[00:00:00] Speaker 01:
case number 22-3088, United States of America versus Jesus de Rivera, also known as J.D.

[00:00:08] Speaker 01:
Rivera, also known as Jesus de la Mora Rivera at balance.

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Mr. Roots for the balance, Mr. Goodhand for the appellee.

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Good morning council.

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Mr. Roots, please proceed when you're ready.

[00:00:21] Speaker 06:
Good morning.

[00:00:22] Speaker 06:
Thank you, Your Honours.

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May it please this Honourable Court.

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My name is Roger Roots.

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I represent the appellant in this case, Mr. Jesus Rivera.

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Mr. Rivera is one of these January 6 defendants, one of hundreds.

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Of course, he was involved on January 6, 2021.

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He did briefly enter the United States Capitol.

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Mr. Rivera's facts are not that unusual.

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In fact, I would say they're fairly typical of hundreds of people.

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Mr. Rivera is obviously a Trump supporter and was a supporter of the crowd's efforts to have their voices heard regarding Trump's

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claims of election improprieties in the election of 2020.

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He's also a citizen journalist and a cinematographer.

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He was there inside the Capitol actually live streaming to a Facebook audience.

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And I should say Mr. Rivera has some what you could call legitimate journalist credentials or has actually worked in journalism.

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But he expressly said he's not a journalist.

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He did say he's not a journalist by profession.

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I'm not a journalist.

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Yeah.

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Well, let's put it this way.

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I think the standard for being a journalist obviously is a client that he's not a journalist and he's not a journalist.

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Doesn't claim to be a journalist that day.

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He certainly didn't claim to be a professional journalist.

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That's correct.

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He was there.

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He had an he has an audience.

[00:02:09] Speaker 03:
No, the district court, he wasn't claiming to be a journalist that day.

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And I think we have to take that as given, don't we?

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Sure.

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Yeah, no question.

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Mr. Bear is still incarcerated.

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I believe he is free at them.

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He has served his entire sentence.

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He was sentenced to eight months incarceration for what has become known as the four standard misdemeanors chiefly.

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And is he still on supervised release?

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Yes.

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And how long is this term of supervised release?

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Honestly, off the top of my head, I don't know either.

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I believe it's one year.

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I'm just wondering when that's going to expire.

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I would have to look that up, and I'll try to do that.

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The four standard misdemeanors, entering, remaining in a restricted area, disorderly conduct in a restricted area, picketing, demonstrating, or parading in the capital or capital grounds, and disorderly conduct in the capital.

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What's interesting is your claim about his sentence being a punishment for going to trial.

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Is that preserved?

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Did was any objection made?

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I didn't see any objection made in the court below on that ground.

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It was of course it was at the sentencing that the sentence was received and you know at sentencing is there's only a few moments at the end, so I don't.

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I'm not sure that this district judge didn't ask.

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Is there anything else?

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And it seems that you were your client.

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was required to object if there was some issue with respect to the sentence being in retaliation for going to trial?

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I'd have to think about that.

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I don't think it's very common for lawyers at the end of a sentencing hearing.

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In the Thorne case that you cited, there was a contemporaneous objection.

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I don't believe the attorney who was not with our firm objected at that time.

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But I don't think it's common at all.

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I don't think common is the legal standard.

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Shouldn't we be reviewing this for plain error?

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Let's put it this way.

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I think a sentencing is very often these hearings end fairly abruptly.

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And so I think it would be unreasonable to expect a lawyer at the end of a sentencing hearing to say, we object to this sentence.

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Do you have any authority to support that, that lawyers don't have to preserve objections to sentencings?

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I think the appeal is the preservation of the object.

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And in the process.

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Do you have any authority for that proposition that the appeal is the preservation of an objection to a sentencing?

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Off the top of my head, I do not.

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Didn't think so.

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Well, was there something the district court said that you can point us to during the sentencing that raised this concern about assertedly retaliatory sentencing

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at which time the lawyer could have objected.

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Actually, yes.

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Judge Cattelli, the district judge, said a couple of things that are a little bit startling.

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She said she was handing down the sentence to, quote, deter others from ever participating in an insurrection against our constitutional order again.

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Now, just think of that.

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What that got to do with suggesting that she was

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unfairly punishing him for going to trial.

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I'm sorry, that's what I was asking for.

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He said, oh, there's not much time at the end, but I'm trying to figure out if there was a time during the hearing when the district court said something that should have put counsel on notice, made them think that there was this problem of sentencing him more heavily because he went to trial.

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Well, I think the tone of this, this kind of remark just is all the time, Sam, imposing a sentence deterrence as a factor, relevant factor in sentencing.

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Sure, but it's almost a vindictive tone.

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It's a tone of, I'm going to give you this heavy sentence to deter others from ever.

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Right, but the point is that if your claim is that she imposed a particularly harsh sentence because he went to trial, then the evidence of that would have to be something related to his decision to go to trial.

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Whereas this comment,

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something that would apply to anybody regardless of whether they went to trial.

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Even defendants who went to trial or convicted after trial are still going to get a comment in sentencing that says, I'm imposing the following sentence in order to deter similar conduct in the future.

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Doesn't matter if you went to trial.

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Sure.

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At the time of his sentence, it was the longest sentence for January six years.

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Eight months was the longest for misdemeanor.

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Right.

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As I read the brief, the only basis for suggesting that a particularly harsh sentence was imposed due to the decision to go to trial was the length of the sentence.

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I didn't see anything else that was pointed to that was indicative of

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a vindictiveness, as you call it, because of the decision to go to trial?

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Well, Mr Rivera was offered, like so many.

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he was offered an opportunity to plead guilty to one of the lowest count, which would be a Class B misdemeanor, picketing and parading.

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And the typical sentence for people in his exact same circumstances was under 60 days, quite a bit under 60 days.

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So in fact, 60 days- I'm sorry, but not for people who went to trial, because if you plead guilty, they dismiss the other three counts.

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It's a whole different kind of sentencing, right?

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Yes, but this gives rise to the precise point that we're making is that by believing that you're innocent and demanding your constitutional right to a trial, you should not then be exposed to a sentence that is many times more harsh than you would get otherwise.

[00:08:28] Speaker 02:
So he got a within guideline sentence and isn't the purpose of the sentencing guidelines

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to make sure that there is not unwarranted disparity, and he wasn't even at the top of his guideline range.

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That's presumptively reasonable, and the whole point, or one of the points of the guidelines, is to address this very issue that you're raising, unwarranted disparities.

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I'll note, too, I sat on another panel with the four misdemeanors, and that defendant got 12 months.

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A couple of sentences have come down after that were even more harsh, but none of them, I submit, had the back situation of this particular case.

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Mr. Rivera did nothing that was disruptive of the events or proceedings.

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He did enter through a window, a window that had been broken that he did not witness being broken.

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He was inside the building for about 20 minutes, and then he left.

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He caused no mayhem, touched nothing, touched no property.

[00:09:31] Speaker 03:
I thought you began your argument by saying he was typical.

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Well, there are many others like him.

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Yes, he is typical of hundreds of hundreds of others.

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But there are there are many others who did other things.

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Loud chanting, loud yelling.

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He's typical of those who did none of that.

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And there are many like him.

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And many have been sentenced to under 10 days in jail for the exact same thing.

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One thing that's different is he's convicted of four offenses, not one.

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And the sentence needs to reflect the fact that he was found guilty of four offenses.

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Does he not?

[00:10:11] Speaker 06:
Well, yes.

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Is it reasonable for a district court to sentence for all four convictions?

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Yeah, now we're arguing that there was insufficient evidence on the count to that there was never a sentencing argument that you have.

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You agree that his sentence needed to reflect the fact that he was convicted of four offenses.

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As Judge Pan said, you know, district court starting point is what the sentencing guidelines on those.

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Yeah, that's part of what is happening is the government offers a sweetheart plea offer, plead guilty to one count, will dismiss the others.

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And if you dare to go to trial and be convicted, you will be sentenced extremely harshly.

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That's part of what is going on.

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And it is designed to chill.

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Unless you're acquitted.

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Unless you're acquitted.

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And if the defendant wants to pursue that, it's to chill people.

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Well, it's a defendant's choice, right?

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I mean, the defendant here chose, was aware of the option, I assume was aware of the plea bargain offer.

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And I'm assumed by counsel was advised of the risks of going to trial and then as was his right, made that choice.

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In this case, the facts are so it's so close to being not a convictable case that I think anyone with a reasonable mind would view Mr. Rivera's choice to go to trial as very reasonable and Mr. Rivera's belief in his own innocence.

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I'm not here to question Mr. Rivera's choice to go to trial.

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Absolutely under the Constitution.

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Yes, I do see that my time is up.

[00:11:51] Speaker 04:
did you talk about sufficient um I could I could talk more but I didn't deserve a couple minutes for rebuttal well we'll give you a couple minutes for rebuttal and I have one question that goes to some some of this which is your your brief says over and over that Mr. Rivera's sole purpose of going to the Capitol was to observe and record he's a standard journalist nothing more

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His only intent was to capture the live story taking place in the presence.

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Certainly did not intend to impede or disrupt the orderly conduct of the government.

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That's the refrain from your brief.

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And then the trial record says that as he was videoing, he said, this is what me and my boy were talking about.

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We were saying the only way this would be a real revolution is if we go in and pull their asses out.

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This is the only effing way.

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All this effing talk has to be done.

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This is what they need.

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This is what we need.

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Does that sound like somebody who's just there to capture in the normal way of a journalist to chronicle the events as opposed to having an attempt to disrupt the orderly conduct of the government?

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I think in the big picture of the give-and-take of politics at that time, what Mr. Rivera said was hardly out of step with what millions of Americans were saying on social media and amongst each other.

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And I think his statement that you just quoted there is very conditional.

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It's like, this is how a revolution would need to be done with

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very conditional, certainly under a First Amendment analysis.

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It is protected advocacy.

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He's talking about, you know, in the abstract revolution.

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I think we all talk about that sometimes.

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But in terms of what his mindset is in going in, there's a sufficiency claim being made that the effect of the upshot of which is that

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He didn't do anything that comes within the fold of these statutes because he was just there to chronicle.

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He actually didn't give any indication that he was there to take sides, that he was wanting the proceedings to be impeded in any way.

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And this, do you think that this is evidence, at least can be used as evidence to the contrary?

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I think it's political advocacy.

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He was there filming, documenting, watching, and making statements of political advocacy.

[00:14:23] Speaker 04:
So you don't even think this evidence is relevant to whether he wanted to change the proceeding?

[00:14:29] Speaker 06:
I actually don't think it's relevant.

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These are statements that people, we all make statements like this over a breakfast table when we're talking about American politics.

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It to this to the extent that it expresses a state of mind.

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It's again very conditional and it's in the abstract.

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And nothing nothing that happened on January 6 really altered the constitutional order as as the district judge said.

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There was nothing.

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I mean, it was a six-hour delay or recess of Congress.

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No one was ever evacuated.

[00:15:08] Speaker 04:
Do you think a six-hour delay?

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Suppose we have to defer this argument for six hours because somebody comes into the building and causes a security problem.

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Do you think that's impeding the orderly functioning of the court?

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Of course, of course.

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I mean, there are things that disrupt the orderly process of things.

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But in the big picture, the legislative branch especially, or more so than the judicial branch, is all about hearing the input of the American people

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and making or not making legislative decisions based on popular choice and popular vocalization of concepts and ideas.

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What about telling rioters as he walks by them that there's an easier way up into the Capitol?

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Because the word is there's an easier way up than the route that they were taking.

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I don't know if that's any breakfast table or political.

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He was directing people to an easier way to get into the Capitol.

[00:16:19] Speaker 06:
Yeah.

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I mean, that's a, I can't imagine that that's, that's some kind of a statement of intent or a plot to, you know, to help a quote insurrection.

[00:16:32] Speaker 03:
Well, he was helping them get in.

[00:16:33] Speaker 03:
That actually seems exactly what he was helping them get into the Capitol with despite all the signs and actually being verbally warned by someone we're not supposed to be here and the signs of do not enter and close off and officers trying to push people back and he himself got pepper sprayed.

[00:16:50] Speaker 03:
That's kind of a good sign.

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You're going in there, you're going there against legal right?

[00:16:58] Speaker 06:
Yes, I mean.

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I think when we see someone in the elevator and we're telling them, hey, that elevator doesn't work.

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The other one does.

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I don't think that we can read a lot of criminal intent into that.

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We're just giving people helpful advice.

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But if they're on the process of committing a crime and we go, actually, here's a faster way to the safe.

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That's different, isn't it?

[00:17:20] Speaker 06:
It is different.

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But the question there would be, do you really know you're committing a crime in the context of a political demonstration?

[00:17:29] Speaker 03:
Your view is that he didn't know crimes are being committed with officers being beat up and glass when he crawled in through a broken window, which is not the normal route into the Capitol.

[00:17:42] Speaker 06:
Yeah, but I mean, think of the evidence that it was used against Mr. Rivera.

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This is from the appellees brief, the prosecutors.

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Quote, Rivera filmed rioters breaching and breaking windows, unquote.

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That is not a crime.

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It is not a crime to film.

[00:18:01] Speaker 03:
The district courts say the sentence was imposed because he was filming what other rioters were doing.

[00:18:10] Speaker 06:
Well, there isn't any.

[00:18:12] Speaker 03:
Can you tell me in the transcript where that was said?

[00:18:14] Speaker 06:
I'm getting this from the appellee's brief.

[00:18:21] Speaker 03:
And that was... I know, but the appellee's brief is not... We're trying to figure out here the district court sentencing decision.

[00:18:28] Speaker 06:
Yeah, I'd have to look at that.

[00:18:31] Speaker 06:
Okay.

[00:18:32] Speaker 06:
But in the...

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In the big picture, of course, the sentences that have been handed down regarding January 6 are the heaviest sentences or participating in a political demonstration in American history.

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And Mr. Rivera's sentence is emblematic of that.

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Here's another quote from the appeal is by circumventing the magnetometers and entering the capital through a broken window Rivera undoubtedly disrupted the normal course of the certification process.

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Just think about this.

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How far away do we need to get from actually disrupting anything before it becomes a mockery of the concept?

[00:19:20] Speaker 06:
Congress had already recessed 30 minutes before Mr. Rivera even got into the building.

[00:19:25] Speaker 06:
They were already in recess.

[00:19:26] Speaker 06:
Nothing he did altered.

[00:19:28] Speaker 04:
But there's a question about how long they stay in recess, right?

[00:19:31] Speaker 04:
I mean, as long as people are in the building in response to what the authorities on the scene determined to be a security threat,

[00:19:41] Speaker 04:
The proceeding can recommence.

[00:19:47] Speaker 06:
Yes, of course.

[00:19:49] Speaker 06:
The US Capitol has been a focus of riots and demonstrations.

[00:19:56] Speaker 06:
I would think hundreds of such events.

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January 6 was probably the largest in history.

[00:20:03] Speaker 06:
But in terms of Americans being overly punished for participating, I think Mr. Rivera's case is emblematic of this.

[00:20:15] Speaker 06:
an orgy of over sentencing, and it has been a bloodbath.

[00:20:18] Speaker 06:
And Mr. Rivera's sentence is emblematic.

[00:20:22] Speaker 06:
It's one of the worst.

[00:20:24] Speaker 04:
OK.

[00:20:24] Speaker 04:
Let me make sure my colleagues don't have additional questions for you this time.

[00:20:27] Speaker 04:
We'll give you a little time for rebuttal.

[00:20:28] Speaker 04:
Thank you so much, Your Honor.

[00:20:33] Speaker 05:
From the government now.

[00:20:38] Speaker 05:
Good morning, Your Honors.

[00:20:39] Speaker 05:
May it please the court give a good hand for the United States.

[00:20:41] Speaker 05:
With me at counsel's table is John Manarino, the Deputy Chief of the Appellate Division.

[00:20:46] Speaker 05:
If I could just address a couple of the factual issues that rose during the course of my opponent's argument.

[00:20:54] Speaker 05:
I can answer the question.

[00:20:55] Speaker 05:
The defendant was sentenced to one year of supervised release for accounts one and two.

[00:20:59] Speaker 05:
When did that start?

[00:21:03] Speaker 05:
I'm sorry.

[00:21:03] Speaker 05:
How far into the one year are we?

[00:21:05] Speaker 05:
Your Honor, I actually don't have a date in front of me.

[00:21:07] Speaker 05:
I apologize, but I do know it was a year on just counts one and two.

[00:21:13] Speaker 05:
Following up on this notion that we have a journalist here in the Capitol, below the defendant's counsel conceded, and this is at page 615 of the transcript, June 15th, he was nothing more than a journalist who had credentials.

[00:21:33] Speaker 05:
But then the defense counsel concedes he did not have credentials.

[00:21:37] Speaker 05:
So to the extent that we're in some sort of credentialed journalist landscape, we are not.

[00:21:42] Speaker 05:
As to this suggestion of vindictiveness, to this day, I haven't heard my opponent point to anything in the record indicating that that was the reason for the sentence.

[00:21:53] Speaker 05:
I would just, in fact, suggest to the contrary, if you look at the November 3rd transcript at page 36, that the court actually recognized

[00:22:05] Speaker 05:
The defendant went to trial.

[00:22:06] Speaker 05:
He did not testify.

[00:22:08] Speaker 05:
And he has a right to a trial.

[00:22:10] Speaker 05:
And certainly, the court is not going to hold that against him.

[00:22:13] Speaker 05:
So not only do we not have any evidence suggesting indignance, we have evidence of the contrary.

[00:22:18] Speaker 05:
As for this notion of what was driving the sentence, I think the court was very clear about why she sentenced him within the guidelines to eight months.

[00:22:26] Speaker 05:
There were several factors.

[00:22:28] Speaker 05:
Serious offenses, number one.

[00:22:30] Speaker 05:
And number two, and the court put weight on this,

[00:22:34] Speaker 05:
The defendant walked into court, said, I'm remorseful, apologize to the officers.

[00:22:40] Speaker 05:
The court, however, pointed out that in, I think, a year after the event, he had liked a meme that was making fun of the testimony of the officers in Congress and was making fun of their descriptions of the pain and the agony that they had felt on January 6.

[00:23:01] Speaker 05:
And as she said,

[00:23:03] Speaker 05:
Your statement is at page 36 of the November 3rd transcript.

[00:23:08] Speaker 05:
Your statement of remorse today is totally inconsistent with the reprehensible views that you shared, making light of the injuries and trauma that law enforcement sustained that day.

[00:23:19] Speaker 05:
And then she also zeroed in on deterrence.

[00:23:23] Speaker 05:
She looked at that meme.

[00:23:25] Speaker 05:
She looked at that like.

[00:23:26] Speaker 05:
She looked at the defendant's comments after the events.

[00:23:28] Speaker 05:
And she said, I'm worried that you don't understand and that you need deterrence.

[00:23:32] Speaker 05:
So she also focused on specific deterrence and general deterrence.

[00:23:37] Speaker 05:
Finally, as to this notion of unwarranted disparity, I would direct the court's attention to the November 3rd transcript at page 43.

[00:23:48] Speaker 05:
Consider this.

[00:23:49] Speaker 05:
She said, I drew up in my own chart.

[00:23:51] Speaker 05:
I have looked carefully at the comparable conduct.

[00:23:53] Speaker 05:
I think the eight-month sentence is appropriate.

[00:23:56] Speaker 05:
Everything on this record demonstrates that this court considered the 3553A factors carefully, applied them assiduously, and concluded that an eight-month sentence was entirely appropriate.

[00:24:08] Speaker 05:
As for the suggestion that this is the longest sentence of any January 6th misdemeanant, as we pointed out in our brief at note 10, the Simon defendant was sentenced to eight months and he pled guilty.

[00:24:23] Speaker 05:
Obviously, this defendant did not plead guilty.

[00:24:27] Speaker 05:
We alerted the court to the related case of Alford.

[00:24:32] Speaker 05:
That was a defendant who did go to trial, and he was convicted of the same four counts of the defendant here.

[00:24:38] Speaker 05:
He was sentenced to 12 months.

[00:24:40] Speaker 05:
So the facts entirely belie the suggestions here that we have vindictiveness, we have unwarranted disparities, that we have some sort of unreasonable sentence.

[00:24:49] Speaker 05:
We don't.

[00:24:49] Speaker 02:
So in your view, is the vindictiveness claim preserved?

[00:24:55] Speaker 05:
I mean, I found the defendant's phrasing in his brief somewhat difficult to parse on occasion.

[00:25:03] Speaker 05:
And so one could make the argument that this was wrapped into this notion of it was an unreasonable sentence.

[00:25:10] Speaker 05:
I could certainly see that reasonable minds could take the position that if you wanted to raise a vindictiveness claim, you would have had to point something at the time.

[00:25:20] Speaker 05:
Obviously, we didn't press that on appeal, and we're not pressing it now.

[00:25:23] Speaker 03:
Well, he did raise it.

[00:25:24] Speaker 03:
He did raise it in his stay motion.

[00:25:26] Speaker 05:
I'm sorry?

[00:25:27] Speaker 03:
He did raise the argument in his stay motion, and the district court ruled on it there.

[00:25:30] Speaker 05:
I actually wasn't aware of that.

[00:25:35] Speaker 03:
Now, his supervised release, which I think is actually one year, or is it two?

[00:25:41] Speaker 05:
I thought it was.

[00:25:42] Speaker 05:
I just checked the transcript, and that's at page 44, the November 3 transcript.

[00:25:48] Speaker 05:
It said one year.

[00:25:48] Speaker 03:
One year.

[00:25:49] Speaker 03:
And so that will expire when?

[00:25:51] Speaker 05:
Again, I apologize.

[00:25:53] Speaker 05:
I don't know the expert.

[00:25:54] Speaker 03:
I ask because, you know, his argument here is sufficiency challenge as to three of his or convictions.

[00:26:03] Speaker 03:
And were he to prevail, is there a prospect that his supervised release would be shorter than a year for the one kind of conviction he hasn't challenged?

[00:26:16] Speaker 05:
You know, I mean, to the extent that if, for example, counts one and two, the 1752s go away, I suppose there wasn't even supervised release on the 5104 counts.

[00:26:29] Speaker 05:
So I suppose that's possible.

[00:26:31] Speaker 03:
I don't think this is for mootness purposes.

[00:26:34] Speaker 05:
I understand.

[00:26:35] Speaker 05:
No, and I don't know the answer to that question.

[00:26:38] Speaker 03:
At least for purposes of a challenge to a sentence, is whether there's still going to be a sentence or the sentence could be affected.

[00:26:43] Speaker 03:
Right, right.

[00:26:45] Speaker 03:
And I just didn't know if there's shorter supervised release than one year, or if you were only convicted of one misdemeanor, then I assume the court can maybe not do supervised release, or is there just something still in play here?

[00:26:57] Speaker 05:
Yeah, I actually don't know the answer to the question of special assessments either, which preclude muteness if those were handed down.

[00:27:07] Speaker 05:
Again, I don't have the JNC in front of me.

[00:27:09] Speaker 05:
I apologize.

[00:27:10] Speaker 05:
But if special assessments were assigned, then that would take care.

[00:27:16] Speaker 02:
You know, I want to make a. Do we need supplemental submissions to know when the supervised release.

[00:27:23] Speaker 05:
I'd be happy to submit a letter indicating my understanding and when.

[00:27:27] Speaker 03:
I think just factually when that would end and then if there's information about whether the assessments or the supervised release.

[00:27:37] Speaker 03:
Possibly.

[00:27:38] Speaker 03:
I'm sure the government would argue against it, but is there a prospect?

[00:27:43] Speaker 03:
Is it legally possible that it could change so that there is reason for us to address these questions, given that he's already served the sentence he challenges?

[00:27:58] Speaker 03:
Or is that aspect of the case?

[00:28:01] Speaker 03:
His sufficiency challenges obviously continue.

[00:28:04] Speaker 03:
I can submit that letter.

[00:28:07] Speaker 05:
That's the final thing I'll say.

[00:28:10] Speaker 05:
I'm perfectly happy to answer any questions the court has.

[00:28:13] Speaker 03:
I had a question about 1752A1, subsection two, the relevant language here.

[00:28:23] Speaker 03:
And it requires proof, not only of the mens rea, but that the individual's conduct, in fact, impedes or disrupts the orderly conduct of government business.

[00:28:37] Speaker 03:
What does that, in fact, language add here to the government's written approval?

[00:28:45] Speaker 03:
It seems quite intentional and quite focused on that.

[00:28:50] Speaker 05:
Sure.

[00:28:50] Speaker 05:
I think the district court got at this in her opinion.

[00:28:57] Speaker 05:
She understood some of the defendant's arguments to stand for the proposition that

[00:29:02] Speaker 05:
there would necessarily be but for causation.

[00:29:06] Speaker 05:
That is, we would have to, the government would have to demonstrate to the exclusion of all other rioters that this was the defendant who caused the delay of the vice president returning to the certification.

[00:29:19] Speaker 05:
She rejected that suggestion.

[00:29:21] Speaker 05:
And I would commend to the court her analysis.

[00:29:24] Speaker 05:
She very carefully looked at both the wording of the statute in fact language, compared it to- I'm asking for the government's view.

[00:29:32] Speaker 03:
on what the in fact language means, given that the Supreme Court has said, but for causation is the default in criminal statutes.

[00:29:40] Speaker 05:
Sure.

[00:29:40] Speaker 05:
And that's what she addresses.

[00:29:43] Speaker 05:
And that's the government's perspective.

[00:29:45] Speaker 05:
There is no necessity for by for causation.

[00:29:48] Speaker 05:
Burrage focused on the language results in.

[00:29:50] Speaker 05:
Burrage focused on the language because she compared and contrasted that with the language here.

[00:29:55] Speaker 03:
The in fact, I'm not sure.

[00:29:58] Speaker 03:
Well, it feels very

[00:30:02] Speaker 03:
directly causal.

[00:30:03] Speaker 03:
Here's the question for a reason.

[00:30:07] Speaker 05:
Sure.

[00:30:08] Speaker 05:
Here's the government's take on that.

[00:30:09] Speaker 05:
If you agree that the defendant's disruptive conduct was his consciously joining the riot, then the statutory language is some disruptive conduct, in fact, impeded or disrupted.

[00:30:22] Speaker 05:
Well, his conduct of joining the riotous mob

[00:30:26] Speaker 05:
in fact, impeded or disrupted the congressional proceeding.

[00:30:32] Speaker 03:
But for causation that you're arguing.

[00:30:34] Speaker 05:
No, I'm not arguing about for causation.

[00:30:37] Speaker 03:
His act of joining this riot, in fact, I'm just I'm really struggling with this language.

[00:30:42] Speaker 03:
I understand.

[00:30:43] Speaker 05:
And obviously, my opponent has teed this up.

[00:30:47] Speaker 05:
These are nuanced questions.

[00:30:49] Speaker 05:
But again, I think the court hit the nail on the head when she said.

[00:30:53] Speaker 05:
And in fact, with the court's indulgence, I think this is at 607F sub 39, note 15, she's quoting Burrage.

[00:31:06] Speaker 05:
And she says, a crime may involve multiple

[00:31:10] Speaker 00:
I'm sorry.

[00:31:12] Speaker 05:
Note 15 of the district court's opinion.

[00:31:16] Speaker 05:
She's quoting Burrage.

[00:31:19] Speaker 05:
And while she recognizes that, yes, generally criminal statutes demand but for causation, she cites the language from Burrage, which is that a crime may involve multiple sufficient causes that independently but concurrently produce a result.

[00:31:38] Speaker 05:
Well, I would suggest it's exactly what we've got going on here in 1752, which I think everyone can agree was designed to deal with situations like we have here.

[00:31:48] Speaker 05:
A riotous mob engaging in some sort of disturbance.

[00:31:52] Speaker 05:
Well, we have here independent but concurrent

[00:31:57] Speaker 05:
actions that contribute to the disruption of Vice President Pence being unable to return to the certification.

[00:32:05] Speaker 03:
What about what the statute says, whoever, so the actor, the individual actor's conduct has to be an in fact cause.

[00:32:16] Speaker 03:
Before, I think it said person or group of persons, and Congress changed it to be whoever.

[00:32:23] Speaker 03:
seems focused on the defendant, the individual defendant.

[00:32:26] Speaker 03:
Sure.

[00:32:27] Speaker 03:
And so what do I, what's one to do with that?

[00:32:28] Speaker 05:
I think what you were to do to that is what the district court did with that, which is

[00:32:35] Speaker 05:
The defendant here contributed to the disruptive action to the extent that, and the result of the delayed certification by consciously joining the mob and entering the Capitol in an unauthorized fashion.

[00:32:51] Speaker 05:
I mean, if we were to go with but for causation in this context,

[00:32:57] Speaker 05:
I don't think anyone could be prosecuted under 1753.

[00:33:01] Speaker 03:
I'm surprised to hear the government say that.

[00:33:02] Speaker 03:
I thought they would say, and I thought, in fact, your brief said, the presence of one unauthorized person impedes the progress, the process of Congress in this situation, and certainly impedes the protection of the vice president in the Secret Services views.

[00:33:16] Speaker 03:
I'm really surprised to hear you say, we can't meet but four in these cases, instead of saying it was, in fact, was that he

[00:33:26] Speaker 03:
joined an activity that was halting or impeding knowingly and with intent joined in the impeding.

[00:33:36] Speaker 03:
He was doing the impeding as much as everyone else there.

[00:33:39] Speaker 03:
And all it takes is one.

[00:33:40] Speaker 05:
I think that's accurate.

[00:33:44] Speaker 03:
But I think my point was is that- You just said we can't prove these cases if there's causations.

[00:33:49] Speaker 05:
I don't think we can if we have to exclude every other rider and say, this man, Mr. Rivera,

[00:33:57] Speaker 05:
Causation.

[00:34:00] Speaker 05:
That may be true.

[00:34:01] Speaker 05:
I don't think but for causation is appropriately applied in this context.

[00:34:07] Speaker 04:
Maybe I'm forgetting how first year torts, but I thought the way but for causation worked is that even if there's four people who their individual conduct would have brought about the event, if there were nobody else involved,

[00:34:22] Speaker 04:
But if all four of them do it at the same time, then none of them is a but for cause, because you can always point to somebody else who also caused it.

[00:34:29] Speaker 04:
And so to say that but for causation doesn't apply here would indicate that

[00:34:34] Speaker 04:
If he did it on his own, it would have been the but for cause.

[00:34:38] Speaker 04:
But he's not, because other people also participated, and they would have independently caused the disruption too.

[00:34:44] Speaker 04:
But even though he's not a but for cause, because other people independently would have also caused the disruption, he's still within the fold of the statute.

[00:34:52] Speaker 05:
That's my understanding of the position we have taken below in the position we are taking here.

[00:35:00] Speaker 04:
His actions still would need to be disrupted.

[00:35:05] Speaker 04:
And it's not just that they contributed.

[00:35:09] Speaker 04:
we use words like contribute to.

[00:35:11] Speaker 04:
It sounds like even if you're acting on your own, you wouldn't have been a but for cause of something coming about.

[00:35:16] Speaker 04:
You do something less than that, that only contributes, but there's other considerations that factored into it.

[00:35:21] Speaker 04:
But here, I thought the point is that actually the reason there wouldn't be but for cause is because there's other people who would independently bring about the same disruption.

[00:35:30] Speaker 04:
Therefore, none of them are a but for cause.

[00:35:32] Speaker 04:
But that doesn't mean that none of them actually violated the statute.

[00:35:34] Speaker 04:
All of them did.

[00:35:36] Speaker 04:
I agree.

[00:35:38] Speaker 02:
Is there aiding and abetting liability?

[00:35:40] Speaker 02:
Is that a way around this but for causation?

[00:35:44] Speaker 05:
You know, the district court didn't apply aiding and abetting analysis.

[00:35:48] Speaker 02:
I know that.

[00:35:49] Speaker 02:
You're just saying we couldn't charge anybody if that were the way you could charge aiding and abetting, couldn't you?

[00:35:54] Speaker 05:
Sure, sure.

[00:35:55] Speaker 05:
And I know that the prosecutor below did as an alternative ground for liability, argue aiding and abetting.

[00:36:02] Speaker 05:
But I don't think it's necessary to the analysis here.

[00:36:07] Speaker 04:
And as your understanding, I just want to make sure I'm understanding this correctly because I had the same impressions that Judge Millett did.

[00:36:13] Speaker 04:
But is your understanding that the district court's analysis about court causation was along the lines of the exchange that we just had?

[00:36:20] Speaker 05:
Yes, that's my understanding.

[00:36:21] Speaker 05:
And again, I think it's a very careful sort of analysis based on borage and an understanding of how the Supreme Court is interpreted by court causation and what kind of words trigger that.

[00:36:34] Speaker 03:
But you know, I thought from your brief that you said, look, one person in there, they couldn't bring everyone back, particularly the vice president, until every person who was a potential risk or threat was cleared.

[00:36:50] Speaker 03:
And so every person who was there unlawfully, obviously not people who were there lawfully, everyone whose presence there was unlawful,

[00:37:00] Speaker 05:
That's wrong.

[00:37:02] Speaker 05:
And that's supported by different.

[00:37:06] Speaker 03:
I guess I'm having trouble reconciling these two answers.

[00:37:10] Speaker 03:
And this might be because it's been too long since I took towards.

[00:37:14] Speaker 05:
I think but poor coordination is a very complicated legal doctrine, I would suggest.

[00:37:21] Speaker 05:
I certainly don't think it was teed up by my opponent.

[00:37:23] Speaker 05:
I certainly think there could be

[00:37:26] Speaker 03:
Well, it certainly teed it up, and there's a favoritism claim that they haven't shown that he did it, that he was responsible.

[00:37:31] Speaker 05:
Sure, sure.

[00:37:32] Speaker 05:
I mean, to your point, I mean, I think Agent Hawa's testimony does support this proposition that the agent said, this is a June 14th transcript of page 45, it was necessary, meaning any unknown individuals had to be removed from the capitals, any unknown individuals.

[00:37:54] Speaker 05:
I think maybe,

[00:37:56] Speaker 03:
what getting out of here in this case seems to cover all the base.

[00:38:00] Speaker 03:
I'm sorry, record in this case covers all the basis.

[00:38:02] Speaker 05:
Yes, exactly.

[00:38:03] Speaker 05:
And that's the trial court did say in the alternative, even one unauthorized person in the capital, which which makes sense if somebody

[00:38:15] Speaker 05:
breaches a magnometer, goes through security without being x-rayed.

[00:38:18] Speaker 05:
We don't know if they have a pipe bomb on them.

[00:38:21] Speaker 05:
Of course, that's going to lead to a lockdown scenario.

[00:38:24] Speaker 05:
I guess I always understood, but for causation, to stand for the proposition that if you did have independent actors who, in and of themselves, could lead to the disruption, you may not have but for causation.

[00:38:38] Speaker 05:
So maybe it's just a disagreement about the issue, about the precise meaning of but for causation.

[00:38:46] Speaker 04:
Make sure my colleagues don't have additional questions for you.

[00:38:48] Speaker 04:
Thank you, counsel.

[00:38:50] Speaker 04:
We would ask you to confirm the conviction below.

[00:38:54] Speaker 04:
Mr. Rutz, we'll give you two minutes for rebuttal.

[00:38:58] Speaker 06:
Thank you, Your Honor.

[00:38:59] Speaker 06:
A couple of points.

[00:39:01] Speaker 06:
I believe with regard to the mootness question, whether the sentence has already been served, and therefore it's moot, I believe this case would fall into that category, like the Roe v. Wade case, where a nine-month pregnancy would always be moot, and the issue would never be resolved on appeal for that reason.

[00:39:18] Speaker 06:
Of course, Roe v. Wade has been overturned, but not on that specific point.

[00:39:21] Speaker 06:
I believe it is not moot.

[00:39:23] Speaker 06:
It would always, in a misdemeanor sentence.

[00:39:25] Speaker 03:
People of repetition yet evading review?

[00:39:27] Speaker 06:
Exactly.

[00:39:28] Speaker 06:
Yeah.

[00:39:28] Speaker 03:
Able repetition.

[00:39:29] Speaker 03:
So your client intent that requires that the very individual who is asserting the lack of lewdness intend to repeat their conduct.

[00:39:36] Speaker 03:
Does your client intend to repeat his conduct?

[00:39:39] Speaker 06:
Well, it certainly is capable.

[00:39:41] Speaker 06:
Let's put it this way.

[00:39:42] Speaker 06:
I mean, anything is possible, conceptual.

[00:39:43] Speaker 03:
That's not sufficient.

[00:39:46] Speaker 06:
In a misdemeanor case, almost everyone would evade review in a misdemeanor sentence, because by definition, the jail sentence can't be more than a year.

[00:39:54] Speaker 06:
The average appeal is over a year.

[00:39:56] Speaker 06:
And then with regard to supervised release, I don't believe it can be over a year.

[00:40:01] Speaker 03:
Did you ask for expedited review?

[00:40:02] Speaker 06:
I'm sorry?

[00:40:03] Speaker 03:
Did you ask for expedited review?

[00:40:05] Speaker 06:
We did not.

[00:40:06] Speaker 06:
Obviously, there was some litigation about motioning for stay of.

[00:40:10] Speaker 03:
That's different from a motion for expedited review?

[00:40:13] Speaker 06:
Right.

[00:40:13] Speaker 06:
Yeah, we did not.

[00:40:14] Speaker 06:
So I just submit that Roe v. Wade precedent.

[00:40:18] Speaker 06:
Also, with regard to the credentials that are required to be a journalist, I believe there's a Supreme Court case, I don't remember the name of the case, that stands for the proposition that no journalist, not in the New York Times reporter, has a higher status than the common American has with regard to the First Amendment and with regard to being a journalist.

[00:40:38] Speaker 06:
You can call yourself a journalist if you start today with no credentials, no payment.

[00:40:43] Speaker 03:
And as your honor pointed out, if I call myself a journalist today, I get to go into the White House briefing room.

[00:40:53] Speaker 06:
Obviously, there are time, place, and matter.

[00:40:56] Speaker 03:
Let me just tell you, if you're a journalist, go walk into the White House press briefing room, right?

[00:41:05] Speaker 03:
That's nothing the First Amendment steps to that, right?

[00:41:08] Speaker 06:
Sure.

[00:41:08] Speaker 03:
Credential requirements apply to journalists covering Capitol Hill, too, correct?

[00:41:13] Speaker 03:
Yes, but I wasn't credentialed as a journalist on January 6th or any other day that you're aware of.

[00:41:20] Speaker 03:
He was not a professional journalist.

[00:41:22] Speaker 03:
He was credentialed as a journalist by the Capitol, correct?

[00:41:27] Speaker 03:
Again, I believe that was he credentialed or not by the Capitol on January 6th by the Capitol?

[00:41:32] Speaker 06:
No.

[00:41:34] Speaker 06:
Um,

[00:41:36] Speaker 06:
With regard to the counselor for the government raised something about making fun of pain and agony of officers.

[00:41:42] Speaker 06:
I believe that the sum total of that is sharing a meme, maybe on social media, a comedy meme of some kind.

[00:41:49] Speaker 06:
It may or may not have expressed, probably did not express Mr. Rivera's actual opinions.

[00:41:55] Speaker 06:
And I also submit with regard to whether there have been some harsher sentences for misdemeanor cases.

[00:42:01] Speaker 06:
None of them are as clean, and I'll just say clean, as Mr. Rivera.

[00:42:05] Speaker 06:
Family man, children, young children, spotless criminal record, a perfect model citizen, actually works for a church school.

[00:42:17] Speaker 06:
None of those other cases that were sentenced harsher all had more problematic background.

[00:42:22] Speaker 06:
And so I thank you very much, John.

[00:42:24] Speaker 04:
Thank you, council.

[00:42:25] Speaker 04:
Thank you to both council.

[00:42:26] Speaker 04:
We'll take this case under submission.