[00:00:01] Speaker 02:
Good morning, your honors, and may it please the court.

[00:00:03] Speaker 02:
Todd Borden from the Federal Public Defender's Office, appearing on behalf of the appellant, David DePapp.

[00:00:08] Speaker 02:
Judge Bumate, I'm going to try to reserve four minutes for rebuttal, and I'll make sure to watch the clock.

[00:00:14] Speaker 02:
After Mr. DePapp broke into the Pelosi residence and struck Paul Pelosi, he was charged with numerous state crimes for which he ultimately received a life sentence.

[00:00:23] Speaker 02:
But the basis for federal jurisdiction was an elevated mens rea element as to both charged offenses.

[00:00:29] Speaker 02:
whether he had specific intent to kidnap then Speaker Nancy Pelosi on the account of the performance of her official duties as a member of Congress, and whether the same motivation prompted his attack on her husband.

[00:00:41] Speaker 02:
Now, as to that critical element, the district court refused to instruct the jury as to what on account of the performance of official duties meant.

[00:00:49] Speaker 02:
Even though Mr. DePapp's instruction, proposed jury instruction, validly defined that element.

[00:00:55] Speaker 02:
This instructional error requires reversal, and I'd like to talk about that first.

[00:00:59] Speaker 02:
So the Constitution guarantees the right to present a defense.

[00:01:02] Speaker 02:
And this court has held that that entails the right to receive a theory of the defense instruction if three criteria are met.

[00:01:09] Speaker 02:
I don't think the first two are really in dispute, that the instruction is supported by law.

[00:01:14] Speaker 02:
I don't think the government is really seriously arguing the ultimate instruction we propose was not supported by law.

[00:01:19] Speaker 02:
Second, it has to have some foundation and evidence.

[00:01:22] Speaker 02:
And here, the entire defense strategy was to focus narrowly on this mens rea element.

[00:01:28] Speaker 02:
And there is indeed a lot in the record, as my brief articulates, showing that Mr. DePapp had a lot of beliefs that were really unrelated to anything having to do with Speaker Pelosi's duties as a congressperson.

[00:01:38] Speaker 02:
So that leaves the third requirement, which is whether any other jury instructions adequately discovered the defense theory.

[00:01:45] Speaker 02:
And in the context of this case, the answer is no.

[00:01:47] Speaker 02:
But I see a question.

[00:01:48] Speaker 03:
Yeah, I mean, for me, your proposed jury instruction, as I understand it, changes on account of to because of, right?

[00:01:57] Speaker 03:
Isn't that the sum total of the jury instruction?

[00:01:59] Speaker 02:
No, Your Honor.

[00:02:00] Speaker 02:
It does two things.

[00:02:01] Speaker 02:
So it certainly does use the language of because of, on account of, and we have arguments that that is certainly clearer for laborers.

[00:02:07] Speaker 02:
Maybe, but they mean the same thing, right?

[00:02:09] Speaker 02:
There certainly is a legal matter similar.

[00:02:12] Speaker 02:
That's true, Your Honor.

[00:02:13] Speaker 02:
But the other critical component here

[00:02:15] Speaker 02:
is that it also defines what official duties are at stake, and that is official duties as a member of Congress.

[00:02:22] Speaker 04:
What other official duties would have been at stake given the instruction?

[00:02:27] Speaker 04:
The instruction also included a discussion that Speaker Pelosi was a member of Congress.

[00:02:35] Speaker 02:
So let's look at the instructions.

[00:02:37] Speaker 02:
They're at ER 109 and 110.

[00:02:40] Speaker 02:
They define federal officer, and they say that

[00:02:44] Speaker 02:
And they use the word official duties, but again, they don't say what official duties.

[00:02:48] Speaker 02:
And sorry, to more clearly answer your question, Judge Johnstone, the evidence in this trial indicated that Speaker Pelosi had a lot of other duties, for example, in relation to the Democratic National Committee, that she had, you know, that were purely political duties.

[00:03:01] Speaker 02:
Her aide spoke about House ethics rules and how that she was, you know, certain actions she did that may seem political were not, in fact, official duties.

[00:03:11] Speaker 02:
So there is an evidentiary basis here.

[00:03:14] Speaker 04:
But that sounds to me more like a sufficiency argument rather than an instructional argument.

[00:03:19] Speaker 02:
Yeah, sorry.

[00:03:19] Speaker 02:
I slightly misspoke there, Your Honor.

[00:03:20] Speaker 02:
But the point is the two substance obstructions nowhere define what official duties are.

[00:03:27] Speaker 02:
Now, maybe the jury could infer it.

[00:03:29] Speaker 02:
I think that's the government's strongest position.

[00:03:30] Speaker 02:
But I think the court needs critically to look at the context of how that worked out in this case.

[00:03:35] Speaker 02:
And I want to point to the Mason decision in particular, which says that the question about whether or not

[00:03:40] Speaker 02:
other instructions, this third element we're talking about, whether other instructions adequately cover defense theory, it is context dependent, and it also needs to be looked from the perspective of what a reasonable juror would understand the instructions to mean.

[00:03:52] Speaker 02:
And here the critical context I would point the court to is the prosecutor's closing argument and rebuttal, which essentially disclaimed the whole theory of the defense as being legally valid at all.

[00:04:05] Speaker 02:
The first thing the prosecutor said is the defense talked a lot about this distinction between politics and official action.

[00:04:10] Speaker 02:
This is a made up distinction.

[00:04:12] Speaker 02:
The defendant made no such distinction and there's nothing in your instructions that talks about a distinction between politics, whether democratic politics and fundraising politics, and official duties or action.

[00:04:21] Speaker 02:
Let's look at the instruction.

[00:04:23] Speaker 02:
On account of the performance of official duties, nowhere is that defined.

[00:04:27] Speaker 02:
The same term is used in the second instructions.

[00:04:29] Speaker 02:
Again, it's not defined.

[00:04:31] Speaker 02:
There's no reason to believe that this distinction the defense has made up has anything to do with your deliberations.

[00:04:36] Speaker 02:
So your honors,

[00:04:38] Speaker 02:
I think this context is critical and that this court's Mason decision, you know, essentially requires the court to consider the context of the case.

[00:04:46] Speaker 02:
And what we have here is an unusual situation where the prosecutor essentially weaponizes the district court's refusal to give a clear, precise instruction of what official duties are in a single place and points to the lack of that as a basis for rejecting a legally valid defense theory.

[00:05:02] Speaker 02:
And that undermines my client's constitutional rights.

[00:05:05] Speaker 04:
Can we take the, I guess,

[00:05:08] Speaker 04:
Can we take the prosecutor's comments as, I mean, how does that fit in with instructional error?

[00:05:14] Speaker 04:
I don't think you assign any kind of separate claim or import with respect to the closing argument.

[00:05:20] Speaker 04:
So we're supposed to use that as kind of evidence that the instruction

[00:05:25] Speaker 04:
made that available to the prosecution, or how do those relate?

[00:05:28] Speaker 02:
Yeah, that's an excellent question, Your Honor.

[00:05:30] Speaker 02:
So the way they relate is when assessing instructional error, that's Mason, the court needs to look in the overall context of how the trial took place.

[00:05:39] Speaker 02:
And we have a situation where the specific lack of an instruction there is being highlighted by one party as a basis to reject

[00:05:50] Speaker 02:
the theory, I think that's particularly problematic.

[00:05:52] Speaker 04:
I want to point also... How does that work chronologically?

[00:05:54] Speaker 04:
The judge has to offer the instructions, the prosecution refers to them, but how would the judge take account of the context of something that hasn't happened?

[00:06:04] Speaker 02:
It's a fair question, Your Honor, but all I can say is that that's how the case law has looked at it.

[00:06:09] Speaker 02:
I mean, I guess overall it's not uncommon that we sort of... Something that might not be erroneous when it initially happened becomes erroneous

[00:06:18] Speaker 02:
I mean, that does happen in law sometimes.

[00:06:19] Speaker 02:
I acknowledge that's a little anomalous.

[00:06:21] Speaker 02:
But I really want to point the court to the DeVry's decision.

[00:06:23] Speaker 02:
That's the DC Circuit case.

[00:06:24] Speaker 02:
That involved a refusal to give advice of counsel defense.

[00:06:29] Speaker 02:
And the prosecutor there did the exact same thing.

[00:06:32] Speaker 02:
And obviously, the refusal to give the instruction to go more directly to your question, Judge Johnstone, happened before.

[00:06:37] Speaker 02:
But nevertheless, that critical fact for the DC Circuit was their basis for reversal.

[00:06:41] Speaker 02:
They pointed to the fact that the prosecutor can, on the one hand, prevent a defense

[00:06:46] Speaker 02:
from receiving a legally valid theory of defense instruction.

[00:06:48] Speaker 02:
And then on the other hand, point to the very lack of that instruction in closing argument as a basis for the jury to reject the defense theory.

[00:06:57] Speaker 02:
So yes, so I think that's really the most critical situation here.

[00:07:03] Speaker 02:
And I'd also want to emphasize that this court's rule for denial of a theory of defense instruction is a per se reversible error.

[00:07:12] Speaker 02:
I don't think the harmlessness

[00:07:14] Speaker 02:
I don't think it really especially matters here because it was so prejudicial based off the closing argument, but I did want to emphasize that's the court's rule.

[00:07:23] Speaker 03:
But you were allowed to argue the opposite, right, that it is limited, the official duties are only to a member of Congress, and so what's the harm?

[00:07:33] Speaker 02:
Well, so the harm, I mean, for starters, I do want to emphasize again the context was rebuttal closing, so we obviously, and that was sort of the first time that came out, so obviously we were limited

[00:07:43] Speaker 02:
in that regard.

[00:07:44] Speaker 02:
But I also want to emphasize that, you know, this court's decision in Mason and also the DC circuit device have emphasized that just saying that the defense can argue its defense theory isn't enough, that it needs to be ‑‑ that the right to present a defense also entails the right to present a theory of the defense instruction because

[00:08:08] Speaker 02:
Ultimately, it is, of course, the judge's duty to state the law.

[00:08:12] Speaker 02:
And saying that, well, the defense can argue the law is the other way, that's not what this court has held.

[00:08:22] Speaker 02:
I'd like to turn to the Rule 403 argument for a moment.

[00:08:28] Speaker 02:
The district court abused its discretion by emitting bloody videos and images of the aftermath of Mr. DePapp's assault, which had infinitesimal probative value and an extreme risk of unfair prejudice.

[00:08:40] Speaker 02:
I want to emphasize this is not like a homicide case where the cause of death is a critical element to the offense.

[00:08:48] Speaker 02:
Here, when Mr. DePapp struck Mr. Pelosi, at that point, all the elements of battery had been satisfied.

[00:08:56] Speaker 02:
And so really, the district court's analysis at core boiled down to a suggestion that it was probative as to his intent.

[00:09:04] Speaker 02:
But the extent to which the aftermath of the assault was probative to intent is incredibly small.

[00:09:11] Speaker 02:
And the prejudicial value of these particular images was extreme.

[00:09:16] Speaker 02:
We'd point particularly to Officer Wilmans's body-worn camera footage, exhibit two, which showed Mr. Pelosi struggling.

[00:09:26] Speaker 02:
quintessential evidence that would have the effect of causing the jury to base its verdict on its emotional reaction rather than the narrow legal elements that were at stake in this case.

[00:09:37] Speaker 02:
Which, to be clear, it was a narrow mens rea defense.

[00:09:39] Speaker 02:
So I think the danger of unfair prejudice there is strong.

[00:09:47] Speaker 01:
So, counsel, are you suggesting that Mr. DePapp was entitled to a trial free of any sort of emotional impact?

[00:09:55] Speaker 01:
I mean, this was a pretty grave case.

[00:09:59] Speaker 02:
No, certainly, Your Honor.

[00:10:00] Speaker 02:
And to be clear, our request was we were not contesting admission of the actual assault.

[00:10:07] Speaker 02:
The only thing that we were objecting to were

[00:10:10] Speaker 02:
sort of images of him in a pool of blood, the aftermath, which was especially disturbing and had less relevance.

[00:10:18] Speaker 02:
So of course, no, we were not trying to sanitize this beyond all recognition.

[00:10:25] Speaker 02:
But I think the impact of the additional footage that was admitted was very high.

[00:10:30] Speaker 02:
The government used that in their opening argument, showing this disturbing image of Mr. Pelosi in a pool of his blood.

[00:10:37] Speaker 02:
It was the first, the video was shown twice by the first witness.

[00:10:42] Speaker 02:
And during closing argument, a freeze frame of right before the impact was shown to the jury.

[00:10:48] Speaker 02:
And, you know, the prosecutor said, I'm not going to make you watch that, essentially, but, you know, we all remember what happened.

[00:10:53] Speaker 02:
So I do think that the sort of extent of Mr. Pelosi's injuries were substantially highlighted and just had too much risk of unfair prejudice.

[00:11:04] Speaker 02:
And I point the court especially to the decision in HIT that emphasized that even when there's only a modest risk of unfair prejudice, when the probative value is so low, it simply, it still is an abusive discretion.

[00:11:21] Speaker 02:
I'd like to turn with the time I have left to the rule 35, allocution argument.

[00:11:27] Speaker 02:
The right to allocution has deep common law roots

[00:11:30] Speaker 02:
And when a district court fails to afford a defendant an opportunity to allocute before sentencing, automatic reversal is required.

[00:11:36] Speaker 02:
The question here, of course, is whether Rule 35A allows the district court to do a sort of rushed do-over in 14 days.

[00:11:42] Speaker 02:
And our answer is definitely not when we look to the text of Rule 35A.

[00:11:47] Speaker 02:
Rule 35A is, it's important, I think, especially to look to the remedy provided by Rule 35A, and that is to correct a sentence.

[00:11:55] Speaker 02:
And that's a legal term of art in the federal rules of criminal procedure.

[00:11:58] Speaker 02:
Rule 43 in particular talks about the distance between a full plenary resentencing hearing and a mere action to correct a sentence.

[00:12:07] Speaker 02:
And notably, under Rule 43, a defendant doesn't even have a right to be present at a proceeding to correct a sentence.

[00:12:13] Speaker 02:
So the district court's sort of, I mean, it's understandable why the district court wanted to do what it did, but it's sort of jamming this particular.

[00:12:20] Speaker 03:
So why is it not a technical error?

[00:12:22] Speaker 03:
So Rule 32 requires allocution, correct?

[00:12:25] Speaker 02:
Yes, Your Honor.

[00:12:26] Speaker 03:
As a technical matter, it's required.

[00:12:28] Speaker 02:
So your honor, I guess I disagree with that assessment of technical.

[00:12:35] Speaker 02:
I mean, for starters, the importance of the right to allocution, I don't think is merely technical.

[00:12:40] Speaker 02:
It actually goes back to the 1600s.

[00:12:43] Speaker 02:
It has really deep roots.

[00:12:44] Speaker 03:
Sure, but it got constitutionalized.

[00:12:46] Speaker 03:
Sorry, it became statutory or became a rule in Rule 32.

[00:12:52] Speaker 03:
So as I look at the word technical, it means mechanical, rote, strictly required.

[00:13:00] Speaker 03:
And to me, allocution is all of those things.

[00:13:04] Speaker 02:
Well, so I disagree, Your Honor.

[00:13:05] Speaker 02:
I mean, notably, even the Fifth Circuit's decision in Delgado, which is the only one on point, put this under the other clear error category.

[00:13:13] Speaker 03:
But more importantly- Just explain why you think it's not technical.

[00:13:16] Speaker 02:
Yeah, yeah, yeah.

[00:13:16] Speaker 02:
I don't think it's technical because it goes to the overall broader exercise of judicial discretion.

[00:13:24] Speaker 02:
And if you look especially, I would really point the court to the MM decision from the Third Circuit.

[00:13:28] Speaker 02:
I think that's the most thorough discussion of sort of the scope of the rule.

[00:13:32] Speaker 02:
And there, they emphasize that situations which involve weighing of sentencing factors, weighing of the overall outcome, those are not situations that are amenable to correction under rules.

[00:13:42] Speaker 03:
So if it requires the exercise of discretion, you're saying it can't be technical?

[00:13:46] Speaker 03:
That's right.

[00:13:48] Speaker 03:
If a district court makes a math error on the sentencing guidelines, right, then at re-sentencing they have to recalculate the guidelines, get to the correct guidelines, and then employ discretion to impose the right sentence.

[00:14:01] Speaker 02:
So Judge Bumate, I disagree with the premise of that sentence because I think if you look to the MM decision in the Third Circuit and also I'm

[00:14:11] Speaker 02:
failing to recall the name, but the Sixth Circuit decision I quoted in my brief, both of those were quite clear that actually a guidelines error is not under the ambit of Rule 35.

[00:14:20] Speaker 02:
Really precisely for that reason, because it does require the sort of assessment of broader sentencing factors.

[00:14:25] Speaker 03:
How is that possible?

[00:14:26] Speaker 03:
I mean, if there's a simple arithmetical mistake, how can it not apply?

[00:14:31] Speaker 02:
The reason it can't apply

[00:14:34] Speaker 02:
A lot of it goes back to the Supreme Court's decision in Dillon, which is a 3582 case, but there's a lot of discussion of rule 35 because they're similar concepts.

[00:14:42] Speaker 02:
And in Dillon, again, it goes to the remedy.

[00:14:46] Speaker 02:
They drew the distinction between merely correcting, which doesn't involve the full exercise of plenary sentencing discretion, versus a resentencing, which again involves the judge considering all of the statutory factors.

[00:15:00] Speaker 04:
Why not clear error, then?

[00:15:01] Speaker 04:
I mean, I assume if this wasn't objected to, it came to us.

[00:15:04] Speaker 04:
We might call it plain error.

[00:15:05] Speaker 04:
We might call it all sorts of other things.

[00:15:07] Speaker 04:
How is this not clear error?

[00:15:11] Speaker 02:
It's not clear error, Your Honor, because, again, it mostly goes back.

[00:15:16] Speaker 04:
You've made it very clear to us.

[00:15:17] Speaker 04:
So I'm trying to write it.

[00:15:19] Speaker 04:
It kind of cuts both ways.

[00:15:21] Speaker 04:
There's no other way to assess this as the district court did.

[00:15:24] Speaker 02:
I'm sorry, Your Honor.

[00:15:25] Speaker 02:
So the M&M decision does make the point that not

[00:15:28] Speaker 02:
Not every error that requires appellate reversal is so clear that it's amenable to correction under rule 35.

[00:15:34] Speaker 02:
So I agree.

[00:15:35] Speaker 02:
I mean, I acknowledge there's some degree of tension there that obviously I'm coming here today saying that you should set it back for re-sentencing.

[00:15:41] Speaker 02:
But again, it's limited to errors that are in the nature of purely mechanical and technical fixes.

[00:15:49] Speaker 02:
For example, failure to impose a special assessment.

[00:15:53] Speaker 02:
Imposing a sentence outside the statutory maximum or minimum

[00:15:57] Speaker 02:
errors of those natures.

[00:16:01] Speaker 03:
And again, the MM decision cites to... Well, for example, if the district court is sentenced to someone to a mandatory minimum when that person is not eligible for a mandatory minimum, you think that could be corrected, right?

[00:16:15] Speaker 03:
Under Rule 35?

[00:16:16] Speaker 02:
It would depend... I'm not sure it would, Your Honor.

[00:16:19] Speaker 02:
It would depend if the... It's an illegal sentence, right?

[00:16:24] Speaker 02:
But whether or not the

[00:16:25] Speaker 02:
rule 35 is the correct mechanism to correct that I'm not sure about your honor because the nature of rule 35 corrections are they have to be essentially an automatic.

[00:16:33] Speaker 02:
The other method for correction.

[00:16:35] Speaker 03:
I mean direct appeal.

[00:16:36] Speaker 03:
So you have to appeal and come back and then we have to remand.

[00:16:40] Speaker 02:
So again I understand your honor's perhaps practical sense that that feels unwieldy but I think there are countervailing practical reasons why this particular procedure is not great.

[00:16:51] Speaker 02:
For starters

[00:16:51] Speaker 02:
You only have 14 days to correct the sentence, and that's not just file the motion.

[00:16:55] Speaker 02:
You have to actually rush to correct it within 14 days.

[00:16:57] Speaker 02:
And so you really aren't getting the full sort of considered pause of having an actual re-sentencing hearing.

[00:17:05] Speaker 02:
Additionally, you lose the opportunity potentially to ask for reassignments and things like that.

[00:17:08] Speaker 02:
I mean, of course, you can ask it to the district judge, but my experience is they typically rarely do that.

[00:17:16] Speaker 02:
So I'd like to try to reserve the balance of my time, if I may.

[00:17:32] Speaker 00:
Good morning, Your Honor, and may it please the Court, Ross Mazur on behalf of the United States.

[00:17:38] Speaker 00:
The defendant tried to kidnap the Speaker of the House, and failing that, willfully assaulted her husband.

[00:17:45] Speaker 00:
The evidence plainly showed that he acted on account of the Speaker's performance of official duties, and the jury was given the model instruction that tracked the statutory language.

[00:17:54] Speaker 00:
This Court should affirm.

[00:17:58] Speaker 00:
Let me briefly touch on this sufficiency to contextualize the other

[00:18:02] Speaker 00:
errors that defense counsel just focused on.

[00:18:06] Speaker 00:
The defendant's own words and actions show that he acted on account of the speaker's performance of official duties.

[00:18:12] Speaker 00:
Just after the assault, a paramedic saw blood on his clothing and asked what happened to try to treat minor injuries.

[00:18:20] Speaker 00:
His first words were that he was there to confront the speaker about the lies coming out of Washington, DC.

[00:18:27] Speaker 00:
In his later interview, he explained his plan was to kidnap

[00:18:33] Speaker 00:
the speaker to break her kneecaps so that whenever she was wheeled onto the House floor, other members of Congress would see it and understand that there were consequences for what the defendant perceived as their lies and corruption in public office.

[00:18:48] Speaker 00:
And on the day the body camera footage was released to the public, which showed the assault, the defendant called a TV reporter and said he had a message for the American people, you're welcome, and even apologized to the American people

[00:19:03] Speaker 00:
for not getting more of them, showing that he believed the assault on Mr. Pelosi had gotten the speaker as a way of getting them, because he testified that Mr. Pelosi wasn't on his list.

[00:19:17] Speaker 00:
And so that could only refer to the speaker.

[00:19:22] Speaker 00:
From this evidence alone, a rational juror could have found

[00:19:27] Speaker 00:
that the defendant acted on account of the speaker's performance of official duties.

[00:19:32] Speaker 00:
Okay, what about the instructional error part of that?

[00:19:37] Speaker 00:
So let me first clarify the instructional issues that are actually before the court.

[00:19:43] Speaker 00:
First, the defense renews a narrow claim that the court should have substituted because of for on account of.

[00:19:51] Speaker 00:
And second, the defendant suggests that even if the court didn't use because of,

[00:19:56] Speaker 00:
it had some obligation to sua sponte define the term on account of the performance of official duties in some unspecified way.

[00:20:06] Speaker 00:
So on the narrow claim, the defense argument collapses on its own terms.

[00:20:12] Speaker 00:
If, as I think Judge Boumete alluded to, if because of and on account of are synonymous, then the district court could not have abused its discretion in choosing one over another, let alone the term

[00:20:26] Speaker 00:
actually used in the statute.

[00:20:28] Speaker 00:
And if because of is narrower than on account of, as the defense argued below and as their argument on appeal necessarily implies, or they wouldn't be pushing for this change, then the district court might have actually erred in choosing the because of framing.

[00:20:47] Speaker 00:
Because Congress chose on account of, which the defendant seems to acknowledge, allows for a more permissive causal standard.

[00:20:57] Speaker 04:
What is the causal standard that you understand on account of and what limiting principles are there?

[00:21:10] Speaker 00:
So this court's case law establishes that the performance of official duties element is met if the defendant targets the victim because of her official position in government.

[00:21:24] Speaker 04:
Is that a but-for standard?

[00:21:26] Speaker 00:
No, it's not a but for standard.

[00:21:29] Speaker 00:
In cases like United States v. Rose now, this court distinguishes causation statutes from motive statutes.

[00:21:39] Speaker 00:
And for motive statutes like this one, it says that but for causation doesn't apply, that barrage is distinguishable, and that the appropriate language is motivating factor.

[00:21:55] Speaker 04:
But so how much of a motivating factor?

[00:22:00] Speaker 04:
I think there's some discussion.

[00:22:01] Speaker 04:
There's nothing that suggests it would be primary, substantial, significant.

[00:22:07] Speaker 00:
Well, I think the first point is that the evidence would have satisfied any causation standard, because even if it were but for, the defendant said he chose the speaker to target because he viewed her as leader of the plaque in Washington, DC, lying to the American public.

[00:22:25] Speaker 00:
So whatever the standard happens to be, the evidence would meet it in this case.

[00:22:30] Speaker 00:
I think if the court wanted to offer some additional guidance on what the causal standard is, in many cases, on account of doesn't need additional explanation, courts use causal phrases or nexus requirements like in relation to without providing further definition.

[00:22:50] Speaker 00:
The court could say, I think, that on account of

[00:22:55] Speaker 00:
that mixed motives are okay, that they're not precluded by the statute, that primary or sole motivation is not required, but that the motive can't be trivial or incidental.

[00:23:10] Speaker 00:
These are the principles drawn from the on account of line of case law.

[00:23:15] Speaker 00:
and from all of the other cases, interpreting motive-type statutes.

[00:23:18] Speaker 04:
But because of, as you discussed, with respect to sufficiency, you're not suggesting that this would be a good case that gets us close to that line where we'd need to draw any line between whether it was the primary, secondary, not trivial?

[00:23:35] Speaker 00:
Yes, Your Honor.

[00:23:35] Speaker 00:
The evidence in this case was overwhelming, regardless of the causal standard.

[00:23:39] Speaker 00:
but based on this court's precedent, but for is not appropriate when the statute deals with motive and not causation.

[00:23:47] Speaker 00:
In other words, the link between the harm in this case, the harm being the harm to federal functions or federal officials and their families is connected to the conduct, the assault or the kidnapping through the defendant's motive.

[00:24:02] Speaker 00:
It's not a result from

[00:24:04] Speaker 00:
kind of test, as in barrage, where the question was whether death or serious bodily injury results from conduct or in the context of the Hate Crimes Prevention Act cases that the defense has cited, where it's the same thing.

[00:24:18] Speaker 00:
The question is whether serious bodily injury results from the defendant's conduct.

[00:24:25] Speaker 03:
So what about the argument just made this morning that the district court also neglected to put official duties as a member of Congress?

[00:24:34] Speaker 00:
Well, the jury instruction defined, excuse me, the jury instruction said that the government had to prove that the defendant intended to, on 1201, kidnap a federal officer and then it defined federal officer.

[00:24:54] Speaker 00:
So I don't think there was any ambiguity in the instructions on either count what official duties the court was talking about.

[00:25:01] Speaker 00:
And that brings me back

[00:25:03] Speaker 00:
to the broader claim that the defense I think is raising, the broader instructional claim that I think they're raising on appeal, which is that even if the court didn't replace on account of what because of, it should have offered some additional definition of the challenged element performance of official duties.

[00:25:21] Speaker 04:
Well, Mr. Mazur, I want to come back to your framing of this as a motive requirement.

[00:25:29] Speaker 04:
I can see where that lands in the 115 charge.

[00:25:33] Speaker 04:
with intent to, where would we find it in the 1201 kidnapping charge?

[00:25:40] Speaker 00:
The motive requirement I was referring to is the on account of language, because on account of refers to the defendant's reasons for acting.

[00:25:47] Speaker 00:
He was motivated by the performance of official duties.

[00:25:50] Speaker 04:
So those words always carry with it the emotive requirement.

[00:25:55] Speaker 00:
Yes, Judge Johnstone.

[00:25:57] Speaker 00:
The difference between 1201, A5, and 115 is that 115 adds

[00:26:03] Speaker 00:
a specific intent requirement.

[00:26:05] Speaker 00:
When it comes to immediate family members of public officers, there the defendant also must intend either to retaliate on account of the officer's performance of official duties or to impede, intimidate, or interfere with the federal officer while engaged in the performance of official duties.

[00:26:26] Speaker 00:
And here both of those prongs were met.

[00:26:28] Speaker 04:
Either one would be sufficient.

[00:26:30] Speaker 04:
make sure that I understand what the rejection of the but for cause reading of this entails.

[00:26:39] Speaker 04:
Let's assume a defendant is watching C-SPAN and sees a senator presiding and he's wearing a really nice watch and the defendant then mugs the senator because they saw him wearing this very nice watch.

[00:26:59] Speaker 04:
In that case, right, you'd see that the argument is that that is the fact that the senator was on C-SPAN performing official duties is the but-for cause of the defendant identifying the victim.

[00:27:11] Speaker 04:
But you'd say that would be outside of the, that is not on account of, even though it might be but-for.

[00:27:16] Speaker 00:
I don't think but-for is the correct causal standard for interpreting the phrase on account of.

[00:27:26] Speaker 04:
Right, so the statute would not apply to that defendant if it were merely the but for, that's how the defendant identified the person because they saw them identifying the official duties, but that wasn't a motivating factor.

[00:27:41] Speaker 00:
So with respect to this or similar hypos, I think the most important point is that on account of the performance of official duties is a jury question.

[00:27:49] Speaker 00:
And so the question for this court is whether the evidence was so weak

[00:27:54] Speaker 00:
that it failed to satisfy that element as a matter of law.

[00:27:57] Speaker 00:
Now in the hypothetical that you just gave, if truly the defendant only happened to see the senator on TV and

[00:28:11] Speaker 00:
he would have tried to rob anyone he saw on TV with a nice watch, then I think that would be a very difficult case to prove.

[00:28:18] Speaker 00:
But ultimately, it would be a question of sufficiency of the evidence.

[00:28:22] Speaker 03:
What if he targeted her because she was the leader of the DNC?

[00:28:28] Speaker 00:
Well, I think that the challenge here is that the defendant never drew distinctions between her role in Congress and her role as leader of the DNC.

[00:28:36] Speaker 00:
He referred to her as leader of the Democratic Party in Congress,

[00:28:40] Speaker 00:
And he even made specific references, not just to general corruption that he perceived in Washington DC, but also to specific congressional acts.

[00:28:51] Speaker 00:
And so the evidence in this case would satisfy any definition of official duties.

[00:28:55] Speaker 00:
These included the certification of the 2020 election results.

[00:28:59] Speaker 00:
These included the first impeachment of President Trump and the investigation into Russian interference in the presidential election.

[00:29:08] Speaker 03:
So in the rebuttal when the prosecutor said that defense has made up, that distinction is made up, I take it you're, it wasn't making a legal point, that was just a factual point of what the evidence showed the defendant's state of mind was.

[00:29:23] Speaker 03:
Is that the right way to think about it?

[00:29:25] Speaker 00:
Absolutely, Judge Bumate.

[00:29:27] Speaker 00:
And I think that one of the sentences that defense counsel omitted on 6ER 1358, the prosecutor said, this is a made up distinction.

[00:29:37] Speaker 00:
The defendant made no such distinction.

[00:29:40] Speaker 00:
So the first point is that the prosecutor was talking about the defendant's intent and saying he himself did not distinguish between this political and official duty motivations.

[00:29:51] Speaker 00:
The second thing is that

[00:29:53] Speaker 00:
Like I said, this is a jury question, and defense counsel in summation was trying to present these distinctions as matters of law.

[00:30:03] Speaker 00:
What the government was reminding the jurors was that this is a question for you.

[00:30:07] Speaker 00:
You have to decide whether the statute is met.

[00:30:10] Speaker 01:
Counsel, can I now direct you?

[00:30:12] Speaker 01:
You're running low on time, and I do want you to address the 403 argument as well as the allocution argument.

[00:30:18] Speaker 01:
So if you can start with the 403.

[00:30:21] Speaker 00:
Of course, Your Honor.

[00:30:22] Speaker 00:
So there was no abuse of discretion in not excluding very limited evidence under Rule 403.

[00:30:28] Speaker 00:
Both the district court and the government took an extremely conservative approach in the evidence they were admitted in.

[00:30:36] Speaker 00:
Two short body camera clips and a small number of images.

[00:30:41] Speaker 00:
And even on appeal, it's not clear to me exactly which material the defendant is challenging because they seem to concede that at least some evidence

[00:30:50] Speaker 00:
showing the extent of the assault should have been admissible.

[00:30:54] Speaker 00:
So the evidence was probative for at least three reasons, which we outline in our brief.

[00:31:00] Speaker 00:
The first is that it tended to prove both intent and motive under Count 2, 115A1A.

[00:31:06] Speaker 00:
A theme of the defense was to try and minimize the severity of the force and the injuries to show that the attack was one performed out of frustration and not retaliation.

[00:31:20] Speaker 00:
The simple fact is that three targeted blows look more deliberate than one swing of the hammer.

[00:31:27] Speaker 00:
It was relevant to prove motive and intent.

[00:31:30] Speaker 00:
The second reason is that it was relevant to prove the sentencing enhancement.

[00:31:34] Speaker 00:
A hammer is not invariably a deadly weapon.

[00:31:37] Speaker 00:
It's only a deadly weapon if it's used in a way to cause death or serious bodily injury.

[00:31:42] Speaker 00:
And so the evidence was probative of that as well.

[00:31:45] Speaker 00:
And lastly, it tended to prove the substantial

[00:31:48] Speaker 00:
the substantial step element of the attempted kidnapping charge in 1201.

[00:31:54] Speaker 00:
It's true, as the defence counsel pointed out, there were other substantial steps, but at trial the defence highlighted that the interaction, at least on their view, between the defendant and Mr. Pelosi remained cordial, they said, until the end.

[00:32:11] Speaker 00:
And so in order to show that the defendant clearly would have gone forward with his kidnapping,

[00:32:18] Speaker 00:
But for some intervening event, like her not being there, the best evidence of the substantial step was the violent nature of the assault.

[00:32:28] Speaker 00:
And the defense, I think, has also suggested that the district court didn't apply the correct balancing test.

[00:32:35] Speaker 00:
But if you look at the pretrial conference where the court addressed this motion in Lemonay, it's just not true.

[00:32:43] Speaker 00:
And this is at 1ER 146 to 64.

[00:32:47] Speaker 00:
The court considered the motion to eliminate, walked through every single piece of evidence, and where they were duplicative, the court pressed the government to withdraw those pieces, which they did.

[00:32:58] Speaker 00:
But the district court and the government took an extremely conservative approach to any evidence that was emotionally charged.

[00:33:06] Speaker 04:
Could you address the, I guess, as you start the 35A argument,

[00:33:12] Speaker 04:
The Houston generis question, right?

[00:33:15] Speaker 04:
How is clear error, if we don't think of this as a technical error, how is clear error like the other two errors described in the rule?

[00:33:24] Speaker 00:
So to affirm the sentencing proceeding in this case, the court only has to do two things.

[00:33:29] Speaker 00:
One, state that the failure to invite allocution is an other clear error, which should be undisputed, I think.

[00:33:37] Speaker 00:
It violates rule 32.

[00:33:39] Speaker 00:
And second, that that doesn't change

[00:33:41] Speaker 00:
just because the remedy involves rebalancing the 3553A factors.

[00:33:47] Speaker 00:
So rule 35A, the text of the rule doesn't limit the type of remedy.

[00:33:51] Speaker 00:
It only refers to the type of error, arithmetic, technical, or other clear error.

[00:33:56] Speaker 00:
And I think as Judge Boumete alluded to, on the defense reading, it would be difficult to correct clear errors that even the defense in their briefing concedes are clear errors that should be corrected under

[00:34:09] Speaker 00:
rule 35 and they concede that because the third circuit said that they were clear errors in the MM case.

[00:34:15] Speaker 00:
Things like imposing a sentence below the mandatory minimum or failing to impose a mandatory prison term.

[00:34:21] Speaker 00:
You can't correct those things unless you do a rebalancing of the 3553A factors.

[00:34:26] Speaker 00:
Their position is also inconsistent with the Fifth Circuit's decision in Delgado and with the multiple circuits holding that rule 35 does allow for plenary resentencing.

[00:34:37] Speaker 00:
There's

[00:34:38] Speaker 00:
I think the one case they rely on is the Supreme Court's decision in Dillon.

[00:34:42] Speaker 00:
But Dillon construed 3582C2, which allows a court to reduce a term when a guidelines range has been retroactively lowered, but only consistent with the applicable policy statement from the Sentencing Commission.

[00:34:55] Speaker 00:
And the policy statement is USSG 1B1.1.

[00:34:59] Speaker 03:
The government's not arguing that it's a technical error.

[00:35:01] Speaker 03:
Why is it not a technical error?

[00:35:05] Speaker 00:
Your Honor, the government thought it fit more neatly into other clear error.

[00:35:10] Speaker 00:
But I think you're right that it could also fit in the technical error category.

[00:35:16] Speaker 00:
I think both of those work.

[00:35:18] Speaker 00:
And it's worth noting there are three limiting principles here.

[00:35:22] Speaker 03:
And I would just follow.

[00:35:25] Speaker 03:
Even if it's not strictly a technical error, under the USIS canon, it would clearly then fit into other clear error because it's close enough to a technical error.

[00:35:35] Speaker 00:
Yes.

[00:35:36] Speaker 04:
Have we ever, I mean, as the denial of, I mean, you kind of think the denial of the allocution here is pretty fundamental.

[00:35:45] Speaker 04:
So technical, at least that connotes one meaning of more like a math error.

[00:35:51] Speaker 04:
Could be, obviously, very important to the parties, but we have arithmetic, technical, and then other clear error.

[00:36:01] Speaker 04:
So how do we cabin that other clear error if it's not like technical or arithmetic?

[00:36:07] Speaker 00:
So other clear error is a broader term.

[00:36:10] Speaker 00:
It sweeps more broadly, but Rule 35 has some

[00:36:13] Speaker 00:
some very specific limiting principles so that the kind of errors don't get out of hand.

[00:36:19] Speaker 00:
The first is timing.

[00:36:20] Speaker 00:
The error has to be identified and the resentencing proceeding occur within 14 days.

[00:36:25] Speaker 00:
That's a very limited time period.

[00:36:27] Speaker 00:
The second are the nature of the error.

[00:36:29] Speaker 00:
Clear error can't involve interpretation or judgment to identify the error.

[00:36:33] Speaker 00:
Per the advisory committee notes, it must be apparent on the face of the transcript.

[00:36:39] Speaker 00:
So if we're talking about something like

[00:36:41] Speaker 00:
There's a difference between a failure to consider something at all and a failure to consider it sufficiently.

[00:36:47] Speaker 00:
And if the parties can argue about whether the court's remarks implicitly rejected an argument or whether the defendant presented an argument that was serious enough to warrant a specific decision, then it's not other clear error.

[00:37:02] Speaker 00:
And the final thing is that under the committee notes, the error almost, if uncorrected, would almost certainly result in a remand

[00:37:11] Speaker 00:
on appeal, which seems to exclude any kind of error where there are viable harmless error arguments that are best hashed out during the appellate process.

[00:37:21] Speaker 00:
But a complete failure to allocute is quintessentially what Rule 35 is there to correct.

[00:37:27] Speaker 00:
Having it go through the appellate process would just waste resources and end up doing the same thing.

[00:37:33] Speaker 00:
The last thing I was going to mention is that Dillon is distinguishable because 3582C2

[00:37:39] Speaker 00:
It just doesn't apply to 3582C1B, which doesn't incorporate USSG1B1.1, which tells courts to substitute the amended range and to leave all other guideline application decisions unaffected.

[00:37:56] Speaker 00:
That doesn't apply in Rule 35.

[00:37:58] Speaker 00:
Unless the court has further questions, the government would ask that you affirm the conviction and sentence.

[00:38:03] Speaker 03:
Thank you, counsel.

[00:38:11] Speaker 02:
A few quick points roughly in the order that Mr. Mazer raised them.

[00:38:15] Speaker 02:
First, on the causation standard, he points to this court's Rosenau decision and suggests that we never apply but for causation when the element is sort of a mens rea mental state.

[00:38:27] Speaker 02:
I point the court to the Sixth Circuit decision in Miller.

[00:38:29] Speaker 02:
It's a hate crimes case cited in my brief.

[00:38:31] Speaker 02:
It's clearly all about whether or not it's but for his motivation based off of, I believe, religion in that case, the offense would have happened.

[00:38:38] Speaker 02:
So I think the distinction the government's suggesting doesn't hold fast in every situation.

[00:38:42] Speaker 02:
I also want to, as to the instructional error point, make a note about the standard review.

[00:38:47] Speaker 02:
Mr. Masur suggested that the standard review is abuse of discretion.

[00:38:50] Speaker 02:
That's not the case here.

[00:38:52] Speaker 02:
It's a three-part standard review when it's a theory of defense instruction.

[00:38:55] Speaker 02:
And the two that are really, the only one that's in dispute, which is whether or not other

[00:38:59] Speaker 02:
other instructions adequately cover the defense theory is reviewed de novo.

[00:39:04] Speaker 02:
That's Mason.

[00:39:05] Speaker 02:
So this is not just an argument about whether or not a precise formulation is sufficient.

[00:39:09] Speaker 02:
That is abuse of discretion, but because it's in the theory of defense conducts, it is de novo.

[00:39:14] Speaker 03:
On that point, the assault instruction does define a U.S.

[00:39:20] Speaker 03:
official as president, vice president, member of Congress, member-elect.

[00:39:25] Speaker 03:
So why doesn't that cover it?

[00:39:27] Speaker 03:
At least the second part of your error, because you said official duties because she's a member of Congress.

[00:39:34] Speaker 02:
Right.

[00:39:34] Speaker 02:
So it defines what federal official is, but it doesn't define what official duties is.

[00:39:40] Speaker 03:
But you wanted to add her official duties as a member of Congress.

[00:39:44] Speaker 02:
That's right.

[00:39:44] Speaker 02:
And I wanted a separate instruction specifically so we could point to that instruction as bolstering the defense theory.

[00:39:49] Speaker 02:
Because the government is suggesting that the portion of the

[00:39:54] Speaker 02:
rebuttal argument that I read was just commentary on evidence.

[00:39:57] Speaker 02:
But it goes far beyond commentary on evidence, Your Honor, when the prosecutor is specifically citing to the lack of a jury instruction.

[00:40:05] Speaker 02:
I think that's the critical point.

[00:40:06] Speaker 02:
When we don't even have an instruction we can hang our hat on, it just muddies the waters.

[00:40:13] Speaker 02:
I acknowledge that it's not wildly different, the two formulations.

[00:40:16] Speaker 02:
But again, in Mason, this court in that case, and it cited other cases there as well, where yes, if you kind of carefully analyze and parse with our lawyer brains, you might be able to piece together the defense theory.

[00:40:30] Speaker 02:
But the point in Mason was that you need to look at it from the perspective of a reasonable juror.

[00:40:35] Speaker 02:
And here, a reasonable juror, the last thing they hear is, look at the instructions.

[00:40:39] Speaker 02:
It's not there.

[00:40:40] Speaker 02:
This is a fake defense.

[00:40:42] Speaker 02:
And that's really critical, Your Honor.

[00:40:45] Speaker 02:
When we can't have anything that we can point to in the evidence, and the government can exploit that by preventing us from doing it, from getting that instruction, it fatally undermined the theory of the defense here, and we argue that that would require reversal.

[00:40:59] Speaker 03:
Thank you, counsel.

[00:41:00] Speaker 03:
This case is submitted, and we are adjourned for this week.