[00:00:01] Speaker 04: Case number 22-3042, United States of America versus Coy Griffin at balance. [00:00:07] Speaker 04: Ms. [00:00:07] Speaker 04: Wright for the balance, and Bill Lenners for the appellee. [00:00:13] Speaker 03: Good morning, Ms. [00:00:13] Speaker 03: Wright. [00:00:14] Speaker 03: You may proceed when you're ready. [00:00:16] Speaker 04: Thank you. [00:00:17] Speaker 04: May it please the court on behalf, Lisa Wright on behalf of Mr. Coy Griffin, I'd like to reserve two minutes for rebuttal. [00:00:24] Speaker 04: Mr. Griffin was convicted of one misdemeanor count of knowingly entering or remaining in any, quote, restricted building or grounds, a restricted building or grounds being defined as a posted cordoned off or otherwise restricted area, and two, where a Secret Service Protectee is visiting. [00:00:41] Speaker 04: And I believe it may be helpful for me to use the shorthand RBG as a way to distinguish restricted building or grounds, which is a congressionally defined [00:00:49] Speaker 04: term of art from the words restricted area, which are also in the statute. [00:00:55] Speaker 04: The government's proof was insufficient to prove this entering and remaining charge beyond a reasonable doubt, and it was insufficient for three independent reasons. [00:01:03] Speaker 04: One, the government failed to prove that any area Mr. Griffin entered had the status of an art [00:01:08] Speaker 04: BG at the time he entered where the government did not prove that such area was at that time posted corned off otherwise restricted. [00:01:16] Speaker 04: Second, even if this court were to accept the government's theory that an area can be quote otherwise restricted even without any on site public notice, the current concedes that Mr Griffin had to know the area was an RBG RBG and the government failed to prove that Mr Griffin knew the area was otherwise restricted at the time he entered. [00:01:35] Speaker 04: And third, and I think number three is the easiest way to decide this case, even if there were sufficient evidence that Mr. Griffin knew an area he entered otherwise restricted, the government failed to prove that he knew the other fact necessary to qualify the area as an RBG, that it was an area where a Secret Service protecting was or would be temporarily visiting. [00:01:57] Speaker 04: And any one of these insufficiencies requires the entry of a judgment of acquittal for Mr. Griffin. [00:02:03] Speaker 04: I could just go through them. [00:02:04] Speaker 03: Why shouldn't we treat the definitional provision as a provision that's in support of federal jurisdiction? [00:02:15] Speaker 03: I mean, trespass is typically a state law offense. [00:02:21] Speaker 03: And under FAO law, which [00:02:25] Speaker 03: To my mind, maybe the closest case, and I know it wasn't cited in the briefing here, but under Fiola, the question was whether the knowledge requirement applied to assault victim status as a federal law enforcement agent, the person was undercover. [00:02:45] Speaker 03: And the court held in that case that the knowledge requirement, well, that there was no cilantro requirement extending to the, [00:02:53] Speaker 03: federal officer status of the victim. [00:02:56] Speaker 03: And I wonder why we shouldn't think of this statute in the same way. [00:03:00] Speaker 04: I am fairly certain that the word knowingly is not in 111, which is field. [00:03:07] Speaker 04: I think you're right. [00:03:08] Speaker 04: Yeah. [00:03:09] Speaker 04: So I think that's the answer to that. [00:03:11] Speaker 04: And here, Congress was only interested in doing this at all. [00:03:16] Speaker 04: This is not a jurisdictional hook. [00:03:18] Speaker 04: This is something they want to do. [00:03:19] Speaker 04: They want to keep people out of areas [00:03:22] Speaker 04: that are that they mark off. [00:03:24] Speaker 04: It's only because of the three reasons that the White House, the protecting, et cetera, that they care at all to do it. [00:03:32] Speaker 04: I mean, it's the reason that it's not a hook. [00:03:36] Speaker 04: It's not something they want to criminalize anyway and have to find a way to bring it in federal jurisdiction. [00:03:43] Speaker 03: No, but as I ordinarily trespass, entering restricted areas is typically dealt with under state law. [00:03:51] Speaker 03: And if this provision were unavailable, then there's not another way that Mr. Griffin could be charged for entering a restricted area under federal law. [00:04:10] Speaker 03: And I don't know, would trespass law, DC trespass law apply to crossing a keep out sign? [00:04:19] Speaker 03: I mean, assuming, I know you have a challenge to whether in fact the grounds were restricted within the meaning of the statute. [00:04:26] Speaker 03: But assuming that they were, there's not an offense other than the one charged. [00:04:34] Speaker 04: I'm not aware of a federal offense. [00:04:38] Speaker 04: for 3056, if he were to interfere with an officer, a Secret Service agent or something like that could be charged. [00:04:45] Speaker 04: I believe that before 1752 was before, for example, the White House was explicitly put in. [00:04:53] Speaker 04: That's my understanding that they used to prosecute that under the DC code. [00:04:56] Speaker 04: Don't know if that could have been, I don't know how the trespass as I think as a DC. [00:05:02] Speaker 03: some sort of DC trust going into White House grounds. [00:05:05] Speaker 04: Yes, that's my understanding. [00:05:07] Speaker 04: And that part of the purpose of putting the White House in this federal statute was so they wouldn't have to do that. [00:05:12] Speaker 04: But I don't know if that would be true in capital on the capital grounds. [00:05:17] Speaker 01: One thing we look to in [00:05:22] Speaker 01: positing mens rea requirements is whether the element is necessary to separate wrongful from innocent conduct, right? [00:05:32] Speaker 01: And this seems like a little bit of an intermediate case to the extent [00:05:42] Speaker 01: going into a posted cordoned off or otherwise restricted area is wrongful conduct. [00:05:51] Speaker 01: You don't need anything else to establish wrongful conduct, but the presence of a Secret Service person protected by the Secret Service seems to make the wrongful conduct a fair amount worse. [00:06:09] Speaker 01: So how do we think of that kind of situation? [00:06:13] Speaker 04: That would be assuming that he had to know that. [00:06:17] Speaker 01: The question is whether we should extend the knowingly adverb all the way down to that. [00:06:27] Speaker 04: Well, again, we would say it isn't being extended. [00:06:34] Speaker 04: But the point here, I think the bigger point is that I don't think that analysis that your honor is talking about actually applies when the plain text is, when the modification is as directed as it is here. [00:06:45] Speaker 04: This isn't a case where a presumption is being applied. [00:06:48] Speaker 01: No, I understand. [00:06:50] Speaker 01: You have a grammar argument. [00:06:52] Speaker 01: Right? [00:06:53] Speaker 01: Just the adverb applies to the direct object, which is grounds. [00:06:59] Speaker 01: Grounds is modified by a bunch of singular adjectives that precede it and later, adjectival phrases that follow it. [00:07:09] Speaker 01: And you can't distinguish between those two. [00:07:11] Speaker 01: It's a matter of grammar. [00:07:12] Speaker 04: Right. [00:07:13] Speaker 04: And it's a term of art that's defined, that you simply pop in. [00:07:17] Speaker 04: You're not extending knowingly to elsewhere in the statute. [00:07:21] Speaker 04: I think the Elizalde opinion that we submitted with our 28-J letter. [00:07:26] Speaker 01: That was the one Judge Nichols just decided? [00:07:30] Speaker 04: Correct, on Friday. [00:07:32] Speaker 04: That, I think, explains all of that, that we're not, you know, buttresses our argument that we're not extending it at all, and also addresses the point Your Honor is making about otherwise innocent conduct and how that really isn't a factor. [00:07:46] Speaker 04: That's not something the court even needs to consider here, you know, here. [00:07:50] Speaker 04: I mean, if that were true. [00:07:52] Speaker 03: But I'm sorry, doesn't cut against you that that entering a a posted cordoned off or otherwise restricted. [00:08:03] Speaker 03: area is wrongful conduct. [00:08:05] Speaker 03: So that would distinguish this case from the McFadden case, from a series of cases with the Raheef and Staples where [00:08:23] Speaker 03: that without the knowledge of the gun being a machine gun, or the person being an alien, or the one person being anyway, that those are the line there without the knowledge is that you're engaging in innocent conduct. [00:08:42] Speaker 03: And the knowledge is the thing that ensures that a person is being punished only for culpable conduct. [00:08:50] Speaker 04: Well, I would say first, Flores Figueroa is an example of where the court applied the knowledge. [00:08:57] Speaker 04: It said unauthorized use of identification. [00:09:01] Speaker 04: And that is already wrongfully using an identification. [00:09:07] Speaker 04: But the phrase tacked on at the end, belonging to the person of another, they nevertheless extended that to that, even though it was already wrongful to be using another person. [00:09:21] Speaker 04: I think it's fraudulent identification. [00:09:25] Speaker 04: It was in some way they defined identification in a way that was already wrongful, but they wanted to specify that it had to have someone else's name on it. [00:09:32] Speaker 04: And that part was added on. [00:09:35] Speaker 04: But again, I think that the court uses that rule when it's left with contextual clues or it's something it's trying to look at, it's moving on to congressional intent. [00:09:46] Speaker 04: And I don't think you do that here. [00:09:48] Speaker 04: where the plain text, I mean, it just says that the government admits that knowingly modifies the term restricted building or grounds. [00:09:56] Speaker 03: Right. [00:09:56] Speaker 03: And you've, I think, very effectively argued in your brief that restricted building or grounds is a term of art. [00:10:04] Speaker 03: But if we don't agree with you, then you lose, right? [00:10:12] Speaker 03: No. [00:10:13] Speaker 03: You have to sort of, that's how you get to the, [00:10:17] Speaker 03: separate definitional section and carry the knowledge over to it? [00:10:21] Speaker 04: Well, I would say, um, Rahef is good for us. [00:10:25] Speaker 04: Also Flores Figueroa. [00:10:26] Speaker 04: I think we could, we went under Flores Figueroa even without the idea that it's a definition, but I mean, it clearly is a definition. [00:10:33] Speaker 04: So I, you know, we don't even get there, but if we did, we would still be relying on cases like Rahef and, um, Flores Figueroa primarily, I think as the reason why [00:10:44] Speaker 04: We should think that Congress meant this to be included in the knowing. [00:10:48] Speaker 03: But here, as in Feola, the definition identifies three different circumstances in which there's a distinctive federal interest. [00:11:01] Speaker 03: So it limits the entry into restricted building or grounds to those that are going to be subject to prosecution federally for that subset. [00:11:14] Speaker 04: Well, I mean, they're defining a crime that they want to punish, and the crime is getting in a restricted area where a protectee is. [00:11:23] Speaker 04: And I mean, that is the crime. [00:11:25] Speaker 04: Like I said, it's not just like, oh, we want to prosecute you for going in an area, and so this is like a jurisdictional hook. [00:11:34] Speaker 04: And again, viola, I understand, and if the word knowingly is not in viola, I just don't see [00:11:41] Speaker 04: what we can draw from that at all because there they were just having to look at like, what do we think Congress intended? [00:11:46] Speaker 04: And here we know what Congress intended. [00:11:48] Speaker 04: The government's admitted that it modifies this term. [00:11:51] Speaker 04: And I would do think the McFadden case is directly analogous because there the term controlled substance was defined not only in a separate section, you had to go two sections away to find it. [00:12:03] Speaker 04: And then you had to go through a list of schedules that was like, you know, three pages long. [00:12:08] Speaker 04: And they said, yes, you can, [00:12:11] Speaker 04: you have to prove that he knows that something that substance he has is one of the substances. [00:12:17] Speaker 04: He has to know it is a substance. [00:12:19] Speaker 03: I mean, one way of understanding that is, as the court says, either he has to know that it is, in fact, a substance that is controlled. [00:12:31] Speaker 03: even if he doesn't know about the control system or he has to know that it's correct under the control system. [00:12:37] Speaker 03: And that would either of those effectively distinguishes it from let's say he thinks it's heroin, but it's actually, you know, giving powder or something. [00:12:51] Speaker 03: But, so I want to go back though to your restricted, what makes it grounds, building our grounds restricted. [00:12:58] Speaker 03: And you talk about how it has to be, it had to be demarcated in a way that's similar. [00:13:08] Speaker 03: It has to be posted, cordoned off, or otherwise restricted. [00:13:14] Speaker 04: and otherwise tells us that it has to be in a way comparable to the words that precede it. [00:13:19] Speaker 04: So giving comparable notice and publicly demarcating it in that way. [00:13:25] Speaker 04: And we would rely on, the government says Fisher's definition of otherwise controls, but Fisher explains why it's actually the gay, not Fisher that is relevant here. [00:13:35] Speaker 04: And so I don't think there can be much dispute that the word otherwise is linking back to those two. [00:13:41] Speaker 04: And what does that get you? [00:13:43] Speaker 04: Well, those two, a posting and a cordoning off is obviously the purpose of those is to notify the public there at the border. [00:13:52] Speaker 04: I mean, it is saying, like, you line up police, that's a cordoning off. [00:13:56] Speaker 04: You post notices to see. [00:13:58] Speaker 03: So it's a temporal point, because as I understand it, the most typical way that people are informed that a Secret Service protectee is present is just Secret Service agents telling them. [00:14:10] Speaker 03: So it's in some very [00:14:13] Speaker 03: obvious way, not analogous to post it or cordoned off, which is typically done with signs or fencing. [00:14:20] Speaker 03: A moving group of people telling you is very dissimilar in some way, but you're using it to say that it has to temporally be at the moment of entry. [00:14:29] Speaker 04: And at the moment, at the place and the time. [00:14:31] Speaker 04: And I do think it [00:14:33] Speaker 04: Secret Service agent telling you what would otherwise be on a sign. [00:14:36] Speaker 04: It's materially analogous. [00:14:37] Speaker 04: It's the same. [00:14:38] Speaker 04: I mean, the point is you have to tell them. [00:14:41] Speaker 04: And you could tell them via a bullhorn, giving an overhead announcement. [00:14:44] Speaker 04: I think that's a lot of, we know how these civil disobedience things happen. [00:14:48] Speaker 04: At least they get the bullhorn and they say, you know, do not cross the street. [00:14:53] Speaker 04: If you cross the street, you will be arrested. [00:14:55] Speaker 03: And how do you respond to the to the hypotheticals of or the reality of people who get there first removing the barriers and people who follow on who are well aware that they're entering an area that's restricted but don't see the barriers because they've been shoved aside is that [00:15:16] Speaker 03: Is that not prohibited by the statute? [00:15:19] Speaker 03: I mean, I take it that's your argument. [00:15:20] Speaker 03: That's not prohibited by the statute because it doesn't give the sufficiently contemporaneous notice. [00:15:28] Speaker 04: Well, our position, of course, is that Mr. Griffin was so far behind that he is not in the category you're talking about of knowing well. [00:15:36] Speaker 04: I understand what you're saying is there were some people who, although they personally didn't knock them down, saw them being knocked down and followed along. [00:15:42] Speaker 04: And I would say if those people are seeing that it is a line and they are pushing the line back, even if they're 10 rows back, but they are part of the push, they are attempting to enter. [00:15:58] Speaker 04: to enter a restricted building or ground building. [00:16:01] Speaker 04: Hi. [00:16:05] Speaker 03: We would get less if you turn volume down slightly. [00:16:08] Speaker 03: Sorry. [00:16:09] Speaker 04: I was told to be close, so I may be talking too loud. [00:16:12] Speaker 03: We are upgrading the audio system, and so we're still in early days of fine-tuning it, but we can hear you quite clearly. [00:16:20] Speaker 04: OK, good. [00:16:22] Speaker 04: So the people that actually break through the line, they actually enter and remain. [00:16:26] Speaker 04: But the people that are pushing behind them and see what's happening, those people are attempting to enter and remain. [00:16:32] Speaker 04: They're just not the ones that break through, but they're pushing the line back. [00:16:35] Speaker 04: But the people like Mr. Griffin, who was at the Air and Space Museum at the time, I mean, passing the Air and Space Museum, it wasn't in the museum, at the time that the fencing is being ripped down, he's not, he doesn't know at all. [00:16:50] Speaker 04: So, I mean, that's how I would distinguish it. [00:16:52] Speaker 04: I mean, seeing it versus not seeing it, being aware [00:16:56] Speaker 04: And I want to step back a second on this statute. [00:17:02] Speaker 04: And it's not an ordinary trespass statute. [00:17:05] Speaker 04: It doesn't criminalize the crossing of existing public or private or any sort of property line or boundary that pre-exists. [00:17:14] Speaker 04: It gives law enforcement this extraordinary power to carve out like pop-up zones of protection that are moving. [00:17:24] Speaker 04: Because of that, they can create this zone within any public or private property, even including, as here, a First Amendment public forum as sacred as the US Capitol grounds. [00:17:35] Speaker 03: I have a question about standard of review. [00:17:37] Speaker 03: Can you raise an argument? [00:17:44] Speaker 03: that the evidence was insufficient. [00:17:47] Speaker 03: Aren't there sort of two components to your argument? [00:17:50] Speaker 03: And one is interpreting 1752, and the other is sufficiency of the evidence. [00:17:59] Speaker 03: And do we review the district court's interpretation of the statute for plain error? [00:18:08] Speaker 04: No, because I believe our interpretations were put forward and rejected. [00:18:14] Speaker 04: The court explicitly ruled, as to the, we've raised two legal mistakes. [00:18:20] Speaker 04: One was the one about whether you have to know the protectees present. [00:18:22] Speaker 04: That was raised, ruled on, and rejected. [00:18:25] Speaker 04: The other argument we raised, the canons of statutory construction, and argued that otherwise restricted meant comparable notice. [00:18:33] Speaker 04: And although the judge did not explicitly reject that, he found that Mr. [00:18:39] Speaker 04: Griffin had entered the restricted area when he crossed the Olmsted wall, even while finding that that area was not at that time posted. [00:18:46] Speaker 04: So he was making that, he was applying incorrect legal stand. [00:18:51] Speaker 03: But he also found that Mr. Griffin was aware that the area was restricted. [00:18:59] Speaker 03: And I know you can test that. [00:19:00] Speaker 03: Yes. [00:19:00] Speaker 04: But he did. [00:19:01] Speaker 04: But he found that not at the Olmsted wall. [00:19:03] Speaker 04: He found that by the time he was at the stage, [00:19:06] Speaker 04: So he really does find that he's entering the area at the wall, even though it's not marked, but he doesn't know he's entered it until later. [00:19:14] Speaker 04: So I guess the standard review question is, we see these two legal errors as akin to erroneous jury instructions, which were preserved. [00:19:23] Speaker 04: But the court doesn't even, wouldn't remedy here, because the evidence is insufficient under the correct standard, the court should remand for [00:19:33] Speaker 04: of judgment of acquittal on any one of the three arguments we raise. [00:19:38] Speaker 01: Why is, under your interpretation of knowingly, why is the evidence legally insufficient? [00:19:49] Speaker 01: I mean, everyone there knew the vice president was in the Capitol. [00:19:53] Speaker 01: That was the whole point of the certification proceeding and the protest. [00:19:59] Speaker 04: On the knowledge element of the protected presence, you're asking factually. [00:20:03] Speaker 04: I'm sorry. [00:20:04] Speaker 04: I'm saying that you're asking factually. [00:20:06] Speaker 01: Right. [00:20:07] Speaker 01: On the protect his presence. [00:20:07] Speaker 01: It seems to me that's a litigable issue under your interpretation. [00:20:13] Speaker 04: Well, I would say Mrs. Griffin is very uniquely situated on that particular factual issue because we know that at 1.45 PM, 45 minutes before he ever entered, he was under the mistaken impression that the certification was over. [00:20:25] Speaker 04: And also before he entered, you know, [00:20:30] Speaker 04: I'll just say that. [00:20:31] Speaker 01: When did he, sorry, when did he enter? [00:20:33] Speaker 04: 231. [00:20:34] Speaker 04: And we know that at least as of 145. [00:20:38] Speaker 01: I mean, he's saying it at 145, but I mean, I guess, but the point is- Do you think a trier of fact could include he thought the vice president's probably still in the Capitol five minutes later? [00:20:50] Speaker 04: Well, I would say there's zero evidence really that he knows that he's, [00:20:56] Speaker 04: he's in the Capitol and the Capitol is under attack okay so the logical inference is the I mean you okay I would say it's conceivable one can conceive that he might think that Vice President Pence would finish his duties there and hang out for 45 minutes even though maybe maybe maybe maybe he really thinks it was certified and [00:21:17] Speaker 01: vice president gets the heck out as soon as he can and he's not there. [00:21:21] Speaker 01: Maybe 45 minutes isn't that long. [00:21:24] Speaker 01: Maybe he thinks he's under the cafeteria. [00:21:27] Speaker 03: Yeah, no, I just has an office at the Capitol. [00:21:30] Speaker 03: And if this is certified, this is the end of his duties and true. [00:21:34] Speaker 04: And perhaps under I would just say that you could concede that he could think that, especially in normal circumstances. [00:21:40] Speaker 04: But having it be a possibility doesn't mean that a jury could find it beyond a reasonable doubt when there's all these counter inferences. [00:21:46] Speaker 04: And I would say even in normal circumstances, the vice president's movements are quickly controlled. [00:21:50] Speaker 04: I agree he has an office there. [00:21:51] Speaker 04: But these were not normal circumstances. [00:21:55] Speaker 04: you anyone would expect that with the Capitol being surrounded, that the Secret Service is going to whisk him out of there. [00:22:02] Speaker 04: You know, by the time he's crossing the wall to a top secret, by the time he crossed the wall, he had in fact been whisked out to a top secret location that no one knew where it was. [00:22:13] Speaker 04: So the idea that Mr. Griffin knew beyond a reasonable doubt that he was even only the detail at this point knows whether he's even on or off the grounds. [00:22:22] Speaker 04: And in fact, it wasn't until this case [00:22:25] Speaker 04: that the Secret Service was forced to reveal where he was. [00:22:28] Speaker 04: So the idea that Mr. Griffin knew he was on the Capitol grounds when no one knew where he was, that's the point. [00:22:34] Speaker 04: He was under attack. [00:22:35] Speaker 04: The crowd had been inflamed by a tweet about three minutes, no, I guess it was about seven minutes before he crossed over that said Mike Pence didn't do what needed to be done, didn't have the courage. [00:22:45] Speaker 04: So the Secret Service is not going to let him stick around. [00:22:49] Speaker 03: And I would just say- But I mean, the members of the crowd were chanting, saying things as if [00:22:55] Speaker 03: They were speaking to [00:22:56] Speaker 03: Mike Pence in the building. [00:22:58] Speaker 03: And so there is evidence. [00:23:01] Speaker 04: A couple points to that. [00:23:02] Speaker 04: I mean, they aren't under the misimpression necessarily that he is. [00:23:06] Speaker 04: Protesters yell at the White House. [00:23:08] Speaker 04: They yell at the Capitol. [00:23:09] Speaker 04: They yell at people. [00:23:10] Speaker 04: Everyone understands they aren't really talking to the person. [00:23:13] Speaker 04: But also, to the extent they are yelling these threatening things, directing to Mike Pence, all the more reason that no one would think Secret Service would allow him to stand. [00:23:22] Speaker 04: And I would say that Inspector Hawa [00:23:25] Speaker 04: There is testimony on this that she said that the secret service has to move protectees when a security perimeter is breached and they have to act before exit options are cut off. [00:23:37] Speaker 04: So that's evidence that that raises an inference that they're getting him out of there. [00:23:41] Speaker 04: And I also and that she also said and there was no evidence that the loading dock was actually where they wanted him. [00:23:48] Speaker 04: She admitted that she referred to the loading dock as a quote secure location only because it was more secure. [00:23:55] Speaker 04: than where he was before in the office and we now know that he did end up staying within the yellow line, but only because he refused to get in the car. [00:24:03] Speaker 04: The Secret Service tried to get him off the grounds as any reasonable person would think they would. [00:24:11] Speaker 04: he had his reasons for staying, which were reasons that Mr. Griffin did not know because he thought it was over. [00:24:16] Speaker 03: I just have one clarifying question about standard review. [00:24:20] Speaker 03: You say the arguments were preserved, but wasn't the motion judgment of acquittal in the district court on the grounds that Vice President Pence was not there temporarily because he actually has an office? [00:24:35] Speaker 03: He did make that argument. [00:24:36] Speaker 03: And that's different from the arguments that you're making on appeal. [00:24:40] Speaker 03: Why doesn't Planera apply? [00:24:42] Speaker 03: I did look at that. [00:24:43] Speaker 04: I'm fairly confident that the words that the trial counsel said were a general motion, at least at one point. [00:24:51] Speaker 04: And I think Judge McFadden assured him he was trying to make some arguments and saying, we need to resolve these now. [00:24:57] Speaker 04: And Judge McFadden said, no, don't worry. [00:24:59] Speaker 04: I'm going to wrap this into my bench ruling, and everything is preserved. [00:25:04] Speaker 04: I thought he said something to that effect, because it was a little confusing. [00:25:08] Speaker 04: what's the difference between the verdict and the MJI ruling? [00:25:11] Speaker 04: And I thought Judge McFadden made clear, like, you've preserved everything, don't worry about it. [00:25:18] Speaker 04: So, and he certainly had preserved these legal arguments, so. [00:25:24] Speaker 03: So we've taken you away over time, but we will, some rebuttal unless counsel. [00:25:28] Speaker 01: Well, just one more unknowingly and [00:25:33] Speaker 01: You said this is not a typical trespass statute. [00:25:36] Speaker 01: What do we do with the penalty provision? [00:25:40] Speaker 01: It's one year, the misdemeanor, that feels more like a federal version of trespass than like a statute that's directed at putting the president's life in danger. [00:25:55] Speaker 04: And that points towards [00:26:00] Speaker 04: not requiring knowingly. [00:26:02] Speaker 04: Correct. [00:26:03] Speaker 01: Well, again, treating treating the presence of the protected person as more like a jurisdictional element. [00:26:11] Speaker 01: Well, again, I'm like the gravamen of the offense. [00:26:14] Speaker 04: Yeah, I think again that you can't find language planer and and we shouldn't be, you know, coming up and trying to make inferences or presumptions about what Congress is thinking when we know what they're thinking because they said it. [00:26:26] Speaker 04: So that's my position on that. [00:26:28] Speaker 04: So we would ask the court to vacate and remand for entry of the judgment of acquittal. [00:26:33] Speaker 04: Thank you. [00:26:34] Speaker 03: Thank you. [00:26:42] Speaker 02: Good morning, Your Honors, and may it please the court, Dan Lappers for the United States. [00:26:47] Speaker 02: The evidence in this case was sufficient for the district court to convict Coy Griffin of violating section 1752A1. [00:26:54] Speaker 02: In terms of the statute's knowledge requirement, the Supreme Court has repeatedly made clear that whether a criminal statute requires the government to prove that a defendant acted knowingly is a question of congressional intent. [00:27:09] Speaker 02: and requiring the government to prove that the defendant knew the particular Secret Service protectee who is located within the restricted area, runs afoul of any inference of congressional intent for a statute designed to protect the president from assassination and to protect other Secret Service protectees. [00:27:33] Speaker 02: where knowledge of presence would tend to make those people less safe rather than more safe. [00:27:41] Speaker 02: And for that reason, the best understanding of how the statute operates is that a defendant has to know that he is in a posted cordoned off or otherwise restricted area, know that he is without lawful authority to be there, and nothing more. [00:27:57] Speaker 02: Those two [00:27:58] Speaker 03: And there has to be proof that one of the three conditions in the definitional provision was, in fact, present. [00:28:06] Speaker 02: Yes, Your Honor, in terms of the actus reus, but not in terms of the mens rea. [00:28:11] Speaker 03: I mean, text is your biggest obstacle here. [00:28:16] Speaker 03: We have [00:28:17] Speaker 03: Rahaf, we have Staples, we have McFadden, we have effectively case after case with explicit knowledge requirements and the Supreme Court applying it all the way down. [00:28:30] Speaker 02: That's true, Your Honor, but there are also cases like this court's recent decision in Morgan, where the court has not applied knowingly to a statute element, where it's in a special context that suggests that Congress didn't intend that result. [00:28:47] Speaker 02: And ultimately, all of these knowledge cases in terms of how far down into the statute you read that requirement, [00:28:53] Speaker 02: turn on congressional intent. [00:28:56] Speaker 02: And here, although in other cases the Supreme Court has read knowledge to apply throughout, here there are strong indicia that Congress could not have intended that result to make, I mean, the Supreme Court has talked about the valid, even overwhelming interest in protecting the safety of its chief executive. [00:29:17] Speaker 01: Before you get to that, do you have a textual argument? [00:29:21] Speaker 01: I mean, let's just walk through it. [00:29:23] Speaker 01: The operative text is the adverb knowingly. [00:29:29] Speaker 01: Then there's the verb enter. [00:29:30] Speaker 01: And then there's the direct object of the verb, which is the restricted building or grounds. [00:29:36] Speaker 01: And you agree that the adverb extends to the direct object, right? [00:29:42] Speaker 02: Yes, Your Honor, we do. [00:29:43] Speaker 01: So then the question is, what does restricted building or grounds mean? [00:29:50] Speaker 01: And that's a defined term, right? [00:29:53] Speaker 02: I agree, Your Honor. [00:29:54] Speaker 02: But I think here, the difference between, say, this case and McFadden is the statutory history. [00:30:01] Speaker 01: Sorry, let's just go through text, and then I'll let you broaden the focus. [00:30:08] Speaker 01: So we have this direct object, which is the defined term. [00:30:13] Speaker 01: You look in the definition and the key noun in this area. [00:30:20] Speaker 01: And it's preceded by adjectives, posted, cordoned off, otherwise restricted. [00:30:28] Speaker 01: And you agree the knowingly element applies to all of those adjectives, right? [00:30:34] Speaker 01: The person has to know that the area is posted cordoned off or otherwise restricted. [00:30:39] Speaker 02: We do agree with that because of the statutory history. [00:30:42] Speaker 01: Okay. [00:30:43] Speaker 01: And then after word area is the dash, which says there's something significant to follow. [00:30:53] Speaker 01: And then there are these three possibilities, which are basically long [00:30:58] Speaker 01: adjectival prepositional phrases modifying the word area. [00:31:03] Speaker 02: Which have further sub definitions that the defense doesn't seem to argue knowledge further applies to, which suggests that there's some cutoff within the statute. [00:31:14] Speaker 03: What are you referring to, the further sub definitions? [00:31:17] Speaker 02: Within subsection C 1 be it says where the president or other person protected by the Secret Service and then see to defines the term other person protected by the Secret Service, meaning any person who the Secret Service is authorized to protect. [00:31:33] Speaker 02: when such person has not declined such protection. [00:31:37] Speaker 02: And the defense has never argued that knowledge extends to a defendant's understanding that the particular protectee has not declined such protection, for example. [00:31:48] Speaker 02: So even they seem to recognize implicit cutoff to the knowledge requirement in the statute. [00:31:55] Speaker 01: I'm sorry, I just lost you. [00:31:57] Speaker 01: Where are you in the statute? [00:31:58] Speaker 02: So C1B, [00:32:00] Speaker 02: Define says of a building or grounds where the president or other person protected and then see to defines the term other person protected by the Secret Service to mean any person who the Secret Service is authorized to protect. [00:32:16] Speaker 02: when such person has not declined such protection. [00:32:19] Speaker 02: And the defense doesn't argue that knowingly goes all the way down to hasn't declined such protection. [00:32:26] Speaker 03: Well, and C2 even has further cross-reference to section 3056, which is defined through the United States Secret Service is authorized to protect. [00:32:38] Speaker 02: That's true, Your Honor, or by presidential memorandum. [00:32:41] Speaker 02: And so the defense seems to recognize that there's some cutoff [00:32:46] Speaker 02: within the knowingly requirement to where it does not travel. [00:32:49] Speaker 02: And the statutory history is that these terms used to be within the criminal provision itself. [00:32:59] Speaker 02: So A1 used to contain of a building or grounds where the president or other person protected by the Secret Service is or will be temporarily visiting, and then it [00:33:10] Speaker 02: separately said that it criminalized entering a building or ground so restricted in conjunction with an event designated as a special event of national significance. [00:33:21] Speaker 02: And so the fact that Congress moved those provisions out of the crime itself to a separate definitional provision at the same time it eliminated the statutes willfully requirement [00:33:37] Speaker 02: further underscores its intent not to require a defendant to know the underlying fact that makes the area restricted. [00:33:47] Speaker 03: I'm so sure. [00:33:48] Speaker 03: I mean, the fact that it used to be in the primary text also supports an argument that this is just organizational and that without affirmative indication that the knowledge was somehow [00:34:03] Speaker 03: deemed as inappropriate, or the mens rea deemed as inappropriate to apply. [00:34:07] Speaker 03: I'm not sure that that gets you much. [00:34:10] Speaker 02: At the very least, it moves this requirement away from the knowledge requirement. [00:34:17] Speaker 02: At the same time, Congress eliminated the willful requirement. [00:34:20] Speaker 03: What's the constitutional basis for this statute, the congressional power? [00:34:27] Speaker 02: I had that question leading up to this, and I'm not sure of the answer, but I think it's the necessary and proper clause to protect the chief executive and other people deserving of protection. [00:34:39] Speaker 02: It doesn't seem like the commerce clause is the jurisdictional basis. [00:34:44] Speaker 02: The defense has not challenged. [00:34:46] Speaker 03: I think the legislature refers to the general welfare clause. [00:34:52] Speaker 02: That may be right as well, Your Honor. [00:34:53] Speaker 02: I'm not great with constitutional jurisdiction. [00:34:57] Speaker 02: The defense hasn't challenged it here. [00:34:58] Speaker 02: I'm not aware of any defendant who's challenged the jurisdictional basis for Congress enacting this statute. [00:35:04] Speaker 03: No, it's more a question, I think. [00:35:06] Speaker 03: that could be helpful, or that the answer could be helpful to you to the extent that, you know, as in FAOA, the type of crime is one that's typically dealt with at the state or local level. [00:35:18] Speaker 03: And here there's a federal interest in a particular protection of particular areas based on, you know, the three interests that are listed. [00:35:31] Speaker 02: Yes, I agree, Your Honor. [00:35:32] Speaker 02: We made that argument in our brief, that these designated areas are akin to jurisdictional elements, and that they do not criminalize otherwise innocent conduct. [00:35:45] Speaker 02: That by requiring that a defendant know that he go into an area that is off limits, posted, cordoned off, or otherwise restricted, and know that he is without lawful authority, that's all that's necessary to criminalize otherwise innocent conduct. [00:35:58] Speaker 02: And the fact that the defendant knows the president is there, knows it's the White House, knows it's restricted in conjunction with an event designated as a special event of national significance is irrelevant to the criminal mens rea. [00:36:16] Speaker 03: About that C1C, the in conjunction with an event designated as a special event of national significance. [00:36:25] Speaker 03: wasn't that the argument? [00:36:27] Speaker 03: Is there some process for designating a special event of national significance that wasn't taken here? [00:36:37] Speaker 02: I believe that's right, Your Honor. [00:36:38] Speaker 02: The Secret Service, there are references to the Secret Service having the ability to so designate something. [00:36:45] Speaker 02: I'm not aware of that designation occurring here. [00:36:48] Speaker 02: In fact, I'm not aware of when that designation is ever employed. [00:36:55] Speaker 02: But the legislative history suggests that because the Secret Service is responsible for protecting the president and other protectees, it also has some responsibility for protection at these events. [00:37:09] Speaker 02: And that's why this initially separate provision was included within the statute. [00:37:17] Speaker 03: What if the Secret Service and the Capitol Police had internally declared the US Capitol grounds to be restricted? [00:37:24] Speaker 03: And you're not arguing that there's no need to have something like posted cordoned off or otherwise. [00:37:33] Speaker 02: No, Your Honor, I don't actually think there's that much daylight between the defense and us as to what otherwise restricted means. [00:37:42] Speaker 02: The government recognizes that, you know, otherwise means either in a different or in a similar way, and then restricted means, you know, made less accessible. [00:37:52] Speaker 02: And so there has to be something that [00:37:56] Speaker 02: makes the area less accessible to other people. [00:38:00] Speaker 02: It doesn't have to be physically inaccessible. [00:38:02] Speaker 02: Posting doesn't make an area physically inaccessible. [00:38:05] Speaker 02: It's unclear that on-site public notice is required. [00:38:10] Speaker 02: I could have an area of my building restricted to me through an email I receive [00:38:16] Speaker 02: that's not posted on site. [00:38:19] Speaker 02: But regardless, this court doesn't have to explore the sort of outer contours of otherwise restricted because on January 6th, the Capitol grounds were surrounded by fences, multiple layers that had do not enter signs and police were posted at the gaps in the fence. [00:38:37] Speaker 02: They weren't gaps, they were fenced off, but posted behind the gaps in the Olmstead wall. [00:38:42] Speaker 02: And that was sufficient to satisfy any possible definition of otherwise restricted. [00:38:46] Speaker 03: So if I were on January 6, cutting across the Capitol grounds, leaving the courthouse and going over to visit a friend in Southeast and I crossed over a part where the fences had been pushed back and just kept walking, I could have been arrested and charged for up to a year imprisonment. [00:39:08] Speaker 02: Yes, Your Honor. [00:39:09] Speaker 02: And we would have to prove that you knew you were not allowed to be there and knew you were without lawful authority at the time. [00:39:16] Speaker 02: And so that knowledge requirement saves the, you know, is enough to allow for an expansive definition of otherwise restricted because the government bears the burden of proving that the defendant knew they were a place they weren't lawfully allowed to be. [00:39:32] Speaker 01: Same hypothetical. [00:39:34] Speaker 01: except the person just cutting corners is lawfully carrying a firearm for personal protection. [00:39:46] Speaker 01: Ten years. [00:39:48] Speaker 02: Yes, Your Honor. [00:39:50] Speaker 02: Although that may seem unfair, this is a statute designed to protect the president from assassination. [00:39:56] Speaker 02: And so if Congress's intent was to err, it certainly would have been to err on the side of protection and not worry about the sort of unrealistic hypothetical of a person carrying a firearm in a place they know they're not allowed to be that is restricted. [00:40:13] Speaker 02: And of course, on January 6th, while there was a riot, where people were attacking the Capitol and police were protecting the Capitol with pepper spray. [00:40:23] Speaker 02: I mean, that person. [00:40:24] Speaker 01: It's not a compelling hypothetical on the facts of January 6th. [00:40:29] Speaker 01: I'll give you that. [00:40:30] Speaker 01: But we're construing the statute. [00:40:32] Speaker 01: And what we say is going to, we read it broadly, it's going to apply to all of these [00:40:41] Speaker 01: Arguably disturbing hypotheticals, right? [00:40:45] Speaker 02: That's true. [00:40:46] Speaker 02: But again, the intent of Congress is clear and no one seems to dispute that it is to protect the president and other very important government officials. [00:40:56] Speaker 02: from assassination assault, and that intent is furthered by requiring that a defendant have multi-knowledge, but not know the factual basis that led to the area being restricted. [00:41:14] Speaker 01: I understand that. [00:41:15] Speaker 01: It's clearly right as a descriptive matter, but that might be a two-edged sword for you. [00:41:23] Speaker 01: tends to say that the real wrongfulness that Congress has in mind here is acts targeting someone like the president rather than the garden variety trespass that arises if you just knowingly skip over the bike barrier. [00:41:45] Speaker 02: Well, the legislative history suggests that that's not true, that Congress recognized that when they first enacted this statute, that the Secret Service did not have authority to restrict an area at all, that they were dependent upon the vagaries of state law, trespassing charges, which sometimes would apply and sometimes would not, which they have no reason to know those details, and that this statute was meant to give the Secret Service that authority. [00:42:12] Speaker 02: If that legislative history suggests that the intent is to sort of replace state trespassing law with a federal trespassing statute, which would suggest, again, that all the guilty knowledge necessary is no, you're in a place you're not allowed to be, because that's the traditional understanding of state trespassing. [00:42:32] Speaker 03: So does the Secret Service ever do its own posting that says keep restricted area? [00:42:39] Speaker 03: Are there signs that they carry around that specify that it's a Secret Service restricted area? [00:42:47] Speaker 02: I don't know the answer to that, Your Honor. [00:42:50] Speaker 02: The few cases on this statute don't seem to suggest that any such signs exist. [00:42:57] Speaker 02: That because presidents travel so frequently and so quickly, that Secret Service works in conjunction with state and local law enforcement. [00:43:07] Speaker 02: And so I'm not aware of any such signs existing, but that's simply by reading the cases and not through any other. [00:43:17] Speaker 03: The standard of review issues seem to me perhaps a little more complicated than the briefing suggests. [00:43:25] Speaker 03: You argue that we should affirm so long as the low bar of sufficiency evidence is satisfied. [00:43:30] Speaker 03: But what if we were to embrace either of the defendant's proposed interpretations? [00:43:35] Speaker 03: First of all, we'd have to look at those de novo, right? [00:43:39] Speaker 03: Or clear error. [00:43:41] Speaker 03: I mean, you didn't argue that their failure to move for judgment of acquittal on the grounds that they're asserting [00:43:47] Speaker 03: today confronts them with a with a barrier standard of view. [00:43:53] Speaker 02: We did not make that argument. [00:43:58] Speaker 02: I apologize if I overlooked it. [00:44:00] Speaker 02: But my understanding from as recently as this court's decision in Robertson is that the court's first task is to construe the statute properly, which is always de novo, and then to apply the next standard of review based on whether it's preserved and here [00:44:21] Speaker 02: I mean, at least in the local DC courts, sufficiency is always preserved. [00:44:27] Speaker 03: Right. [00:44:27] Speaker 03: And we have Hilly, which preserves it. [00:44:31] Speaker 03: It's a little more complicated because we also have right now. [00:44:34] Speaker 03: How could we, in this case, affirm a conviction in which the fact finder did not find each element necessary if we adopt the defendant's interpretation of the statute? [00:44:48] Speaker 03: I mean, the district court made no finding as to the defendant's knowledge that Vice President Pence was present. [00:44:56] Speaker 03: And aren't we looking at that? [00:44:58] Speaker 03: If we accept their statutory interpretation, there would have to be enough evidence that it would satisfy a harmless error that that wasn't articulated by the district court in its decision. [00:45:12] Speaker 02: I don't think that's right, Your Honor. [00:45:13] Speaker 02: The defense has not challenged the jury instructions. [00:45:16] Speaker 02: They have not raised it. [00:45:17] Speaker 03: There's no jury instructions. [00:45:18] Speaker 02: Well, the district court instructs itself. [00:45:20] Speaker 03: And so didn't in advance give [00:45:24] Speaker 03: any, I don't think, any clear indication on the issue that's before us now. [00:45:29] Speaker 02: The defense could have pressed for the court to issue instructions, say what the instructions are, and then challenge this as an instructional error case. [00:45:37] Speaker 02: They did not. [00:45:39] Speaker 02: They've challenged it as a sufficiency case. [00:45:41] Speaker 02: And in a sufficiency case, even where there are jury instructions, as in Katala, [00:45:46] Speaker 02: When the court evaluates the sufficiency of the evidence, it evaluates it the same as it evaluates it even when the jury has not made a finding, which is could any reasonable jury have found this element? [00:46:00] Speaker 02: And I don't see why that would be any different in a bench trial than in a jury trial. [00:46:05] Speaker 01: Well, they've made the legal argument. [00:46:07] Speaker 01: about knowingly, right? [00:46:10] Speaker 01: And you agree that's properly before us. [00:46:15] Speaker 01: So if they're right on the legal point, then it is like a case in which [00:46:23] Speaker 01: There was instructional error and there's a conviction that rests on, you know, the jury or judge didn't make all the findings that would have been necessary under the correct instructions. [00:46:37] Speaker 02: I don't think that's right, Your Honor. [00:46:38] Speaker 01: I think the way they framed it, which is as a... The district court goes through all of the legal issues and says quite clearly, right, the law does not require me to find that [00:46:52] Speaker 01: the defendant knew the vice president was on the grounds. [00:46:57] Speaker 01: Yes, Your Honor. [00:46:57] Speaker 01: And under that legal construction, there's no occasion for him to make the finding one way or the other, and he doesn't. [00:47:05] Speaker 02: I agree, Your Honor. [00:47:07] Speaker 02: But the way I conceptualize this is it's as though the defense asked for a jury instruction to a jury, the court rejected it, [00:47:15] Speaker 02: And then instead of bringing an instructional challenge on appeal, they brought a sufficiency of the evidence challenge. [00:47:20] Speaker 02: And Katala instructs us that the question there is whether there is enough evidence that a properly instructed jury could have found the element. [00:47:32] Speaker 03: No, no. [00:47:33] Speaker 03: Isn't it that you have to show beyond reasonable doubt that even with the correct legal interpretation, the defendant would have been convicted without the legal error? [00:47:44] Speaker 02: I don't think the government bears the burden of proving on appeal beyond a reasonable doubt. [00:47:48] Speaker 02: The way I read Katala is to say when they bring a sufficiency challenge where the jury hasn't been instructed, the question is whether there was sufficient evidence for a properly instructed jury to so find. [00:48:00] Speaker 02: And here, [00:48:03] Speaker 02: I could, if I could talk about the evidence, you know, the defendant was present at the Capitol for many hours. [00:48:10] Speaker 01: Let's tie this down and then I'll let you talk about the evidence. [00:48:14] Speaker 01: I mean, you say they brought a sufficiency challenge, but the vast, I mean, sufficiency presupposes a legal standard and the vast bulk of the brief is about legal standard. [00:48:30] Speaker 01: And you're right, they don't frame this as an instructional error, but it's the bench trial where the district court is effectively instructing itself. [00:48:44] Speaker 01: And that's what they're challenging. [00:48:46] Speaker 02: And I think this turns on the fact that they did not frame it as an instructional challenge. [00:48:51] Speaker 02: There's the party presentation principle. [00:48:53] Speaker 02: We responded to the argument they made, which is a sufficiency challenge. [00:48:57] Speaker 02: And here, had the district court instructed itself that the requisite knowledge was knowledge of the vice president's presence, there was sufficient evidence from which the judge could have found that Mr. Griffin believed Pence was still president, or not still president. [00:49:16] Speaker 02: that's a Freudian slip, was still present at the Capitol, given all the rioters yelling things like, Mike Pence, we'd love to see you come out, or you better get your stuff together, or you better get your stuff together, Pence. [00:49:33] Speaker 03: What about Nader? [00:49:35] Speaker 03: and EDER, the government has to show beyond reasonable doubt that the defendant would have been convicted even without an error that the fact finder was, an error of law under which the fact finder was laboring. [00:49:50] Speaker 03: And as Judge Katz has just said, it's clear that Judge McFadden said he wasn't requiring, he wasn't, he didn't feel obligated to find that the defendant knew. [00:50:04] Speaker 03: the vice president would be or was present. [00:50:09] Speaker 03: So it just seems to me that in that circumstances, as I understand existing law, [00:50:18] Speaker 03: that an issue that wasn't found is not reviewed under the lower sufficiency evidence bar. [00:50:28] Speaker 03: Now, this is different from a situation like Hilly where a further requirement was erroneously imposed. [00:50:37] Speaker 03: And there, the court does the de novo legal analysis of what the statute requires. [00:50:42] Speaker 03: And if there were too many elements, [00:50:45] Speaker 03: And one is sufficiency of the evidence with respect to the unnecessary element is set aside and the sufficiency analysis is protective on that ground. [00:50:59] Speaker 03: But here we have the inverse. [00:51:03] Speaker 02: My understanding of how this works comes from Katala and from this court saying that a bench trial review of a bench trial is the same standard of review for a jury trial. [00:51:12] Speaker 02: I read Katala as saying that where the jury is erroneously instructed and the defendant brings a sufficiency challenge, the question for this court is simply whether there was sufficient evidence had the jury been properly instructed. [00:51:29] Speaker 02: If I'm wrong, then we would request that the court remand [00:51:33] Speaker 02: to Judge McFadden to address the issue of the defendants. [00:51:38] Speaker 03: It all seemed to me in that situation that that would be the required course of events. [00:51:44] Speaker 02: We don't believe it's required, but if the court disagrees, then. [00:51:47] Speaker 01: So you wanted to talk about the facts. [00:51:50] Speaker 01: So do you think if our view of sufficiency, your opponent's view of the law prevails and our view of how sufficiency works prevails, [00:52:02] Speaker 01: Do you have an argument that the district court's failure to make this finding was harmless under Needer? [00:52:12] Speaker 01: Or do you just want the remand for him to make the finding one way or the other? [00:52:17] Speaker 02: I think the facts are sufficient to prove Mr. Griffin's knowledge under a sufficiency standard, but they don't meet the Nader standard. [00:52:24] Speaker 02: Okay. [00:52:24] Speaker 02: So that we would request a remand and certainly not this court, a remand to require acquittal, um, which is typically how a sufficient, if the evidence is sufficient, typically this court instructs acquittal, but here where the district court didn't have the opportunity in the first place to address the, what we think is incorrect legal standard. [00:52:45] Speaker 03: So that's review de novo. [00:52:47] Speaker 03: And so there is something other than just a sufficiency, at least as we've been pushing you on our premises, the premises on which our questions are based. [00:52:57] Speaker 03: There's a legal issue. [00:52:59] Speaker 03: And if there's an error of law, then that, instead of requiring acquittal, that would support remand. [00:53:06] Speaker 02: If the court finds that there was a incorrect legal standard, we think that unlike many of the rioters, there is sufficient evidence from which we could prove that Mr. Griffin knew that the vice president was present or believed he was present. [00:53:23] Speaker 02: And thus, there's reason for a remand rather than a remand to enter acquittal. [00:53:30] Speaker 03: And what? [00:53:31] Speaker 03: The defendant didn't mention Begay until the reply brief. [00:53:35] Speaker 03: Did you have anything that you haven't already said that you wanted to discuss about the context of posted and cordoned off? [00:53:43] Speaker 02: I don't think so, Your Honor. [00:53:44] Speaker 02: Again, I don't think that far apart from the defense that they just seem to require a level of notice that this isn't supported by [00:53:56] Speaker 02: the definition of restricted, which is somehow made inaccessible in a different or a similar way to post and off. [00:54:06] Speaker 02: For example, they say that a chalk line on the ground is not sufficient to give notice. [00:54:13] Speaker 02: We think it is. [00:54:15] Speaker 02: But because it is on-site visible notice that something is different about the area beyond. [00:54:21] Speaker 02: But regardless, that's not at play here, given that the area was visibly publicly restricted in many ways on January 6. [00:54:30] Speaker 02: And those restrictions were not removed lawfully, but were destroyed by, destroyed, moved, and trampled on by the mob. [00:54:42] Speaker 00: Thank you. [00:54:52] Speaker 04: I've got a few points I'd like to run through. [00:54:54] Speaker 04: The MGOA, the district court knew the council was raising these legal challenges because he thinks the government can't prove them. [00:55:05] Speaker 04: He implicitly ruled on one and he explicitly ruled on the other. [00:55:08] Speaker 04: The court knows that the reason we're contesting, the reason we're making these legal arguments is we think the government can't meet that burden. [00:55:15] Speaker 04: And then when the MGOA time comes, [00:55:18] Speaker 04: Um, trial counsel says that he's got a rule 29 filing he wants to make, but that it quote doesn't cover all the issues that's laid on the afternoon. [00:55:27] Speaker 04: And then the next morning there's a discussion about, should we have the MJLA arguments now legal arguments? [00:55:33] Speaker 04: And, and this is where the court says that there's no need to do this now that as far as I'm concerned, I think that he's going to address it through the bench trial and his [00:55:44] Speaker 04: And as far as I'm concerned, I think you could appeal any conviction on either ground that you'd be entitled to, but I don't know that it makes sense for us to go through this twice. [00:55:53] Speaker 04: So I would say that it was it was well preserved and The government's I just don't [00:56:00] Speaker 04: Some of these are disconnected, but let me just run through. [00:56:01] Speaker 04: They say the child sex, they try to make it an analogous to the child sex cases. [00:56:06] Speaker 04: And as Elizalde says, every statue protects someone. [00:56:10] Speaker 04: And there's clearly this very strong and unique historical tradition and exception to the mens re requiem. [00:56:15] Speaker 04: There's strict liability in a lot of child sex cases. [00:56:18] Speaker 04: And that is very, very unique. [00:56:20] Speaker 04: And the government says that relies on the moving of the terms into the definition. [00:56:28] Speaker 04: We would say that, [00:56:29] Speaker 04: our argument would have been weaker before it was moved into a definition, because then the term knowingly would have had to travel down the clause, down the phrase to something past the first thing. [00:56:40] Speaker 04: There would have been something at the end that arguably the government could argue didn't get covered, just the where, you know. [00:56:48] Speaker 04: But when you put it into definition, that changes the whole meaning of what Congress is trying to do. [00:56:52] Speaker 01: On that point, could you just respond to [00:56:57] Speaker 01: Mr. Leonard's point that C1B has its own cross reference to C2 and no one suggests that the adverb knowingly travels all the way through to C2. [00:57:16] Speaker 04: Yes, I think the Elizalde opinion explicitly deals with that argument. [00:57:20] Speaker 04: It says that the [00:57:22] Speaker 04: The point is just that you know the fact and, you know, regardless of how far many statutes you have to get to, just like in the heroin example, you have to go through three places and then find a little subsection, regardless of how far you have to go. [00:57:36] Speaker 04: The question is, do you know all the facts that make your crime, that make your conduct criminal? [00:57:40] Speaker 04: That's the fundamental question. [00:57:41] Speaker 04: That doesn't change. [00:57:44] Speaker 04: And I wanted to also want a couple other things. [00:57:47] Speaker 04: You know, the chalk line, I don't understand how someone's supposed to know which side of the chalk line is the forbidden side. [00:57:53] Speaker 04: That just doesn't make any sense at all. [00:57:55] Speaker 04: On the question of whether the Secret Service ever uses signage, [00:58:01] Speaker 04: Online, you can find these signs that look like this. [00:58:05] Speaker 04: They have a Secret Service logo. [00:58:07] Speaker 04: You can look up Mar-a-Lago signs, for example, and you can see that they say, you are entering a restricted building and ground, in quotes, as defined in Title 18 U.S. [00:58:19] Speaker 04: Code, Section 1752, by entering this area. [00:58:23] Speaker 04: that sentence isn't relevant, then it says, persons entering or remaining in this area without lawful authority are in violation of federal law and will be subject to arrest and prosecution. [00:58:32] Speaker 04: So they do have these signs, and there's no reason they can't be posted. [00:58:35] Speaker 04: But we're not requiring them to have these signs up. [00:58:38] Speaker 04: We're saying that if they can't prove that the person knows that it legally qualifies, they can prove the facts instead. [00:58:48] Speaker 04: And they're saying we didn't raise the jurisdictional, I mean the instructional error, but the court did reject our argument on these legal issues. [00:58:57] Speaker 04: And we did say as an alternate relief in our opening brief, we say, given the district court's legal errors and interpreting those elements, a remand is required for the district court to weigh that evidence and determine whether those elements were. [00:59:11] Speaker 04: its view as fact-finder established beyond a reasonable doubt. [00:59:14] Speaker 04: So that is, I guess we didn't use the word instructional, but that's what I was trying to do there. [00:59:19] Speaker 04: I mean, I think the court has picked up exactly that they are reading Hilly backwards. [00:59:23] Speaker 04: I mean, this is in a situation where there was an extra element that was wrong and we're trying to get the evidence weighed against the wrong element. [00:59:30] Speaker 04: No, we're saying we want the elements weighed against the right element. [00:59:34] Speaker 04: So for all these reasons, we would ask for the court to remand for entry of judgment of acquittal and in the alternative remand for the district judge to reconsider Mr. Griffin's guilt under the correct legal standards. [00:59:49] Speaker 03: Thank you. [00:59:49] Speaker 03: Thank you. [00:59:50] Speaker 03: The case is submitted.