United States of America v. Michael Angelo Riley

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2024 Decided September 6, 2024
No. 23-3057
UNITED S TATES OF A MERICA,
APPELLEE
v.
M ICHAEL ANGELO R ILEY ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cr-00628-1)
Christopher Macchiaroli argued the cause for appellant.
With him on the briefs was Emma Mulford.
Mark Hobel, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Chrisellen R. Kolb
and Nicholas P. Coleman, Assistant U.S. Attorneys.
Before: P ILLARD , C HILDS and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge P ILLARD.

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P ILLARD, Circuit Judge: Michael Riley, an experienced
former Capitol Police officer, appeals his conviction for
obstruction of a federal grand jury investigation of the
January 6, 2021, attack on the United States Capitol. The day
after the attack, Riley tipped off one of the rioters that
“everyone who was in the [Capitol] building is going to be
charged” and urged him to “take down” a Facebook post
acknowledging that he had been inside the building. When
Riley learned his communication with that individual might
be investigated, he tried to cover it up by deleting direct
messages from his Facebook account and calls from his
phone’s call log. A jury convicted Riley of one count of
obstruction of an official proceeding in violation of 18 U.S.C.
§ 1512(c)(1) based on the deletions but was unable to reach a
verdict on another obstruction count based on the underlying
tip. The court sentenced him to a period of probation and a
fine.
Riley appeals his conviction. His central claim is that the
government failed to establish that an official grand jury
proceeding was foreseeable or that he deleted his Facebook
direct messages to affect any such proceeding. He asserts
various other trial errors that he links to those asserted
shortcomings. We have considered each of Riley’s
challenges and, because none succeeds, we affirm.
I.
A.
Capitol Police Officer Michael Riley was on duty near
the United States Capitol on January 6, 2021, when thousands
of people converged there in an effort to halt the certification
of the electoral count. The following morning, Riley posted
on Facebook that “[e]very protester that assaulted an officer
yesterday, committed property damage, and broke into the

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Capitol building should be charged federally in district court.
If we don’t send a message, it will surely happen again.”
Trial Tr. 29:23-30:1 (J.A. 451-52). Within an hour of that
post, Riley learned that his Facebook friend Jacob Hiles had
uploaded and commented in detail on a video recorded during
the riot. Hiles’s post described the video as portraying “the
craziest, most violent part of what [he] witnessed earlier at the
Capitol building,” Trial Tr. 20:20-21 (J.A. 442), and claimed
that he, “like hundreds or thousands of other people,” was
caught up in a crowd that was “funneled” into the Capitol
Building on January 6. Trial Tr. 27:4, 11-14 (J.A. 449). In a
private message, Riley responded to Hiles: “Hey Jake, im
[sic] a capitol police officer who agrees with your political
stance. Take down the part about being in the building they
are currently investigating and everyone who was in the
building is going to [be] charged. Just looking out!” GX 202
(J.A. 1163).
Riley continued to communicate with Hiles on Facebook
for several days. The pair exchanged hundreds of messages
discussing the law enforcement investigation into the riots and
personal matters like their shared interest in fishing. On
January 16, Riley messaged Hiles that “[t]heyre arresting
dozens of people aday. Everyone that was in the building,
engaged in violent acts, or destruction of property…and
theyre all being charged federally with felonies.” GX 202 at
57, United States v. Riley, No. 21-628 (D.D.C. June 29, 2022)
(ellipsis, spelling, and punctuation as in original); see
Indictment ¶ 13.b. (J.A. 19); Trial Tr. 46:11-14 (J.A. 941).
Then, on January 20, Hiles wrote Riley that the FBI had
arrested and interviewed him. He revealed that the “FBI was
very curious that I had been speaking to you” and “[i]f they
haven’t already asked you about me, they are gonna.” Trial
Tr. 89:17-19 (J.A. 511).

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The next day, Riley deleted his entire string of Facebook
messages with Hiles and removed two calls with Hiles from
his cell phone’s call log. He then sent a message to Hiles,
which he did not delete:
Hey, Jake, another mutual friend was talking about
you last night. I tried to defend you, but then he
showed me a video of you in the Capitol smoking
weed and acting like a moron. . . . I was shocked
and dumbfounded since your story of getting
pushed in the building with no other choice now
seems not only false, but is a complete lie. I feel
like a moron for believing you. . . . I was so mad
last night. I deleted all your posts. But I wanted to
text you this morning and let [you] know that I will
no longer be conversing with you.
Trial Tr. 99:10-24 (J.A. 521).
Four days later, the Capitol Police Office of Professional
Responsibility sent Riley a letter informing him that a
disciplinary complaint had been filed against him. Riley
shared the letter with his union representative and, when the
representative asked whether Riley knew what the complaint
was about, he replied: “If I had to guess, for telling [Hiles] to
take down [a video] from the Capitol breach. But I did it on
private message, so it should be like a private conversation,
but who knows. He told me that he told the FBI that he talked
to me.” Trial Tr. 109:2-6 (J.A. 531).
B.
A federal grand jury in the District of Columbia indicted
Riley on two felony counts of obstruction of an official
proceeding in violation of 18 U.S.C. § 1512. Section
1512(c)(1) imposes liability on anyone who “corruptly alters,

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destroys, mutilates, or conceals a record, document, or other
object . . . with the intent to impair the object’s integrity or
availability for use in an official proceeding.” Section
1512(b)(2)(B) imposes liability on anyone who “knowingly
uses intimidation, threatens, or corruptly persuades another
person” to do the same. The statute defines “official
proceeding” to include, among other things, federal court
proceedings, such as a federal grand jury. 18 U.S.C. §
1515(a)(1)(A).
The indictment charged Riley with attempting to impair
the availability of evidence for use by a federal grand jury
investigating the January 6 breach of the U.S. Capitol.
Indictment ¶¶ 2, 19-22 (J.A. 16, 20-21). Count One alleged
that Riley did so by urging Hiles, in violation of section
1512(b)(2)(B), to take down a Facebook post acknowledging
that he had been inside the Capitol building during the riot.
Count Two alleged that Riley deleted his own Facebook
messages to destroy evidence of his advice to Hiles, in
violation of section 1512(c)(1).
Riley unsuccessfully moved to dismiss the indictment,
arguing that it failed to identify a foreseeable “official
proceeding” that he intended to obstruct because it only
referenced a “law enforcement investigation,” which Riley
contended the relevant provisions do not protect. The district
court held that the indictment adequately alleged that Riley
intended to make evidence unavailable to a federal grand jury
that foreseeably was or would be convened to investigate
crimes committed during the breach of the Capitol on January
6. The court noted that the statute defines “official
proceeding” to include “a proceeding before . . . a Federal
grand jury,” Order at 3-4, United States v. Riley, No. 21-628
(D.D.C. June 29, 2022), ECF No. 37 (quoting 18 U.S.C. §
1515(a)(1)(A)) (J.A. 149-50), and reasoned that Riley’s

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challenge to the charges’ reference to a “federal investigation”
ignored the indictment’s “detailed factual allegations” which
specify that the referenced “federal investigation” was the
January 6 probe “for which a federal grand jury was convened
in the District of Columbia,” id. at 2, 5 (J.A. 148, 151).
Seeking support for his theory that no grand jury was
foreseeable when he deleted his messages, Riley sought to
compel pretrial discovery from the government about the
scope and timing of the grand jury referenced in the
indictment. The district court granted the motion in part. The
court required the government to produce information about
when a grand jury was convened and whether the Capitol
Police were aware of it. But the court denied as irrelevant
Riley’s request for information about prosecutions of
unlawful entries to the Capitol before the events of January 6,
2021.
The government accordingly informed defense counsel
that it had convened a grand jury on January 8, 2021, “largely
for the purpose of considering Capitol attack cases,” J.A. 102
(quoting May 13, 2022, DOJ Ltr. at 1), and it supported that
assertion with a sample January 6 indictment returned by that
grand jury. When a question arose during the trial testimony
of the government’s witness, Special Agent Hart, as to
whether he had personal knowledge of the timing of the grand
jury proceeding, the district court chose to take judicial notice
of the undisputed fact that “[a] federal grand jury was
empaneled in the District of Columbia on January 8th, 2021,
and it considered matters related to the events of the United
States Capitol on January 6, 2021.” Trial Tr. at 163:2-6 (J.A.
775).
The jury found Riley guilty on Count Two based on his
deletion of his own messages but did not reach a verdict on

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Count One based on his advice to Hiles to take down his
Facebook post, resulting in a mistrial and dismissal of that
count. Following trial, the district court addressed Riley’s
motions for judgment of acquittal and for a new trial on the
count of conviction. Those motions largely recapitulated
Riley’s earlier motion to dismiss, this time claiming that the
government’s evidence identified neither a foreseeable
official proceeding nor the requisite nexus between that
proceeding and Riley’s deletion of his messages. The district
court denied the motions and sentenced Riley to 24 months’
probation, a $10,000 fine, and a $100 special assessment.
Riley now appeals his conviction on Count Two. We
have jurisdiction over the appeal. See 28 U.S.C. § 1291. We
review de novo legal questions that the defendant preserved,
United States v. Wilson, 605 F.3d 985, 1003 (D.C. Cir. 2010);
as to unpreserved claims, our review is limited to any plain
error in the district court’s judgment, United States v.
Webster, 102 F.4th 471, 478 (D.C. Cir. 2024); Fed. R. Crim.
P. 52(b).
II.
Riley’s sole count of conviction is for obstruction of an
official proceeding in violation of section 1512(c)(1). The
government defends the jury’s verdict on the ground that it
lawfully charged and proved that Riley destroyed evidence of
his communications with Hiles with intent to impair that
evidence’s availability to a grand jury empaneled to consider
crimes committed in connection with the January 6 attack on
the Capitol.
Section 1512(c)(1) makes it a felony offense to
“corruptly” destroy a record “with the intent to impair the
object’s integrity or availability for use in an official
proceeding.” The proceeding need not have been “pending or

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about to be instituted at the time of the offense.” 18 U.S.C.
§ 1512(f)(1). However, to establish the requisite intent to
obstruct, the government must allege and prove that an
official proceeding was at least foreseeable to the defendant
when he engaged in the obstructive conduct. See Arthur
Andersen LLP v. United States, 544 U.S. 696, 707-08 (2005)
(holding that knowingly corruptly persuading another to
destroy records to interfere with an official proceeding in
violation of 18 U.S.C. § 1512(b)(2)(A) requires proof that the
proceeding was, if not “pending or about to be instituted,” at
least foreseen when the defendant acted); see also Marinello
v. United States, 584 U.S. 1, 4, 13 (2018) (holding that
“corruptly… endeavoring to obstruct or impede the due
administration of the Internal Revenue Code” in violation of
26 U.S.C. § 7212 requires that the obstructed proceeding is at
least “reasonably foreseeable” by the defendant when he
engaged in the obstructive conduct). All circuits that have
considered the issue agree that section 1512(c) requires at
least a “reasonably foreseeable official proceeding.” United
States v. Lonich, 23 F.4th 881, 905 (9th Cir. 2022) (collecting
cases). The government must also show that the allegedly
obstructive conduct “ha[d] a relationship in time, causation, or
logic with the proceeding[],” such that the defendant knew his
intentional acts “ha[d] the natural and probable effect of
interfering” with the proceeding. See United States v.
Aguilar, 515 U.S. 593, 599 (1995) (internal quotation marks
omitted); see also Arthur Andersen, 544 U.S. at 707-08.
This appeal raises five challenges to Riley’s conviction.
Riley’s core theory is that the government failed to allege or
prove his obstructive intent because it did not identify any
foreseeable January 6 grand jury proceeding nor how Riley’s
deletion of his direct messages would tend to interfere with
that proceeding. The record is to the contrary. Riley was a
veteran Capitol Police officer concededly aware of the role of

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grand juries in the criminal process, and his own messages
showed he expected felony prosecutions of unauthorized
entrants into the Capitol building on January 6. The
indictment’s allegations and the trial evidence sufficed to
show that it was reasonably foreseeable that at least one grand
jury would be—and was—empaneled to hear evidence of
crimes relating to the January 6 Capitol breach. They also
showed that Riley knew his deletion of records of his
communications with Hiles would tend to impair the
availability of that evidence to the grand jury. Because each
of Riley’s challenges rests on that core, flawed argument,
each fails.
A.
Riley first challenges the sufficiency of the indictment.
A defendant in a criminal case may move to dismiss an
indictment before trial for “lack of specificity” and “failure to
state an offense,” Fed R. Crim. P. 12(b)(3)(B)(iii), (v),
including when the statute under which he is charged does not
apply to his alleged conduct. See Hamling v. United States,
418 U.S. 87, 117 (1974).
Riley argues that the district court should have dismissed
the indictment for failure to allege obstruction of an “official
proceeding,” such as a federal grand jury proceeding. See 18
U.S.C. § 1515(a)(1)(A) (defining “official proceeding” for
purposes of section 1512 to include a federal grand jury). As
Riley reads it, the indictment alleges only obstruction of a
general law enforcement investigation, which he asserts the
statute does not cover. The government does not address
whether a bare law enforcement investigation is an “official
proceeding” for purposes of section 1512 but defends the
sufficiency of the indictment on the ground that it alleges
intentional obstruction of a grand jury proceeding.

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We hold that the indictment adequately alleges that Riley
intentionally acted in a manner he knew had the likely effect
of obstructing a reasonably foreseeable grand jury. In
particular, it states that he sought to make evidence
unavailable to the federal criminal investigation into the
January 6 Capitol breach “for which a federal grand jury was
convened in the District of Columbia.” Indictment ¶ 2 (J.A.
16). And it quotes his direct message to Hiles warning that
everyone who “was in the building” was “being charged
federally with felonies,” GX 202 at 57, United States v. Riley,
No. 21-628 (D.D.C. June 29, 2022); Indictment ¶ 13.b. (J.A.
19),—a type of federal charge requiring a grand jury. We
further hold that the indictment alleges the requisite nexus
between that grand jury proceeding and Riley’s deletion of
direct messages with Hiles. Count Two, the sole count of
conviction, alleged that Riley “deleted his [own] Facebook
direct communications with [Hiles]” with the intent to make
those messages unavailable to a grand jury investigating
January 6. Indictment ¶¶ 2, 22 (J.A. 16, 21). That suffices to
charge a violation of section 1512(c)(1). See Fed. R. Crim. P.
7(c); United States v. Ballestas, 795 F.3d 138, 148-49 (D.C.
Cir. 2015).
Riley argues that the indictment is legally insufficient
because it improperly equates a general law enforcement
investigation, which is not an official proceeding under
section 1512, with a grand jury proceeding, which is. But a
federal grand jury proceeding is “an ex parte investigation to
determine whether a crime has been committed.” United
States v. Calandra, 414 U.S. 338, 343-44 (1974). The
indictment expressly identifies the criminal investigation
conducted by the FBI and U.S. Capitol Police into the events
of January 6 as one for which a “federal grand jury was
convened in the District of Columbia,” and, more broadly,
alleges facts showing Riley anticipated felony prosecutions of

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unauthorized entrants to the Capitol building on January 6. In
sum, it adequately alleged a foreseeable federal grand jury
proceeding to investigate offenses like Hiles’s and determine
charges, which Riley intended to obstruct by destroying
evidence of his advice to Hiles.
B.
Riley next argues that the government’s trial evidence
was insufficient to support the verdict. When assessing the
sufficiency of the evidence, we “review the evidence de novo,
but consider it in the light most favorable to the government.
We will affirm a guilty verdict where any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Shi, 991 F.3d 198, 205
(D.C. Cir. 2021) (formatting modified); see also Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Riley contends there was
insufficient evidence of either a foreseeable official
proceeding or a nexus between that proceeding and his
deletion of Facebook messages. We hold that the evidence,
considered in the light most favorable to the government,
readily supports the jury verdict.
The district court instructed the jury that the “official
proceeding that is alleged to be the object of Count Two is a
federal grand jury proceeding resulting from the January 6
breach of the U.S. Capitol,” and that “the official proceeding
must be a grand jury proceeding, not simply an FBI
investigation.” Jury Instructions at 4-5 (J.A. 1026-27). The
jury responded with a guilty verdict on Count Two. The trial
record, viewed in the light most favorable to the government,
readily supports a rational jury finding that the requisite
“official proceeding” was foreseeable to Riley.
To establish that the Facebook messages Riley sought to
conceal related to an “official proceeding” under section

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1512, the government’s evidence showed that Riley, a veteran
Capitol Police officer, had reason to think that a grand jury
would investigate January 6 crimes like Hiles’s unauthorized
entry into the Capitol. For example, Riley posted on
Facebook on January 7 that riot participants “should be
charged federally in district court,” and direct messaged Hiles
that “everyone who was in the building is going to [be]
charged.” Trial Tr. 29:23-30:1 (J.A. 451-52); Trial Tr. 37:1-4
(J.A. 459). Days later, Riley direct messaged Hiles that
various categories of January 6 offenders, including everyone
who “was in the building,” was “being charged federally with
felonies,” GX 202 at 57, United States v. Riley, No. 21-628
(D.D.C. June 29, 2022); see Trial Tr. 46:11-14 (J.A. 941).
During cross-examination, Riley acknowledged that, based on
his law enforcement experience, he understood that “a grand
jury makes charging decisions for felonies” and that he
“foresaw felonies being charged” for those who entered the
Capitol on January 6. Trial Tr. 64:24-25 (J.A. 959); Trial Tr.
66:4-22 (J.A. 961); see generally United States v. Ahrensfield,
698 F.3d 1310, 1326 (10th Cir. 2012) (noting that
foreseeability of a grand jury proceeding was supported by
evidence of the defendant’s law enforcement experience and
familiarity with grand jury procedures).
Riley responds that no more than a general law
enforcement investigation was foreseeable. His own
messages undercut that argument. A jury could reasonably
infer from Riley’s having warned Hiles that “dozens of
people” were “being charged federally with felonies”—
including “everyone that was in the building”—that Riley
knew felony charges were imminent and, based on his
experience, that a federal grand jury would have to bring
those charges. GX 202 at 57, United States v. Riley, No. 21-
628 (D.D.C. June 29, 2022); Trial Tr. 46:11-14 (J.A. 941).

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Riley also objects that he was ultimately “indicted by a
separate grand jury” from the one the government accuses
him of obstructing. Riley Br. 39-40. He claims the
conviction must be vacated because the particular grand jury
the indictment identifies was not the grand jury empaneled
months later that eventually indicted him for obstruction.
Section 1512, however, does not require proof that Riley was
indicted by the grand jury he obstructed, nor that the one he
obstructed was “pending or about to be instituted at the time
of the offense.” 18 U.S.C. § 1512(f)(1). What the statute
requires is that a grand jury proceeding was foreseeable to
Riley when he deleted his messages in an effort to obstruct it.
See Arthur Andersen, 544 U.S. at 707-08. The evidence
shows it was.
Riley next argues that because he learned that Hiles was
charged with misdemeanors before he deleted his messages,
the government failed to prove it was foreseeable that a
federal grand jury, which is unnecessary for misdemeanor
charges, would become involved in Hiles’s case or seek
Riley’s messages. See Trial Tr. 46:20-47:10 (J.A. 941-42)
(Hiles messaging Riley about his misdemeanor warrants).
Again, the evidence at trial supports an inference that Riley
anticipated a grand jury proceeding even after Hiles’s arrest
on misdemeanor charges. Riley testified, for example, that he
was aware that federal criminal cases sometimes “began as
misdemeanors and ended as felonies.” Trial Tr. 70:23-73:19
(J.A. 965-68). He also discussed Hiles’s case on January 20
with another friend on Facebook, opining in response to that
person’s reference to Hiles’s misdemeanor warrants “I
thought everyone was getting charged with felonies.” Trial
Tr. 92:13-16 (J.A. 514). There is no evidence that Riley no
longer thought so when he deleted the messages and call log
from his Facebook account.

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Riley finally insists that, even if he could have foreseen a
grand jury investigating Hiles for entering the Capitol, the
evidence was inadequate because the material he deleted fell
outside the foreseeable scope of such an investigation. We
are unpersuaded. A grand jury’s investigatory scope
foreseeably includes attempts to obstruct its own proceedings.
A Capitol Police officer’s messages with a January 6 offender
would fall within the scope of a grand jury convened to
investigate crimes relating to the Capitol breach; indeed,
Riley knew that any January 6 grand jury would cast a wide
net and warned Hiles that investigators were “going through
everything.” Trial Tr. 53:1-2 (J.A. 475). Riley himself
testified that he deleted the messages within a day of learning
of the FBI’s interest in him, in part because he was
“concerned that the FBI was going to think . . . that I had
something to do with January 6.” Trial Tr. 97:6-9 (J.A. 992).
A jury could thus rationally infer that it was foreseeable to
Riley that a January 6 grand jury investigation might
eventually seek his messages with Hiles.
To prove the nexus between Riley’s acts and a
foreseeable grand jury, the government showed that Riley
understood that interference with a grand jury’s investigation
of January 6 was a “natural and probable effect” of his
deletion of his direct messages with Hiles. See Aguilar, 515
U.S. at 599. On January 7, Riley suggested Hiles take down
his Facebook post acknowledging having entered the Capitol
building, cautioning Hiles that “[t]hey are currently
investigating and everyone who was in the building is going
to [be] charged.” Trial Tr. 37:1-4 (J.A. 459). The two men
continued to exchange Facebook messages until Hiles was
arrested and told Riley on the evening of January 20th that
“[t]he FBI was very curious that I had been speaking to you.”
Trial Tr. 89:17-19 (J.A. 511). Early the following morning,
Riley deleted his entire Facebook message string with Hiles.

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Trial Tr. 101:2-103:11 (J.A. 523-25). Riley also removed
from his call log records of his phone calls with Hiles. Trial
Tr. 103:12-105:24 (J.A. 525-27). He then sent private
Facebook messages to other people who knew the two of
them had spoken, distancing himself from Hiles.
Riley insists that his deletion of messages could not have
affected the January 6 grand jury because, by the time he
deleted them, the FBI had identified Hiles, charged him, and
searched his phone. A defendant need not, however, be
“successful in impeding or obstructing justice . . . so long as
his acts had the natural and probable consequence of
interfering with” a foreseeable official proceeding. United
States v. Martinez, 862 F.3d 223, 238 (2d Cir. 2017), vacated
on other grounds by Rodriguez v. United States, 139 S. Ct.
2772 (2019); accord United States v. Pugh, 945 F.3d 9, 22
(2d Cir. 2019). Moreover, even after Hiles was caught, Riley
expressed concern that law enforcement would think he had
“something to do with January 6.” Trial Tr. 97:6-9 (J.A. 992).
That evidence supports an inference that, even after Hiles was
arrested, Riley sought to hide his messages from the grand
jury.
Riley’s post-argument submission of the Supreme
Court’s recent decision in Fischer v. United States, 144 S. Ct.
2176 (2024), does not resuscitate his challenge. Fischer reads
section 1512(c)(2)’s residual clause to prohibit conduct that
“impaired the availability or integrity for use in an official
proceeding of records, documents, [or] objects . . . or
attempted to do so.” Id. at 2190. If anything, Fischer affirms
that Riley’s offense—destroying evidence pertinent to a grand
jury investigation—is exactly the type of conduct covered by
section 1512(c).

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C.
Riley further asserts the verdict cannot stand because the
government’s trial evidence materially diverged from the
allegations of the indictment. He argues that the proof
constructively amended and prejudicially varied from the
indictment. Because Riley raised neither challenge in district
court, we review his claims for plain error only. See United
States v. Lawton, 995 F.2d 290, 294 (D.C. Cir. 1993); Fed. R.
Crim. P. 52(b).
The doctrines regarding amendments and variances have
distinct roles.
An amendment deprives the defendant of the “right to be
tried upon the charge in the indictment as found by the grand
jury and hence subjected to its popular scrutiny.” Gaither v.
United States, 413 F.2d 1061, 1071-72 (D.C. Cir. 1969).
When an indictment is amended either explicitly (by the trial
judge) or constructively (by evidence and jury instruction),
the allegations are altered without the approval of the grand
jury. Stirone v. United Sates, 361 U.S. 212, 215-16, 218-19
(1960); United States v. Lorenzana-Cordon, 949 F.3d 1, 4
(D.C. Cir. 2020). To support a claim of constructive
amendment, the defendant must “show that the evidence
presented at trial and the instructions given to the jury so
modified the elements of the offense charged that the
defendant may have been convicted on a ground not alleged
by the grand jury’s indictment.” Lorenzana-Cordon, 949
F.3d at 5-6 (emphasis in original) (quoting United States v.
Toms, 396 F.3d 427, 436 (D.C. Cir. 2005)). Because “the
concept of harmless error has not been applied to
amendments,” no showing that an amendment was prejudicial
is required. Lorenzana-Cordon, 949 F.3d at 4-5 (quoting
Gaither, 413 F.2d at 1072). Riley acknowledges that the jury

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instructions comported with Count Two of the Indictment.
See Riley Br. 39. His constructive amendment claim thus
fails at the gate.
A variance, in contrast, is a mismatch between the
allegations of the indictment and the proof, which “deprive[s]
the defendant of notice of the details of the charge against him
and protection against reprosecution.” Gaither, 413 F.2d at
1072. In a variance case, “the charging terms of the
indictment are left unaltered, but the evidence offered at trial
proves facts materially different from those alleged in the
indictment.” Lorenzana-Cordon, 949 F.3d at 4 (quoting
Gaither, 413 F.2d at 1071). We will reverse a conviction
based on a variance only if the error has a “substantial and
injurious effect or influence” on the jury’s verdict.
Lorenzana-Cordon, 949 F.3d at 4.
Riley asserts that the government’s proof at trial of his
“desire to protect himself” varied from the indictment’s tacit
focus on a desire to protect Hiles. Riley Br. 54. But the
indictment did not spell out Riley’s underlying motive, nor
did it need to. Establishing the requisite state of mind—intent
to interfere with the availability of evidence for use in an
official proceeding—does not depend on evidence of the
defendant’s personal reasons for engaging in such
interference. The distinction Riley sees could not support a
claim of variance.
The indictment alleged that Riley meant to obstruct a
foreseeable January 6 grand jury proceeding. As we
explained, the evidence readily supports those allegations.
Riley’s messages formed the heart of the government’s case
at trial, and did not differ from the indictment, which quoted
many of those same messages. See Indictment at 2-5 (J.A.
17-20). And the fact that Riley was eventually charged by a

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separate grand jury from the one specified in the indictment
does not constitute a variance. The indictment alleged that
Riley anticipated that felonies would be charged for conduct
like Hiles’s, and that Riley deleted his messages with an
intent to obstruct a federal grand jury resulting from the
January 6 breach of the U.S. Capitol. Indictment ¶¶ 2, 13
(J.A. 16, 18-19). As it happened, more than one such grand
jury was convened. The jury instructions tracked the
indictment’s allegations, and the evidence at trial proved the
conduct took place as alleged.
D.
Riley next objects to the district court’s partial denial of
his pretrial motion to compel discovery. We review the
district court’s discovery orders for abuse of discretion,
United States v. Butler, 924 F.2d 1124, 1130 (D.C. Cir. 1991),
and we “will not reverse unless the alleged error resulted in
prejudice to the defendant[]’s substantial rights,” United
States v. Mejia, 448 F.3d 436, 444 (D.C. Cir. 2006).
Riley claims the district court abused its discretion in
denying discovery of documents related to specifics about the
grand jury proceeding identified in the indictment, including
the origin and charged scope of that proceeding. But whether
that grand jury ultimately indicted Hiles (or Riley) is
immaterial to the jury’s finding that Riley sought to obstruct
it. Riley also seeks “any internal communications between
FBI agents as part of their investigation,” which Riley argues
could, if they confirmed the FBI already knew Hiles had been
in the Capitol building, tend to rebut the nexus between
Riley’s message deletions and any grand jury investigation of
Hiles. But Riley also wanted to protect himself, not just
Hiles. And, in any event, Riley does not explain how internal
FBI communications could bear on what Riley knew or

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intended in January 2021. Riley has not shown that the
district court’s partial denial of discovery was an abuse of
discretion, nor has he identified any resultant prejudice.
Riley also objects that the district court took judicial
notice during trial that a January 6 grand jury was empaneled
and began proceeding as soon as January 8, 2021. Trial Tr.
163:2-13 (J.A. 775). Contrary to Riley’s contention on
appeal, the district court’s judicial notice relied only on
judicial records already disclosed to him. Trial Tr. 125:4-12
(J.A. 737); see Veg-Mix, Inc. v. U.S. Dep’t of Ag., 832 F.2d
601, 607 (D.C. Cir. 1987) (allowing courts to take judicial
notice of official court records). And, as we note above in
connection with Riley’s claim of evidentiary insufficiency,
the government was required to prove only that Riley’s
conduct had a nexus to a foreseeable official proceeding. 18
U.S.C. § 1512(f)(1). The district court accordingly acted
within its sound discretion in denying discovery into the
precise scope of the federal grand jury convened on January 8
to charge felonies committed in connection with the January 6
attack on the Capitol.
Riley also claims that the government violated the Jencks
Act by withholding “internal communications between FBI
agents”—specifically, prior statements of Special Agent Hart
that Riley surmises must exist because Hart testified at trial as
a witness familiar with the January 6 grand jury. See Riley
Br. 51; Riley Reply Br. 23. The Jencks Act imposes an
affirmative duty on the government to disclose any prior
“statement” made by a prosecution witness that “relates to the
subject matter as to which the witness has testified.” 18
U.S.C. § 3500(b). But the government need not “sift through
every record” in the absence of a defendant’s “colorable
claim” that the government withheld “a specific document or
set of documents contain[ing] Jencks statements.” United

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States v. Moore, 651 F.3d 30, 75 (D.C. Cir. 2011). Because
Riley failed to timely make any colorable Jencks Act claim in
the district court that might have encompassed prior
statements of Hart, his claim is unpreserved and subject to
plain-error review. United States v. Brodie, 871 F.2d 125,
130 (D.C. Cir. 1989).
Riley did not seek potential Jencks material regarding
Special Agent Hart until the trial was completed and appeal
contemplated. In a post-trial letter to the government
objecting that it had not met its discovery obligations, Riley’s
counsel requested certain items. As relevant here, counsel
asserted that, because Special Agent Hart was one of the
government’s principal witnesses relating to the grand jury
investigation into the January 6 crimes, and because defense
counsel had asked the government before trial to review the
FBI messaging system for Jencks Act material, counsel
thought the “scope” of the government’s production of Hart’s
messages “should have been significant.” Riley Discovery
Ltr. at 2 (J.A. 1150). The absence of any prior statement by
Hart in what the government produced apparently led defense
counsel to the belated inference that the government withheld
material in its possession in violation of the Jencks Act. That
inference alone does not show any substantial prejudice that
could support a determination of plain error.
E.
Finally, Riley asserts that the district court’s conduct of
the trial “gave the appearance of partiality” requiring reversal.
Riley Br. 55. That claim is entirely baseless. “The threshold
for a showing of bias is high,” United States v. Carson, 455
F.3d 336, 355 (D.C. Cir. 2006) (per curiam) (quoting United
States v. Edmond, 52 F.3d 1080, 1099 (D.C. Cir. 1995) (per
curiam)), reserved for circumstances that “reveal such a high

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degree of favoritism or antagonism as to make fair judgment
impossible.” Liteky v. United States, 510 U.S. 540, 555
(1994). Nothing Riley identifies comes close to meeting that
high bar.
Many of Riley’s arguments in favor of reassignment for
purposes of any further proceedings boil down to
disagreements with the district judge’s rulings. Unfavorable
rulings, however, “almost never constitute a valid basis for a
bias or partiality motion,” and none of the examples Riley
provides tends to support any allegation of bias. Liteky, 510
U.S. at 555 (citing United States v. Grinnell Corp., 384 U.S.
563, 583 (1966)). Riley also complains the district judge was
unduly critical of his legal arguments throughout the trial,
evidenced by comments from the bench that he views as harsh
or dismissive. Riley ignores, however, that the government,
too, drew critical comments from the district court. More
importantly, none of the comments Riley cites was stated in
the jury’s presence or aimed at the defendant or the merits of
his case. Every comment Riley identifies appears to be a
genuine and fair effort to keep counsel on track and probe
their arguments. See Carson, 455 F.3d at 358-59. The
district court’s occasional expressions of skepticism, not
limited to positions taken by the defense, were entirely
appropriate means of focusing the advocates on the issues in
dispute in a manner helpful to the court.
We reject the contention that the district judge evinced
partiality in overseeing his case.
III.
For these reasons, we affirm the judgment of conviction.
So ordered.

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