[00:00:00] Speaker 00:
case number 19-1393, United States of America versus Samira Jabir Abelant.

[00:00:07] Speaker 00:
Mr. Kramer for the Abelant, Mr. Lenners for the Epoley.

[00:00:12] Speaker 01:
Good morning, counsel.

[00:00:13] Speaker 01:
Mr. Kramer, please proceed when you're ready.

[00:00:15] Speaker 04:
Morning, your honors, and may it please the court.

[00:00:17] Speaker 04:
A.J.

[00:00:18] Speaker 04:
Kramer on behalf of Samira Jabir.

[00:00:20] Speaker 04:
This was an unusual case in the sense that once the government presented its evidence and completed its proof, it became apparent that the

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The information that the government filed remembering that it was solely in control of the government, because this was a misdemeanor what the information said it became apparent that Mr bar was not actually charged with a federal crime.

[00:00:44] Speaker 04:
She was charged with entering the White House complex and the Treasury building and grounds, which is not a federal crime as the district court properly found.

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And as the government does not dispute on appeal, they don't dispute the district court's finding.

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And if I could read to you from what the government said to the district court, the chart at page 155 of the appendix, they said the charging language specifies the date and location of the offense

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the identity of the accused, the required science, and the essential facts of the criminal conduct.

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In the next sentence, they said it's further specified that she entered the White House complex and the United States Department of Treasury Building and Grounds language that informed her of the specific conduct alleged to be a federal crime.

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So that, since it turns out that was not a federal crime,

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two things, two arguments.

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One is the district court should have dismissed the case at that point because no federal crime was alleged in the information.

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Or second of all, the district court could not have found Mr. Barr guilty of an attempt to commit what's not a federal crime.

[00:01:56] Speaker 01:
Can I ask you about the first one of those?

[00:01:58] Speaker 01:
So as I recall, there was no rule 12 motion ever filed in this case, right?

[00:02:03] Speaker 01:
The motion that was filed after the close of the evidence was a rule 29 motion.

[00:02:07] Speaker 01:
Yes.

[00:02:08] Speaker 01:
So if there's no real 12 motion to dismiss the sorry if there's no real 12 motion to dismiss the information, then we're not dealing with the appeal from what you would say is the erroneous denial of a real 12 motion all we have before us is the motion for judgment of acquittal.

[00:02:24] Speaker 04:
So two things there was in the papers for the motion of judgment of acquittal there was a motion that the district court should dismiss the information because it after the proof was made because I didn't think it would have been proper to file a rule 12 motion in the sense of there was no proof the government would have said we have to wait because

[00:02:44] Speaker 04:
You got to remember the government's focus entirely almost almost entirely in the district court was that this did charge a federal crime that White House complex and Department of Treasury building and grounds was a federal crime was included in the statute.

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So in the papers for the

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for the judgment of acquittal, it specifically asked that just told the said to the district court that it should dismiss the information because it fails to state a federal offense.

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And the government said that the timing of that was not improper.

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They specifically told the district court that because a defendant can raise jurisdiction at any time,

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that the timing of that was, it's not the timing, they said, that was the problem.

[00:03:30] Speaker 01:
Well, so I think that's true if it's jurisdictional.

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And I know that you have your argument that there was a lack of jurisdiction here.

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But if we don't think of it in terms of jurisdiction, there's still the possibility of filing a Rule 12 motion to dismiss an information on the basis that a crime's not alleged based on what's spelled out in the information.

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And I think that what

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What one would need to make that kind of argument is apparent on the face of the information.

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But it wasn't made at the time that the information was issued.

[00:04:05] Speaker 04:
Well, I don't think it is apparent on the face of the information.

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Because remembering that the government said White House Complex and the Department of Treasury rounds is a restricted area under it.

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And until there was proof of trial, there was no way to know whether that was.

[00:04:20] Speaker 01:
But for example, what if the indictment says,

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I'm sorry, the information said that the area that was breached was Pennsylvania Avenue.

[00:04:31] Speaker 04:
That would be, I think that would be a closer case.

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I mean, that might still be an issue of the government.

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Let me put it this way.

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If a rule of 12 motion had been filed, the government would have done exactly what it said in the district court, that this White House complex and Department of Treasury building and grounds is a restricted area under the statute.

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And you can't decide that, Judd, until the facts come out at trial.

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Because this can't be a pretrial hearing.

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The pretrial hearing would be the trial itself, essentially, about what it is.

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So that's the reason.

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But in the papers, it said during the papers, the rule 29, it said that the district court should dismiss the information for lack of jurisdiction.

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And the government said that the timing of that was not a problem.

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They specifically said timing is not a problem.

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It's incorrect legally, is what they said.

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So they specifically told the district court that it's not the timing of the argument that's incorrect, but it's the merits of the argument was incorrect.

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So I think that's why there couldn't be a rule 12

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The motion, first of all on jurisdiction doesn't have to be filed, it can be raised at any time and second of all, would have been premature in the sense of it required the proof of trial of the government's witnesses testifying that the White House and its grounds are different than the White House complex and ground.

[00:06:02] Speaker 04:
There's still the second issue, which is the district court.

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This is not a lesser included offense, which the government spends much of its brief arguing.

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The Schmuck case, one of my favorite names for a defendant.

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The government spends much of its time arguing that Schmuck applies to this case.

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It simply does not.

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It's talking about a lesser included offense.

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And the government even cites cases in its brief decided long before Schmuck saying that attempt is a lesser included offense.

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But even if we agree with you on that, it seems that the district court relied on Rule 31C2 and said that this was an attempt to commit the offense that was charged.

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Why isn't that what happened here?

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I do agree that that's what the district court tried to rely upon, although the government disputes that in its brief.

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But that's not because the offense charge, which includes, according to the government, the specific conduct and the essential facts, is not a federal crime.

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It's just not a federal crime.

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So you can't attempt something

[00:07:16] Speaker 03:
It's charged in a she was not charged with attempted but she was she was convicted of violating.

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What is it 1752 a one right Yes, and that is what the offense was that was charged in the information 1752 a one as far as it's the same statutory provision right it's the same statutory provision, but the government never moved to amend it, first of all.

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either to change White House complex in the Department of Trade.

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In fact, they specifically issued amending the information.

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So, let's suppose she were charged with assaulting a federal employee, the, you know, general assault, federal assault provision 18 USC 111, I think it is.

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And the information said that she committed the assault to which she punched a Treasury Department employee.

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And then the evidence that comes out at trial is that she punched a US Park official who is an Interior Department employee.

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And the judge says,

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Well, under 31 C2, there's no problem here.

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It's still the same offense.

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I'm going to find her guilty.

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You filed the same sort of motions, rule 29 motions and whatnot that you did here in the court found her guilty of assaulting an Interior Department employee when the information said a Treasury Department employee.

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Would that be a problem?

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I think it is.

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It's not the facts alleged in the indictment and the information, which I rely upon the Sanders case from the Fifth Circuit that says Sanders argues quite sensibly that the government must prove the crime charged in the indictment and that

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permitting the government to convict the defendant on a material different theory or set of facts, which I think that is.

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But even if it wasn't, I think there's a major difference there, because both of the things you've hypothesized are federal crimes.

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In this case, any White House complex and Treasury Department is not a federal crime.

[00:09:53] Speaker 03:
Well, it could be, depending upon the facts, right?

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If, let's suppose,

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the president had gone to visit the Treasury Department and give a speech and was in that building at the time she jumped the fence and ran up, then that would be a crime, right?

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Because the way that the statute's written, depending upon whether a protected individual is at that location,

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and you breach it, then it's a crime, right?

[00:10:34] Speaker 04:
It could be, but that's under a different subsection of the statute.

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That's not under the subsection Ms.

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DePauw was charged with.

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That's under 1752, I'm sorry, subsections,

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B and C or B where a protected person is temporarily visiting.

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That's not the crime Ms.

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Jabbar was charged with.

[00:11:03] Speaker 04:
So she was charged with subsection 1A of the White House or its grounds.

[00:11:11] Speaker 03:
No, she's charged with A1, which is entering any restricted building or grounds.

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That's the offense.

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And there's a definition of restricted building or grounds has different definitions, but it's still the same offense, right?

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You're still entering a restricted building or grounds.

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It's just

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It's just a difference in theory of why it's a restricted building or grounds, right?

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Which needs to be charged in the information.

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What she was charged with was the term restricted building or grounds means any post of the White House or its grounds is what the government claimed and what the district court convicted her of.

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But that's not what she was charged with.

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She was charged with a totally different set of facts.

[00:12:07] Speaker 03:
But when you saw that information, what part of restricted building or grounds did you think that they were alleging?

[00:12:20] Speaker 04:
Well, until the proof came.

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I'm sorry, until the proof came out of trial, we didn't know, frankly.

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Until they said what they claimed was the restricted building of grounds, it was impossible to know.

[00:12:35] Speaker 02:
Council, may I ask a question?

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Cutting through some of the technicalities.

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How are you prejudiced in this case by the district judge's modification?

[00:12:48] Speaker 02:
I want you to say amendment.

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Why were you prejudiced?

[00:12:53] Speaker 04:
Because she was convicted of something that's not a federal crime.

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I mean, I think if you, if the theory seems to me... You were notified, of course, that the district judge was focusing on intent, right?

[00:13:08] Speaker 04:
The district judge was asked a couple of questions about attempt during the argument.

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I'm not sure I agree with that.

[00:13:19] Speaker 02:
Did you have an opportunity to argue against that?

[00:13:22] Speaker 04:
To argue against it?

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Sure, yes.

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Against attempt?

[00:13:26] Speaker 04:
Yes.

[00:13:27] Speaker 04:
What was your argument?

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That you can't attempt to commit what's not a federal crime.

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She was charged with what's not a federal crime.

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In other words, you didn't make any factual

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to vent.

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Well, by that point, the government had presented its entire case.

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You're correct that we didn't put on any evidence, but we may well have approached the case differently.

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The government had presented its entire case.

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I don't think we're required to show that for two reasons.

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First of all, she's convicted of something that's not a federal crime as the charge in the information, and the government never moved to amend the information.

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And second thing is- But the district judge did.

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No, the district judge did not.

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The district judge, I think, may have constructedly amended it, which is per se reversible error, a constructive amendment.

[00:14:24] Speaker 02:
But the district judge- Well, you know, we have to distinguish between cases in which involve an indictment that presents a constitutional question and an information.

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And in rule seven, an information is

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given a much greater freedom.

[00:14:43] Speaker 04:
Well, I don't think so in this sense, because the rule says, unless, and it talks about the court may permit an information to be amended in any time.

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That doesn't say the court can do it on its own.

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That requires the government to move to amend the information, which it specifically said was unnecessary and it was not doing.

[00:15:05] Speaker 02:
Well, I don't read that as precluding the judge doing it on his own.

[00:15:11] Speaker 04:
Well, I think the court, the rules are written, there's many rules written that say the court, that the defendant or the government or the court on its own may, this doesn't contain that.

[00:15:23] Speaker 04:
This says the court may permit it.

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Somebody has to ask for the court to permit something.

[00:15:29] Speaker 02:
So your basic argument then is it was improper for the district judge to

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affect this modification?

[00:15:39] Speaker 04:
Absolutely.

[00:15:40] Speaker 04:
Well, that's a second argument.

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The first argument is what I said about not being a federal crime.

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But yes, unless the government moves, there's nothing the district court can do to permit something.

[00:15:53] Speaker 01:
I don't want to cut off Judge Silverman.

[00:15:56] Speaker 01:
I want to follow up on one of his questions, though.

[00:15:59] Speaker 01:
Go ahead.

[00:15:59] Speaker 01:
On that issue, even if we assume that it's improper to amend the information, for the judge to do it, to amend the information without the government's participation, then why wouldn't harmless error apply?

[00:16:15] Speaker 01:
And if we, I'm gonna assume that you're gonna say harmless error doesn't apply, and I'll wanna hear what you say about that.

[00:16:21] Speaker 01:
But if we assume that harmless error does apply, what's harmful about the error here?

[00:16:27] Speaker 04:
I come back to what I've said, the harmfulness of the error is she was convicted of something that's not a federal crime.

[00:16:34] Speaker 04:
I think that's pretty basic, a basic right that people have to be not say close enough for government work.

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That's not the way the criminal justice system works.

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So I think that's,

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That's the main prejudice is she's convicted.

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The second thing is the government specifically said, we're not asking you, there's no need to amend the information.

[00:17:01] Speaker 01:
But the conduct, she was just on the first one, the conduct she was convicted of, if you allow that it's an attempt, the conduct that she was convicted of is a federal crime, the conduct.

[00:17:15] Speaker 01:
the conduct may be, although there's the whole thing about without lawful authority, which I think- Right, putting that to one side, I know you have your argument on that, but the attempt, the conduct that constituted the attempt is a federal crime.

[00:17:30] Speaker 01:
And so then the question becomes what's harmful about, what's non-harmless error about allowing an amendment of the information in the way that it came about here?

[00:17:41] Speaker 04:
I think an amendment as opposed to a variance, an amendment of an indictment, and I'm going to say information since the government, is per se reversible error, I believe, as opposed to a variance, which is evaluated under a different standard.

[00:17:58] Speaker 02:
Don't you think those cases all involve the problem of a grand jury circumventing a grand jury, which you don't have in an information?

[00:18:08] Speaker 04:
Well, I think there's all the more reason to hold it to a stricter standard here, where the government drafted the information.

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It was totally within their control.

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And they specifically told the district court when the issue arose, no, we're not amending the information.

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We don't want to amend the information.

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It's states of federal crime.

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And they insisted on that.

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I don't see why rewarding them for that stance is better, so to speak, or different than allowing an indictment to be amended.

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So that's the one thing I don't, and Judge Cerny, Chief Judge Cerny Varson, I think

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There is the issue of if she had actually gone to the White House, there's much different fencing and signage and Secret Service officers.

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I don't think that it's clear that she would have attempted to enter there.

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So I'm not sure that I agree with you putting aside the without lawful authority, but no evidence of.

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I'm not sure I agree with you that the conduct constituted the crime of attempt in any event.

[00:19:17] Speaker 02:
Well, suppose she had just crossed Pennsylvania Avenue and never even reached either location, either the Treasury Department or the White House, but she had intended to cross into the White House and she was stopped.

[00:19:38] Speaker 02:
And there's unequivocal evidence that she's so attempted.

[00:19:44] Speaker 02:
Didn't she commit a crime?

[00:19:46] Speaker 02:
If she was charged with that crime, if she was charged with the... With attempt.

[00:19:52] Speaker 02:
With attempt.

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With attempt.

[00:19:55] Speaker 02:
But under, what was it, Rule 7, the attempt is always covered by the charge itself.

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The government doesn't have to charge attempts separately.

[00:20:09] Speaker 02:
It's included.

[00:20:11] Speaker 04:
If there's an attempt provision in the statute, yes.

[00:20:14] Speaker 04:
But it has to be a federal crime that she's charged with to begin with.

[00:20:20] Speaker 02:
Well, suppose she was just walking across the Pennsylvania Avenue.

[00:20:24] Speaker 04:
Well, I mean, there'd have to be a lot of evidence.

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I don't know how she'd be stopped, but there would have to be a lot of

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evidence that.

[00:20:31] Speaker 02:
Well, in this case, the evidence was unequivocal.

[00:20:34] Speaker 02:
She admitted it herself.

[00:20:37] Speaker 04:
Well, she said she wanted to talk to Trump is what she said.

[00:20:42] Speaker 04:
She didn't say she was going to enter the White House without lawful authority.

[00:20:47] Speaker 04:
She said she wanted to talk to Trump.

[00:20:50] Speaker 04:
And the government presented no evidence about it.

[00:20:53] Speaker 04:
And Judge Silverman

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What may be missing from your hypothetical is the without lawful authority part of it.

[00:21:01] Speaker 04:
So the government couldn't have asked any of their witnesses, did Ms.

[00:21:05] Speaker 04:
Jabbar have the lawful authority and they chose not to for whatever reason.

[00:21:09] Speaker 03:
Didn't they elicit evidence that it was a restricted area, everything inside the fence was a restricted area?

[00:21:17] Speaker 04:
They did say that, but that doesn't mean she didn't they didn't say restricted to who or what and there were no you got to remember where she went over the stepped over the fence in the gate.

[00:21:27] Speaker 04:
There were no signs saying anything about restricted area or no entry those signs were in a much different location than

[00:21:35] Speaker 04:
than where Ms.

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Jabbar stepped over the fence.

[00:21:38] Speaker 04:
So saying that it's restricted entry, also I don't think proves, the government has to prove beyond a reasonable doubt that she was without lawful authority.

[00:21:48] Speaker 04:
Saying that it's a restricted area doesn't prove that Ms.

[00:21:52] Speaker 04:
Jabbar did not have lawful authority to enter, I think.

[00:21:57] Speaker 01:
Okay, let me make sure my colleagues don't have further questions at this time.

[00:22:01] Speaker 01:
We'll give you some time for rebuttal, Mr. Kramer.

[00:22:03] Speaker 01:
Thank you.

[00:22:05] Speaker 01:
We'll hear from the government now.

[00:22:06] Speaker 01:
Mr. Lenners.

[00:22:08] Speaker 00:
Thank you, Your Honor.

[00:22:08] Speaker 00:
Good morning and may it please the court.

[00:22:10] Speaker 00:
Dan Lenners for the United States.

[00:22:13] Speaker 00:
The defendant in this case was charged with the completed crime of entering a restricted area under 18 USC 17 52 a one.

[00:22:23] Speaker 00:
She was convicted of attempted entry of an unlawful area

[00:22:28] Speaker 00:
of a restricted area under the same statute.

[00:22:32] Speaker 00:
That was proper for a variety of reasons.

[00:22:35] Speaker 00:
Fundamentally, the defendant has never identified any prejudice as a result in the difference between the crime with which she was convicted.

[00:22:44] Speaker 01:
So can I just ask you, why not ask to have the information amended or adjusted?

[00:22:51] Speaker 01:
Once you're at the stage of the case where you've had your chance to argue that

[00:22:57] Speaker 01:
the White House complex and Treasury Department count, and the district judge rejects that.

[00:23:03] Speaker 01:
So you know that you're in a land in which what's spelled out in the information, if you include the factual statement about the White House complex and US Department of Treasury doesn't count under the statute, then why not adjust the information?

[00:23:19] Speaker 00:
Your honor, I don't actually think the timing of the case bears out the conclusion that the government had that opportunity.

[00:23:27] Speaker 00:
In its responsive pleading to Ms.

[00:23:29] Speaker 00:
Jobber's Rule 29 motion, the government continued to argue that the White House complex

[00:23:37] Speaker 00:
the entire complex was covered by the statute.

[00:23:40] Speaker 00:
As part of that pleading, the government noted that if it believed it was necessary, the court could amend the information under Rule 7E.

[00:23:48] Speaker 00:
That's page 138 of the appendix.

[00:23:51] Speaker 00:
There was then argument on that motion that also constituted closing argument at which the defense was given opportunity to present evidence and declined.

[00:24:02] Speaker 00:
And then in its written order,

[00:24:05] Speaker 00:
The court both resolved the Rule 29 motion and then went on to resolve the merits of the case.

[00:24:13] Speaker 00:
So there wasn't this time between when the court rejected the government's statutory interpretation and when it made its final decision for the government to then say, well, given your honor's understanding of the statute, you should amend the information.

[00:24:30] Speaker 00:
But fundamentally, if the complaint by defense counsel is that the court

[00:24:37] Speaker 00:
amended the information that amendment was proper under Rule 7E.

[00:24:41] Speaker 00:
And if there was some error in Rule 7 because the court did it to espante rather than upon an explicit motion from the government, that error was harmless.

[00:24:53] Speaker 00:
Because again, there's just no prejudice here.

[00:24:55] Speaker 00:
The defendant has no factual defense to the charge of attempting to enter the White House.

[00:25:03] Speaker 00:
She believed she had entered the White House when she arrived at the Treasury buildings portico entrance or pillar entrance.

[00:25:12] Speaker 00:
And she intended to go there to speak with President Trump.

[00:25:16] Speaker 00:
And the defense has never identified, even today, how the defense to attempted entry of the White House would have differed.

[00:25:25] Speaker 00:
Certainly, they never sought a continuance when the district court indicated that he believed the government had a better argument for attempt.

[00:25:33] Speaker 00:
They had the opportunity to put on evidence.

[00:25:36] Speaker 00:
at a time when the government had already filed a pleading saying to the court, you should find the defendant guilty of attempt.

[00:25:44] Speaker 00:
And so fundamentally, it's harmless.

[00:25:46] Speaker 00:
The court could also say it was an appropriate amendment under Rule 7E, or the court could say it was an appropriate conviction for attempt under Rule 31C.

[00:25:56] Speaker 00:
But anyway, 31C what?

[00:26:00] Speaker 00:
31C2, Your Honor, is our view.

[00:26:05] Speaker 00:
The crime charge was a completed violation of Section 1752A1, and the crime for which she was convicted was an attempted violation of Rule 1752A1.

[00:26:17] Speaker 02:
Counsel said you disputed C2, but I didn't read your footnote as saying that.

[00:26:28] Speaker 00:
I didn't say that it wasn't see to your honor, we merely said that the courts seem to lump these together.

[00:26:35] Speaker 00:
And the court the district court here wasn't entirely clear that it was proceeding under under that ground.

[00:26:43] Speaker 00:
And so if for some reason, by narrowing the factual allegation from

[00:26:48] Speaker 00:
White House complex to White House grounds, the court was convicting of a necessarily included offense under C1 or C3, that was appropriate as well.

[00:27:05] Speaker 00:
But it seems that legally the cleanest path is to say that the court

[00:27:11] Speaker 00:
found the defendant guilty of an attempt for the same statutory provision with which she was charged and thus this was proper under 31C2.

[00:27:22] Speaker 03:
Let's suppose what happened is that the defense had raised this as an issue potentially and so the government

[00:27:40] Speaker 03:
reopened its case and put on the evidence that just before the incident at the treasury building, she had gone to the vice president's residence and tried to climb the fence there and was chased off and got in her car.

[00:28:01] Speaker 03:
And then that's when she went to the treasury department.

[00:28:05] Speaker 03:
And then the government said,

[00:28:07] Speaker 03:
Um, she should be found guilty of, of 1752 a one because she attempted to enter the vice president's residence.

[00:28:21] Speaker 03:
And that's a restricted area.

[00:28:24] Speaker 03:
Uh, would that be okay?

[00:28:26] Speaker 00:
I think there, your honor, there's potentially a due process notice problem, but not necessarily a rule 31 problem.

[00:28:34] Speaker 00:
I think they're conceptually distinct.

[00:28:36] Speaker 00:
And so there you might say that there was the lack of notice of the facts alleged and therefore to process violation and the court wouldn't even need to get to whether a rule 31 was complied with.

[00:28:52] Speaker 00:
But here there was no lack of notice issue because the defense was on notice.

[00:28:58] Speaker 00:
Both of the factual allegation that she entered the White House complex in the White House grounds is entirely

[00:29:05] Speaker 00:
subsumed within that, as well as the fact that in the charging document and the complaint under which she was arrested, all of the facts set forward that were ultimately proved at trial were alleged, which was she went into this restricted area with the intent to enter the White House to speak with President Trump.

[00:29:26] Speaker 00:
And so I think that's the same thing.

[00:29:31] Speaker 03:
When did the government first argue

[00:29:33] Speaker 00:
that she was guilty of attempt i believe that the government raised the prospect although i'm not 100 certain orally during uh after the defense filed their written motion for judgment of acquittal or um uh world 29 motion

[00:29:55] Speaker 00:
As the government noted at the time, that was a legal issue that they had clearly prepared in advance and that should have been brought under rule 12 before trial.

[00:30:05] Speaker 00:
I believe orally the government in August of 2018 at that, the rule 29 stage mentioned that she could be convicted of attempt.

[00:30:15] Speaker 00:
Certainly the government briefed it in its response of rule 29 leading to which the defense both had a reply brief

[00:30:23] Speaker 00:
and then had the opportunity at the September 13th hearing to put on evidence.

[00:30:29] Speaker 00:
And the judge gave them two opportunities, both at the beginning and at the end of the hearing.

[00:30:34] Speaker 00:
And both times, the defense declined to put on evidence, declined to have the defendant testify and arrested.

[00:30:40] Speaker 00:
And that's because it's apparent that there is no factual defense to this defendant's attempted entry of the White House.

[00:30:49] Speaker 00:
And so this was a legal defense

[00:30:53] Speaker 00:
that fails, whether it's under Rule 31, Rule 7, or because ultimately any error would be on this.

[00:31:01] Speaker 03:
So just so that we're clear, your position as to how we are supposed to construe the language of Rule 31C2 in attempt to commit the offence charged

[00:31:22] Speaker 03:
is that we should consider offence charged to be whatever the statute is in the factual basis for the offense is irrelevant to how this rule should be interpreted?

[00:31:43] Speaker 00:
So I think that's

[00:31:44] Speaker 00:
one interpretation of the rule 31C2 that we've offered based upon the Schmuck case, which focuses, again, it's a different subsection of 31C, but which focuses on the statutory elements in deciding whether something's necessarily included.

[00:32:02] Speaker 00:
It seems like Schmuck suggests that the appropriate focus for the court is on the statute charge, not on the facts.

[00:32:10] Speaker 00:
But if the court disagrees,

[00:32:12] Speaker 00:
and thinks that the factual allegations are also encompassed within the offense charge, we still think that Rule 31C2 is satisfied here because the factual White House for its grounds is completely subsumed within the White House complex that was charged.

[00:32:32] Speaker 00:
And thus, under Miller,

[00:32:36] Speaker 00:
the courts, it's not a variance to find the defendant guilty of factual allegations that are narrower than those.

[00:32:46] Speaker 03:
So let me ask you the same hypothetical I asked Mr. Kramer.

[00:32:50] Speaker 03:
Suppose she was charged with assaulting a federal employee, namely punching a Treasury Department employee, but then the evidence at trial

[00:33:03] Speaker 03:
that convinces the fact finder here, the district judge, is that she actually punched an interior department employee, a park police official.

[00:33:18] Speaker 03:
No problem finding her guilty of that when that's not what was alleged in the information under rule 31C2.

[00:33:31] Speaker 00:
I'm not sure it's a rule 31 issue because there's no attempt or necessarily included offense.

[00:33:37] Speaker 00:
I think there's no problem there because it's a variance and not.

[00:33:41] Speaker 03:
Well, it's a rule 31 C2 because she's found guilty of assaulting a federal officer.

[00:33:47] Speaker 03:
It's just not a treasury department officer.

[00:33:51] Speaker 03:
It's an interior department officer.

[00:33:54] Speaker 03:
So she's found guilty of the same statutory offense, assaulting a federal officer.

[00:34:00] Speaker 00:
Yes, Your Honor, but rule 31C2, it has to be attempt, which is why I said I don't think it's a rule 31C2 problem.

[00:34:07] Speaker 00:
Ultimately, I think it's a variance, but not a prejudicial variance, not a constructive amendment, because the identity of the federal officer charge or the department for which the federal officer works is not a necessary element of the statute.

[00:34:24] Speaker 00:
And so the court could

[00:34:27] Speaker 00:
you know, vary from the information by ignoring that part of it or, you know, striking it as surplusage.

[00:34:35] Speaker 00:
It's like in felon in possession cases where the government alleges that the defendant possessed a certain type of firearm and the evidence at trial establishes that, you know, we charged the wrong firearm.

[00:34:50] Speaker 00:
It was a 45 instead of a 22.

[00:34:53] Speaker 00:
the cases are clear that that type of surplusage can be struck from the indictment because it is surplusage.

[00:35:02] Speaker 00:
It's not necessarily to the crime charge.

[00:35:06] Speaker 00:
I think that answers your hypothetical, but I think that's a different case than we have here.

[00:35:11] Speaker 00:
But if the court is struggling with the Rule 31 issue, it seems like regardless of whether the government expressly asked for a Rule 7E amendment, that's

[00:35:21] Speaker 00:
fundamentally what the defense is arguing, that this was an improper amendment.

[00:35:27] Speaker 00:
And Rule 70 makes clear that because the grand jury right doesn't apply to informations, informations can be amended so long as that complies with the due process notice right.

[00:35:41] Speaker 00:
And for the reasons we argue in our brief, this defendant was on ample notice that she would have to defend against an attempted violation of the

[00:35:51] Speaker 00:
statute charge of the White House that's in the White House complex.

[00:35:57] Speaker 01:
Okay.

[00:35:57] Speaker 01:
Let me make sure my colleagues don't have additional questions for you.

[00:36:01] Speaker 01:
Thank you, Mr. Lenners.

[00:36:05] Speaker 01:
Thank you.

[00:36:05] Speaker 01:
Mr. Kramer, we'll give you two minutes for rebuttal.

[00:36:08] Speaker 04:
Thank you, Your Honors.

[00:36:09] Speaker 04:
Several points.

[00:36:10] Speaker 04:
First of all, the government's claim that the factual basis is irrelevant, as I get it, was never made in the district court or in their brief.

[00:36:18] Speaker 04:
In fact, in the district court, they said just the opposite, as I said.

[00:36:22] Speaker 04:
It includes the essential facts of the conduct and informed her of the specific conduct alleged to be a federal crime.

[00:36:28] Speaker 04:
That's at page 155.

[00:36:30] Speaker 04:
I want to say about the amendment to the indictment.

[00:36:33] Speaker 04:
At page 138 of the appendix, they said,

[00:36:36] Speaker 04:
There is no need to amend the information in light of the authorities discussed.

[00:36:41] Speaker 04:
And they said it is entirely unnecessary to amend the information because of their argument that the White House complex and Treasury were restricted areas.

[00:36:52] Speaker 04:
I'd also like to point out at page 194 of the appendix, they said subject matter jurisdiction can be raised.

[00:36:59] Speaker 04:
This is the government.

[00:37:00] Speaker 04:
Subject matter can be raised at any time.

[00:37:03] Speaker 04:
The problem with the subject matter jurisdiction that they made a couple of days ago to dismiss the charge is not the timing of it.

[00:37:10] Speaker 04:
It's that there's no basis for it legally.

[00:37:13] Speaker 04:
So they were not arguing that the timing of it was improper.

[00:37:17] Speaker 04:
And then perhaps the most troubling thing is the government just said a finding under either C1

[00:37:25] Speaker 04:
Rule 31C1 or C3 would also be appropriate in this case, which could also uphold the district court.

[00:37:33] Speaker 04:
And that's just completely incorrect because the Supreme Court in Schmuck was talking about lesser included offenses, which the Supreme Court made clear in Carter meant lesser in terms of magnitude and punishment.

[00:37:47] Speaker 04:
So it can't be C1 or C3 contract.

[00:37:50] Speaker 04:
argument because it's not lesser included in terms of punishment in this particular case.

[00:37:58] Speaker 02:
But they relied on C2.

[00:38:01] Speaker 02:
The footnote indicated maybe C1 and C3 would apply too, but they relied on C2.

[00:38:08] Speaker 04:
Well, I'm not so clear since they just said in argument, it's also proper under C1 and C3.

[00:38:17] Speaker 04:
But I think the district court relied on C2, absolutely.

[00:38:22] Speaker 04:
I think the district court said the government has not asked, the district court specifically said, I note that the government has not asked to amend the information.

[00:38:30] Speaker 04:
And I think the district court was relying totally on C2, but you cannot attempt to commit something that's not a federal crime, which gets back to the main argument in any event.

[00:38:46] Speaker 04:
Thank you.

[00:38:47] Speaker 01:
Thank you counsel.

[00:38:48] Speaker 01:
Thank you to both counsel.

[00:38:50] Speaker 01:
We'll take this case under submission.