare the shit out of them and convince them it will be torches and pitchforks time is they don't do the right thing.

But don't think they will sten.”

35. On December 26, 2020, a member of Stack One attempted to arrange a training class and wrote an email to a Florida company that conducts training on firearms and combat. The Stack One member wrote, in part, “ trained with you not long ago. Since then have joined Oath

Keepers. recommended your training to the team. To that effect, four ofus would like to train

with you, specifically in your UTM rifle class.”

36. On December 29, 2020, WATKINS texted a co-conspirator, “We plan on going to DC on the 6th[.]”

37. On December 30, 2020, RHODES purchased two night-vision devices and one

weapon sight for approximately $7,000 and shipped the items to another individual in Virginia,

near Washington, D.C., where they arrived on January 4, 2021.

38. Starting on December 30, 2020, RHODES administered an invitation-only Signal group chat titled, “DC OP: Jan 6 21” (“Leadership Signal Chat”).MEGGS, HARRELSON,

WATKINS, JAMES, MINUTA, HACKETT, ULRCH, VALLEJO, and others were invited to

 and joined the Leadership Signal Chat.

39. Later, MEGGS, HARRELSON, WATKINS, HACKETT, MOERSCHEL, and

Others joined an invitation-only Signal group chat titled, “OK FL DC OP Jan 6” (“Florida Signal

 Chat”). MEGGS and HARRELSON were the administrators of the Florida Signal Chat.

40.RHODES and his co-conspirators used the Leadership Intel Chat and other Signal group chats to plan for January 6, 2021. On December 31, 2020, at approximately 10:08 p.m.,

RHODES wrote to the Leadership Intel Chat, “There is no standard political or legal way out of this.”

41. On December 31, 2020, ULRCH sent messages to the Leadership Signal Chat relating to firearms: “Someone can tell me if I'm crazy but I'm planning on having a backpack for regular use and then a separate backpack with my ammo load out with some basics that can just

switch too is shit truly the fan blades....” ULRCH added, “ will be the guy running around with the budget AR.”

42. On December 31, 2020, MEGGS sent Facebook messages to another person who intended to travel to Washington, D.C., on January 6, 2021: “You guys Gonna carry?” and “Ok we aren't either, we have a heavy QRF 10 Min out though.”

43. On December 31, 2020, JAMES received a Signal message from another person, which stated, “i have friends not far from DC with a lot of weapons and ammo if you get un trouble i ca. Coordinate help.” JAMES responded, “That might be helpful, but we have a shitload of QRF on standby with an arsenal.”

44. On December 31, 2020, an Arizona QRF team member messaged RHODES on

Signal that the team member, VALLEJO, and others were coming to Washington, D.C., and that “everyone coming has their own technical equipment and knows how to use it,” adding a “winky face” emoji. RHODES responded, “awesome” The Arizona QRF team member also said that the group would have “rifles” and “man power.”

45. In late December, CALDWELL identified the Comfort Inn Ballston, in Arlington,

Virginia, as the location that the QRF would use as its base of operations for January 6, 2021. i CALDWELL shared the location of the hotel with WATKINS and the QRF team leader for the

North Carolina Oath Keepers group that traveled to Washington, D.C., for January 6, 2021. The

North Carolina QRF team leader reserved three rooms and paid for one of the rooms; MEGGS paid for the other two rooms. One room was occupied by the North Carolina QRF team; the second room was occupied by the Arizona QRF team, including VALLEJO; the third room was occupied by the Florida QRF team. These QRF teams used the rooms to store and guard the firearms that they and other co-conspirators contributed to the QRF.

January 2021

46. On January 1, 2021, ULRCH messaged JAMES on Signal, “Hey we told to bring guns and maybe stage them in VA?? But you are showing hotels in DC for Alabama. Are we bring guns or no if so how will that work?” JAMES responded, “Were working on a Farm location Some are bringing long rifles some sidearms...I’m bringing sidearm.”

47. On January 1 and 2, 2021, RHODES spent approximately $5,000 on firearms and

1related equipment, including a shotgun, scope, magazines, sights, optics, a bipod, a mount, a case of ammunition, and gun-cleaning supplies.

48. On January 2, 2021, WATKINS messaged the Leadership Signal Chat about assigning roles to individuals on her team, including operating HAM radios.

49. On the morning of January 2, 2021, MEGGS messaged the Leadership Signal Chat,

“Good call last night. Lots covered, 'll get with NC team today and find out QRF location[.]”

50. On January 2, 2021, RHODES messaged MEGGS on Signal, “f you want to stow

weapons with [the operation leader] you can. He'll have a secure car trunk or his hotel room (or

mine).” MEGGS responded, “Last night call ... we discussed a QRF RP so we may do that. As well as the NC team has a hotel room close by.” RHODES messaged, “Ok. We WLL have a

QRF. this situation calls for it.”

51. On January 2, 2021, CALDWELL received a message from the North Carolina QRF team leader, stating “FLA. 2 men back[.] 12 to 15 going in DC.” 52.On the evening of January 2, 2021, MEGGS posted a map of Washington, D.C., in the Leadership Signal Chat, along with the message, “1 if by land[,] North side of Lincoln Memorial[,] 2 if by Sea[,] Comer of west basin and Ohio is a water transport landing “ MEGGS continued, “QRF rally points[.] Water of the bridges get closed.” n response, the North Carolina QRF team leader wrote, “My sources DC working on procuring Boat transportation as we speak.”

53. On January 2, 2021, CALDWELL sent messages to his contacts about seeking

 boats in support of the QRF. n one message, CALDWELL said:

Can't believe just thought of this: how many people either in the militia or not (who are still supportive of our efforts to save the Republic) have a boat on a trailer that coud handle a Potomac crossing? f we had someone standing by at a dock ramp (one near the Pentagon for sure) we could have our Quick Response Team with the heavy weapons standing by, quickly load them and ferry them across the river to our waiting arms ... if it all went to shit, our guy loads our weps AND Blue Ridge Militia weps and ferries them across.

54.On January 3, 2021, MEGGS added BAR.RELSON to the Leadership Signal Chat

and wrote that HARRELSON would serve as the “Ground Team lead.”

55.On January 3, 2021, WATKINS and a co-conspirator discussed uniforms and weapons:

WATKINS: We are not bringing firearms. QRF will be our Law Enforcement members of Oathkeepers.

Co-Conspirator: Good to know.

WATKINS: Pack Khaki/Tan pants. Weapons are ok now as well. Sorry for the confusion. We are packing the car and heading your way shortly

Co-Conspirator: We don't have any khakis We have jeans and our b d u' s So can bring my gun?

56. On January 3, 2021, MEGGS messaged the Leadership Signal Chat, “Ammo situation: Are we bringing or are we set at QRF? Mean I’m always gonna have a couple hundred. But if SHTF we got ample availability.” The same day, MEGGS messaged the Florida Signal Chat, “Ammo situation. am checking on as far as what they will have for us if SHTF. I'm gonna have a few thousand just in case. If you've got it doesn't hurt to have it. No one ever said[,] shit brought too much.”

57. On January 3, 2021, RHODES departed Granbury, Texas, and began traveling to the Washington, D.C., metropolitan area. While traveling, RHODES spent approximately $6,000 in Texas on an AR-platform rifle and firearms equipment, including sights, mounts, triggers, slings, and additional firearms attachments.

58. On January 4, 2021, WATKINS asked the Florida Signal Chat, “Where can we drop off weapons to the QRF team? I'd like to have the weapons secured prior to the Op tomorrow.”

59. On January 4, 2021, VALLEJO messaged MEGGS, “Sir, Ed Vallejo of Arizona in Tenn. With cadre requesting coordinates to Allied encampment outside DC boundaries to rendezvous. Please respond ASAP. For the Republic.”

60. On January 4, 2021, CALDWELL sent an email to the North Carolina QRF team

leader with the subject line, “NEW MAPS RELATVE TO HOTEL AND NGRESS FOR QRF,” and attached several maps as image files.

61. On January 4, 2021, while still traveling toward the Washington, D.C., metropolitan area, RHODES spent approximately $4,500 in Mississippi on firearms equipment, including sights, mounts, an optic plate, a magazine, and various firearms parts.

62.Between January 1 and 5, 2021, RHODES, MEGGS, HARRELSON, WATKINS, JAMES, HACKETT, MOERSCHEL, ULRCH, VALLEJO, and other co-conspirators transported

firearms, ammunition, and related items to the Washington, D.C., metropolitan area.

63.On January 5, 2021, HARRELSON messaged the Florida Signal Chat and asked

for the location of the “QRF hotel,” and MEGGS responded by asking for a direct message.

64.On January 5, 2021, VALLEJO text messaged MEGGS, “Sir, this is Ed Vallejo.

We must have copied your number incorrectly as we never received response to our text requesting campground address. We made it as far as Wytheville VA & had to get a room. Please text location so we will know where to begin in the morning. Thank you kindly.” MEGGS responded with a text message providing the address of the Comfort Inn Ballston.

65. On January 5, 2021, as MEGGS and co-conspirators were unloading their weapons,

he messaged RHODES, “Yes we are just outside of town unloading at QRF on our way in. Left

 [the North Carolina Oath Keepers leader's] place at 4:30am[.]”

66. On January 5, 2021, CALDWELL, using Google Maps on his mobile device, mapped a route between the Capitol building and an address one block from the Comfort Inn Ballston.

67. On January 5, 2021, CALDWELL and others drove into Washington, D.C., around

the Capitol, and back to their hotel in Virginia. CA DWELL described the trip as “recce,” or a

reconnaissance mission.

68. On January 5, 2021, JAMES dropped off firearms and ammunition that he,

ULRCH, and other co-conspirators had transported to the Hilton Garden nn in Vienna, Virginia,

where RHODES, JAMES, MINUTA, and others were staying.

69.On January 5, 2021, MEGGS, HARRELSON, HACKETT, MOERSCHEL, CALDWELL, and others provided the QRF, including VALLEJO, with firearms, ammunition, and related items.

January 6, 2021

1. The Co-Conspirators Communicate and Prepare to Head to the Capitol

70. On the morning of January 6, 2021, at approximately 6:27 a.m., RHODES 1 messaged the Leadership Signal Chat; “We will have several well equipped QRFs outside DC. And there are many, many others, from other groups, who will be watching and waiting on the outside in case of worst case scenarios.” At approximately 8:30 a.m., RHODES, the operation leader, and others departed a hotel in Virginia for Washington, D.C., and drove to the Capitol area.

71. VALLEJO and others were on standby at the Comfort in Ballston, monitoring communications from the co-conspirators on the ground inside Washington, D.C., and awaiting a call to bring the weapons to the co-conspirators. On a podcast that morning, VALLEJO and an

Arizona QRF team member discussed the possibility of “armed conflict” and “guerilla war” and explained that “there are people who are prepared, have the will, have the facilities to do more than taunt.”

72. CALDWELL and others also marched to the Capitol, ultimately to the west side.

73. HARRELSON and another member of Stack One went to the Capitol in advance of the rest of Stack One.

74. Other members of Stack One-including MEGGS, WATKINS, HACKETT, MOERSCHEL, and others-equipped themselves with communication devices and reinforced vests, helmets, goggles, and other tactical gear. Then they marched to the Capitol, ultimately to the east side.

75. Stack Two-consisting of JAMES, MINUTA, ULRCH, and others-equipped themselves with battle apparel and gear, including hard-knuckle tactical gloves, tactical vests, ballistic goggles, radios, chemical sprays, a paracord attachment, fatigues, goggles, scissors, a large stick, and one of the Stack Two member's 82-pound German Shepherd named “Warrior.” Stack Two sped to the area near the Capitol on golf carts and then marched onto the Capitol grounds, ultimately to the east side.

76. The co-conspirators and others communicated on the Leadership Signal Chat and via other means.

1. RHODES, Stack One, and Others Breach the Capitol Grounds and Building

77. Just before 1:30 p.m., on the Leadership Intel Chat, in response to a claim by an

Oath Keepers affiliate that Antifa had breached the Capitol, RHODES replied, “Nope. I’m right here. These are Patriots.” RHODES then messaged the Leadership Signal Chat, “Pence is doing

1nothing. As predicted.” RHODES added, “All see Trump doing is complaining. see no intent

by him to do anything. So the patriots are taking it into their own hands. They've had enough.”

78. At approximately 1:30 p.m., Oath Keepers affiliates on the Leadership Intel Chat posted messages about police officers deploying pepper spray at the Capitol and questioned what

the rioters hoped would happen if they got inside the Capitol. A person with RHODES at the time responded, “We are acting like the founding fathers - can't stand down. Per Stewart and concur[.]” RHODES followed:

Hey, the founding generation stormed the governors mansion in MA and tarred and feathered his tax collectors. And they seized and dumped tea in water.

They didn't fire on them, but they street fought. That's where we are now. Next comes our “Lexington”.

It's coming.

79. Shortly before 2:00 p.m., on an invitation-only Signal group chat titled, “Jan 5/6 DC Op Intel team”—which included RHODES, JAMES, and others—a participant posted a link to a video titled “live stream of patriots storming capital.” Another participant asked, “Are they actually Patriots—not those who were going to go in disguise as Patriots and cause trouble[?]” RHODES responded, “Actual Patriots. Pissed off patriots[.] Like the Sons of Liberty were pissed off patriots[.]” JAMES followed with, “Were coming to Capitol ETA 30 MN[.]”

80. Around this same time, while MEGGS, WATKINS, HACKETT, MOERSCHEL, and others were marching toward the Capitol, WATKINS made an announcement on the “Stop the Steal J6” channel on Zella, an application that emulates push-to-talk walkie-talkies over cellular telephone networks: “t has spread like wildfire that Pence has betrayed us, and everybody's marching on the Capitol ... We have about 30-40 of us. We are sticking together and sticking to the plan.”

81. At 2:00 p.m., WATKINS stated on the “Stop the Steal J6” Zella channel, “Y'all,

we're one block away from the Capitol right now. I’m probably gonna go silent when we get there, because I'm gonna be a little busy.”

82. Shortly after 2:00 p.m., HARRELSON and a co-conspirator joined the mob that first breached the barricades on the east side of the Capitol and rushed toward the steps that lead up to the east side Rotunda Doors. The co-conspirator with HARRELSON maneuvered his way

to the front of the crowd and pulled on the arm of one of the Capitol Police officers who had reassembled a police line on the steps to try to keep the crowd at bay. The officer pushed the co-conspirator away. HARRELSON and the co-conspirator remained on the steps as the crowd

pushed the police line further back up the steps toward the east side Rotunda Doors. 83.At around 2:12 p.m., RHODES entered the restricted Capitol grounds on the northeast side of the Capitol.

84. At 2:14 p.m., the operation leader for January 6, 2021, wrote to the Leadership

85. At 2:21 p.m., MEGGS, WATKINS, HACKETT, MOERSCHEL, and others

unlawfully entered the restricted Capitol grounds. Shortly thereafter, the group paused and gathered in a circle.

86. At 2:24 p.m., while staged at the Comfort Inn Ballston, VALLEJO messaged the

Leadership Signal Chat, “Vallejo back at hotel and outfitted. Have 2 trucks available. Let me know how can assist.”

87. At 2:24 p.m., RHODES called MEGGS, but the call went to voicemail.

88. At 2:24 p.m., RHODES sent MEGGS a message stating, “Go to SOUTH side of US Capitol,” followed by another message stating, “That's where am going. To link up with [the operation leader].”

89. At 2:25 p.m., RHODES forwarded the operation leader's message (“The have taken

ground at the capital[.]We need to regroup any members who are not on mission.”) to the Leadership Signal Chat and instructed his co-conspirators: “Come to South Side of Capitol on

steps” and then sent a photograph showing his location on the east side of the Capitol.

90. Shortly thereafter, MEGGS, WATKINS, HACKETT, MOERSCHEL, and others

continued walking northbound along the exterior of the Capitol and then entered the plaza in front of the east side of the Capitol.

91. At 2:32 p.m., MEGGS, WATKINS, HACKETT, MOERSCHEL, and others stood in a group on the east plaza in front of the Capitol.

92. At 2:32 p.m., MEGGS placed a phone call to RHODES, who was already on the iphone with the operation leader. RHODES conferenced MEGGS into the call.

93. At 2:35 p.m., MEGGS, WATKINS, HACKETT, MOERSCHEL, and others joined together to form Stack One and maneuvered in an organized fashion up the steps to the east side Rotunda Doors-each member keeping at least one hand on the shoulder of the other in front of them.

94. HARRELSON joined Stack One when it reached the top of the steps.

95. At the top of the steps, Stack One pushed forward as part of a mob that aggressively advanced toward the Rotunda Doors, assaulted the law enforcement officers guarding the doors, threw objects and sprayed chemicals toward the officers and the doors, and pulled violently on the doors.

96. At 2:38 p.m., VALLEJO messaged the Leadership Signal Chat, “QRF standing by at hotel. Just say the word... “

97. At 2:39 p.m., a member of Stack One joined the crowd in forcibly pushing against one of the Rotunda Doors and the law enforcement officers guarding that door. The mob then breached the doors and the Stack One member entered the building.

98. Shortly after the mob breached the Rotunda Doors, MEGGS, HARRELSON, WATKINS, HACKETT, MOERSCHEL, and others forced their way through the doors into the Capitol.

99. As they entered the Capitol, MEGGS, HARRELSON, WATKINS, HACKETT, MOERSCHEL, and others joined the larger mob in pushing past at least one law enforcement [officer who was trying to stop the attack on the Capitol.

100. After penetrating the Capitol, MEGGS, HARRELSON, WATKINS, HACKETT, MOERSCHEL, and others moved into the Rotunda.

101. As they navigated through the Rotunda, MEGGS, HARRELSON, WATKINS, HACKETT, MOERSCHEL, and others remained in stack formation by keeping their hands on each other's backs.

102. At 2:44 p.m., WATKINS stated on the “Stop the Steal J6” Zella channel, “We are in the mezzanine. We are in the main dome right now. We are rocking it. They are throwing grenades, they are fricking shooting people with paint balls. But we are in here.” In response, another member of the channel said, “Get it, Jess. Do your fucking thing. This is what we fucking [unintelligible] up for. Everything we fucking trained for.”

103. Shortly thereafter, WATKINS and other members of Stack One exited the Rotunda through the northbound hallway toward the Senate Chamber.

104. Around this time, a member of Stack One yelled “the fight's not over” and waved rioters down the hallways toward the Senate Chamber.

105. At 2:45 p.m. and afterward, WATKINS and other Stack One members joined the mob in pushing against a line of law enforcement officers guarding the hallway connecting the Rotunda to the Senate Chamber, as WATKINS commanded those around her to “push, push, push,” and to, “get in there, get in there,” while exclaiming, “they can't hold us.” When officers responded by deploying a chemical spray, the mob—including WATKINS and other Stack One members—retreated.

106. At 2:45 p.m., MEGGS, HARRELSON, HACKETT, MOERSCHEL, and other Stack One members walked southbound out of the Rotunda and toward the House of Representatives in search of Speaker Pelosi. They did not find Speaker Pelosi.

107. Meanwhile, CALDWELL, who was positioned on the west side of the Capitol, joined ‘with others in storming past barricades and climbing stairs up to a balcony in the restricted area on the west side of the Capitol building.

108. At 3:09 p.m., another individual messaged the Leadership Signal Chat that the “news is reporting Congress given gas masks and are trying to get out.” RHODES responded, “fuck em,” before posting a photograph of people storming the Capitol.

1. Stack Two and Others Breach the Capitol Building

109. Between 2:00 p.m. and 2:30 p.m., JAMES, MINUTA, ULRCH, and others discussed the fact that individuals had breached the Capitol. MINUTA stated words to the effect of, ''Now we're talking, that's what came up here for” JAMES then instructed the group to get their gear and get ready to head to the Capitol. The group departed their hotel and headed toward the Capitol.

110. Between 2:30 p.m. and 2:33 p.m., JAMES, MINUTA, ULRCH, and others rode in golf carts toward the Capitol, at times swerving around law enforcement vehicles, with MINUTA live-streaming their conduct over Facebook and stating:

Patriots are storming the Capitol building; there's violence against patriots by the D.C. Police; so we're en route in a grand theft auto golf cart to the Capitol building right now ... it's going down, guys; it's literally going down right now Patriots storming the Capitol building ... fucking war in the streets right now ... word is they got in the building ... let's go.

111. At 2:33 p.m., JAMES, MINUTA, ULRCH, and others parked the golf carts near the Capitol.

112. At 2:33 p.m., JAMES placed a phone call to the operation leader for January 6, 2021.

113. JAMES, MINUTA, ULRCH, and others then marched toward the Capitol and entered the restricted areas of the Capitol grounds.

114. When they arrived on the Capitol grounds, JAMES, MINUTA, ULRCH, and others joined together to form Stack Two and maneuvered their way through the crowd by keeping their hands on each other's shoulders or gear, eventually moving around the Capitol building and toward the east side.

115. MINUTA—with JAMES, ULRCH, and the other members of Stack Two standing nearby—aggressively berated and taunted law enforcement officers who were guarding the perimeter of the Capitol building and threatened the officers that they were outnumbered.

116. Shortly after 3:00 p.m., JAMES told Stack Two members something to the effect of “they're going in over there, let's go Let's get up there!” JAMES then led MINUTA, ULRCH, and the other members of Stack Two up the central steps on the east side of the Capitol.

117. At 3:15 p.m., JAMES, MINUTA, and one other member of Stack Two forcibly entered the Capitol building through the same east side Rotunda Doors that Stack One entered about 35 minutes earlier. Before entering, JAMES stated, “We're going in,” and MINUTA responded, “Hell yeah” When he entered the Capitol, MINUTA was still armed with the chemical spray and other tactical gear.

118. While entering the Capitol building, JAMES and MINUTA pushed past Capitol Police officers who placed their hands on JAMES and MINUTA in unsuccessful attempts to stop them from advancing toward the Rotunda.

119. At 3:17 p.m., upon reaching the Rotunda, JAMES and MINUTA joined alongside others in a mob confronting and jostling with a line of law enforcement officers, which formed a barrier between the lobby and the Rotunda. MINUTA, standing behind JAMES and recording the events with a camera, began yelling, “This is what's bound to happen, just get out Get out Get these cops out t's our fucking building Get 'em out, get out” JAMES grabbed the vest of J.M., a Metropolitan Police Department Officer engaged in the performance of his official duties, and JAMES pulled J.M. toward the mob. Other officers behind J.M. grabbed J.M.'s vest and pulled

him back into the line of officers. While pulling J.M., JAMES yelled, “Get out of my Capitol Get out Get out of my Capitol” JAMES fell backward and then jumped and pushed forward to the officers repeatedly, continuing to yell “This is my fucking building This is not yours This is my Capitol” Other members of the mob, including MINUTA, began pushing JAMES forward into the Rotunda while JAMES yelled, “Keep going!”

120. JAMES and MINUTA briefly breached the Rotunda. JAMES was expelled by at least one officer who aimed chemical spray directly at JAMES, and multiple officers who pushed him out from behind.

121. At 3:19 p.m., while exiting the Capitol through the same east side Rotunda Doors that he had previously entered, MINUTA yelled at a law enforcement officer.

122. At 3:21 p.m., ULRCH and other members of Stack Two entered the east side Rotunda Doors.

1. Co-Conspirators Meet Immediately After Breaching the Capitol

123. At 3:30 p.m., RHODES messaged the Leadership Signal Chat, “Anyone in DC who is not tasked with a security detail, come [t]o US Capitol on the Supreme Court side. Come to Capitol on the NE comer.”

124. After exiting the Capitol, MEGGS, HARRELSON, WATKINS, JAMES, MINUTA, HACKETT, MOERSCHEL, ULRCH, and others gathered with RHODES just outside

1. Co-Conspirators Continue Plotting After the January 6 Attack on the Capitol

125. That evening, RHODES, JAMES, VALLEJO, and others met at a restaurant in Vienna, Virginia, to celebrate their attack on the Capitol and discuss next steps.

126. Throughout the evening of January 6, 2021, the co-conspirators discussed the need to continue fighting to stop the lawful transfer of presidential power:
127. At 7:30 p.m., RHODES messaged the Leadership Signal Chat, “Thousands of ticked off patriots spontaneously marched on the Capitol ... You ain't seen nothing yet.”
128. VALLEJO messaged the Leadership Signal Chat, “We'll be back to 6am to do it again. We got food for 30 days.” He added, “We have only [begun] to fight” and “'After Action Reports' will be dated 1/21/21.”
129. MEGGS added on the Leadership Signal Chat, “We aren't quitting We are reloading”
130. RHODES explained that “Patriots entering their own Capitol to send a message to the traitors is NOTHNG compared to what's coming.”

127. On January 7, 2021, at 5:46 a.m., VALLEJO messaged the Leadership Signal Chat, “We are going to probe their defense line right now 6 am they should let us in. We'll see.” At 15:54 a.m., he stated, “Departing for Recon now. Stewart call me when you're up.” About ten

1minutes later, VALLEJO continued, “'ll depart when cleared by my Commander Sir. Be well, and peace be with you.”

128. On January 11, 2021, WATKINS exchanged the following Facebook message with i a co-conspirator:

Co-Conspirator: I’m with you Cap. Keep the faith. We will have our answers by the 20th.

WATKINS: We've been organizing a bugout plan if the usurper is installed... Something like 20+ Oathkeepers going to Kentucky mountains on hundreds of acres apparently ... Be like the NVA and network tunnels.

129. In the weeks after January 6, 2021, RHODES purchased a large volume of firearms and related equipment:
130. On January 10, 2021, RHODES spent approximately $6,000 on sights, bipods, a scope, mounts, backpacks, a gun grip, a magazine pouch, and other related items.
131. On January 11, 2021, RHODES spent over $1,500 on scopes, magazines, and other items.
132. On January 12, 2021, RHODES spent nearly $7,000 on hundreds of rounds of ammunition, duffel bags, magazines, rifle scopes, a scope mount, a gun light, and other items.
133. On January 13, 2021, RHODES spent approximately $1,000 on firearms parts.
134. From January 14 through 19, 2021, RHODES spent over $2,000 on firearms parts, mounts, magazines, a scope leveler, targets, ammunition, a gun case, holsters, and gun-maintenance equipment, among other items.

130. In the weeks after January 6, 2021, JAMES met with RHODES in Alabama, collected what he referred to as “all available firearms,” and traveled to Texas where he stayed with RHODES and others.

131. On January 10, 2021, JAMES sent MEGGS a message asking if MEGGS and other

Florida Oath Keepers were coming to Texas, and MEGGS responded, “Fl stays home until shots

Fired!” That same day, ULRCH messaged JAMES on Signal that he and RHODES should stay “below the radar.”

132. On January 12, 2021, while in Texas on the drive back to Arizona from the Washington, D.C., area, an Arizona QRF team member messaged RHODES, “Hi Stewart. I’m sure you're busy but wanted to let you know that [VALLEJO] and are here…. We are excited to learn next steps and would like to know what we should be doing right now.”

133. On inauguration Day, January 20, 2021, JAMES messaged another individual, “After this ... if nothing happens ... its war ... Civil War 2.0.”

134. Around this time, RHODES messaged others to organize local militias to oppose President Biden's Administration.

(In violation of Title 18, United States Code, Section 2384)

COUNT TWO

(18 U.S.C. § 1512(k)

(Conspiracy to Obstruct an Official Proceeding)

135. 
     Paragraphs 1 through 13 and 18 through 134ofthis Indictment are re-alleged and incorporated as though set forth herein.

136. From in and around December 2020, through in and around January 2021, in the District of Columbia and elsewhere, the defendants,

ELMER STEWART RHODES,

KELLY MEGGS,

KENNETH HARRELSON,

JESSCA WATKINS,

JOSHUA JAMES,

ROBERTO MINUTA,

JOSEPH HACKETT,

DAVD MOERSCHEL,

BRAN ULRCH,

THOMAS CALDWELL, and

EDWARD VALLEJO,

did knowingly combine, conspire, confederate, and agree with each other and other persons known and unknown to the Grand Jury, to corruptly obstruct, influence, and impede an official

[proceeding, that is, the Certification of the Electoral College vote, in violation of Title 18, United States Code, Section 1512(c)(2).

(In violation of Title 18, United States Code, Section 1512(k))

COUNT THREE

(18 U.S.C. § 1512(c)(2), 2)

(Obstruction of an Official Proceeding and Aiding and Abetting)

138. On or about January 6, 2021, in the District of Columbia and elsewhere, the defendants

ELMER STEWART RHODES,

KELLY MEGGS,

KENNETH HARRELSON,

JESSCA WATKINS,

JOSHUA JAMES,

ROBERTO MINUTA,

JOSEPH HACKETT,

DAVD MOERSCHEL,

BRAN ULRCH,

THOMAS CALDWELL, and

EDWARD VALLEJO,

attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that s, the Certification of the Electoral College vote, and did aid and abet other persons known and unknown to the Grand Jury to do the same.

(In violation of Title 18, United States Code, Sections 1512(c)(2), 2)

COUNT FOUR

(18 U.S.C. § 372)

(Conspiracy to Prevent an Officer from Discharging Any Duties)

138. On or about January 6, 2021, in the District of Columbia and elsewhere, the defendants

ELMER STEWART RHODES,

KELLY MEGGS,

KENNETH HARRELSON,

JESSCA WATKINS,

JOSHUA JAMES,

ROBERTO MINUTA,

JOSEPH HACKETT,

DAVD MOERSCHEL,

BRAN ULRCH,

THOMAS CALDWELL, and

EDWARD VALLEJO,

did knowingly conspire and agree together and with each other to prevent by force, intimidation, and threat, any person, that is, Members of the United States Congress, from discharging any dies of any office, trust, and place of confidence under the United States, and to induce by force, intimidation, and threat, any officer of the United States, that is, Members of the United States Congress, to leave the place where their duties as officers were required to be performed.

(In violation of Title 18, United States Code, Section 372)

[Counts 5 to 17 excluded.]

Ocasio v. United States, 578 U.S. 282 (2016)

Justice Alito delivered the opinion of the Court.

Petitioner Samuel Ocasio, a former officer in the Baltimore Police Department, participated in a kickback scheme with the owners of a local auto repair shop. When petitioner and other Baltimore officers reported to the scene of an auto accident, they persuaded the owners of damaged cars to have their vehicles towed to the repair shop, and in exchange for this service the officers received payments from the shopowners. Petitioner was convicted of obtaining money from the shopowners under color of official right, in violation of the Hobbs Act, 18 U.S.C. §1951, and of conspiring to violate the Hobbs Act, in violation of 18 U.S.C. §371. He now challenges his conspiracy conviction, contending that, as a matter of law, he cannot be convicted of conspiring with the shopowners to obtain money from them under color of official right. We reject this argument because it is contrary to age-old principles of conspiracy law.

I

Hernan Alexis Moreno Mejia (known as Moreno) and Edwin Javier Mejia (known as Mejia) are brothers who co-owned and operated the Majestic Auto Repair Shop (Majestic). In 2008, Majestic was struggling to attract customers, so Moreno and Mejia made a deal with a Baltimore police officer, Jhonn Corona. In exchange for kickbacks, Officer Corona would refer motorists whose cars were damaged in accidents to Majestic for towing and repairs. Officer Corona then spread the word to other members of the force, and eventually as many as 60 other officers sent damaged cars to Majestic in exchange for payments of $150 to $300 per referral.

Petitioner began to participate in this scheme in 2009. On several occasions from 2009 to 2011, he convinced accident victims to have their cars towed to Majestic. Often, before sending a car to Majestic, petitioner called Moreno from the scene of an accident to ensure that the make and model of the car, the extent of the damage, and the car’s insurance coverage would allow the shopowners to turn a profit on the repairs. After directing a vehicle to Majestic, petitioner would call Moreno and request his payment.

 Because police are often among the first to arrive at the scene of an accident, the Baltimore officers were well positioned to route damaged vehicles to Majestic. As a result, the kickback scheme was highly successful: It substantially increased Majestic’s volume of business and profits, and by early 2011 it provided Majestic with at least 90% of its customers.

Moreno, Mejia, petitioner, and nine other Baltimore officers were indicted in 2011. The shopowners and most of the other officers eventually pleaded guilty pursuant to plea deals, but petitioner did not.

In a superseding indictment, petitioner was charged with three counts of violating the Hobbs Act, 18 U.S.C. §1951, by extorting money from Moreno with his consent and under color of official right. As all parties agree, the type of extortion for which petitioner was convicted—obtaining property from another with his consent and under color of official right—is the “rough equivalent of what we would now describe as ‘taking a bribe.’” Evans v. United States, 504 U.S. 255, 260, 112 S. Ct. 1881 (1992). [1] To prove this offense, the Government “need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” Id., at 268.

… The jury found petitioner guilty on both the conspiracy count and the three substantive extortion counts ….  The Fourth Circuit … affirmed his convictions….

II

B

The[] basic principles of conspiracy law resolve this case. In order to establish the existence of a conspiracy to violate the Hobbs Act, the Government has no obligation to demonstrate that each conspirator agreed personally to commit—or was even capable of committing—the substantive offense of Hobbs Act extortion. It is sufficient to prove that the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it. In other words, each conspirator must have specifically intended that some conspirator commit each element of the substantive offense.

That is exactly what happened here: Petitioner, Moreno, and Mejia “share[d] a common purpose,” namely, that petitioner and other police officers would commit every element of the substantive extortion offense. Petitioner and other officers would obtain property “under color of official right,” something that Moreno and Mejia were incapable of doing because they were not public officials. And petitioner and other officers would obtain that money from “another,” i.e., from Moreno, Mejia, or Majestic. Although Moreno and Mejia were incapable of committing the underlying substantive offense as principals, they could … conspire to commit Hobbs Act extortion by agreeing to help petitioner and other officers commit the substantive offense. [Citations omitted.] For these reasons, it is clear that petitioner could be convicted of conspiring to obtain property from the shopowners with their consent and under color of official right.

C

In an effort to escape this conclusion, petitioner argues that the usual rules do not apply to the type of Hobbs Act conspiracy charged in this case. His basic argument, as ultimately clarified, is as follows. All members of a conspiracy must share the same criminal objective. The objective of the conspiracy charged in this case was to obtain money “from another, with his consent . . . under color of official right.” But Moreno and Mejia did not have the objective of obtaining money “from another” because the money in question was their own. Accordingly, they were incapable of being members of the conspiracy charged in this case. And since there is insufficient evidence in the record to show that petitioner conspired with anyone other than Moreno and Mejia, he must be acquitted.

This argument fails for a very simple reason: Contrary to petitioner’s claim, he and the shopowners did have a common criminal objective. The objective was not that each conspirator, including Moreno and Mejia, would obtain money from “another” but rather that petitioner and other Baltimore officers would do so. … Petitioner does not dispute that he was properly convicted for three substantive Hobbs Act violations based on proof that he obtained money “from another.” The criminal objective on which petitioner, Moreno, and Mejia agreed was that petitioner and other Baltimore officers would commit substantive violations of this nature. Thus, under well-established rules of conspiracy law, petitioner was properly charged with and convicted of conspiring with the shopowners. Nothing in the text of the Hobbs Act even remotely undermines this conclusion, and petitioner’s invocation of the rule of lenity and principles of federalism is unavailing.

1

Petitioner argues that our interpretation makes the Hobbs Act sweep too broadly, creating a national antibribery law and displacing a carefully crafted network of state and federal statutes. He contends that a charge of conspiring to obtain money from a conspirator with his consent and under color of official right is tantamount to a charge of soliciting or accepting a bribe and that allowing such a charge undermines 18 U.S.C. §666 (a federal bribery statute applicable to state and local officials) and state bribery laws. He also argues that extortion conspiracies of this sort were not known prior to the enactment of the Hobbs Act and that there is no evidence that Congress meant for that Act to plow this new ground.

The subtext of these arguments is that it seems unnatural to prosecute bribery on the basis of a statute prohibiting “extortion,” but this Court held in Evans that Hobbs Act extortion “under color of official right” includes the “rough equivalent of what we would now describe as ‘taking a bribe.’” 504 U.S., at 260. Petitioner does not ask us to overturn Evans, … and we have no occasion to do so. Having already held that §1951 prohibits the “rough equivalent” of bribery, we have no principled basis for precluding the prosecution of conspiracies to commit that same offense.

Petitioner also exaggerates the reach of our decision. It does not, as he claims, dissolve the distinction between extortion and conspiracy to commit extortion. Because every act of extortion under the Hobbs Act requires property to be obtained with “consent,” petitioner argues, proof of that consent will always or nearly always establish the existence of a conspiratorial agreement and thus allow the Government to turn virtually every such extortion case into a conspiracy case. But there are plenty of instances in which the “consent” required under the Hobbs Act will not be enough to constitute the sort of agreement needed under the law of conspiracy.

As used in the Hobbs Act, the phrase “with his consent” is designed to distinguish extortion (“obtaining of property from another, with his consent,” 18 U.S.C. §1951(b)(2) (emphasis added)) from robbery (“obtaining of personal property from the person or in the presence of another, against his will,” §1951(b)(1) (emphasis added)). Thus, “consent” simply signifies the taking of property under circumstances falling short of robbery, and such “consent” is quite different from the mens rea necessary for a conspiracy.

This conclusion is clear from the language of §1951 prohibiting the obtaining of property “from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear.” §1951(b)(2) (emphasis added). This language applies when, for example, a store owner makes periodic protection payments to gang members out of fear that they will otherwise trash the store. While these payments are obtained with the store owner’s grudging consent, the store owner, simply by making the demanded payments, does not enter into a conspiratorial agreement with the gang members conducting the shakedown…. Just as mere acquiescence in a Mann Act violation is insufficient to create a conspiracy, see Gebardi [v. United States, 287 U.S. 112, 121-23 (1932)] …, the minimal “consent” required to trigger §1951 is insufficient to form a conspiratorial agreement. Our interpretation thus does not turn virtually every act of extortion into a conspiracy.

Nor does our reading transform every bribe of a public official into a conspiracy to commit extortion. The “consent” required to pay a bribe does not necessarily create a conspiratorial agreement. In cases where the bribe payor is merely complying with an official demand, the payor lacks the mens rea necessary for a conspiracy…. For example, imagine that a health inspector demands a bribe from a restaurant owner, threatening to close down the restaurant if the owner does not pay. If the owner reluctantly pays the bribe in order to keep the business open, the owner has “consented” to the inspector’s demand, but this mere acquiescence in the demand does not form a conspiracy.

2

While petitioner exaggerates the impact of our decision, his argument would create serious practical problems. The validity of a charge of Hobbs Act conspiracy would often depend on difficult property-law questions having little to do with criminal culpability. In this case, for example, ownership of the money obtained by petitioner is far from clear. It appears that the funds came from Majestic’s account, and there is evidence that during the period of petitioner’s membership in the conspiracy, Majestic was converted from a limited liability company to a regular business corporation. After that transformation, the money obtained by petitioner may have come from corporate funds. A corporation is an entity distinct from its shareholders, and therefore, even under petitioner’s interpretation of the applicable law, Moreno and Mejia would have agreed that petitioner would obtain money “from another,” not from them.

Suppose that Moreno or Mejia had made the payments by taking money from a personal bank account. Would that dictate a different outcome? Or suppose that Majestic was a partnership and the payments came from a company account. Would that mean that Moreno agreed that officers would obtain money “from another” insofar as they would obtain Mejia’s share of the partnership funds and that Mejia similarly agreed that officers would obtain money “from another” insofar as they would obtain the share belonging to Moreno?

Or consider this example. Suppose that the owner and manager of a nightclub reach an agreement with a public official under which the owner will bribe the official to approve the club’s liquor license application. Under petitioner’s approach, the public official and the club manager may be guilty of conspiring to commit extortion, because they agreed that the official would obtain property “from another”—that is, the owner. But as “the ‘another’ from whom the property is obtained,” Reply Brief 10, the owner could not be prosecuted. There is no apparent reason, however, why the manager but not the owner should be culpable in this situation.

III

A defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right. Because petitioner joined such an agreement, his conspiracy conviction must stand….

Justice Breyer, concurring.

I agree with the sentiment expressed in the dissenting opinion of Justice Thomas that Evans v. United States, 504 U.S. 255 (1992), may well have been wrongly decided. I think it is an exceptionally difficult question whether “extortion” within the meaning of the Hobbs Act is really “the rough equivalent of . . . taking a bribe,” Evans, 504 U.S., at 260, 112 S. Ct. 1881 (internal quotation marks omitted)—especially when we admittedly decided that question in that case without the benefit of full briefing on extortion’s common-law history ….

The present case underscores some of the problems that Evans raises. For example, as in the scenario presented by today’s Court, where the public health inspector asks for money from a restaurant owner in exchange for favorable reports, see ante, at 16, courts (and juries) will have to draw the difficult distinction between the somewhat involuntary behavior of the bribe payor and the voluntary behavior of the same bribe payor, which may determine whether there is or is not a conspiracy….

 Nonetheless, we must in this case take Evans as good law. That being so, I join the majority’s opinion in full.

Justice Thomas, dissenting.

Today the Court holds that an extortionist can conspire to commit extortion with the person whom he is extorting. See ante, at 18. This holding further exposes the flaw in this Court’s understanding of extortion. In my view, the Court started down the wrong path in Evans v. United States, 504 U.S. 255, (1992), which wrongly equated extortion with bribery. In so holding, Evans made it seem plausible that an extortionist could conspire with his victim. Rather than embrace that view, I would not extend Evans’ errors further. Accordingly, I respectfully dissent.

I

… Given the established meaning of under-color-of-official-right extortion adopted in the Hobbs Act, the Court in Evans erred in equating common-law extortion with taking a bribe. Id. at 283. Bribery and extortion are different crimes. Ibid. With extortion, “the public official is the sole wrongdoer.” Because the official “acts ‘under color of office,’ the law regards the payor as an innocent victim and not an accomplice.” Ibid. An official who solicits or takes a bribe, by contrast, does not do so “under color of office”—that is, “under [a] pretense of official entitlement.” Ibid. With bribery, “the payor knows the recipient official is not entitled to the payment,” and “he, as well as the official, may be punished for the offense.” Ibid. (emphasis deleted).

II

Relying on Evans’ definition of Hobbs Act extortion, see ante, at 2-3, 14-525, 531, the Court holds that an extortionist can conspire to commit extortion with the person whom he is extorting. Ante, at 10-11, 18-529, 533. That holding is irreconcilable with a correct understanding of Hobbs Act extortion and needlessly extends Evans’ error to the conspiracy context.

… To be sure, the Court’s conclusion is plausible under Evans’ redefinition of extortion. But that is a reason not to extend Evans’ error. Only by blurring the distinction between bribery and extortion could Evans make it seem plausible that an extortionist and a victim can conspire to extort the victim. The Court today takes another step away from the common-law understanding of extortion that the Hobbs Act adopted.

III

The Court’s decision is unfortunate because it expands federal criminal liability in a way that conflicts with principles of federalism. Even when Evans was decided nearly 25 years ago, the Hobbs Act had already “served as the engine for a stunning expansion of federal criminal jurisdiction into a field traditionally policed by state and local laws—acts of public corruption by state and local officials.” 504 U.S., at 290 (Thomas, J., dissenting). By disregarding the distinction between extortion and bribery, Evans expanded the Hobbs Act to allow federal prosecutors to reach more conduct by state and local government officials. That expansion was unwarranted….

Today the Court again broadens the Hobbs Act’s reach to enable federal prosecutors to punish for conspiracy all participants in a public-official bribery scheme. The invasion of state sovereign functions is again substantial. The Federal Government can now more expansively charge state and local officials. And it can now more easily obtain pleas or convictions from these officials: Because the Government can prosecute bribe-payors with sweeping conspiracy charges, it will be easier to induce those payors to plead out and testify against state and local officials. The Court thus further wrenches from States the presumptive control that they should have over their own officials’ wrongdoing.

… Consistent with the Hobbs Act’s text, I would hold that an extortionist cannot conspire to commit extortion with the person whom he is extorting. Accordingly, I would reverse the Court of Appeals’ judgment upholding Ocasio’s conspiracy conviction….

Justice Sotomayor, with whom The Chief Justice joins, dissenting.

If a group of conspirators sets out to extort “another” person, we ordinarily think that they are proposing to extort money or property from a victim outside their group, not one of themselves. Their group is the conspiratorial entity and the victim is “another” person.

But in upholding the conspiracy conviction here, the Court interprets the phrase extorting property “from another” in the Hobbs Act contrary to that natural understanding. It holds that a group of conspirators can agree to obtain property “from another” in violation of the Act even if they agree only to transfer property among themselves.

That is not a natural or logical way to interpret the phrase “from another.” I respectfully dissent….

II

The Hobbs Act criminalizes extortion where a public official obtains property “from another.” §1951(b)(2). The question here is how to define “another” in the context of a conspiracy to commit extortion. “Another” is a relational word. It describes how one entity is connected to a different entity. In particular, it describes an entity “different or distinct from the one first considered.” Merriam-Webster’s Collegiate Dictionary 51 (11th ed. 2003)….

The most natural reading of “conspiring” to obtain property “from another,” then, is a collective agreement to obtain property from an entity different or distinct from the conspiracy. But Ocasio, Moreno, and Mejia did not agree that Ocasio would obtain property from a person different or distinct from the conspirators as a group. They agreed only that Ocasio would take property from Moreno and Mejia—people who are part of rather than distinct from the conspiracy. “These three people did not agree, and could not have agreed, to obtain property from ‘another’ when no other person was involved.” United States v. Brock, 501 F. 3d 762, 767 (6^th Cir. 2007).

 This understanding of “another”—that it refers to someone outside the conspiracy—is consistent not only with the plain meaning of the Hobbs Act, but also with this Court’s precedent explaining that the purpose of conspiracy law is to target the conduct of group crimes.…

[W]hether a criminal conspiracy exists depends on what the conspirators agreed to do as a group. This principle confirms that “from another” is best understood as relating the conspiratorial enterprise to another person outside the conspiracy. A conspiracy to obtain property “from another,” then, is the group agreement that at least one member of the group will obtain property from someone who is not a part of their endeavor.

 Departing from this natural reading of the text, the Court holds that Ocasio can be punished for conspiracy because Ocasio obtained property “from another” (Moreno and Mejia) and Ocasio, Moreno, and Mejia agreed that Ocasio would engage in that conduct. In order to reach this conclusion, the Court implicitly assumes that the Hobbs Act’s use of “from another” takes as its reference point only a single member of the conspiracy, here, Ocasio, rather than the group of conspirators as a whole.

But what is the basis for that assumption? The Court never explains. It is not based on the plain language of the Hobbs Act. A natural reading of the text seems to foreclose it—Moreno and Mejia are not “distinct or different from” the group that formed the “collective criminal agreement.” And the Court’s assumption does not follow from prior precedent or any first principles of conspiracy law. See Part III, infra.

Both the plain meaning of the statute and general principles of conspiracy law lead to the same conclusion: A conspiracy to commit extortion by obtaining property “from another” in violation of the Hobbs Act should exist only when the conspirators agree to obtain property from someone outside the conspiracy.

III

[T]he Court argues that its interpretation is correct because Mejia and Moreno can be held liable for conspiring to commit extortion even though they were incapable of committing the substantive crime themselves. (Because they are not public officials, Mejia and Moreno cannot obtain property “under color of official right.” Ante, at 5-7-527.) True enough. But this principle does not lead to the conclusion that “from another” takes the perspective of Ocasio as its reference point, as opposed to the conspiratorial group.

For example, suppose a politician and a lobbyist conspire to have the lobbyist tell his clients to pay the politician bribes in exchange for official acts. The lobbyist cannot obtain those bribes under color of official right and so could not be charged with a substantive Hobbs Act extortion violation. But the conspiracy would still violate the Hobbs Act, see Evans, 504 U.S., at 268, 112 S. Ct. 1881, because the conspiratorial group obtained property “from another,” i.e., from the clients who are outside the conspiracy that exists between the lobbyist and the politician. Now suppose the lobbyist instead agrees to pay the bribe himself. We would be back to the question at the heart of this case.

The Court’s incapable-of-committing-the-substantive-offense principle therefore cannot do the work the Court thinks it does. It is entirely consistent to say obtaining property “from another” in violation of the Hobbs Act requires the conspirators to agree to obtain property from someone outside the conspiracy, and to say that every conspirator who enters into that agreement need not be capable of committing the substantive offense himself.

Finally, the Court raises policy concerns: It mentions that it would be odd to immunize the ostensible victims of a conspiracy to commit extortion—here, Mejia and Moreno—if they play just as active a role in the conspiracy as other members.

While perhaps odd, that concern does not warrant the Court’s contortion of conspiracy law where there are other criminal statutes—like federal antibribery laws and state laws—that reach similar conduct. See, e.g., 18 U.S.C. §666 (criminalizing bribery of state, local, or tribal officials in specified circumstances); Md. Crim. Law Code Ann. §9-201 (2012) (criminalizing bribery of public employee). Of course, the Government could have attempted to convict Ocasio for conspiracy on these facts without relying on the Court’s odd theory—for example, by proving that Ocasio conspired with other Baltimore police officers to extort property from the brothers.

… Here, without any textual hook in the Hobbs Act, the Court rests on no more than intuitions drawn from basic examples. If a restaurant owner threatened with closure by a health official reluctantly pays a bribe, the Court says that the owner is not guilty of conspiracy. Ante, at 16. According to the Court, he “consented” to extortion, but his mere acquiescence to an “official demand” did not create a conspiratorial agreement. Ibid. By contrast, the Court says, if a nightclub owner pursues a liquor license by asking his manager to bribe a public official, he is clearly guilty of conspiracy. Ante, at 18. He agreed with the public official that the official would obtain property “from another,” i.e., from him, in exchange for a license.

These examples raise more questions than answers. When does mere “consent” tip over into conspiracy? Does it depend on whose idea it was? Whether the bribe was floated as an “official demand” or a suggestion? How happy the citizen is to pay off the public official? How much money is involved? Whether the citizen gained a benefit (a liquor license) or avoided a loss (closing the restaurant)? How many times the citizen paid the bribes? Whether he ever resisted paying or called the police? The Court does not say. It leaves it for federal prosecutors to answer those questions in the first instance, raising the specter of potentially charging everybody with conspiracy and seeing what sticks and who flips.

When three people agree to obtain property “from another,” the everyday understanding of their agreement is that they intend to obtain property from someone outside of their conspiracy. The Court reaches the opposite conclusion, based entirely on an assumption that the Hobbs Act’s use of “from another” takes as its reference point the vantage of Ocasio alone, rather than the group endeavor that constitutes conspiracy. The Court offers no explanation—grounded in either the text of the statute or so-called “age-old principles of conspiracy law”—for why that assumption is correct….

United States v. Hunte, 196 F.3d 687 (7th Cir. 1999)

Kanne, Circuit Judge.

Defendant Cheryl A. Hunte appeals her conviction and sentence for her role in an attempt to transport narcotics from Arizona to New York in 1997. The trial court sentenced Hunte to concurrent terms of thirty-three months imprisonment, two years supervised release and a $ 500 fine. On appeal, Hunte challenges the sufficiency of the evidence against her ….

I. History
A. The Conspiracy

In March 1997, Hunte decided to accompany her boyfriend, co-defendant, Joseph Richards, on a trip to California with an acquaintance known as Luis Gonzalez. Richards was a known drug dealer, and there was little mystery that the purpose of the trip was to purchase and bring back a load of narcotics. Richards supplied a minivan for the trip, and Gonzalez was to be the driver. Richards agreed to pay Gonzalez seven pounds of marijuana for help driving the van, purportedly to California. Hunte, on the other hand, stood to gain nothing from the deal. She apparently went along for the ride.

Richards directed the trip and made all or most of the decisions. Once on the road, he told Gonzalez that they were headed for Arizona, not California, and that he planned to pick up as much marijuana as he could get and bring it back to New York. Gonzalez would get his share and sell it for $ 8,000 to $ 9,000. Richards warned Gonzalez to drive safely and obey the speed limit and other rules of the road.

The three drove to Tulsa, Oklahoma, where they rented a motel room. They showered but did not stay the night. Instead, leaving Hunte behind, Richards and Gonzalez went to meet Johnathan Warwick. Warwick was a Tulsa resident who rented a room from a man to whom Richards owed $ 3,000 for past drug dealings. Richards asked Warwick to help him drive to Phoenix (apparently not telling him for what purpose). Warwick agreed, believing that if the trip was successful, Richards would pay his friend the $ 3,000 Richards owed, and the friend would stop taking Warwick's disability checks for room and board. The three men picked up Hunte at the motel and left for Arizona.

Once back on the highway, Richards changed the plan again and said they were headed for Tucson, not Phoenix, and that their ultimate destination was Virginia, not New York. Warwick eventually figured out they were going to pick up drugs, but by this time they were in Texas. In Tucson, Richards made some calls from a pay phone at a convenience store, and eventually a man in a Chevy Blazer arrived who then escorted them to a house. Several hours later, a man came and took the minivan, returning it later loaded with marijuana. Richards asked Gonzalez and Warwick to help him carry the marijuana into the kitchen. During this time, Hunte remained in the living room watching television. With Hunte in the other room, the three men weighed the bundles of marijuana. Richards cut one bundle open to make sure it was all marijuana and extracted some buds for sampling. Gonzalez testified at trial that Richards took precautions to keep Hunte out of the business aspects of the deal.

Hunte helped roll the buds into a joint and closed the window blinds while the group smoked some of the marijuana. Warwick, Richards and Gonzalez re-wrapped the marijuana and loaded it into the van. Richards' brother then arrived in a burgundy Nissan Maxima. After dropping off Richards' brother in Phoenix, Richards and Hunte drove to Tulsa in the Maxima, followed by Gonzalez and Warwick in the van. Hunte registered for a motel room for herself and Richards, while Gonzalez and Warwick registered for another room. Richards paid all expenses, including the motels, throughout the trip.

The next morning, March 25, 1997, the group awoke and continued to New York. In Illinois, state police pulled the minivan over and a search revealed the bundles of marijuana. Warwick and Gonzalez admitted they were following another car, and based on the information they supplied, the police radioed ahead and were able to pull over Hunte and Richards. Before they were stopped by police but after the minivan had been pulled over, Hunte and Richards had switched positions so that Hunte was driving. Hunte and Richards initially denied that they were traveling with the minivan and told police they had been traveling around the Midwest looking for farm equipment for Richards' Jamaican chicken farm. As their grasp of basic geography deteriorated, so did their cover story. Police matched fingerprints on the marijuana to Richards, but not to Hunte.

B. The Trial and Sentence

Richards, Warwick and Gonzalez pleaded guilty to conspiracy and possession with intent to distribute almost 45 kilograms of marijuana. Hunte, like the others, was charged with conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846; and possession of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1). Gonzalez and Warwick agreed to testify against Hunte at trial in exchange for one-third off their sentences. At trial, Hunte's primary defense was that she never possessed the marijuana because Richards was in charge and only he, Gonzalez and Warwick ever handled the bundles. Further, she contended that she was not a part of the conspiracy because she did not stand to gain from it….

II. Analysis

On appeal, Hunte … contends that her involvement in the crimes was too insubstantial to support either the conspiracy or the possession charges.…

1. Conspiracy

Conspiracy under 21 U.S.C. § 846 requires that the Government establish the existence of an agreement between two or more persons "for the purpose of committing, by their joint efforts, a criminal act." United States v. Campbell, 985 F.2d 341, 344 (7th Cir. 1993). The Government must show a "participatory link" between the conspiracy and the defendant. That link must be established by sufficient evidence demonstrating that the defendant knew of the conspiracy and intended to join its criminal purpose. However, unlike liability for attempt, conspiracy liability does not require evidence of an overt act by the defendant, ... and the phrase "participatory link" should not be confused in that way. Rather, the link simply provides a way to show that the defendant joined the conspiratorial agreement.

The evidence of Hunte's involvement in the conspiracy is slight. She appeared to have no role in planning the trip or securing any of the things necessary for its completion, such as the vehicles, cash or cohorts. She seemed to have no express understanding with Richards as to her involvement in the plan or share of the proceeds. She had no express responsibilities, did not negotiate the drug transaction and apparently was not needed to handle, weigh or transport the drugs.

However, the jury may consider "overt acts in furtherance of the conspiracy as circumstantial evidence establishing knowing participation in a conspiracy." United States v. Burrell, 963 F.2d 976, 988 (7th Cir. 1992). The evidence shows that Hunte knew of the conspiracy's existence, as she spent several days traveling from New York to Arizona where the group picked up a large load of marijuana, sampled it, hid it in the minivan and returned toward New York. The question is whether she intended to join its criminal purpose, and the bare overt acts committed in furtherance of the conspiracy establish that intent. For instance, a jury could find a participatory link between Hunte and the conspiracy from Hunte's closing the window blinds to hide their activities from view, helping to roll a joint for sampling, registering for the hotel room where the group rested, driving one of the vehicles used for transportation of the co-conspirators and lying to police about their destination and about their association with Warwick and Gonzalez. The fact that she did not expect to share directly in the proceeds of the crime does not defeat a finding of knowing participation. A criminal without a profit motive is still a criminal as long as all elements of the crime are established.

2. Possession

Possession with intent to distribute marijuana requires the Government prove beyond a reasonable doubt that Hunte 1) knowingly or intentionally possessed the marijuana, 2) possessed the marijuana with the intent to distribute it and 3) knew the marijuana was a controlled substance. The first element, possession, can be satisfied by direct or circumstantial evidence of constructive or joint possession. See United States v. Kitchen, 57 F.3d 516, 520-21 (7th Cir. 1995). Constructive possession applies when "a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others." United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir. 1990) (emphasis omitted); see also United States v. DiNovo, 523 F.2d 197, 201 (7th Cir. 1975).

Hunte challenges her conviction on the theory that she did not exercise "dominion and control" over the marijuana because at all times Richards, as the group's leader, had exclusive control over the contraband. DiNovo stands for the proposition that "mere proximity to the drug, mere presence on the property where it is located, or mere association, without more, with the person who does control the drug or the property on which it is found, is insufficient to support a finding of possession." DiNovo, 523 F.2d at 199. This line of cases protects the "ordinary bystander" who happens to be unlucky enough to be near someone who possesses contraband. United States v. Windom, 19 F.3d 1190, 1200 (7th Cir. 1994). To this end, we have required that in non-exclusive possession cases, the evidence must show some nexus between the defendant and the drugs….

[T]he evidence against Hunte more than substantiates the nexus between her and the contraband. There can be no doubt of her knowledge of the marijuana because she was present when it was delivered, unloaded, sampled and loaded. Although the evidence of her direct access to the drugs and participation in the transportation is minimal, it can hardly be said that she was in any sense an ordinary bystander. She registered for the hotel room, drove at least one of the vehicles, helped hide their activities from view and aided in the sampling of the drugs. She can no more claim to be a mere bystander than could Thomas Galiffa.

… Hunte argues that no evidence shows "she ever touched the bundles of marijuana," but that argument only refutes actual possession and is not dispositive of constructive possession. Hunte further argues that only Richards had constructive possession of the marijuana, as shown by his offer to pay Gonzalez from the stash and to let Hunte sample some of it. While those facts provide strong evidence that Richards exercised control over the drugs, it does not necessarily mean Hunte and the others did not jointly possess them as well. As discussed above, control need not be exclusive.

The evidence showed that all four defendants were engaged in a plan to transport narcotics and that Richards was the leader of the group. The fact that one person leads and the others follow does not mean that only the leader has possession of the contraband. All four had access to the drugs at various times and assisted in their concealment and transportation. As a group, the four each exercised joint possession of the narcotics by virtue of their individual acts consistent with non-exclusive dominion and control over the contraband.

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find Hunte guilty on both the conspiracy and possession counts. Therefore, we will affirm her convictions.…