USA v. Trump, et al. Document 379: Response/Reply/Answer (Other)

Florida Southern District Court
Case No. 9:23-cr-80101-AMC
Filed March 7, 2024

Response/Memorandum in Opposition to undocketed Motion to Dismiss for Vagueness by USA as to Waltine Nauta to [359] Notice (Other) (Bratt, Jay)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-80101-CR-CANNON(s)
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
________________________________/
GOVERNMENT’S OPPOSITION TO WALTINE NAUTA’S
MOTION TO DISMISS BASED ON
UNCONSTITUTIONAL VAGUENESS
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TABLE OF CONTENTS
I.
Background

II.
Argument ........................................................................................................................

III.
A.
Nauta’s As-Applied Constitutional Vagueness Challenge to Counts Charging a
Violation of 18 U.S.C. § 1512 Is Meritless and Premature...........................................
B.
The Rule of Lenity Does Not Apply ........................................................................... Conclusion ........................................................................................................................
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Defendant Waltine Nauta moves to dismiss Counts 33, 34, 35, 40, and 41 of the
Superseding Indictment on the basis that they “fail[] to state an offense,” are unconstitutionally
vague, or “pursuant to the rule of lenity.” Mot. to Dismiss (“Mot.”) at 1.1 None of these arguments
has merit. Nauta’s vagueness challenge relies principally on the D.C. Circuit’s decision in United
States v. Fischer, 64 F.4th 329 (D.C. Cir. 2023), but that interlocutory appeal addressed a statutory
provision (18 U.S.C. § 1512(c)(2)) not charged in this case, did not involve a vagueness challenge,
was focused on the actus reus rather than the mens rea, and did not offer a definitive interpretation
of the term “corruptly.” In fact, the D.C. Circuit interpreted “corruptly” for purposes of Section
1512(c)(2) in a subsequent decision, without finding the term vague. See United States v.
Robertson, 86 F.4th 355 (D.C. Cir. 2023). Properly interpreted, the term “corruptly,” as used in
the statutes with which Nauta is charged, is neither “so vague that it fails to give ordinary people
fair notice of the conduct it punishes” nor “so standardless that it invites arbitrary enforcement.”
Johnson v. United States, 576 U.S. 591, 595 (2015). The Superseding Indictment’s allegations—
the only relevant facts at this juncture in the case—readily allege that Nauta corruptly conspired
to obstruct and did obstruct justice, and any challenge based on facts not alleged in the Superseding
Indictment, including the factual proffers Nauta advances in his motion, must await trial.
Nauta’s invocation of the rule of lenity is equally meritless. Lenity comes into play “only
when a criminal statute contains a ‘grievous ambiguity or uncertainty,’ and ‘only if, after seizing
everything from which aid can be derived,’ the Court ‘can make no more than a guess as to what
Congress intended.’” Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016) (citation omitted).
Nauta comes nowhere close to establishing an ambiguity in any of the statutes at issue in his case,
let alone a grievous ambiguity.

Nauta’s Motion has not yet been docketed publicly or received an ECF number.
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The Court should therefore reject Nauta’s vagueness and lenity claims and deny his
dismissal motion.
I.
Background
Following an extensive investigation, the Government presented evidence to a grand jury,
which returned a 38-count Indictment against Nauta and codefendant Donald J. Trump on June 8,
2023, ECF No. 3, followed by a 42-count Superseding Indictment against Nauta, Trump, and
codefendant Carlos De Oliveira on July 27, 2023, ECF No. 85. Nauta is alleged to have conspired
to obstruct and obstructed a grand jury that was investigating the location of boxes containing
classified records at the Mar-a-Lago Club (“Mar-a-Lago”) and to have lied to FBI agents in an
interview about his knowledge of the location and storage of those boxes at Mar-a-Lago. The
Superseding Indictment alleges at least three species of conduct by Nauta that violated the law: (1)
making false statements to the FBI during an interview; (2) moving boxes so that Trump’s attorney
would not find them; and (3) attempting to destroy security camera footage showing the movement
of boxes.
The Superseding Indictment alleges that Trump knew in the summer of 2021—more than
six months after the end of term as President of the United States—that he possessed classified
information. See ECF No. 85 ¶¶ 33-37. Despite multiple requests from the National Archives and
Records Administration (“NARA”), Trump took nearly a year to provide just 15 boxes of his
missing records, falsely suggesting that there were no others. Id. ¶¶ 38-49. Those 15 boxes of
materials that NARA received from Trump on January 17, 2022, contained almost 200 documents
with classification markings. Id. After NARA alerted the Department of Justice of its discovery
of classified documents in February 2022, FBI and grand jury investigations opened on March and April 26, 2022, respectively. Id. ¶¶ 50-52. As part of its investigation, the FBI interviewed
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Nauta on May 26, 2022, an interview that was voluntary and recorded. Id. ¶ 110. Even though
Nauta had been extensively involved with the movement and storage of Trump’s boxes of
documents in 2021 and early 2022, see, e.g., id. ¶¶ 31-32, 42-47, Nauta made false and misleading
statements about the boxes, feigning ignorance about how boxes had gotten to Trump’s residence
and where they had been stored at Mar-a-Lago, id. ¶¶ 48, 111.
Nauta is also alleged to have played a critical role in the surreptitious movement of boxes
with classified documents that was designed to hide the records from the FBI and the grand jury.
See ECF No. 85 ¶¶ 51-63. On May 11, 2022, an attorney for Trump (“Trump Attorney 1”) accepted
service of a grand jury subpoena requiring production of classified documents in Trump’s
possession, id. ¶¶ 53, 55. After meeting with Trump on May 23 at Mar-a-Lago, Trump Attorney returned there on June 2 to review the contents of boxes in a storage room for materials responsive
to the grand jury subpoena. Id. ¶¶ 55-57, 64-65. In the interim, however, and unbeknownst to
Trump Attorney 1, Nauta removed a total of approximately 64 boxes from the storage room: three
boxes on May 24, 2022; 50 boxes on May 30, 2022; and 11 boxes on June 1, 2022. Id. ¶ 59. And
hours before Trump Attorney 1 returned to Mar-a-Lago on June 2 to search for documents
responsive to the subpoena, Nauta and De Oliveira moved approximately only 30 boxes into the
storage room. Id. ¶ 62. When Nauta escorted Trump Attorney 1 to and from that storage room for
the attorney’s search on June 2, Nauta did not inform him that boxes had been taken out of the
storage room before he searched there. Id. ¶¶ 63-64, 66. On June 3, 2022, Trump Attorney provided to the FBI 38 documents with classification markings as well as a certification that all
boxes moved from the White House to Mar-a-Lago had been subjected to a “diligent search” and
that “[a]ny and all responsive documents accompan[ied]” the certification. Id. ¶¶ 65-71. In fact,
a court-authorized search of Mar-a-Lago on August 8, 2022, recovered over 100 additional
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documents with classification markings, including approximately 75 from the storage room from
which Nauta had removed boxes before Trump Attorney 1’s review. Id. ¶¶ 89-90.
The Superseding Indictment also alleges that Nauta played a role in attempting to destroy
security camera footage showing the movement of the boxes. Id. ¶¶ 74-87, 91. When FBI agents
came to Mar-a-Lago on June 3, 2022, to collect the documents with classification markings that
Trump Attorney 1 had found, they noticed surveillance cameras near the storage room where the
attorney had conducted his review. Id. at ¶ 74. On June 22, 2022, the Department of Justice
informed an attorney for Trump (not Trump Attorney 1) that it would be seeking security camera
footage from Mar-a-Lago and sent the attorney a draft grand jury subpoena. Id. ¶ 75. The next
day, Trump called De Oliveira and spoke with him for 24 minutes. Id. ¶ 76. On June 24, the
Department of Justice served the grand jury subpoena for surveillance video footage on Trump’s
business organization, and the same day, one of Nauta’s co-workers texted Nauta to tell him that
Trump wanted to see him. Id. ¶¶ 77-78. Nauta then changed travel plans to go to Palm Beach,
Florida, rather than (as he had previously planned) to accompany Trump to Illinois, and he
provided inconsistent explanations to colleagues about why his plans had changed. Id. ¶¶ 78-79.
Nauta contacted both De Oliveira and the Director of Information Technology (“IT”) at Mar-aLago (“Trump Employee 4”), id. ¶¶ 79-80, and De Oliveira, in turn, told another Trump employee
both that Nauta wanted to keep his trip secret and that Nauta wanted De Oliveira to find out from
Trump Employee 4 how long the security camera footage was stored, id. ¶ 81. Nauta arrived in
Florida on June 25, and that evening he and De Oliveira went to a security booth where security
camera footage is displayed and to an area outside the storage room where the cameras were
located. Id. ¶ 82.
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The following Monday morning, June 27, De Oliveira went to the IT office and asked
Trump Employee 4 to step away from the office with him so they could talk. Id. ¶ 83. The two of
them walked to a small room known as an “audio closet” and De Oliveira asked Trump Employee
4 to keep their conversation between the two of them. Id. ¶ 84. After asking how long the server
retained security camera footage, De Oliveira told Trump Employee 4 that “the boss” wanted the
server deleted. Id. ¶ 84(a-c). When Trump Employee 4 responded that he would not have the
authority to do that, De Oliveira insisted that “the boss” wanted the server deleted, and asked “what
are we going to do?” Id. ¶ 84(c). Shortly after that conversation ended, De Oliveira texted Nauta,
and the two met a few hours later in the bushes of a property adjacent to a Mar-a-Lago; they spoke,
De Oliveira returned to the IT office, and then De Oliveira returned to the neighboring property to
speak with Nauta again. Id. ¶¶ 85-86. Later the same afternoon, De Oliveira spoke by phone with
Trump. Id. ¶ 87.
Based on that alleged conduct, the Superseding Indictment charges that Nauta conspired
with Trump and De Oliveira to obstruct justice by hiding and concealing classified documents
taken from the White House, in violation of 18 U.S.C. § 1512(k) (Count 33); knowingly engaged
in misleading conduct or corrupt persuasion toward Trump Attorney 1, with the intent to cause that
attorney to withhold a document or record from the grand jury, in violation of 18 U.S.C.
§1512(b)(2)(A) (Count 34); corruptly concealed boxes of documents from Trump Attorney 1 in
order to render them unavailable to the grand jury, in violation of 18 U.S.C. §§ 1512(c)(1) (Count
35); knowingly concealed documents from an FBI investigation and caused a false certification to
be submitted to the FBI, in violation of 18 U.S.C. § 1519 (Count 36); engaged in a scheme to
conceal Trump’s continued possession of documents with classification marking, in violation of
18 U.S.C. § 1001(a)(1) (Count 37); made false statements to the FBI, in violation of 18 U.S.C.
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§ 1001(a)(2) (Count 39); engaged in knowing corrupt persuasion of Trump Employee 4 to delete
security camera footage at Mar-a-Lago, in violation of 18 U.S.C. § 1512(b)(2)(B) (Count 40); and
corruptly attempted to alter or destroy security camera footage, in violation of 18 U.S.C. §§
1512(c)(1) (Count 41).
II.
Argument
A.
Nauta’s As-Applied Constitutional Vagueness Challenge to Counts Charging
a Violation of 18 U.S.C. § 1512 Is Meritless and Premature
Nauta presses (Mot. at 4-7) a vagueness challenge to the obstruction statutes with which
he is charged, but entirely fails to explain how those specific provisions—paired with the detailed
allegations in the Superseding Indictment—violate the Due Process Clause though either a lack of
fair notice or by inviting arbitrary enforcement. He instead focuses on United States v. Fischer,
64 F.4th 329 (D.C. Cir. 2023), claiming that Fischer supports his contention that the “corruptly”
mens rea requirement is unconstitutionally vague. That is incorrect. Fischer involved a statutory
provision not charged in this case, did not address a vagueness challenge, focused on the actus
reas rather than the mens rea, and did not definitively interpret “corruptly.” And the D.C. Circuit’s
subsequent decision in United States v. Robertson, 86 F.4th 355 (D.C. Cir. 2023), construing the
term “corruptly,” undermines Nauta’s claim. In any event, any vagueness challenge is premature
given the clarity of the relevant statutory provisions and the extensive allegations in the
Superseding Indictment detailing the criminal conduct that Nauta is alleged to have undertaken.
The Due Process Clause of the Fifth Amendment prohibits the federal government from
depriving any person of “life, liberty, or property, without due process of law.” U.S. Const. amend.
V. An outgrowth of the Due Process Clause, the “void for vagueness” doctrine prevents the
enforcement of a criminal statute that is “so vague that it fails to give ordinary people fair notice
of the conduct it punishes” or is “so standardless that it invites arbitrary enforcement.” Johnson v.
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United States, 576 U.S. 591, 595 (2015). To ensure fair notice, “[g]enerally, a legislature need do
nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to
familiarize itself with its terms and to comply.” Texaco, Inc. v. Short, 454 U.S. 516, 532 (1982).
To avoid arbitrary enforcement, the law must not “vest[] virtually complete discretion” in the
government “to determine whether the suspect has [violated] the statute.” Kolender v. Lawson,
461 U.S. 352, 358 (1983).
A statute is not unconstitutionally vague simply because its applicability is unclear at the
margins, United States v. Williams, 553 U.S. 285, 306 (2008), or because reasonable jurists might
disagree on where to draw the line between lawful and unlawful conduct in particular
circumstances, Skilling v. United States, 561 U.S. 358, 403 (2010). Rather, a provision is
impermissibly vague only if it requires proof of an “incriminating fact” that is so indeterminate as
to invite arbitrary and “wholly subjective” application. Williams, 553 U.S. at 306; see Smith v.
Goguen, 415 U.S. 566, 578 (1974). The “touchstone” of vagueness analysis “is whether the
statute, either standing alone or as construed, made it reasonably clear at the relevant time that the
defendant’s conduct was criminal.” United States v. Lanier, 520 U.S. 259, 267 (1997).
A statutory provision is therefore not unconstitutionally vague because it “do[es] not mean
the same thing to all people, all the time, everywhere.” Roth v. United States, 354 U.S. 476, (1957). A statute is instead vague where it fails to specify any “standard of conduct . . . at all.”
Coates v. Cincinnati, 402 U.S. 611, 614 (1971). “As a general matter,” however, a law is not
unconstitutionally vague where it “call[s] for the application of a qualitative standard . . . to realworld conduct; ‘the law is full of instances where a man’s fate depends on his estimating rightly
. . . some matter of degree.’” Johnson, 576 U.S. at 603-04 (quoting Nash v. United States, U.S. 373, 377 (1913)).
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Although Nauta largely appears to agree that a defendant advancing a due process
vagueness challenge must establish that a statute “fails to give ordinary people fair notice of the
conduct it punishes or [is] so standardless that it invites arbitrary enforcement,” Mot. at 4 (citation
omitted), he makes no meaningful effort to satisfy that standard. Nor would any such effort
succeed. The five counts that Nauta challenges (see Mot. at 4-5) consist of conspiracy or
substantive violations of three statutory provisions within 18 U.S.C. § 1512. See ECF No. ¶¶ 94-101, 113-16. Two of those statutory provisions are subsections of Section 1512(b)(2). The
first makes it crime to “knowingly use[] intimidation, threaten[], or corruptly persuade[] another
person, or attempt[] to do so, or engage[] in misleading conduct toward another person, with intent
to” cause a person to “withhold testimony, a record, document, or other object, from an official
proceeding.” § 1512(b)(2)(A). The second makes it crime to “knowingly use[] intimidation,
threaten[], or corruptly persuade[] another person, or attempt[] to do so, or engage[] in misleading
conduct toward another person, with intent to” cause a person to “alter, destroy, mutilate, or
conceal an object with intent to impair the object’s integrity or availability for use in an official
proceeding.” § 1512(b)(2)(B). The third statutory provision with which Nauta is charged makes
it a crime to “corruptly alter[], destroy[], mutilate[], or conceal[] a record, document, or other
object, or attempt[] to do so, with the intent to impair that object’s integrity or availability for use
in an official proceeding.” § 1512(c)(1). As the Superseding Indictment makes clear, Counts and 35 charge Nauta with violations of those obstruction provisions in connection with his effort
to conceal records and documents from Trump Attorney 1 and the grand jury, see ECF No. ¶¶ 98-101; Counts 40 and 41 charge Nauta with violations of those provisions in connection with
his efforts to induce Trump Employee 4 to delete security camera footage, see id. ¶¶ 113-16; and
Count 33 charges a conspiracy that encompasses both, see id. ¶¶ 94-97. Nauta entirely fails to
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explain how the detailed statutory provisions paired with the Superseding Indictment’s extensive
allegations are so vague that he lacks fair notice of the conduct with which he is charged or so
standardless as to invite arbitrary enforcement.
Instead, Nauta suggests (Mot. at 5-7) that the D.C. Circuit’s decision in Fischer, supra,
supports his claim that the “corruptly” mens rea is not susceptible to a nonvague construction. In
Fischer, the district court dismissed a count charging a violation of 18 U.S.C. § 1512(c)(2), which
makes it a crime for a defendant to “corruptly . . . obstruct[], influence[], or impede[] any official
proceeding,” in three separate cases involving defendants who were alleged to have participated
in the riot attacking the United States Capitol on January 6, 2021. 64 F.4th at 332-33. Interpreting
Section 1512(c)(2) as “limited” by Section 1512(c)(1), the district court concluded that a violation
of Section 1512(c)(2) required the government, in order to satisfy the statute’s actus reus, to prove
that a defendant had “taken some action with respect to a document, record, or other object in order
to corruptly obstruct, impede or influence an official proceeding.” Id. at 334. The D.C. Circuit
reversed, holding that Section 1512(c)(2) “encompasses all forms of obstructive conduct, including
. . . efforts to stop Congress from certifying the results of the 2020 presidential election.” Id. at
335. Nauta does not challenge the actus reus component of the pertinent obstruction provisions,
nor could he, given that the charged conduct involves the concealment and destruction of evidence.
The panel members in Fischer also each wrote individual opinions that in part addressed
the term “corruptly.” In a portion of the lead opinion that Judge Walker declined to join, Judge
Pan emphasized that Section 1512(c)(2)’s mens rea element—“corruptly”—imposes an
“important limitation[ ]” on the statute’s scope. Id. at 339 (opinion of Pan, J.). She found it
unnecessary, however, to settle on any “particular definition” in Fischer because all of the potential
interpretations were satisfied where the defendant obstructed an official proceeding using
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“‘independently corrupt means’” such as “assaulting [a] law enforcement officer[ ],” id. at 339-(citation omitted), as was alleged in that case. Judge Walker wrote separately to note that his
agreement with the court’s interpretation of Section 1512(c)(2)’s actus reus was premised on a
specific construction of the “corruptly” element—rejected by both of the other panel members—
as requiring proof that the defendant acted “with an intent to procure an unlawful benefit either for
himself or for some other person.” Id. at 352 (Walker, J., concurring) (citation omitted); see id. at
340-41 (opinion of Pan, J.); id. at 380-81 (Katsas, J., dissenting). Judge Katsas dissented, taking
the view that Section 1512(c)(2) applies “only to acts that affect the integrity or availability of
evidence” at an official proceeding, while criticizing Judge Walker’s definition of “corruptly”
because it “require[d] transplanting” into Section 1512(c)(2) an interpretation “that appears to have
been used so far only in tax law.” Id. at 363, 380-82 (Katsas, J., dissenting); see also id. at (explaining that Judge Walker’s contrary view was based on “three dissents,” two of which “reject
[his] proposed standard”).Nauta’s reliance on Fischer to support his constitutional vagueness claim in this case is
flawed in several respects. First, Fischer itself is doubly inapposite: it did not address a statutory
provision that is charged in this case, and none of the judges found “corruptly” to be
unconstitutionally vague. The statute at issue in Fischer was Section 1512(c)(2), a catchall
obstruction provision that is separate and distinct from Section 1512(c)(1), see 64 F.4th at 345, an
evidence-tampering provision that Nauta is charged with violating. Moreover, the issue in Fischer
concerned the scope of Section 1512(c)(2)’s actus reus, namely, whether the statute’s verbs—

In December 2023, the Supreme Court granted a writ of certiorari on one of the three
Fischer defendants’ petitions, and will consider whether Section 1512(c)(2), “which prohibits
corruptly obstructing an official proceeding, is limited to acts that impair the integrity of
availability of evidence for use in that proceeding.” Fischer v. United States, No. 23-5572. The
interpretation of the “corruptly” mens rea is not fairly encompassed in the question presented.
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“obstructs, influences, or impedes”—contained an atextual limitation to conduct akin to document
tampering (as the district court had concluded)3 or instead (as the court of appeals ultimately held)
“applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is
already covered by § 1512(c)(1).” Id. at 336. Whichever construction is correct, the dispute over
the scope of Section 1512(c)(2)’s actus reus has no impact on this case and sheds no light on the
“corruptly” mens rea.
Nauta makes the additional error (Mot. at 6-7) of proceeding as though the separate
opinions in Fischer represent the D.C. Circuit’s last word on the interpretation of “corruptly” in
Section 1512(c)(2). In fact, in the D.C. Circuit’s subsequent opinion in United States v. Robertson,
supra, the court upheld a Section 1512(c)(2) conviction for a different January 6 defendant where
the jury was instructed that, to conclude the defendant acted corruptly, it had to find the defendant
“use[d] unlawful means, or act[ed] with an unlawful purpose, or both,” and also had
“consciousness of wrongdoing,” meaning “an understanding or awareness that what [he] [wa]s
doing [wa]s wrong.” 86 F.4th at 362 (quoting jury instructions); see also United States v. Brock,
No. 23-3045, 2024 WL 875795, at *5-7 (D.C. Cir. Mar. 1, 2024) (finding evidence that defendant
acted “corruptly” for purposes of Section 1512(c)(2) under the reasoning of Robertson). Drawing
from United States v. North, 910 F.2d 843 (D.C. Cir.) (per curiam), opinion withdrawn and
superseded in part on reh’g, 920 F.2d 940 (D.C. Cir. 1990) (per curiam), and Arthur Andersen LLP
v. United States, 544 U.S. 696 (2005), the D.C. Circuit in Robertson reasoned that the “type of
proceeding and the nature of a defendant’s conduct matter” and confirmed that “the requirement
that a defendant act ‘corruptly’ is met by establishing that the defendant acted with a corrupt

Nauta twice relies (see Mot. at 8) on United States v. Miller, 589 F. Supp. 3d 60 (D.D.C.
2022). The court of appeals in Fischer reversed the district court’s decision in Miller, which was
consolidated with the (same) district court’s decision in Fischer. 64 F.4th at 350.
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purpose or via independently corrupt means.” 86 F.4th at 366-67. Where a defendant’s conduct
is not “inherently malign,” Arthur Andersen, 544 U.S. at 703-04, and does not involve
independently criminal means, the government can establish a corrupt purpose where the
defendant attempts to obtain an improper benefit or advantage, acts dishonestly, or commits
“obstructive acts with ‘consciousness of wrongdoing.’” Robertson, 86 F.4th at 366 (quoting Arthur
Andersen, 544 U.S. at 706-07); see id. at 374 (noting that “dishonesty” and “seeking a benefit for
oneself or another” “may be sufficient to prove corrupt intent” but are not “necessary”). In short,
Fischer lends no support to Nauta’s claim that “corruptly” as used in Section 1512(c)(2)—an
offense with which Nauta is not charged—is unconstitutionally vague, particularly given the D.C.
Circuit’s later decision in Robertson.
Nauta also makes no effort to tie his arguments about “corruptly” in Section 1512(c)(2) to
controlling precedent. The Eleventh Circuit has construed “corruptly” in 18 U.S.C. § 1512(c)(2)
without finding the term vague. See United States v. Friske, 640 F.3d 1288, 1291 (11th Cir. 2011)
(to act “corruptly” is to act “with an improper purpose and to engage in conduct knowingly and
dishonestly with the specific intent to subvert, impede or obstruct the” official proceeding)
(quoting United States v. Mintmire, 507 F.3d 1273, 1289 (11th Cir. 2007)). Nauta fails to cite or
address Friske.
Nauta also offers (Mot. at 1-3) a recitation of factual claims that he suggests support his
vagueness argument, but none of those assertions are properly before the Court on Nauta’s
vagueness claim. “Vagueness challenges to statutes not threatening First Amendment interests are
examined in light of the facts of the case at hand.” Maynard v. Cartwright, 486 U.S. 356, (1988); United States v. Awan, 966 F.2d 1415, 1424 (11th Cir. 1992). Nauta’s vagueness claim
must be resolved based on the Superseding Indictment’s allegations, not extrinsic factual proffers
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of what might develop at trial. See United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir.
1987). “If contested facts surrounding the commission of the offense would be of any assistance
in determining the validity of the motion, Rule 12 doesn’t authorize its disposition before trial.”
United States v. Pope, 613 F.3d 1255, 1259 (10th Cir. 2010) (Gorsuch, J.); accord United States v.
Critzer, 951 F.2d 306, 307 (11th Cir. 1992) (per curiam). In short, “[b]ecause [Nauta’s] vagueness
challenge must proceed on an as-applied basis, his motion to dismiss is procedurally premature
and should be denied without prejudice.” United States v. Van Jackson, No. 18-cr-15, 2018 WL
6421882, at *2 (N.D. Ga. Sept. 5, 2018).
B.
The Rule of Lenity Does Not Apply
Nauta advances as an alternative argument (Mot. at 7-8) that the rule of lenity compels
dismissal of the obstruction counts with which he is charged. That is incorrect. The rule of lenity
“only applies if, after considering text, structure, history, and purpose, there remains a grievous
ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress
intended.” Barber v. Thomas, 560 U.S. 474, 488 (2010) (citation and internal quotation marks
omitted); see Muscarello v. United States, 524 U.S. 125, 138-39 (1998); accord United States v.
Dawson, 64 F.4th 1227, 1239 (11th Cir. 2023). In short, some ambiguity is insufficient to trigger
the rule of lenity; instead, a court must find “grievous ambiguity” that would otherwise compel
guesswork. See Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016) (internal quotation marks
omitted). “Properly applied, the rule of lenity therefore rarely if ever plays a role because, as in
other contexts, ‘hard interpretive conundrums, even relating to complex rules, can often be
solved.’” Wooden v. United States, 142 S. Ct. 1063, 1075 (2022) (Kavanaugh, J., concurring)
(quoting Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019)). Nauta points to no authority suggesting
that the any of the statutes with which he is charged or the term “corruptly” is ambiguous, let alone
grievously so. And to the extent he purports to draw support (see Mot. at 7) from the fact that
13
Page 16 Case 9:23-cr-80101-AMC Document 379 Entered on FLSD Docket 03/07/2024 Page 16 of
different judges have reached different conclusions about the term “corruptly” in another statute,
the Supreme Court has rejected the suggestion that the mere existence of disagreement among
judges demonstrates ambiguity. See Reno v. Koray, 515 U.S. 50, 64-65 (1995); see also, e.g.,
United States v. Hayes, 555 U.S. 415, 429-30 (2009).
III.
Conclusion
The Court should deny Nauta’s motion to dismiss in its entirety.
Respectfully submitted,
JACK SMITH
Special Counsel
N.Y. Bar No. By:
/s/ Jay I. Bratt
Jay I. Bratt
Counselor to the Special Counsel
Special Bar ID #A950 Pennsylvania Avenue, N.W.
Washington, D.C. David V. Harbach, II
Assistant Special Counsel
Special Bar ID #AJames I. Pearce
Assistant Special Counsel
Special Bar ID #A
March 7,
14
Page 17 Case 9:23-cr-80101-AMC Document 379 Entered on FLSD Docket 03/07/2024 Page 17 of
CERTIFICATE OF SERVICE
I hereby certify that on March 7, 2024, I electronically filed the foregoing document with
the Clerk of the Court using CM/ECF, which in turn serves counsel of record via transmission of
Notices of Electronic Filing.
/s/ Jay I. Bratt
Jay I. Bratt
15
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