govinfo:USCOURTS-dcd-1_21-cr-00073-3

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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
UNITED STATES 
 
 
v. 
 
NICHOLAS R. OCHS, 
 
Defendant. 
 
 
 
  Criminal Action No. 21-073-02 (BAH) 
 
  Judge Beryl A. Howell 
 
MEMORANDUM OPINION  
Pending before the Court is a motion filed by Nicholas R. Ochs seeking a refund of the 
fractional amount he has paid towards the amount he owed in restitution, criminal fine and a special 
assessment in connection with his felony conviction, prior to receiving a pardon from the current 
President.  Def.’s Unopposed Mot. Return of Restitution, Fines & Fees (“Def.’s Mot.”), ECF No. 
135.  In September 2022, Ochs, a senior member and founder of the Hawaii chapter of the Proud 
Boys, pleaded guilty to Obstruction of an Official Proceeding, 18 U.S.C. § 1512(c) (2), for his 
criminal conduct as part of the January 6, 2021, attack on the United States Capitol on the day that 
Congress was constitutionally and statutorily mandated to certify the results of the 2020 
presidential election.  Statement of Offense of Nicholas Ochs (“SOF”) ¶¶  3, 8, 24, ECF No. 82  
(signed “voluntarily and of my own free will” by “Nicholas R. Ochs,” after acknowledging that he 
had read and discussed the SOF with his attorney and agreed “that this [SOF] is true and 
accurate.”).  Ochs admitted that his offense  conduct included stealing equipment from law 
enforcement officers , defacing the Capitol Building, and throwing smoke bombs at  law 
enforcement officers who were trying to protect elected officials, their staff, and others in the 
Capitol building, and that he was motivated by his belief that the 2020 election was stolen, stating 
in a video he recorded that day, “  . . . the steal is for now stopped.  You’re welcome, America!”  
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Id. ¶¶ 10, 13, 18-20, 23-24; Plea Hr’g Tr. (Sept. 9, 2022) at 28:18-21, 29:16-18, 33:15-34:3, 34:24-
25, ECF No. 116. 
Of course, no evidence has ever been substantiated that any outcome determinative election 
fraud occurred in the 2020 presidential election.  See, e.g., Press Release, Dep’t of Homeland Sec., 
Joint Statement from Elections Infrastructure Government Coordinating Council and the Election 
Infrastructure Sector Coordinating Executive Committees  (Nov. 12, 2020) , https://perma.cc/ 
C3AL-ALBC (“The November 3rd election was the most secure in American history. . . . There is 
no evidence that any voting system deleted or lost votes, changed votes, or was in any way 
compromised. . . . While we know there are many unfounded claims and opportunities for 
misinformation about the process of our elections  . . . we have the utmost confidence in the 
security and integrity of our elections, and you should too.”);  Final Report of the Select Committee 
to Investigate the January 6th Attack on the United States Capitol, H.R. Doc. No. 117-663, at 390 
(2d Sess. 2022)  (“Senior DOJ officials—Barr, Rosen and Donoghue —had repeatedly stated the 
opposite.  They found no evidence of fraud that would have impacted the election’s results —
none.”); id. at 377 (quoting Statement by U.S. Attorney General William Barr, December 1, 2020 
(“To date, [Department of Justice investigators] have not seen fraud on a scale that could have 
effected a different outcome in the election.”); id. at 19 (“Ultimately, even Rudolph Giuliani and 
his legal team acknowledged that they had no definitive evidence of election fraud sufficient to 
change the election outcome.  For example, although Giuliani repeatedly had claimed in public 
that Dominion voting machines stole the election, he admitted during his Select Committee 
deposition that ‘I do not think the machines stole the election.’”).  Thus, Ochs’ espoused belief 
about a stolen election  that he says motivated his offense  conduct was and remains  incorrect.  
Notably, Ochs’ co-defendant, who accompanied Ochs on January 6, 2021, tried to explain his own 
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parallel offense conduct, stating that he is a “gullible person . . . easy to upset and manipulate, and 
these things probably are what helped [him] get swept up so easily that day.”  Letter from Ochs’ 
Co-Defendant, Ex. 1 to Co-Def.’s Sent’g Mem., ECF No. 97-1. 
No matter Ochs’ motivation for his criminal conduct, the costs to the American taxpayer 
from the attack on the U.S. Capitol on January 6, 2021, were substantial.  This fact  properly 
prompted the government to demand payment of restitution from defendants convicted of criminal 
conduct in the attack on the U.S. Capitol, with identified “victims includ[ing] the Architect of the 
Capitol (the federal agency responsible for the physical upkeep of the Capitol building and 
grounds), the House Chief Administrative Officer, the Secretary of the Senate, the Senate Sargent 
at Arms, and the United States Capitol Police Department (‘USCP’), several hundred of whose 
officers were guarding the Capitol Building and Grounds on January 6 when they suffered physical 
and psychol ogical injuries as a direct result of the riot[,] ” and “[t]he Metropolitan Police 
Department (‘MPD’)[, which] also suffered losses as a result of January 6, 2021, and is a victim.”  
Gov’t’s Submission Regarding Restitution at 1 & 1 n.1, United States v. Todd III, No. 22- cr-166 
(BAH), ECF No. 238.  The damages to the Capitol Building encompass ed expenses for cleaning, 
repair, and performing conservation on sculptures, paintings, and furniture; removing graffiti; and 
conducting laboratory testing of potential biohazards left by those attacking the Capitol, including 
“pepper spray residue, counter -assault bear repellent residue, Sabre Red repellent residue, fire 
extinguisher residue, human blood, paint, and a [cigarette] butt ,” before the objects within the 
Senate could be repaired.  Letter from Gen. Couns. to the Sec’y, Off. of the Sec’y, U.S. Senate to 
U.S. Att’y’s Off. at 2 (June 11, 2024), United States v. Todd III, No. 22-cr-166 (BAH), ECF No. 
240-2.  The U.S. Capitol also sustained thousands of dollars in costs to replace stolen property and 
furniture “damaged beyond repair.”  Letter from Acting Assistant Seargeant at Arms, Off. of the 
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Sergeant at Arms, U.S. Senate to U.S. Att’y’s Off. at 4-5 (June 12, 2024), United States v. Todd 
III, No. 22-cr-166 (BAH), ECF No. 240-3. 
At the time of Ochs’ plea hearing, in September 2022, the property damage to the Capitol 
Building alone was estimated to be $2,734,783.14, Plea Hr’g Tr. at 39:14-17, but this damage 
estimate amount only increased by the time of sentencing, in December 2022, see Gov’t’s Sent’g 
Mem. for Nicholas R. Ochs (“Gov’t’s Ochs Sent’g Mem.”) at 47, ECF No. 94 (estimating damages 
at $2,881,360.20).  As of July 7, 2023, the estimated damages to the Capitol building and grounds 
and for certain costs  to the U.S. Capitol police was estimated  by the government  to be 
$2,923,080.05.  See Final Presentence Investigation Rep. ¶ 20, United States v. Conemac, No. 24-
cr-462 (BAH), ECF No. 18; Final Presentence Investigation Rep. ¶ 21, United States v. Williams, 
No. 24-cr-209 (BAH), ECF No. 43; Final Presentence Investigation Rep. ¶  29, United States v. 
Weeks, No. 24- cr-131 (BAH), ECF No. 41. 1  Even those estimated damages did not cover the 
damages resulting from the numerous bodily injuries on law enforcement officers, including U.S. 
Capitol Police and D.C Metropolitan Police Officers, inflicted by those participating in the attack 
on the U.S. Capitol on January 6, 2021.  Additionally, this estimate “does not include overtime 
labor costs for the Capitol Building and Grounds team, nor costs incurred in other areas of the 
Capitol complex, [or] include project delays and installation of temporary security measures.”  
Letter from Chief Sec. Off., Architect of the Capi tol to U.S. Att’y’s Off. (June 14, 2024), United 
States v. Todd III, No. 22-cr-166 (BAH), ECF No. 248-1.  Indeed, the Government Accountability 
 
1  “As of July 7, 2023, the approximate losses suffered as a result of the siege at the United States  Capitol was 
$2,923,080.05,” which amount “reflects, among other things, damage to the United States  Capitol building and 
grounds and certain costs borne by the United States Capitol Police.  The Metropolitan Police Department ( ‘MPD’) 
also suffered losses as a result of January 6, 2021, and is also a victim.  MPD recently submitted a total of 
approximately $629,056 in restitution amounts, but the government has not yet included this number in our overall 
restitution summary ($2.9 million) . . . [and] in consultation with individual MPD victim officers, the government has 
sought restitution on a case -by-case evaluation.”  Gov’t’s Sent’g Mem. at 1 n.1, United States v. Weeks , No. 24-cr-
131 (BAH), ECF No. 43. 
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Office estimated in 2023 that the total cost of this attack on the Capitol, including “damage to the 
Capitol building and grounds, estimated costs borne by the Capitol Police, the District of 
Columbia, and federal agencies, and estimated costs to address security needs and investigations,” 
resulted in “about $2.7 billion in estimated costs.”  Gov’t Accountability Off., GAO-23-106625, 
CAPITOL ATTACK: FEDERAL AGENCIES IDENTIFIED SOME THREATS, BUT DID NOT FULLY PROCESS 
AND SHARE INFORMATION PRIOR TO JANUARY 6, 2021, at 1 & n.2 (released Feb. 28, 2023; reissued 
with revisions on July 21, 2023). 
Set against these significant damages costs due to the Capitol attack, and as part of Ochs’ 
felony conviction, he was ordered to pay a $5,000 criminal fine, $2,000 in restitution, and a $100 
assessment.  Judgment of Nicholas Ochs at 7, ECF No. 106; see also Sent’g Hr’g Tr. (Dec. 9, 
2022) at 71:19-21, 73:12-21, ECF No. 110. 
Eighteen months after Ochs was sentenced, the Supreme Court, in Fischer v. United States, 
603 U.S. 480 (2024), limited application of defendant’s statute of conviction.  At his request, see 
Def. DeCarlo & Ochs Mot. for Post-Conviction Relief, ECF No. 112, and over the government’s 
opposition, see Gov’t’s Opp’n to Defs.’ Mot. to Vacate Their Convictions Under 28 U.S.C. § 2255, 
ECF No. 121, Ochs’ conviction was vacated, though this order was stayed , during which period 
Ochs was ordered released from prison, United States v. DeCarlo, No. 21-cr-73 (BAH), 2024 WL 
4650993 (D.D.C. Nov. 1, 2024); see Minute Order (Nov. 26, 2024) (continuing stay until Jan. 10, 
2025, at parties’ joint request ); Minute Order (Jan. 2, 2025) (granting the parties’ motion to 
continue which also requested that the stay of vacatur be extended); see Joint Mot. to Continue at 
2, ECF No. 127 (“The parties further respectfully request that this Court extend its stay of vacatur 
until the arraignment and status hearing.”).  Five days after a superseding indictment was returned 
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and four days before the stay of vacatur would have lapsed, Ochs was granted a presidential pardon 
on January 20, 2021. 
Ochs now moves for an order directing the government to return all fines, fees, and 
restitution payments that he paid.  See Def.’s Mot.  The government declines to oppose this motion.  
Id. at 1 (“Assistant United States Attorney [name redacted] has indicated that the government does 
not oppose this motion.”).  Information provided by this Court’s Clerk’s Office indicates that Ochs 
paid, in total, $1,569.93, comprised of the $100 special assessment and $1,469.93 in restitution, 
and that these funds have been deposited into accounts of the United States Treasury. 
For the reasons explained below, the pending motion is denied. 
I. BACKGROUND 
The factual background and procedural history relevant to defendant’s motion for return of 
funds are described below. 
A. Factual Background 
Ochs is the founder of the Hawaii chapter of the Proud Boys, rose through the Proud Boys’ 
ranks to achieve the status of  “Elder” within the organization, with his apparent pride in his 
association with this organization revealed by his tattoo saying “Proud Boys” on his right arm .  
SOF ¶ 8; Def.’s Final Presentence Investigation Report (“PSR”) ¶ 75, ECF No. 91 (sealed).2  On 
January 4, 2021, Ochs boarded a flight from Honolulu, Hawaii, and arrived in Washington, D.C., 
the next day.  SOF ¶ 9.3  He traveled to D.C. because, in his words, “the president asked and said 
it was gonna be wild and that people should wear body cameras.”  Id. ¶ 9.  On January 6, 2021,  
 
2 The PSR is filed under seal and unsealed to the limited extent that sealed content is referenced to explain the 
reasoning in this Memorandum Opinion.  See United States v. Reeves, 586 F.3d 20, 22 n.1 (D.C. Cir. 2009). 
 
3  “The Proud Boys describes itself as a ‘ pro-Western fraternal organization for men who refuse to apologize 
for creating the modern world; aka Western Chauvinists.’”  SOF ¶ 8 n.1.  Within Proud Boys, elders possess a senior 
role and are responsible for approving new chapters.  Id. ¶ 8. 
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Ochs attended President Donald J. Trump’s “Stop the Steal” rally and subsequently marched to 
the Capitol with other individuals attending the rally.  Id. ¶ 10. 
As Ochs approached the Capitol Building, he proclaimed that “the steal is in fact right here 
and we are going to stop it.”  Id. ¶ 11.  His co-defendant, another member of the Proud Boys, added 
“this is where they are going to steal it.  And they called on us.  They called on us to stop it.  We 
are putting an end to it.  They said calling all patriots.  And our MVPs.  Our  MVP VIPs.  Nick 
Ochs and Dick NeCarlo.  Live on the Scene.  We’re going to put the kibosh on this.”  Id.   Ochs, 
cognizant that he was on r estricted grounds, then stated that “we’re not supposed to be here, this 
is beyond the fence” as he arrived at the West Front, where preparations were underway for the 
upcoming inauguration.  Id. ¶ 12.  Ochs and his co-defendant encountered a line of police officers, 
who were trying to keep the rioters away from the inaugural stage, and they responded by throwing 
smoke bombs at the police.  Id. ¶ 13. 
Inside the Capitol building, at about 1:00 p.m., a joint session of the United States Congress 
had convened to certify the vote count of the Electoral College of the 2020 Presidential Election  
as required by the Twelfth Amendment of the United States Constitution and the Electoral Count 
Act, 3 U.S.C. § 15.  Id.  ¶ 3.  As the number s of rioters swelled, U.S. Capitol Police officers 
attempted to keep the crowd away so that Congress could perform its constitutionally mandated 
duties.  Id. ¶ 4.  By 2:00 p.m., the rioters forced their way through the barricades and Capitol Police 
officers were forced to retreat as the crowd advanced to the exterior façade  of the building.  Id. 
¶ 5. 
At about 2:12 p.m., Ochs climbed the stairs to the Upper West Terrace of the Capitol.  Id. 
¶ 14.  Around eight minutes later, the members of the House of Representatives and the Senate, 
including then-Vice President Michael R. Pence, evacuated the Chambers  of both the House and 
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the Senate.  Id. ¶ 7.  The dangerous circumstances created by the rioters halted congressional 
functions.  Id.  At about 2:23 p.m., Ochs breached the Capitol Building through the Senate Wing 
Doors and entered the Crypt of the Capitol at 2:26 p.m.  Id. ¶ 14.  In this location within the Capitol 
building, Ochs decided to smoke a cigarette with his  co-defendant and flaunt himself doing so, 
taking a picture and posting it to social media with the caption “Hello from the Capital lol,” as 
well as sending the phot ograph to an encrypted chat of Proud Boys members .  Id. ¶ 15.  His co -
defendant observed that Congress had gone into lockdown and alternatively shouted “Where’s 
Nancy?” and “Where you at, Nancy?” referring to the then -Speaker of the House of 
Representatives Nancy Pelosi.  Id. 
From there, Ochs moved through the Crypt’s East Lobby to the  Capitol Visitor Center, 
where crash doors were closing as police attempted to block rioters’ access from certain parts of 
the Capitol.  Id. ¶ 16.  Ochs and his co-defendant encouraged and recorded others’ efforts to wedge 
the crash doors open with various objects to frustrate Capitol Police officers’ attempts to secure 
the building.  Id.   Around 2:42 p.m., Ochs met and hugged other Proud Boys in the East Foyer 
before they went to the Rotunda together .  Id. ¶ 17.  Once in the Rotunda, Ochs and his co-
defendant yelled “Nancy’s Office!” and pointed rioters towards an exit from the Rotunda where a 
group of rioters began to gather.  Id. ¶ 18. 
Ochs left the Capitol Building through the Rotunda Doors at about 3:00 p.m. and 
approached the Chestnut-Gibson Memorial Door, where he recorded his co-defendant deface the 
door by writing “Murder the Media,” the name of their social media channel, on it with permanent 
marker.  Id. ¶ 19.  Memorializing their work, Ochs and co-defendant posed in front of the door to 
take pictures.  Id.  While still near the door , Ochs and co-defendant rummaged through a U.S. 
Capitol police duffel bag, and co-defendant stole a pair of flexcuffs.  Id. ¶ 20. 
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 In a video he took while walking away from the Capitol building, Ochs proclaimed, “sorry 
we couldn’t go live when we stormed the fuckin’ U.S. Capitol and made Congress flee.”  Id. ¶ 22.  
In another video taken that same day, Ochs relayed “good news” that Congress stopped the vote 
and boasted that the rioters successfully completed their mission to “stop the steal.”  Id. ¶ 23.  In a 
final statement, Ochs concluded his remarks about his contribution to the attack on the U.S. Capitol 
with “You’re welcome, America!”  Id.  That night he “went on CNN” admitting to his participation 
in the riot although purporting to have been “acting as a professional journalist.”  Sent’g Hr’g Tr. 
at 65:2-5.  The next day, on January 7, 2021, Ochs was arrested in Honolulu, Hawaii.  PSR ¶ 16. 
B. Procedural Background 
Ochs pleaded guilty on September 9, 2022, to Count 2 of a six- count superseding 
indictment for Obstruction of an Official Proceeding, in violation of 18 U.S.C. § 1512(c)(2 ), and 
waived his right to appeal , except in limited circumstances .  See Plea Hr’g Tr. at 15:19-16:10, 
51:17-21; Plea Agreement of Nicholas Ochs ¶¶ 1, 10.C, ECF No. 81; Minute Entry (Sept. 9, 2022).  
At the subsequent sentencing hearing, on December 9, 2022, the government recommended that 
Ochs be sentenced to a term of imprisonment of 51 months and that he be ordered to pay a fine of 
$14,329, equivalent to the amount raised in the “Ochs Family Fund” online campaign, plus 
restitution of $2,000, and a $100 special assessment.  Gov’t’s Ochs Sent’g Mem. at 48.  Through 
the online campaign during the pendency of his criminal case, Ochs raised over $14,000 for 
himself, claiming that “he is being selectively prosecuted for being a political dissident” and 
denying that “it was his conduct, not his views” that resulted in his felony conviction.  Sent’g Hr’g 
Tr. at 66:5-10; see Gov’t’s Ochs Sent’g Mem. at 48.  He was sentenced, below the government’s 
recommendation, to a 48-month term of imprisonment and ordered to pay a special assessment of 
$100, a restitution payment in the amount of $2,000 to the Architect of the Capitol, and, finally, a 
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criminal fine of $5,000.  See Sent’g Hr’g Tr. at 71:13-21, 73:12-18; Judgment at 6; Gov’t’s Ochs 
Sent’g Mem. at 48. 
Following his sentencing, in the period between March 9, 2023, and October 9, 2024, Ochs 
paid a total of only $1,569.93 towards his financial obligations.  The first $100 was apportioned to 
the special assessment and was immediately deposited into the Crime Victims Fund, an account 
within the United States Treasury, as is required by statute.  See 34 U.S.C. § 20101 (requiring that 
“all fines that are collected from persons convicted of offenses against the United States” with 
some enumerated exceptions “shall be deposited in the [Crime Victims] Fund”).  The remaining 
$1,469.93 was applied towards Ochs’ $2,000 restitution obligation and was disbursed to the 
Architect of the Capitol.
4  When Ochs made his last payment , on October 9, 2024, he had an 
outstanding balance due of $530.07 in restitution and the entire $5,000 criminal fine. 
In June 2024, the Supreme Court decided Fischer v. United States , 603 U.S. 480 (2024), 
which narrowed application of 18 U.S.C. § 1512 (c)(2).  In light of th is decision, Ochs filed a 
habeas petition, pursuant to 28 U.S.C. § 2255, to vacate his conviction, which petition was granted, 
over the government opposition.  DeCarlo, 2024 WL 4650993, at *1.  The order vacating Ochs’ 
conviction was initially “subject to a 30-day stay,” during which period he was  ordered released 
on the same conditions as his pre-sentence release.  Id.  At the parties’ request, this stay of vacatur 
was extended until January 24, 2025.  See Minute Orders ( Nov. 26, 2024; Jan. 2, 2025 ); Joint 
Status Report at 2, ECF No. 126 (“The parties further respectfully request that this Court extend 
its stay of vacatur until the status hearing.”); Joint Mot. to Continue Status Conference at 2, ECF 
 
4  The Architect of the Capitol is the official in charge of the congressional agency tasked, among other 
responsibilities, with “the care and superintendence of the Capitol,”  such as “to clean and keep in proper order the 
exterior of the Capitol,” and to direct and supervise “[a]ll improvements, alterations, additions, and repairs of the 
Capitol Building.”  2 U.S.C. §§ 1812, 1813, 1814. 
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No. 127 (“The parties further respectfully request that this Court extend its stay of vacatur until 
the arraignment and status hearing.”). 
On January 15, 2025, the government filed a  Second Superseding Indictment, charging 
Ochs with eight counts, including s ix felony charges : Conspiracy to Prevent an Officer from 
Discharging Any Duties, in violation of 18 U.S.C. § 372; Assaulting, Resisting, or Impeding 
Certain Officers using a deadly and dangerous weapon, in violation of 18 U.S.C. § 111(a)(1) and 
(b); Civil Disorder and Aiding and Abetting, in violation of 18 U.S.C. § 231(a)(3), 2; Destruction 
of Government Property, in violation of 18 U.S.C. §§ 1361, 2; Theft of Government Property, in 
violation of 18 U.S.C. §§ 641, 2; Restricted Building or Grounds with a Deadly or Dangerous 
Weapon, in violation of 18 U.S.C. § 1752(a)(1), (b)(1)(A); Disorderly and Disruptive Conduct in 
a Restricted Buildings or Grounds with a Deadly or Dangerous Weapon, in violation of 18 U.S.C. 
§ 1752(a)(2), (b)(1)(A); Act of Physical Violence in a Restricted Buildings or Grounds with a 
Deadly or Dangerous Weapon, in violation of 18 U.S.C. § 1752(a)(4), (b)(1)(A).   Second 
Superseding Indictment, ECF No. 131.  Only days before Ochs was scheduled to be arraigned on 
the new criminal charges, the government moved, on January 21, 2025, under Federal Rule of 
Criminal Procedure 48(a) , to dismiss  the Second Superseding Indictment, with prejudice , see 
Gov’t’s Mot. to Dismiss, ECF No. 133, due to newly-elected President Trump’s executive order 
granting “a full, complete and unconditional pardon to all other individuals convicted of offenses 
related to events that occurred at or near the United States Capitol on January 6, 2021, ” 
Proclamation No. 10887, 90 Fed. Reg. 8331, 8331 (Jan. 20, 2025).  The next day, this Court 
granted the  government’s motion to dismiss without prejudice , finding that dismissal with 
prejudice would be “improper” due to “defendants’ own admissions of criminal conduct, including 
throwing smoke bombs at law enforcement officers who were trying valiantly to prevent rioters 
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from entering the Capitol Building, [which] provides ample basis for criminal prosecution.”   
United States v. DeCarlo, No. 21-cr-073 (BAH), 2025 WL 266308, at *3 (D.D.C. Jan. 22, 2025). 
Ochs now, without opposition or any filing from the government, “requests that the Court 
order the government and/or the Clerk of Court to refund his payments of $1400 in restitution, 
fines, and special assessments.”  Def.’s Mot. at 4.  This motion is now ripe for resolution. 
II. DISCUSSION 
Ochs’ pending motion seeks a relatively small amount of money, certainly compared to the 
millions of dollars—or billions of dollars, according to the Government Account ability Office—
in property and other damages caused by the rioters, like defendant, participating en masse in the 
Capitol attack, though those damages are largely left to be paid by U.S. taxpayers .  Yet, despite 
the small amount of money at stake here, this motion raises a legal issue of constitutional 
dimension.  The U.S. Constitution sets up “a tripartite allocation of power,” Flast v. Cohen, 392 
U.S. 83, 95 (1968), under which “[e]ach branch ‘exercise[s] . . . the powers appropriate to its own 
department,’ and no branch can ‘encroach upon the powers confided to the others ,’” Patchak v. 
Zinke, 583 U.S. 244, 250 (2018) (first alteration added) (quoting Kilbourn v. Thompson, 103 U.S. 
168, 191 (1881)).  “This system prevents ‘[t]he accumulation of all powers, legislative, executive, 
and judiciary, in the same hands’ —an accumulation that would pose an inherent ‘threat to 
liberty.’”  Id. (quoting The Federalist No. 47, at 301 (Clinton Rossiter ed., 1961) (James Madison), 
and Clinton v. City of New York , 524 U.S. 417, 450 (1998) (Kennedy, J., concurring)).  For 
instance, as already discussed above, the Twelfth Amendment obliges the legislative branch to 
certify the results of the presidential election.  Relevant here, the Appropriations Clause vests the 
power of the purse exclusively in Congress, commanding that “No Money shall be drawn from the 
Treasury, but in Consequence of Appropriations made by Law .”  U.S. Const. art. I, § 9, cl. 7.  
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James Madison argued that “[t]his power over the purse, may, in fact, be regarded as the most 
complete and effectual weapon with which any constitution can arm the immediate representatives 
of the people, for obtaining a redress of every grievance, and for carrying into effect every just and 
salutary measure.”  The Federalist No. 58, at 359 (James Madison).  The D.C. Circuit has observed 
that “[t]he power over the purse was one of the most important authorities allocated to Congress,” 
and thus the Appropriations Clause serves as “a bulwark of the Constitution’s separation of powers 
among the three branches of the National Government.”  U.S. Dep’ t of Navy v. Fed. Lab. Rels. 
Auth., 665 F.3d 1339, 1346-47 (D.C. Cir. 2012).  Unlike the other branches, the judiciary “has no 
influence over either the sword or the purse.”  The Federalist No. 78, at 465 (Alexander Hamilton). 
Despite these fundamental governing principles and without citation to any statutory 
authority and relying on the government’s acquiescence , Ochs requests that the Court grant his 
request for return of the $100 he paid as a special assessment and $1,469.93 he paid towards 
restitution.  This amounts to seeking an order issued to either the Executive branch or the Congress, 
both co-equal branches of the federal government, to return to him those funds he has paid or  to 
disburse funds, respectively.  The motion provides no hint as to why sovereign immunity does not 
preclude either result, and the government’s silence does not help to illuminate this stark issue. 
Instead, Ochs points to Nelson v. Colorado, 581 U.S. 128 (2017) , which held that a State 
statutory scheme requiring that “a defendant must prove her innocence by clear and convincing 
evidence to obtain the refund of costs, fees, and restitution pai d pursuant to an invalid 
conviction. . . . does not comport with due process ,” id. at 134, as controlling resolution of this 
motion.  See Def.’s Mot. at 2- 4.  Unlike the state statutory scheme for providing “refunds” to 
previously convicted defendants that was found lacking in Nelson, no analogous federal statute or 
procedure is cited as governing Ochs’ motion.  Absent a federal -level scheme for such refunds, 
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Ochs’ request boils down to asking this Court simply to follow the government and turn a blind 
eye to the legal obstacles posed.   
Analysis of this motion consist s of three parts: first, review of  the longstanding Supreme 
Court precedent that , for more than a century and a half , has limited the authority of  courts to 
remove funds  vested in the U.S. Treasury;  second, examination of Nelson ’s reasoning and 
consideration of whether its holding displace s that longstanding precedent ; and finally , upon 
determining that th is precedent remains controlling, finding no alternate,  plausible source s of 
statutory authority by which Ochs  may claim entitlement to a refund of his fractionally paid 
criminal restitution and special assessment. 
A. Longstanding Supreme Court Precedent Establishes That Funds Deposited 
in the U.S. Treasury Cannot Be Returned Absent Congressional Authority 
January 6, 2021, was not the first time that a domestic group upset about the results of a 
presidential election sought to stop the processes of a lawful ly elected federal  government.  
Following another such effort, President Andrew Johnson issued , on December 25, 1868, 
Proclamation No. 179, which “proclaim[ed] and declare[d] unconditionally, and without 
reservation, to all and to every person who directly or indirectly participated in the late insurrection 
or rebellion, a full pardon and amnesty for the of fense of treason against the United States , or of 
adhering to their enemies during the late civil war, with restoration of all rights, privileges, and 
immunities under the Constitution and the laws which have been made in pursuance thereof.”  15 
Stat. 711, 712 (1868).  This presidential proclamation was the basis for a supporter of the 
Confederacy to seek reimbursement for “certain described personal property in West Virginia, 
which was seized and libelled by the authorities of the United States on the alleged grounds of his 
treason and rebellion” and “condemned and forfeited to the United States, and sold” pursuant to 
“a decree of the District Court for that district,” and then “the net proceeds of the sale, amounting 
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to the sum of $11,000, were paid into the treasury of the United States.”  Knote v. United States , 
95 U.S. 149, 149 (1877).5  The Supreme Court rejected Knote’s argument, determining that “if the 
proceeds have been paid into the treasury, the right to them has so far become vested in the United 
States that they can only be secured to the former owner of the property through an act of 
Congress” because “[m]oneys once in the treasury can only be withdrawn by an appropriation by 
law.”  Id. at 154.  Additionally, the Supreme Court held that “[h]owever large, therefore, may be 
the power of pardon possessed by the President, and however extended may be its application, 
there is this limit to it, as there is to all his powers,—it cannot touch moneys in the treasury of the 
United States, except expressly authorized by act of Congress.”  Id.   The Court continued that 
“[w]here, however, property condemned, or its proceeds, have not thus vested, but remain under 
control of the Executive, or of officers subject to his orders, or are in the custody of the judicial 
tribunals, the property will be restored or its proceeds delivered to the original owner, upon his full 
pardon” because those “proceeds are not considered as so absolutely vesting in third parties or in 
the United States as to be unaffected by the pardon until they have passed out of the jurisdiction 
of the officer or tribunal.”  Id.  Given that the funds derived from petitioner’s confiscated property 
was already in the U.S. Treasury , his demand for post -pardon reimbursement was denied.  Id. at 
157. 
In the century and a half since Knote was decided, the case has come, in part, to stand for 
the proposition that “[a]ny exercise of a power granted by the Constitution to one of the other 
branches of Government is limited by a valid reservation of congressional control over funds in 
 
5  The contemporaneous meaning of libelled also encompassed “[t]o proceed against, by filing a libel; to seize 
under admiralty process, at the commencement of a suit.”  Libel, Black’s Law Dictionary at 713 (1st ed. 1891).  The 
Second Confiscation Act, Ch. 195, 12 Stat. 589 (July 17, 1862), the statute under which Knote’s property was seized, 
provided that “proceedings in rem shall be instituted in the name of the United States in any district court thereof, or 
in any territorial court, or in the United States district court for the District of Columbia, within which the property . . . 
may be found . . . which proceedings shall conform as nearly as may be to proceedings in admiralty or revenue cases,” 
id. § 7, 12 Stat. at 591.  Accordingly, the United States proceeded by libel. 
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the Treasury.”  Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414, 425-26 (1990) (discussing Knote); 
see also Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n of Am., Ltd., 601 U.S. 416, 469 
(2024) (Alito, J., dissenting) (relying on Knote for the proposition that Congress’s “appropriations 
authority[ is] an exclusively legislative prerogative”) ; In re Madison Guar. Sav. & Loan 
(McDougal Fee Application), 353 F.3d 53, 55 (D.C. Cir. 2004) (per curiam) (discussing Knote in 
denying petitioner’s application, after she was pardoned and her criminal convictions vacated, for 
reimbursement of attorneys’ fees she had paid); In re North, 62 F.3d 1434, 1435 (D.C. Cir. 1994) 
(same). 
Although Ochs’ conviction was vacated but stayed following a successful collateral attack 
and his conduct only later insulated from subsequent prosecution by presidential pardon, th is 
Court’s Clerk’s Office reports that the funds were deposited in the United States Treasury, and so 
they remain subject to the limitation created by the Appropriations Clause and articulated in Knote.  
For this reason, another Judge on this Court, Judge Royce C. Lamberth, when addressing a similar 
petition for reimbursement of court -ordered payments made for criminal restitution brought by a 
defendant convicted of offense conduct on January 6, 2021, reasoned that “it is irrelevant whether 
[defendant]’s convictions were vitiated by pardon, vacatur on appeal, collateral attack, retroactive 
Congressional enactment, or any other means.”   United States v. Sullivan, 783 F. Supp. 3d 385, 
391 (D.D.C. 2025) (RCL).  He continued, “[a]ll that matters is that funds may not be drawn from 
the Treasury without an appropriation, plain and simple.”  Id. (citing Republic Nat’l Bank of Miami 
v. United States, 506 U.S. 80, 94 (1992)  (Rehnquist, C.J., concurring in the judgment)  (“[T]he 
principle that once funds are deposited into the Treasury, they become public money—and thus 
may only be paid out pursuant to a statutory appropriation—would seem to transcend the facts of 
Knote.”)).  Three other Judges on this Court have reached the same conclusion, finding that “[t]he 
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Court’s power to order a refund does not turn on whether a defendant’s conviction was vacated or 
not; it turns on whether the defendant is entitled to funds that were deposited into the U.S. Treasury 
before the pardon was granted.”  United States v. Vargas , 789 F. Supp. 3d 60, 65 (D.D.C. 2025) 
(RDM) (emphasis in original); see also United States v. Hager , No. 21-cr-381 (TSC), 2025 WL 
1886135, at *2 (D.D.C. July 3, 2025) (reasoning that Knote  determined that “this court lacks the 
authority to order the Architect of the Capitol to refund Hager ’s $570”); United States v. Sutton, 
No. 21- cr-598 (PLF), 2025 WL 2149396, at *2 (D.D.C. July 15, 2025)  (finding “that, absent 
congressional authorization to withdraw the funds, the Court cannot refund defendants’ special 
assessments” paid into “the Crime Victims Fund —which is within the United States Treasury ,” 
while “the portion of Mr. Sutton’s special assessment that currently is in the Court’s Deposit Fund 
can be returned to him” because “the Court’s Deposit Fund is an internal account within the 
judiciary, and monies held within the Deposit Fund have not yet vested in any third party”). 
Set against this longstanding authority that where a criminal defendant’s payments of fees, 
fines and restitution have been deposited in the U.S. Treasury, Knote denies courts the authority 
to order the reimbursement those funds , Ochs’ argument that Nelson  provides such authority is 
considered. 
B. Nelson v. Colorado Does Not Abrogate Settled Precedent 
Ochs relies on Nelson v. Colorado, 581 U.S. 128 (2017), to reason that “because there is 
no valid conviction in this matter, there is no authority for denying the return of restitution, fines, 
and special assessments Mr. Ochs previously paid.”  Def.’s Mot. at 4.  In Nelson, two petitioners 
whose felony convictions were invalidated for procedural errors and ineffective assistance of 
counsel sought the return of funds paid for costs, fees, and restitution, but t he Colorado Supreme 
Court re jected the request .  581 U.S. at 131.  The state Supreme Court  applied Colorado’s 
Compensation for Certain Exonerated Persons Act, Colo. Rev. Stat. §§ 13-65-101, 13-65-102, 13-
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65-103 (2016), which authorized the requested return of funds only “to a defendant who has served 
all or part of a term of incarceration pursuant to a felony conviction, and whose conviction has 
been overturned for reasons other than insufficiency of evidence or legal error unrelated to actual 
innocence,” when that defendant “show[s], by clear and convincing evidence, her actual innocence 
of the offense of conviction.”  Nelson, 581 U.S. at 132-34.  The Supreme Court reversed, holding 
that the statutory  scheme d id not comport with the Due Process Clause of the Fourteenth 
Amendment.  Id.  at 134.  The Court reasoned that “Colorado may not retain funds taken from 
Nelson and Madden solely because of their now-invalidated convictions” because “Colorado may 
not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary 
extractions.”  Id. at 136 (emphasis in original).  Additionally, the Court found “a risk of erroneous 
deprivation” if defendants are “saddled with any proof burden” under the Exoneration Act because 
“they are entitled to be presumed innocent.”   Id. at 137.  Thus , the Court concluded that, “[t]o 
comport with due process, a State may not impose anything more than minimal procedures on the 
refund of exactions dependent upon a conviction subsequently invalidated.”  Id. at 139. 
Notably, nothing in the Nelson decision  touches upon funds deposited in the United States 
Treasury nor implicates the Appropriation Clause, since the money at issue was collected by State 
authorities and the analysis focused on the appropriateness of State statutory regimes designed to 
provide refunds of restitution.  For this reason, invocations of Nelson  have been found entirely 
unpersuasive in evaluating motions for restitution brought by defendants convicted of their offense 
conduct at the U.S. Capitol on January 6, 2021.  As Judge Lamberth concisely articulated the point: 
“Nelson, at bottom, is a case about the Due Process Clause of the Fourteenth Amendment and its 
supremacy over contradictory state law.  At a high level of abstraction, it stands for the proposition 
that the several states may not erect procedural barriers that violate the federal Constitution ’s 
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guarantee of due process.  Accordingly, a state may not require a person whose presumption of 
innocence has been restored by the vacatur of his conviction(s) to prove his innocence in order to 
recoup his forfeited property.”  Sullivan, 783 F. Supp. 3d at 390 (emphasis in original); see also  
Vargas, 789 F. Supp. 3d at 64-65 (“Nelson had nothing to do with the scope of the pardon power 
or the Appropriations Clause.  Rather, it held that vacatur of a conviction presumptively entitles a 
defendant to a refund of her payments into the state ’s coffers, and so ‘ a State may not impose 
anything more than minimal procedures’ on obtaining that refund.” (quoting Nelson, 581 U.S. at 
139)).  This reasoning is persuasive.  Thus, Nelson falls far short of displacing the long- standing 
precedent in Knote to authorize the relief requested in Ochs’ motion. 
C. Ochs Provides No Alternative Authority for the Requested Relief 
Ochs relies exclusively upon Nelson for the relief requested, without identifying any other 
basis—statutory or otherwise —under which a refund could be properly ordered.  See Def.’s Mot. 
at 2-4.  Indeed, alternative possible statutory bases have been rejected as appropriate authority for 
reimbursement claims brought by similarly-situated defendants after they have been pardoned for 
their criminal convictions arising from their criminal conduct on January 6, 2021. 
For example, i n Vargas, the government —in contrast to its silence here —advanced the 
theory that 31 U.S.C. §  1322 “authorizes the return of” funds  paid by  a pardoned criminal 
defendant as part of restitution, fine and special assessment.  789 F. Supp. 3d at 65-66.  That statute 
provides, in relevant part, that “necessary amounts are appropriated to the Secretary of the Treasury 
to make payments from  . . . the United States Government account ‘Refunds of Moneys 
Erroneously Received and Covered’ and other coll ections erroneously deposited that are not 
properly chargeable to another appropriation.”  31 U.S.C. § 1322(b).  Judge Randolph D. Moss 
rightfully rejected this argument after determining that the disputed funds were not “collections 
erroneously deposited,” explaining that “[b]ecause [defendant]’s payments were collected while 
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his convictions were ‘in force,’ the funds were not ‘erroneously collected’ and are therefore not 
refundable from this account.”  Vargas, 789 F. Supp. 3d at 66 (quoting Knote, 95 U.S. at 154). 
Another rejected statutory basis for such refunds is T he Judgment Fund Act, 31 U.S.C. 
§ 1304(a), which provides, in relevant part, that “[n]ecessary amounts are appropriated to pay final 
judgments, awards, compromise settlements, and interest and costs specified in the judgments or 
otherwise authorized by law when” certain conditions are met.  As  Judge Lamberth determined, 
§ 1304(a) does not represent viable authority to return funds to defendants whose convictions were 
vacated because, “[t]hough he may hav e been pardoned, and his convictions may have been 
vacated, he has not been awarded anything resembling a ‘final judgment[ ] . . . against the United 
States.’”  Sullivan, 783 F. Supp. 3d at 394 (first alteration added ).  Rather, “the vacatur of a 
judgment against a criminal defendant is an act of erasure that is not tantamount to a judgment for 
that defendant against the United States.”  Id. (emphases in original) (citing Acheson Hotels, LLC 
v. Laufer, 601 U.S. 1, 15 (2023)  (Jackson, J., concurring in the judgment) (“Vacatur is a remedy 
that erases a judgment that has already been rendered .”)).  This Court agrees that a  vacatur does 
not represent a final judgment against the United States “[e]ven under the most generous construal 
of these statutory provisions ,” id., and therefore a prerequisite for invoking the authority of 
§ 1304(a) is not met. 
The rejection of The Judgment Fund Act as a basis for reimbursement of funds to a newly 
pardoned, former-convicted-felon defendant is not unanimous on this Court.  Ochs, however, does 
not cite or rely on either of two decisions, including one released just two days before his motion 
was filed, holding that § 1304(a) of The Judgment Fund Act serves as a viable basis to return funds 
paid by defendants whose appeal was pending at the time a pardon was issued, a different 
procedural posture than that presented by the instant matter.  See United States v. Ballenger , 811 
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F. Supp. 3d 123, 130 (D.D.C. 2025) (JEB) (“But because this  pardon arrived while Defendants’ 
appeal was pending and thereby mooted their appeal, it caused their convictions to be vacated.” 
(emphasis in original)); United States v. St Cyr , 804 F. Supp. 3d 1, 5 (D.D.C. 2025) (JDB) (“But 
while that appeal was pending, Trump was inaugurated for his second term as President, and he 
immediately issued a blanket pardon for all those convicted of offenses related to the events of 
January 6.”).  Both decisions found that Nelson “drew on principles of . . . vacatur” to determine 
“that the petitioners had an interest in the money they had paid to the state,” St Cyr, 804 F. Supp. 
3d at 9, and then, comparing the position of a defendant whose conviction is vacated while on 
appeal to the position of the estate of a defendant seeking to invoke the doctrine of abatement ab 
initio, further found that “every court of appeals to have addressed the issue post-Nelson has held 
that, when a federal conviction is vacated on appeal due to the defendant’s death, the defendant’s 
estate has a right to the money the defendant paid to the government pursuant to his conviction,”  
id. at 9 & n.8 (citing out -of-circuit cases); see also Ballenger, 811 F. Supp. 3d at 128- 29 (citing 
overlapping set of  out-of-circuit cases).
6  Analogizing the two situations , “in both cases, the 
 
6 Notably, none of the out -of-circuit cases cited in St Cyr  and Ballenger stand for the proposition that in 
applying the doctrine of abatement ab initio , court-imposed restitution must be returned to a defendant after transfer 
to the victim.  See United States v. Reynolds , 98 F.4th 62, 72 (1st Cir. 2024) (“[W]e do not take any position on 
whether the different considerations that might arise where forfeited property had been distributed to victims before a 
defendant’s death would call for a different result, as no suggestion has been made here that any forfeited funds were 
distributed to victims before Reynolds died.”);  United States v. Brook s, 872 F.3d 78, 89 -90 (2d Cir. 2017) (holding 
that “when a criminal conviction abates upon the death of a defendant, any restitution ordered as a result of that 
conviction must also abate” but noting that “[t]he district court stayed the payment of Brooks’ s restitution while this 
case was on appeal,” so whether restitution already paid is “irretrievable” need not be decided); United States v. 
Libous, 858 F.3d 64, 67 (2d Cir. 2017) (reasoning that “[t]here is no legal basis on which the state can retain a fine 
exacted from Libous as punishment for an offense he is now presumed not to have committed” but not discussing 
restitution as no restitution had not been ordered);  United States v. Ajrawat, 738 F. App’x 136, 137, 140 (4th Cir. 
2018) (per curiam) (unpublished, per curiam order  applying, upon the death of the defendant -appellant, doctrine of 
abatement “to vacate the orders of restitution and forfeiture and the special assessment” and “order[ing] repayment of 
any other monies paid as a consequence of these convictions,” but not addressing return by victim of any restitution, 
which likely had not been paid, since  defendant had only
 paid“portion of special assessment”); United States v. Est. 
of Parsons, 367 F.3d 409, 417- 18 (5th Cir. 2004) (en banc) (“Although, as explained, we conclude that restitution 
orders against Parsons should abate with his death, neither the agreement nor the Preliminary Judgment of Forfeiture 
requires the government to return the already-paid funds.”); United States v. Volpendesto, 755 F.3d 448, 454 (7th Cir. 
2014) (finding that “[w]ithout a final criminal conviction, there can be no order of restitution,” but never considering 
whether paid funds must be returned);  United States v. Rich , 603 F.3d 722, 728 (9th Cir. 2010) (determining that 
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defendants were convicted and appealed; then an event that had nothing to do with the conviction’s 
merits—there, an ill -timed death; here, a luckily timed pardon —rendered the appeal moot[, so] 
[i]f those deceased defendants are entitled to refunds, these pardoned defendants must be, too.” 
Ballenger, 811 F. Supp. 3d at 129.  Any comparison to abatement ab initio  is inapposite here 
because Ochs, who waived all direct appeal rights as part of his plea agreement,  had no appeal 
pending at the time his conviction was vacated (with vacatur order stayed) and he received a 
pardon.  See United States v. Pogue , 19 F.3d 663, 666 (D.C. Cir. 1994) (“The abatement rule 
applies when a direct appeal is pending at the time of appellant’s death.” (emphasis in original)). 
Accordingly, neither 31 U.S.C. § 1322 or The Judgment  Fund Act, 31 U.S.C. § 1304(a), 
provide a federal statutory basis for an order to return to Ochs any funds already deposited in the 
U.S. Treasury. 
III. CONCLUSION 
Ochs fails to marshal either a constitutional or statutory basis that would permit this Court 
to disburse funds from the United States Treasury to pay him the reimbursement he seeks .  
Accordingly, his motion for return of restitution, criminal fines, and fees is DENIED. 
An order consistent with this Memorandum Opinion will be entered contemporaneously. 
Date:  April 28, 2026 
__________________________ 
BERYL A. HOWELL 
United States District Judge 
 
“[a]batement of the convictions for those offenses, thus, nullifies the accompanying restitution order” but not ordering 
return of paid restitution); United States v. Coddington, 802 F. App’x 373, 373 (10th Cir. 2020) (“remand[ing] to the 
district court with instructions to vacate the judgment, including the convictions and restitution order ,” but not 
expressly contemplating ordering return of restitution funds). 
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