[00:00:04] Speaker 00:
May it please the court, Assistant United City Attorney Keopunni Akina.

[00:00:10] Speaker 00:
My name is Harlan Kimura, and I represent Mr. Ryan Melvin Brandenburg.

[00:00:16] Speaker 00:
May I reserve three minutes for rebuttal?

[00:00:21] Speaker 00:
The jury was denied the opportunity to determine whether the emails that Mr. Brandenburg sent were true threats or protected by the First Amendment because the diminished capacity instruction was not given.

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If that instruction was given,

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The jury would have been able to look at and consider the several pieces of evidence that could be an indication of Mr. Brandenburg's diminished capacity.

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He was taking marijuana and magic mushrooms during the time he sent the emails.

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He was emotionally distraught.

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He was going through a divorce.

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supposedly going to lose everything.

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Also, another very, very important point about why Mr. Brandenburg could have not been totally have his wits about him was that when the federal FBI agent interviewed him on May 6th, he told the FBI agent,

[00:01:37] Speaker 00:
My family, unbeknownst to me and without my consent, had brain surgery on me and removed my heart.

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Now, if that was true, I don't think the interview would have been taking place.

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Mr. Brandenburg would not have been there.

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That in itself should at least lend the district court to think

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There must be something wrong with Mr. Brandenburg.

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Now, whether it is the emotional distress or was it the marijuana or the magic mushrooms, there was enough evidence at least to have the diminished capacity instruction given.

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And backing up, as far as the FBI interview, that was evidence that was submitted by the government, not by Mr. Brandenburg.

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court was asked by defense counsel at trial.

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Let the jury decide that question.

[00:02:47] Speaker 02:
But the district court... Didn't your client say that he could function and do all kinds of complicated work while he was intoxicated?

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that's correct.

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He did say that.

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And he did say that he was writing a 200-page book.

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And he could also program sort of a lot of complex things.

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But all that goes to show is that his evidence and the testimony could be weak, inconsistent, or may even have doubtful credibility.

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But that does not eliminate the evidence to warrant a diminished capacity instruction.

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The other thing is that Mr. Brandenburg, as you may be able to gather from the excerpts of record, is that he is a very intelligent, self-made individual.

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But at the same time, he does have very strong opinions and views in terms of what his worth and his capabilities are, which may have been part of the reason why

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When he testifies, he says, yes, I was taking magic mushrooms.

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My capacity was diminished because what I thought and what I did was diminished.

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And that's in the record.

[00:04:06] Speaker 02:
Can I ask you to move to the obstruction of justice enhancement?

[00:04:10] Speaker 02:
So I have a question about exactly what your argument is on this.

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Are you saying that the court never made a finding of willfully lying on the stand or that somehow the finding that was made was flawed?

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Our position is that initially the district court

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could not find Wolfo, the government convinced the district court that because the jury found Wolfo, you find Wolfo to the district court.

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And the district court did say that essentially it was the jury who found Wolfo, so I found Wolfo.

[00:04:51] Speaker 02:
So what's a little bit confusing here is that what the jury found was that he willfully threatened, but what the court needed to find was that he willfully lied on the stand, right?

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Yes.

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And the district court didn't make that independent finding that he willfully lied on the stand.

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But you think that the judge said, I find willfulness for perjury.

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I don't recall the district court ever saying the word perjury.

[00:05:26] Speaker 02:
But the judge knew that one of the findings that needed to be made to impose the enhancement was willfulness.

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Yes, it was willfulness and that's what the district court found based upon what the jury's verdict was as compared to the district court making an independent finding.

[00:05:45] Speaker 02:
So I didn't see an argument really in your brief that the judge misunderstood what type of willfulness was at issue.

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I'm kind of asking you about this because I think the jury was asked a different question about willfulness than what the judge needed to find for the enhancement.

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But I don't think you argued the judge didn't even understand that the willfulness was willfulness about lying.

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That is correct.

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Our only argument in the opening brief, as well as the reply, was related to the district court relying upon the district court's

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jury's verdict as compared to making it.

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In what case do you have that says that the judge, are you saying it's not appropriate for the judge to even take into account what the jury found?

[00:06:35] Speaker 00:
No, the district court can take into account what the jury found, but the district court would still have to make an independent finding that there was willful.

[00:06:48] Speaker 02:
And what do you think independent means in that sentence?

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The district court would have to state, okay, based upon the jury verdict, as well as my review of the evidence as I sat through the trial, I make the independent finding that Mr. Brandenburg was woeful.

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And that also relates to another point, which is a constitutional issue.

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The issue regarding woeful relates to obstruction of justice, as well as to acceptance of responsibility.

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Now, in this case, Mr. Brandenburg exercised his First Amendment right because the question was whether it was a true threat or was it his First Amendment right to send those emails.

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If you find that whenever a verdict is rendered against an individual, that it's a true threat as compared to a First Amendment right, when the First Amendment right is advanced, it creates a very chilling effect.

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upon anyone ever wanting to go to trial.

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Because in his mind, Mr. Brandenburg believed that the emails that he was sending was based upon his First Amendment right and not a true threat.

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Now, it could very well be that it was because of his diminished capacity, because of how he views himself, or for other reasons.

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But the point is, it's a First Amendment right

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as compared to other kinds of situations.

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I want to get back to your answer to my question about independent.

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Are you saying that the problem, what do you think the judge did wrong here on this willfulness issue?

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In regards to the willfulness, the judge relied upon the jury's verdict to determine willful rather than stating

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I looked at all the evidence, I looked at the jury verdict, I independently came to the conclusion that Mr. Brandenburg was willful and therefore the three parts are met and therefore the obstruction of justice enhancement would be applicable.

[00:09:14] Speaker 03:
So it seems to me that your basic objection is that

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The judge didn't tie it together in a nice package at the end.

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My question is, the judge laid out the correct requirement, meaning an independent judicial finding.

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But why isn't the colloquy and the fact that the objection had focused on the jury verdict?

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And then, of course, that was the discussion.

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Why isn't the ultimate conclusion taken as a whole sufficient here?

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Our position is that initially when the judge first came into the sentencing hearing, she did say that she had a question regarding willfulness.

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And it was the government who sort of convinced the judge that there was willful base upon the jury's verdict.

[00:10:08] Speaker 03:
But the judge also said coming in, I need to find these three things, right?

[00:10:13] Speaker 00:
That's correct.

[00:10:14] Speaker 00:
And that was correct.

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Those three items were the things that sentencing court needed to find.

[00:10:20] Speaker 02:
I also think, though, that at ER 21, I don't know if it was you or someone else, but whoever Mr. Brandenburg's lawyer argued on this willfulness issue, the jury did not find that Mr. Brandenburg perjured himself.

[00:10:33] Speaker 02:
So the objection on willfulness to the judge was based on what the jury did, and that was the defense counsel saying that.

[00:10:42] Speaker 02:
So I'm wondering if whatever your issue about independent finding is was invited error.

[00:10:50] Speaker 00:
Well, as far as the defense trial attorney, yes, you know, there could have been the differentiation between whether there was perjury or whether there was a willful in regards to based upon the jury instruction.

[00:11:08] Speaker 04:
I think, well, I think let's say we all agree with you that the judge was not bound by the jury verdict and needed to reach

[00:11:19] Speaker 04:
and make an independent finding apart from the jury that there was the three elements, including wellfulness.

[00:11:28] Speaker 04:
Part of the problem is the transcript shows that lawyers for both the government and the defendant argued only about what the jury found or didn't found.

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And no one said to the judge, it doesn't matter what the jury found because you

[00:11:48] Speaker 04:
need to look at the evidence independently and make your own finding.

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And even if the jury said it was willful, it doesn't matter, Judge.

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You can make a different finding for the purpose of this enhancement.

[00:12:03] Speaker 04:
So I think the struggle is, in the absence of anyone making that argument to the judge, now reviewing what happened below, even if we agree that the judge needed to make an impairment, was that

[00:12:18] Speaker 04:
essentially was that objection forfeited or waived or are we on plain error review and we can't reverse on that ground.

[00:12:26] Speaker 00:
Well, Your Honor, we would argue that that argument is not waived.

[00:12:31] Speaker 00:
Now, maybe the specific rationale or the argument as to why that obstruction of justice should or should not have been recognized, that may not have been clearly articulated at the sentencing level rather than in our briefs.

[00:12:50] Speaker 00:
As we all know, we have more time to think about it, and so we have more time to make additional arguments.

[00:12:57] Speaker 04:
So if it wasn't waived, but it was not preserved in a way so that it's being argued for the first time on appeal, this independent lack of an independent finding, then we would be on plain error review.

[00:13:11] Speaker 04:
Is that correct?

[00:13:15] Speaker 00:
I would slightly disagree, Your Honor, because the point is that we did object to the obstruction of justice as to whether the reason or the rationale for that independent finding was not made by the district.

[00:13:32] Speaker 04:
So you think the objection, even though you didn't maybe articulate it perfectly, was preserved?

[00:13:39] Speaker 04:
So that we're on de novo review.

[00:13:40] Speaker 00:
Yes.

[00:13:41] Speaker 00:
At the sentencing, it was preserved.

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It was better articulated in the briefs.

[00:13:46] Speaker 00:
In the briefs.

[00:13:47] Speaker 04:
Just better, but it was not at all below, is your argument.

[00:13:52] Speaker 00:
Yes, Your Honor.

[00:13:54] Speaker 03:
Your time is ticking by, and I wanted to know if we could shift then to the other enhancement that has to do with the disruption on the court staff.

[00:14:05] Speaker 03:
So I wanted to know if you can give us in your

[00:14:08] Speaker 03:
best articulation, what would be the threshold for when the security staff would need to go beyond its normal duties so that you could impose the substantial disruption?

[00:14:25] Speaker 00:
It would be the delivery of services or the function that would have to be substantially affected

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rather than behind the scenes, in this case, the court security personnel having to do additional security check and also further reviewing the security cameras.

[00:14:50] Speaker 00:
So our position is that for the district court of Utah Family Court,

[00:14:57] Speaker 00:
their delivery of services and their function was to serve the individuals that are going through a divorce.

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And nothing changed according to the record as far as the delivery of services to those clients or those parties.

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And therefore, our argument was that there was no substantial disruption of governmental services of function because the Utah Family Court

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operations were not affected.

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Now, the security personnel did have to do additional things, but that's what they're required to do.

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They're required to protect the court.

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Whatever risks or threats are made, their job is to protect the court.

[00:15:44] Speaker 03:
So that kind of begs the question, I guess, because, of course, you need to protect the court.

[00:15:50] Speaker 03:
You now have these threats called in, or at least

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surface, not just at the court, but in other locations.

[00:15:58] Speaker 03:
So at what point does protecting the court go beyond what you might call the everyday duties?

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Because you're not normally reviewing all the security cameras.

[00:16:12] Speaker 03:
You're not making those judgments.

[00:16:17] Speaker 00:
There are two parts to that, Your Honor.

[00:16:20] Speaker 00:
As far as the delivery of services or functions, that's what the public sees.

[00:16:26] Speaker 00:
The substantial part is related to, let's say, for instance, the security personnel.

[00:16:33] Speaker 00:
How much effort did they have to do to protect the courts?

[00:16:37] Speaker 04:
And I've been looking at the case law about this enhancement as well as the related guideline about variances that is not an issue in this case, but also uses that phrase

[00:16:49] Speaker 04:
governmental function.

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And it seems that there's an argument that it's about governmental function really has to be viewed at sort of an organizational level.

[00:17:05] Speaker 04:
I think that's your argument, that we're not looking at the discrete part of the court being court security, but we're looking at the court function.

[00:17:16] Speaker 04:
And then that there's no evidence that that was disrupted.

[00:17:20] Speaker 00:
Yes, because the district courts, family district courts, function was to serve the parties.

[00:17:29] Speaker 00:
And that was not affected.

[00:17:32] Speaker 00:
But yes, security personnel, they did do a lot of things.

[00:17:35] Speaker 00:
So yes, that was substantial.

[00:17:36] Speaker 00:
But it didn't affect the services or function.

[00:17:39] Speaker 00:
The function of the court.

[00:17:42] Speaker 00:
Yes, Your Honor.

[00:17:44] Speaker 00:
Your Honor, I do notice that I ran out of time.

[00:17:46] Speaker 02:
I'll still give you two minutes for rebuttal.

[00:17:48] Speaker 02:
Let's hear from the government, though.

[00:17:49] Speaker 02:
Thank you.

[00:17:50] Speaker 00:
Thank you, Your Honor.

[00:18:05] Speaker 01:
Good morning, Your Honors.

[00:18:06] Speaker 01:
Keo Puniakina on behalf of the United States.

[00:18:09] Speaker 01:
So I want to address the obstruction of justice argument first, and I agree with the points that Your Honors made just a few minutes ago.

[00:18:17] Speaker 01:
The district judge did come out and did

[00:18:21] Speaker 01:
know and state what the appropriate standard was.

[00:18:24] Speaker 01:
I don't think there's a question that in the district court's mind, the district court knew what had to be done and their specific language that's cited in the briefs about willfulness specifically and how that the judge couldn't reach that on their own and specifically with reference to the jury.

[00:18:38] Speaker 01:
And I think the observation about how the genesis of this entire conversation at sentencing began with defense counsel there.

[00:18:46] Speaker 01:
referencing how the jury didn't find willfulness for the purposes of this.

[00:18:50] Speaker 04:
Well, it was really the judge who said came out the door saying I'm having trouble finding willfulness.

[00:18:56] Speaker 01:
Correct.

[00:18:57] Speaker 01:
I think prior to that, it's on page 21 of the excerpts of record, it begins with the judge asking trial counsel for the defendant, what are your objections?

[00:19:06] Speaker 01:
And that's how it starts off.

[00:19:08] Speaker 01:
I agree.

[00:19:08] Speaker 01:
The judge also initially, that's what the judge also said.

[00:19:12] Speaker 04:
I mean, I will cut to the chase.

[00:19:13] Speaker 04:
What troubles me is that because of the Fifth Amendment privilege, that is partly why we require judges to make independent findings and to not be bound by how the jury verdict.

[00:19:32] Speaker 04:
And then here, the whole colloquy during the sentencing hearing was about what the jury found.

[00:19:39] Speaker 04:
And it seems to me then the judge says, OK, it was reasonable for the jury.

[00:19:44] Speaker 04:
A reasonable juror could find willfulness.

[00:19:47] Speaker 04:
Therefore, I find willfulness.

[00:19:51] Speaker 04:
And under our case law, the judge wasn't actually, not only was not bound by the jury verdict, but is required to make their own independent finding of willfulness regardless of what the jury found in order to protect the Fifth Amendment.

[00:20:09] Speaker 04:
So I just don't see anything in the transcript where the judge, either the lawyers or the judge, acknowledge that it in some sense doesn't matter what the jury found.

[00:20:21] Speaker 04:
What matters is the judge's own view of the evidence.

[00:20:25] Speaker 01:
Certainly.

[00:20:25] Speaker 01:
So I would agree that that specific

[00:20:30] Speaker 01:
that standard wasn't articulated at the sentencing.

[00:20:34] Speaker 01:
That doesn't mean that the appropriate finding wasn't made and all you know after the district judge says like okay for the reasons that the government made I'm convinced that's not where the conversation stops and I think if that's where the conversation had stopped and the judge had completely hung her hat on the jury's verdict that would be a problem but that's not what happened because the judge then continued

[00:20:56] Speaker 01:
and says the court notes these things.

[00:20:58] Speaker 01:
And those are things that the district judge had observed at trial.

[00:21:02] Speaker 01:
Those things included the fact that the defendant took the stand.

[00:21:06] Speaker 01:
He testified.

[00:21:07] Speaker 01:
He testified to the reasons why he sent those threats.

[00:21:10] Speaker 01:
He didn't intend to threaten people.

[00:21:12] Speaker 01:
He didn't believe they'd be taken as a threat and that he wanted to raise eyebrows.

[00:21:17] Speaker 01:
And that reference to wanting to raise eyebrows that the district court made

[00:21:24] Speaker 01:
That's a reference to the defendant's testimony at trial.

[00:21:27] Speaker 01:
And if you look on page 107 of the excerpts of record, that's where it comes from.

[00:21:33] Speaker 01:
And the question prior to that, the defendant is being asked by his counsel, I believe it's direct examination, what was your intent in all of this?

[00:21:41] Speaker 01:
And he explains his theory of defense, which is I wanted to attract attention, I wanted to, I sent these emails

[00:21:51] Speaker 01:
I wanted people to take notice of that to get attention to my story.

[00:21:54] Speaker 01:
And he says, I wanted to raise eyebrows.

[00:21:55] Speaker 01:
So it's within this context.

[00:21:57] Speaker 01:
That's what the district judge, well, she didn't explicitly say that.

[00:22:00] Speaker 01:
That's what it's referencing when you're talking about a reference to what happened at trial.

[00:22:04] Speaker 01:
It's this reference to the defendant's theory at trial that was very clear throughout from openings, his testimony, closings, even now an appeal.

[00:22:13] Speaker 01:
I did not intend to threaten.

[00:22:15] Speaker 01:
I sent these emails to get attention, just not that type of attention.

[00:22:19] Speaker 01:
And so for the judge to then recognize that, OK, the jury also rejected what you

[00:22:25] Speaker 01:
what you said at trial.

[00:22:27] Speaker 01:
And I'll note that here, falsity and materiality, the other two elements for perjury, that's not being challenged on appeal.

[00:22:34] Speaker 01:
And so taking in context, it may not have been packaged as perfectly as we would like, but all the elements are there sufficient to sustain this enhancement.

[00:22:44] Speaker 01:
And that's what was talked about in one of the cases that the defendant cited, Mons on Valenzuela.

[00:22:50] Speaker 01:
And Judge McEwen, you may be familiar with it.

[00:22:52] Speaker 01:
I believe you're on that panel.

[00:22:53] Speaker 01:
But in that case, the obstruction enhancement was found not to be appropriate because the court only relied on the jury's verdict.

[00:23:02] Speaker 01:
But the court also explained in that case that we have accepted perfunctory findings as long as they are clearly supported by the record.

[00:23:10] Speaker 04:
I've come back and I looked at the transcript and the problem I see is you said the court noted that the defendant testified and that he wanted to quote unquote raise eyebrows.

[00:23:22] Speaker 04:
And then she says,

[00:23:23] Speaker 04:
But the jury found otherwise.

[00:23:25] Speaker 04:
So I think she was referencing his testimony that he didn't intend to threaten.

[00:23:31] Speaker 04:
Then she says the jury found otherwise.

[00:23:33] Speaker 04:
And I think the reasonable juror could conclude that each of these requirements were met and therefore a rule.

[00:23:43] Speaker 04:
So to me, there's nothing there where it does read to me, at least the best reading that I can think of is that the judge

[00:23:52] Speaker 04:
was basing the decision solely on the jury's view of the evidence?

[00:24:00] Speaker 01:
Well, I would respectfully disagree.

[00:24:02] Speaker 01:
I know the judge, no disagreement with the judge said that, but it's taken within the greater context of the judge.

[00:24:08] Speaker 04:
So you're pointing me to something which I don't think shows the independent finding.

[00:24:12] Speaker 04:
Is there anything else that you can show me?

[00:24:15] Speaker 01:
Certainly.

[00:24:15] Speaker 01:
So I think that is evidence of an independent finding.

[00:24:19] Speaker 01:
I think that the case, that defense side of that Monson-Balanzuela case that talks about how perfunctory findings are sufficient as long as it's supported by the record, clearly supported.

[00:24:28] Speaker 01:
That when you look at the defendant's testimony, his admissions at trial that he intended, he admits that he sent threatening, that he used threatening language.

[00:24:36] Speaker 01:
He admits that he took extreme measures.

[00:24:39] Speaker 01:
He admitted that he sent these emails to express anger

[00:24:43] Speaker 01:
and then there are inconsistencies in his own testimony.

[00:24:47] Speaker 01:
For example, I'll give one.

[00:24:48] Speaker 01:
He claims that this was for clickbait, but on cross-examination, when he's questioned about the emails and the subject lines, it's not clickbait.

[00:24:56] Speaker 01:
And then the greater weight of the trial evidence, six witnesses who received these emails, they all testified.

[00:25:02] Speaker 04:
I'm not arguing the judge couldn't find it.

[00:25:04] Speaker 04:
I'm just asking whether they did

[00:25:08] Speaker 04:
that the judge independently found that.

[00:25:15] Speaker 01:
So unfortunately those words are never I think taking in context, especially when the judge comes into that hearing knowing and saying I have to make these findings sufficient for this

[00:25:28] Speaker 01:
And then at the end of it, applying that enhancement, I think inherent in that is the judge exercising her discretion in that scenario and making that finding, even though the word isn't said.

[00:25:39] Speaker 04:
Just because time is running, I did have some questions about the substantial disruption enhancement.

[00:25:47] Speaker 04:
So if I understand the record correctly, actually, the PSR did not apply that enhancement.

[00:25:52] Speaker 04:
So it was the government's objection.

[00:25:54] Speaker 04:
to apply it and the PSR actually said, you know, we don't think it applies in response to the objection because there was no disruption of a governmental function and your argument was that the disruption to the security in and by itself qualifies as a disruption to government function and you didn't rely on anything other than the disruption to the security at the courthouse.

[00:26:19] Speaker 04:
Is all that correct?

[00:26:20] Speaker 01:
That's correct.

[00:26:21] Speaker 04:
Okay and then

[00:26:23] Speaker 04:
As far as I can tell, in the universe of applicable case law, unless I'm missing something, because it's always hard to know you've exhausted.

[00:26:33] Speaker 04:
But I cannot find a case where there was application of this enhancement based solely on an enhanced security response.

[00:26:48] Speaker 04:
So as far as I can tell,

[00:26:51] Speaker 04:
no court has actually addressed whether this factual scenario in which there was a security response that was admittedly beyond the norm, but still a security spot.

[00:27:06] Speaker 04:
So security saying there's a threat, we're going to look for it.

[00:27:11] Speaker 04:
But the actual service of the government institution that we're talking about or the function here, the function of the court is not to provide court security.

[00:27:20] Speaker 04:
It's to function as a court, and court security supports that function.

[00:27:25] Speaker 04:
Do you know of any case in which a court has addressed whether these facts, that counts as substantial disruption to a government function?

[00:27:37] Speaker 01:
Right, so not on these facts where you're talking specifically about court security, no.

[00:27:43] Speaker 04:
I guess security of some other broader organization or institution or facility.

[00:27:49] Speaker 04:
So I found plenty of cases where that was among the facts, but not where courts squarely address the question of when that's the only type of disruption, whether that counts.

[00:28:01] Speaker 01:
Well, I would direct the court to the Snipes case that we cited in our brief.

[00:28:06] Speaker 01:
It's out of the 11th Circuit.

[00:28:08] Speaker 01:
I would also look at the Dudley case that's cited by the defendant.

[00:28:12] Speaker 01:
The Snipes case, I'll start with that.

[00:28:14] Speaker 01:
That was an 875C case.

[00:28:17] Speaker 01:
So there were threats that were communicated through the internet that the defendant was going to shoot a member of the Florida National Guard while they were at drill.

[00:28:24] Speaker 01:
And in response to that, the factors that are discussed in that court decision, I think those are all reactive steps that were taken, security measures that were taken in this case.

[00:28:39] Speaker 01:
And I think, importantly, to your honor's question,

[00:28:41] Speaker 01:
In that case, there was no, the drills that were threatened, those were not canceled.

[00:28:48] Speaker 01:
Those went on as planned.

[00:28:50] Speaker 01:
But what was focused on were the security measures that were taken in the interim.

[00:28:53] Speaker 01:
This took place over the course of two days.

[00:28:56] Speaker 01:
Our case, it's over three days.

[00:28:58] Speaker 01:
But two days, they added 30 additional National Guard members to checkpoints.

[00:29:02] Speaker 01:
That's something that they're already doing, but they just added more

[00:29:05] Speaker 01:
people to these checkpoints.

[00:29:07] Speaker 01:
There was a threat assessment meeting that was called, similar to this case.

[00:29:11] Speaker 01:
There was a threat working group that was formulated.

[00:29:14] Speaker 01:
There was a little bit of a delay that they noted in entry times for National Guard members going through these checkpoints.

[00:29:21] Speaker 01:
But ultimately, the drills that they were going to, that went as planned.

[00:29:25] Speaker 01:
That was not disrupted.

[00:29:26] Speaker 01:
And then additionally to that, they noted that they pulled state law enforcement and diverted them as well.

[00:29:32] Speaker 01:
from their duties to assist in these matters.

[00:29:36] Speaker 01:
In the Dudley case, that was a case where there was a fake anthrax letter that was mailed to a judge's chambers.

[00:29:44] Speaker 01:
And that was a very short time duration.

[00:29:47] Speaker 01:
I think within a day, it was all resolved.

[00:29:48] Speaker 01:
But two staff were quarantined.

[00:29:50] Speaker 01:
Two judges were sent home for a few hours while this was resolved.

[00:29:54] Speaker 01:
There were law enforcement who were diverted from their regular duties, from their other duties, to provide security for those judges during this time period.

[00:30:03] Speaker 01:
And I guess in that case, it's not a perfect example because half of the floor for that courthouse, that was shut down during this duration.

[00:30:13] Speaker 03:
The difficulty, I mean, we've read all of these cases.

[00:30:16] Speaker 03:
There's some unpublished dispositions.

[00:30:18] Speaker 03:
There's a couple of the cases out of the other circuit.

[00:30:21] Speaker 03:
So when you even look at the

[00:30:24] Speaker 03:
plain language of the substantial disruption of a government function.

[00:30:31] Speaker 03:
Here, it seems to me that we don't have the shut down, we don't have the redeployment of additional people outside the courthouse.

[00:30:42] Speaker 03:
What is it, in your view, what facts would suggest that there was a substantial disruption?

[00:30:47] Speaker 03:
There obviously is some disruption, no doubt about it.

[00:30:50] Speaker 01:
Certainly.

[00:30:50] Speaker 03:
What makes it substantial in your view?

[00:30:53] Speaker 01:
Certainly, I think the fact that they didn't just divert some available deputies in the courthouse to address the threats.

[00:31:00] Speaker 01:
They diverted all available deputies, right?

[00:31:03] Speaker 01:
I think that came out to a little bit, about half, maybe a little bit over than half of their 30-something deputies on staff.

[00:31:10] Speaker 01:
Their chief of security, Mr. Palmer, testified.

[00:31:13] Speaker 01:
In a nutshell, he said, he went through all the steps that they took, but he characterized it at the end.

[00:31:19] Speaker 01:
This was not business as normal.

[00:31:22] Speaker 01:
Brakes are all being canceled.

[00:31:23] Speaker 01:
People are being thrown into this.

[00:31:25] Speaker 01:
This is basically their sole focus.

[00:31:28] Speaker 04:
I mean, the trouble I have is, right, is court security.

[00:31:31] Speaker 04:
I mean, any threat that is at all credible or is all any, I mean, we don't get threats every day, right?

[00:31:39] Speaker 04:
So I would say any threat would cause security to not conduct business as usual.

[00:31:46] Speaker 04:
And there's some, right, you know,

[00:31:48] Speaker 04:
It's, I know we don't have the inherent in the offense language for this particular enhancement, but there does seem to be some problem with, you know, inherent in the offense of, you know, threatening, right?

[00:32:02] Speaker 04:
There's going to be a security response.

[00:32:05] Speaker 04:
And so it's a little bit troubling to say that, you know, a security response in and by itself that where there's no other impact on the organizational function

[00:32:16] Speaker 04:
is going to justify a significant enhancement.

[00:32:20] Speaker 04:
And I just don't see a controlling authority.

[00:32:23] Speaker 04:
I think Snipes case is unpublished.

[00:32:26] Speaker 04:
I don't see controlling authority or even precedential persuasive authority that has addressed this issue of at what level or how should we consider government function for the purpose of this enhancement.

[00:32:39] Speaker 04:
So I guess to me, it seems like an open question of law that we have to define in the first place.

[00:32:46] Speaker 04:
And I guess as a matter of first principle, what would be the interpretive argument for saying it should include even just a security response, even just

[00:33:02] Speaker 04:
A security response that causes officers to investigate the threat essentially in a way that's outside their everyday duties.

[00:33:12] Speaker 04:
That in and of itself should qualify as disruption to government function.

[00:33:19] Speaker 01:
Certainly.

[00:33:20] Speaker 01:
So, I mean, part of the problem, right, is there's no bright line rule, right?

[00:33:23] Speaker 01:
There's no rule that says X number of personnel need to be tasked with this thing.

[00:33:28] Speaker 01:
I would go back to the wording in the guidelines.

[00:33:32] Speaker 01:
You know, there's an or there, you know, functions or services.

[00:33:36] Speaker 01:
So it's not just services, public facing.

[00:33:38] Speaker 01:
that's cool thoughts functions you know what is our function and if that function is being disrupted the case law and they talk about diversion at what level should we should we should we say the court function or should we say the court security

[00:33:51] Speaker 04:
function.

[00:33:52] Speaker 01:
So again, going back, it's governmental.

[00:33:55] Speaker 01:
So it could mean a number of things.

[00:33:57] Speaker 01:
And unfortunately, it's not defined.

[00:33:59] Speaker 01:
From my viewpoint, I see that as it could mean a number of things.

[00:34:03] Speaker 01:
It could be the court's function, its ability to serve the public.

[00:34:07] Speaker 01:
But it could also be the function of the staff within the courthouse, because that affects things.

[00:34:12] Speaker 01:
If you are diverting all available personnel to address one threat,

[00:34:16] Speaker 01:
then you have no margin for anything else that could come up.

[00:34:19] Speaker 04:
I would concede, you know, that if it was just the internal court operations, but it was something beyond the security, I think that would be an easier case for you, right?

[00:34:29] Speaker 04:
So, but that's not this.

[00:34:31] Speaker 04:
This is just the security officers, correct?

[00:34:34] Speaker 01:
Correct.

[00:34:36] Speaker 01:
And I would go, I mean, we sort of noted that in our brief that there's no real definition, you know, what is a substantial disruption.

[00:34:42] Speaker 01:
I couldn't find any within this circuit at least.

[00:34:45] Speaker 01:
And the cases that I cite from outside of the circuit, there seemed to be this notion that, well, because it's undefined, there should be some deference that's given to the district judge at sentencing.

[00:34:55] Speaker 01:
And looking here, where the standard at the very highest should be abuse of discretion, I think there needs to be some

[00:35:06] Speaker 01:
some deference given to the file.

[00:35:07] Speaker 04:
Are we with you on the magnitude issue?

[00:35:08] Speaker 04:
Because that's been something that a lot of courts have struggled with, is the magnitude of disruption enough.

[00:35:15] Speaker 04:
But as far as I can tell, no court has really wrestled with what has to be impacted.

[00:35:23] Speaker 04:
And that's because most of the cases, if not all of them,

[00:35:28] Speaker 04:
involved something besides the security response.

[00:35:31] Speaker 04:
So it just hasn't, as far as, the question hasn't been forced essentially by the facts as they are in this case.

[00:35:38] Speaker 04:
And then we have the PSR saying we don't think this is enough, you know, and you're objecting and I think that puts the legal question of what counts as government function.

[00:35:49] Speaker 01:
I agree with that.

[00:35:50] Speaker 01:
I agree that, yeah, there's no clear controlling case law on this.

[00:35:53] Speaker 02:
Can I ask you whether you think, if we were to try to answer this question, whether it matters that this crime, the underlying crime for which descendants was imposed, doesn't have a government element?

[00:36:05] Speaker 02:
So like, this crime could be violated just by threatening your neighbor.

[00:36:12] Speaker 02:
It happens that he threatened the government, and so then we have

[00:36:16] Speaker 02:
Possibly government disruption, but it comes in in the sentencing and not in the crime itself Like would it be a different kind of application of the enhancement if the crime was threatening a judge?

[00:36:28] Speaker 01:
I Mean, I think it would certainly be

[00:36:32] Speaker 01:
I mean, it would come out more trial, right?

[00:36:34] Speaker 01:
Because that would be a part of the element of the crime.

[00:36:36] Speaker 01:
I don't know that it affects the applicability of the enhancement when it comes time for sentencing, though, because at the end of the day, you're still looking at who was actually affected by the defendant's actions.

[00:36:47] Speaker 04:
If I recall correctly, it could also apply to business.

[00:36:50] Speaker 01:
It could, yes.

[00:36:51] Speaker 04:
Then it would have to be the substantial disruption of the business function.

[00:36:55] Speaker 01:
Right.

[00:36:56] Speaker 01:
I think the wording is public, governmental, or business.

[00:36:59] Speaker 01:
Or business.

[00:36:59] Speaker 01:
Functions or services.

[00:37:00] Speaker 03:
So here, the combination of whether it's Singleton and all these other cases say a couple of things that you might define.

[00:37:08] Speaker 03:
One, there needs to be something that's quantifiable.

[00:37:11] Speaker 03:
And in doing that, they talk about what's the time and duration.

[00:37:15] Speaker 03:
Were any additional funds expended?

[00:37:20] Speaker 03:
what was the impact in the organization.

[00:37:24] Speaker 03:
So those are some of the, I guess, factors.

[00:37:29] Speaker 03:
And here, as I understand it, the key factors would be that they really had to deploy everybody sort of all hands on deck to trying to make the protection comprehensive, correct?

[00:37:47] Speaker 01:
I would agree with that.

[00:37:48] Speaker 03:
And so in that regard,

[00:37:51] Speaker 03:
There definitely was a disruption, but was it substantial in the sense that that's what all those people out there are supposed to be doing for all of us, whether it's the spectators or the judges, is making sure that the courthouse is safe.

[00:38:08] Speaker 03:
So I'm wondering, do you have any views on when you get above the threshold of substantial?

[00:38:22] Speaker 01:
trying to define what substantial means.

[00:38:24] Speaker 01:
I don't think I have a bright line suggestion, unfortunately, for the panel.

[00:38:30] Speaker 01:
I think it's one of those things that's going to be case by case.

[00:38:33] Speaker 01:
You know it when you see it.

[00:38:36] Speaker 01:
And if it's not, it's not.

[00:38:38] Speaker 01:
The other thing I'll add, you did mention one of the other factors, time and duration.

[00:38:41] Speaker 01:
This one was three days.

[00:38:43] Speaker 01:
The cases that are cited are similar in length or shorter, two days to hours.

[00:38:49] Speaker 01:
So I think that would weigh in favor

[00:38:51] Speaker 01:
of the disruption and just the duration that this went on for.

[00:38:56] Speaker 01:
And Judge Song, to respond to what you're asking earlier, I mean, the counters that are no being, any precedential case that guides us here, is that there's also no case that says it can't be.

[00:39:10] Speaker 04:
I would say it seems to me to be an open question, right?

[00:39:17] Speaker 04:
So it seems to me you could have disruption.

[00:39:20] Speaker 04:
It could be a substantial disruption.

[00:39:21] Speaker 04:
But it may or may not be to a government function in this case, right?

[00:39:26] Speaker 04:
Because the debate, really, as far as I understand it, between you and opposing counsel is whether the court security response, that seems, as a factual matter, undisputed that that was a large response, unusual response.

[00:39:42] Speaker 04:
But the question is whether cutting off court security

[00:39:47] Speaker 04:
overall entity of the court, whether we should look at it, whether the government function should be defined as the security or as the court as a whole.

[00:40:00] Speaker 04:
I guess to me, that's really the legal question that I'm struggling with.

[00:40:04] Speaker 04:
And as far as I can tell, there's no court case that addresses that, that says either it is or it is not.

[00:40:13] Speaker 01:
Correct.

[00:40:14] Speaker 02:
Do you think we're on plain error review for this issue?

[00:40:17] Speaker 01:
I do, only because the argument raised on appeal is different.

[00:40:21] Speaker 01:
The argument raised here is that it wasn't a substantial disruption.

[00:40:24] Speaker 01:
I know here during arguments, I think counsel reverted back to what was argued at sentencing, which is that it has to deal with something that's public facing.

[00:40:32] Speaker 01:
That's what was argued that for this to even qualify, the function or service has to be public facing.

[00:40:39] Speaker 01:
On my reading, I didn't see that raised in this appeal, which is why we argued that it should be plain error here.

[00:40:46] Speaker 04:
Part of the problem I have is because it was really the government's objection to get the enhancement applied in the first place, and so all the colloquy with the judge was really about

[00:40:56] Speaker 04:
the government's arguments for why it should apply.

[00:40:59] Speaker 04:
And then the judge says, OK.

[00:41:02] Speaker 04:
And the defense counsel says, well, I still disagree that it should apply.

[00:41:06] Speaker 04:
I mean, it's hard for me to find fault with exactly what defense counsel was arguing below when most of the argument was about the government trying to say this should count.

[00:41:21] Speaker 04:
Does that make sense?

[00:41:22] Speaker 01:
I understand your honor's point.

[00:41:23] Speaker 04:
We're talking about preservation of an argument below.

[00:41:26] Speaker 04:
And we're supposed to view preservation liberally.

[00:41:29] Speaker 04:
It's not supposed to be this overly harsh, nitpicky standard.

[00:41:33] Speaker 04:
And it seems to me that it was really the government who was saying the whole time, please do apply this enhancement.

[00:41:41] Speaker 04:
We're objecting to the absence of this enhancement.

[00:41:46] Speaker 01:
I think that's a fair point, Your Honor.

[00:41:47] Speaker 01:
And even, I think, as we noted in our brief, even under abuse of discretion, under either standard whichever is applied, I think you come out with the same conclusion here, especially in light of the fact that there is a lack of controlling precedent here.

[00:42:02] Speaker 01:
There has to be some deference given to the findings made by the district court.

[00:42:05] Speaker 01:
And here, the district court did make findings about how this was a disruption, about what

[00:42:11] Speaker 01:
The security, they're typically tasked with security at the front door in courtrooms.

[00:42:15] Speaker 01:
And the judge said, but this was totally different, a totally different requirement.

[00:42:20] Speaker 04:
I could defer if I agreed legally that government function should be viewed at the more discreet level of court security.

[00:42:32] Speaker 04:
And honestly, I just don't know whether that's the proper interpretation of the enhancement at this point as a matter of law.

[00:42:40] Speaker 01:
Understood, Your Honor.

[00:42:41] Speaker 01:
I would just know that that distinction is not made in the sentencing guidelines.

[00:42:45] Speaker 01:
It's broad, and I think it's broad for a reason, so that the trial judges can apply it to certain sets of circumstances.

[00:42:53] Speaker 02:
I'll give extra time for rebuttal, but I have one other question that's on a different topic.

[00:42:56] Speaker 02:
So your opposing counsel started on this diminished capacity thing by saying something that I admit I don't quite remember about the surgery, about the heart or something.

[00:43:05] Speaker 02:
Do you have a response to that?

[00:43:07] Speaker 01:
A couple of responses.

[00:43:09] Speaker 01:
One, that evidence was put forward before the jury.

[00:43:11] Speaker 01:
I think opposing counsels started off by saying that there's certain evidence that wasn't provided to the jury.

[00:43:17] Speaker 01:
And going through the transcripts, that's not the case.

[00:43:21] Speaker 01:
In fact, the trial judge gave the defendant two chances to lay a foundation for this instruction to be established.

[00:43:27] Speaker 01:
One, outside the presence of the jury.

[00:43:29] Speaker 01:
and then a second time at trial.

[00:43:31] Speaker 01:
And there was no limitation that was put on what the defendant could or could not testify about.

[00:43:37] Speaker 01:
And on top of that, this was put in front of the jury.

[00:43:40] Speaker 02:
I understood your argument in your brief to be there was no evidence of diminished capacity, so there didn't need to be this instruction.

[00:43:49] Speaker 02:
But this weird thing about I'm dead or something, it does sort of sound like evidence of diminished capacity.

[00:43:55] Speaker 01:
I, you know, I didn't take it that way.

[00:43:57] Speaker 01:
And that's certainly not what was argued at the trial level that, you know, during those two opportunities, especially the one outside the presence of the jury, that was not raised at any point, you know, as a basis for the diminished capacity instruction.

[00:44:12] Speaker 01:
And even, you know, I understand that it came out and that it was evidence generally at trial.

[00:44:16] Speaker 01:
But going back to the case law, there has to be more than that.

[00:44:19] Speaker 01:
There has to be a link between the condition and someone's ability to formulate

[00:44:24] Speaker 01:
the requisite mens rea and that link was also lacking at trial you know there's there's nothing connecting anything be it the defendant's use of marijuana and mushrooms or this condition that may or may not have happened but he talks about it in his debrief with the FBI there's still no link connecting that yes i guess sorry if i understood it right though it's not that he really had no heart and so that was the purpose that was the cause of the diminished capacity it's that

[00:44:54] Speaker 02:
him saying he has no heart is evidence of diminished capacity.

[00:44:58] Speaker 01:
Again, I don't see it that way.

[00:44:59] Speaker 01:
I understand what your honor is getting at.

[00:45:01] Speaker 02:
So is your argument that that theory was forfeited?

[00:45:05] Speaker 01:
That theory wasn't raised.

[00:45:06] Speaker 01:
It wasn't argued at all at the trial level, so yes.

[00:45:10] Speaker 01:
But even if it was argued, I mean, I don't, still, you don't have that link.

[00:45:14] Speaker 01:
You know, there's the cases that are cited.

[00:45:16] Speaker 01:
There's someone who could have a mental illness.

[00:45:18] Speaker 01:
And if you don't have some testimony, it doesn't have to be an expert, just something that says, like, because I have this condition, I cannot formulate the requisite intent.

[00:45:27] Speaker 01:
You know, that's what's necessary, and that's what's lacking here.

[00:45:31] Speaker 02:
Okay, thank you.

[00:45:33] Speaker 02:
We've gone way over.

[00:45:34] Speaker 02:
So thank you for your argument.

[00:45:35] Speaker 02:
Let's put four minutes on the clock for rebuttal, please.

[00:45:46] Speaker 00:
There are three points I wanted to make.

[00:45:48] Speaker 00:
First of all, in regards to the

[00:45:52] Speaker 00:
that there was an obstruction based upon.

[00:45:53] Speaker 00:
Finding of will finis it was the district court.

[00:45:56] Speaker 00:
Who said as an afterthought about all this other evidence to butchers her finding that there was an obstruction based upon will finis.

[00:46:06] Speaker 00:
But she didn't make an independent

[00:46:20] Speaker 00:
The disruption, you would look at the target.

[00:46:24] Speaker 00:
Because in the United States versus Snipes case that the government referenced, the target was the National Guard.

[00:46:36] Speaker 00:
And the disruption was what the National Guard had to do in dealing with that threat.

[00:46:46] Speaker 00:
Now, the case before that,

[00:46:50] Speaker 00:
which is the Anwar case on page 11 of my reply brief.

[00:46:59] Speaker 00:
It sort of does say that the target is the disruption, whereas the substantial relates to what does the government have to do or security personnel have to do in order for it to be substantial.

[00:47:17] Speaker 00:
The third thing that I wanted to mention is that as far as the diminished capacity instruction, if the court were to find that there was sufficient evidence to at least warrant the giving of the diminished capacity instruction, that would result in a new trial.

[00:47:37] Speaker 00:
And that is the only option available.

[00:47:39] Speaker 00:
Because according to the court's Christian case, which was not overruled by the

[00:47:47] Speaker 00:
bacon and bonk in regards to the issue with holding regarding.

[00:47:53] Speaker 02:
So sorry, can I interrupt you though so.

[00:47:56] Speaker 02:
I understand that there was a discussion about whether the drug use caused diminished capacity and the court found there wasn't evidence that it affected the ability to form an intent.

[00:48:09] Speaker 02:
And then you came in this morning and started with this thing about a heart.

[00:48:13] Speaker 02:
And the government is saying no one ever argued that the statement about the heart showed diminished capacity.

[00:48:20] Speaker 02:
Do you think that anyone ever did argue that to the court?

[00:48:23] Speaker 00:
I would agree with Mr. Aquino that the Defense Council did not argue that when there was the issue regarding the diminished capacity.

[00:48:34] Speaker 00:
However, the test is whether there was sufficient evidence

[00:48:40] Speaker 00:
to warrant the giving of the diminished capacity instruction, even though it may have been weak, contradictory, or of doubtful credibility.

[00:48:49] Speaker 00:
Now the argument regarding whether he didn't have a heart and it was a brain surgery, that was already evidence that was introduced.

[00:48:57] Speaker 00:
So the district court, it was incumbent also on the district court to take all of that evidence into account in addition to what the defense counsel argued.

[00:49:09] Speaker 00:
And even if you were to, let's say, exclude that part, there was sufficient evidence, although it may have been weak or inconsistent or doubtful credibility, that there was a diminished capacity.

[00:49:23] Speaker 00:
Because Mr. Brandenburg did testify to that effect.

[00:49:27] Speaker 00:
The marijuana and the mushroom that he was taking did affect his thinking, because there was a difference between what his thinking was and what he did.

[00:49:37] Speaker 00:
And he testified to that.

[00:49:40] Speaker 00:
Also, he did testify that, yes, he was spun out of control during the period of time this happened, because there was also his divorce that was happening.

[00:49:52] Speaker 00:
So when you take all of those things together, there was some evidence, some evidence that the diminished capacity instruction should have been given, and therefore, a new trial is required.

[00:50:06] Speaker 00:
Are there any questions?

[00:50:07] Speaker 00:
If not, my time is over.

[00:50:10] Speaker 02:
Thank you both sides for the helpful arguments.

[00:50:12] Speaker 02:
This case is submitted and we are adjourned.