[00:00:00] Speaker 02:
Case number 22-3062, United States of America versus Thomas Robertson at balance.

[00:00:07] Speaker 02:
Mr. Cohn for the at balance, Mr. Pierce for the appellate.

[00:00:10] Speaker 01:
Mr. Cohn, good morning.

[00:00:16] Speaker 04:
The first issue I will focus on is the sentencing issue.

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And to step back for a second and to look at how the guidelines address obstruction of justice.

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If a person is under indictment and obstructs that proceeding, the guidelines provide in 3C1.2 a two-level enhancement.

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My research suggests the most common way of getting that enhancement in this district is by lying under oath during one's oath.

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Then the guidelines step back and look more broadly at persons

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who have managed to get themselves prosecuted and convicted for obstruction of justice.

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And there, as the government points out at page 43 of the brief, there are a number of ways that one's obstruction can wind up being prosecuted, obstructing, falsifying papers relating to imported merchandise,

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obstructing an investigation under the Workforce Innovation and Opportunity Act, obstruction under 1505 of proceedings before departments and agencies.

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The government, perhaps tellingly, does not include in its list 18 USC 1503, which is the classic obstruction of the administration of justice statute.

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Within the way the guidelines work is within all those offenses,

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if one is convicted of obstructing the administration of justice, then there are two enhancements that apply.

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One, and by the way, all of this I think is pretty straightforward.

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One is for causing physical injury or threatening to cause physical injury to a person in order to obstruct the administration of justice or causing property damage

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And for that, the guidelines provide a severe eight level enhancement.

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The guidelines also provide that if the offense was a three level enhancement, if the offense resulted in substantial interference with the administration of justice.

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So we have a subset within a subset persons and Mr. Robinson does not fall within the first subset.

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He was convicted

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of things like bringing a dangerous weapon to Capitol Hill, obstructing Congress under Section 15C2, which in the balance of my time, I'd like to get to the validity of that.

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But even assuming that's a valid conviction, there is no

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obstructing the administration of justice.

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And Judge McFadden put a very good opinion on that.

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And that's why we quoted it at length in our initial brief.

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Did you make this argument in the court below?

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Is it forfeited and do we have to look at this in the plain error review?

[00:03:47] Speaker 04:
Yes, Your Honor.

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The argument was very much

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This made four sentencing.

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First, it was clearly an objection to this amendment, to the eight level and three level.

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But not on this basis.

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Well, the basis, let the court repeat the judge.

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I mean, the transcript is right here.

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It's pages 16 through 20 of the sentencing hearing.

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The most telling words in a way, well, first of all, you have the,

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defense counsel, echoing in advance Judge McFadden, saying, Judge, we don't have an investigation here.

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We don't have our client interfering with an investigation.

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If one needs Judge McFadden's opinion, he rejects the cases that my colleague cited because it was an investigation.

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Can you tell us which of the appendices you're in when you're citing 16 to 20 of the sentencing transcript?

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Is that?

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That's probably going to be

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Robertson's at A68 to 72?

[00:05:10] Speaker 04:
Yes, exactly right.

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Thank you.

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Thank you.

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I'm more accustomed, I'll admit, to citing directly to the record.

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But yes, you're exactly right, Judge.

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A68, A69, all the way through.

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And so echoing Judge McFadden, defense counsel says, there is no investigation here.

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And that's what this enhancement is for, is for interfering with an investigation.

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So you have the objection.

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Then the prosecutor says, the defendant here is missing the mark.

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He was convicted of obstructing the election certification.

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And summarize, that's what makes him subject to this.

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And so that's the erroneous argument in our view.

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And Judge Cooper adopts the erroneous view.

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He says,

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The court finds that the enhancement of clause, the offense did result in a substantial interference, given both the delay that the riot caused in the certification proceeding, which is a proceeding at issue, and the expenditure of substantial resources that was necessary to fix the damage that was made, that was done to the Capitol.

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That's what Judge Cooper said.

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Honestly, a tremendous respect for Judge Cooper, but here he's completely wrong.

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It's not, the guidelines are not looking at the repair costs to the capital.

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The guidelines are looking, as defense counsel rightly pointed, to when a defendant or a person lies and causes the government to expend additional resources in order to uncover

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the truth and to pursue its investigation.

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That's what this guideline is directed at.

[00:07:09] Speaker 02:
Could you move on to the other issue, please?

[00:07:12] Speaker 04:
Yes, Your Honor.

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On this one, on the Correctly issue,

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I begin with unusual humility, which is that as we're reading the Audrey North case before this case, before preparing for this, and of course the Fisher decision, a lot has been written by eminent jurists about the meaning of the word corrupt.

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I've done my very best in my briefs to give my honesty of what this term means.

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Do you think that corruption can be proved by the use of unlawful means or only purpose?

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It's the word unlawful that I stop at.

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But you agree that it can be proved by means as well as purpose?

[00:08:05] Speaker 04:
By means.

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Yes, but I don't think it's the unlawfulness of the means that should be in the law.

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But if you agree that it can be proved by unlawful means, then the additional element that you're proposing isn't necessary in every case.

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Well, I'm not sure what additional element I'm proposing.

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That there has to be a benefit to oneself or another.

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If you can prove it with means.

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I don't think means alone

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But what does it, I actually think, Judge, now that I'm clear about the direction you're taking, benefit plays a crucial role in understanding this.

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Well, let me ask you, though.

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In the court below, your instruction, your client requested said to act corruptly, the defendant must use unlawful means or have a wrongful or unlawful purpose, or both.

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And if means is one way of getting at this, then the element that you propose to add is not necessary.

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Yes, Judge, but I am focused on what the statute requires.

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And the defendant, to his credit in his post-trial motion for a new trial, focused on the absence of any evidence of an advantage that he had got.

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And I agree the word advantage in his motion

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to be the equivalent of benefit.

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And it's often used interchangeably.

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I understand that.

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But I think what I'm just trying to get at is that you took a position in the district court.

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And I'm asking you now about whether corrupt means is a way of proving corruptly.

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Or can it only be proved with corrupt purpose?

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And it seems to me that you made a concession that means is one way of getting at this.

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And the case law seems to indicate that means is a way of getting at this.

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And if means is a method of proving it, then the additional element you're proposing, which goes to benefit to another, that only goes to purpose.

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And so therefore, if means is a way of getting at this, what you're proposing is not necessary to prove corruptly in every case.

[00:10:15] Speaker 04:
Let me answer your question, and I hope I'm answering it correctly, with the observations that both the majority in North and the dissent made.

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And they recognize the example

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of someone who calls a member of a congressional committee and says, listen, this is an improper investigation.

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You need to cut this out.

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The means there is not in and of itself going to tell us whether or not the corruptly

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prong of the mens rea satisfied.

[00:10:51] Speaker 02:
That's true.

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And what Judge Silverman said in North was that if you have an unlawful means, that should be sufficient.

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But where the independent means are not criminal or unlawful, then you have to go to purpose.

[00:11:09] Speaker 04:
He does say that, but he said it in dissent.

[00:11:13] Speaker 04:
Correct.

[00:11:14] Speaker 04:
Right.

[00:11:15] Speaker 02:
I guess what we're trying to get at is whether means is a way of proving this.

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as well as purpose.

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And it seems that they are two alternative ways of moving corruptly.

[00:11:24] Speaker 04:
Yes, but as I just said, I don't think alternative is the right way.

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And I especially do not agree with Judge Silverman's view that the independently unlawful means, a term that found itself in another recent decision of this court, is the right approach to addressing what corruptly means.

[00:11:44] Speaker 00:
Let me ask you, Mr. Cohn, about the logic of the benefit limitation

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Reading, again, reading the discussion in North and some of the other cases, the concern, especially when we're talking about obstruction of Congress,

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is that there's a lot of sort of hurly-burly in the political process where it's completely appropriate to try to influence or slow down or change the priorities of what Congress is up to to meet the needs of one's client, whether one's a lobbyist or

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you know, member of public who's seeking a particular kind of legislation or inquiry into a particular person or whatever.

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And all of that, you know, much of that may be protected by the first amendment, but it, all of it meets your ostensibly limiting, you know, benefit for self or others definition.

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So if, if the major conundrum in, um,

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interpreting corruptly is to make it meaningfully limiting.

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When obstruction applies to Congress, it seems like your definition completely failed in that regard because the legitimate lobbying or demonstrating or the like usually yield a benefit.

[00:13:12] Speaker 04:
At the risk of being

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The self-defense, the word benefit comes from eminent jurists like Justice Scalia.

[00:13:23] Speaker 04:
So the end, and it's repeated by a colleague of yours in the Fisher opinion, I'd like.

[00:13:31] Speaker 00:
You're talking about Judge Walkers.

[00:13:32] Speaker 04:
Correct.

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And Kurtz, although he would find it met here.

[00:13:36] Speaker 00:
He would find it, or he suggests it may well be met here.

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Didn't have to go that far.

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But he said, you know, if the effort of people like Mr. Robertson is, I want my preferred candidate to be in the White House, not the one who they're getting ready, whose election results they're getting ready to certify.

[00:13:55] Speaker 04:
No, I understand you.

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And as I say, I disagree with Judge Walker on that.

[00:14:01] Speaker 04:
Unfortunately, in this time, I have not gotten to the word dishonestly, which finds itself in Anderson again and again.

[00:14:09] Speaker 04:
You.

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and indeed in the Arthur Anderson case of the Supreme Court, and not just innocuously, it's the failure of the jury instruction to include the word dishonestly that was in the Fifth Circuit's pattern jury instructions that caused the conviction to be reversed in Anderson.

[00:14:27] Speaker 04:
So it's an important word.

[00:14:28] Speaker 02:
What does dishonestly mean in this context?

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What does it add?

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One thing it adds is to my answer to Judge Pillard, which is that yes, benefit may not in and of itself in all cases be a sufficient limiting rule.

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That is why we need to examine the dishonest

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purpose to a person who, to use the example that is, I think in the North case, a person tells his client, you don't need to respond to this congressional investigation, just as innocuous advice.

[00:15:05] Speaker 04:
That's fine.

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But the person who knows that the congressional investigation, the lawyer, the lawyer who knows that this investigation actually is targeting him, and he would want to,

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Avoid that.

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Now when he advises the client and fails, say, to disclose that this is the reason why he's giving this advice, now he's being dishonest.

[00:15:30] Speaker 02:
But what if he does disclose it?

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What if he's honest about it and says, don't testify because it'll get me in trouble?

[00:15:36] Speaker 02:
You're saying that's not obstruction?

[00:15:37] Speaker 04:
It's still obstruction because of the benefit.

[00:15:42] Speaker 02:
But that's honest.

[00:15:44] Speaker 04:
I understand, Your Honor.

[00:15:45] Speaker 04:
But realistically, a good point.

[00:15:47] Speaker 04:
But it's a very good point, Your Honor.

[00:15:48] Speaker 02:
It can't have to be dishonest, because if you're honestly corrupt, that's still obstruction.

[00:15:53] Speaker 04:
Your Honor, it's telling to me that in the North case, when the majority opinion turned to what does corrupt mean, the first word it used was clandestinely creating a false chronology.

[00:16:11] Speaker 02:
That's sufficient, but not necessary.

[00:16:13] Speaker 02:
I'm just saying

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dishonesty, it doesn't seem that that is a requirement because you can be honestly corrupt, be completely forthcoming about it, and it's still obstruction.

[00:16:24] Speaker 02:
So it can't be that it has to be dishonest in every instance.

[00:16:28] Speaker 02:
It would be sufficient if it's dishonest, but it's not necessary.

[00:16:33] Speaker 04:
I disagree or I think dishonesty is a very is an essential aspect of distinguishing between people who are honest and forthright and

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are not trying to subvert the truth-finding process on the one hand and those who are trying to subvert it.

[00:16:57] Speaker 02:
It's in the Fifth Circuit.

[00:16:59] Speaker 02:
Okay, then if you could address the hypothetical then of the attorney that you posited who honestly says to his client, don't testify at the hearing because then I will get in trouble.

[00:17:11] Speaker 02:
That's not that in your view is not probably that's not our case.

[00:17:14] Speaker 02:
And it's an interesting, it's a hypothetical that addresses your claim that it has to be dishonest in every instance in order to be corrupt under the statute.

[00:17:25] Speaker 04:
Yeah.

[00:17:25] Speaker 04:
I mean, just thinking out loud, I'd say he's not obstructing justice.

[00:17:29] Speaker 04:
He's told his client and now the question, he's told his client is motive.

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And now if the client goes ahead and doesn't testify, is the lawyer,

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Is the lawyer obstructing justice?

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He's told his client right up front, it's because it's me.

[00:17:46] Speaker 04:
I'm not sure that amounts to obstruction of justice.

[00:17:52] Speaker 02:
That seems untenable to me, counsel.

[00:17:56] Speaker 00:
Reading the cases, and I suppose particularly when the phrase comes up, unlawful means or unlawful purpose, this feels like a very mercurial concept, abruptly.

[00:18:14] Speaker 00:
And indeed, that judges and lawyers have treated it as if,

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It can be met in different ways depending on the circumstance.

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It's not like we're going to, and I haven't seen a court too bad, give one definition that always applies.

[00:18:33] Speaker 00:
Do you agree with that, that the minimum may depend a little bit on the nature of the charged corruption?

[00:18:41] Speaker 04:
Judge, the way I try to address that in the supplemental brief is slightly differently, is I note, and North is a good example, that in most cases, judges don't need to get into the meaning of the word corruptly, because it's so implicit and inherent in the dishonesty

[00:19:03] Speaker 04:
that the Yosemite is so clear, the corruption is so clear, from the core example of bribing someone to get a result, that it's not so much the mercurial aspect of the word, it's the fact that it's unnecessary to dwell on it, except in the type of hypothetical, candidly, that Judge

[00:19:26] Speaker 04:
Pan was asking me, what is that corrupt or is it not?

[00:19:29] Speaker 04:
The situation, the unusual situation where a lawyer would say to his client.

[00:19:34] Speaker 01:
And so... Well, isn't the problem there that it's not an honest corruption, it's an open corruption?

[00:19:41] Speaker 01:
In other words, he tells his client, I don't want you to show up because it might implicate me.

[00:19:47] Speaker 01:
That's not honestly corrupt, it's openly corrupt.

[00:19:51] Speaker 04:
That's right, but it's not but I have a trouble putting openly and corrupt together to my mind.

[00:19:59] Speaker 04:
Corruption is necessarily not so to say it's openly corrupt.

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is a paradox at best.

[00:20:08] Speaker 04:
Those turns don't easily stay.

[00:20:13] Speaker 01:
I think I could name several political figures who have been openly corrupt.

[00:20:24] Speaker 01:
I won't, but we'll disagree about that maybe.

[00:20:28] Speaker 01:
I think her question is a helpful one.

[00:20:36] Speaker 00:
that, well, I'm not sure.

[00:20:39] Speaker 00:
So someone who is openly corrupt may still be being dishonest.

[00:20:45] Speaker 00:
And therefore, the statute still does work in the case of the hypothetical that Judge Pam poses.

[00:20:53] Speaker 00:
And therefore, it may be in keeping with the language and purpose of the statute to include the requirement that you're pressing.

[00:21:03] Speaker 04:
Yes, to turn back to Judge Pan's hypothetical, perhaps the jury would have to decide what dishonesty meant in that situation.

[00:21:15] Speaker 04:
Allow me to add, in the lead opinion in Fisher, one of the, I thought, extremely useful aspects of it was the summary of all the 1512 C2 cases.

[00:21:28] Speaker 04:
And if you look at those prosecute, the appellate cases, if you look at them,

[00:21:33] Speaker 04:
one after another involved concealment, clandestine activity, falsifying records, each one the word dishonestly, acting dishonestly.

[00:21:46] Speaker 04:
Where are you looking?

[00:21:49] Speaker 04:
I cited in the supplemental brief, it's a string site that the lead opinion makes to all cases involving

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the affirmance of convictions under 18 U.S.C.

[00:22:02] Speaker 04:
1512 C2.

[00:22:06] Speaker 02:
I cited in the supplemental.

[00:22:09] Speaker 02:
But to my mind, that again shows sufficiency, but not necessarily necessity.

[00:22:15] Speaker 02:
But I take your position to be that in all cases applying this statute, there has to be a corrupt purpose

[00:22:24] Speaker 02:
And that purpose has to include trying to obtain a benefit for oneself or another.

[00:22:29] Speaker 02:
But that's the only way to prove abruptly.

[00:22:32] Speaker 02:
That's your position.

[00:22:34] Speaker 02:
Correct?

[00:22:37] Speaker 04:
I think so.

[00:22:38] Speaker 04:
I think the way you put it, but again, no, to the extent that I think the word dishonestly.

[00:22:43] Speaker 04:
And that kind of is a way that summarizes the cases that are in that long paragraph.

[00:22:51] Speaker 04:
That's the motive.

[00:22:52] Speaker 04:
That's what's animating these people.

[00:22:55] Speaker 04:
And that's what distinguishes them from, say, the hypothetical we were talking about.

[00:23:01] Speaker 02:
But there doesn't seem to be a textual basis for what you're asking.

[00:23:05] Speaker 02:
You're saying that in all instances under this statute, corruptly has to include

[00:23:12] Speaker 02:
trying to obtain a benefit for oneself or another.

[00:23:15] Speaker 02:
What's the textual basis for that?

[00:23:17] Speaker 04:
I'm not sure what you mean by textual basis.

[00:23:19] Speaker 02:
The text just says corruptly.

[00:23:21] Speaker 04:
Yes, and we're trying our best to try to give meaning to that term, a meaning that's often hidden in the opinion because it's so implicit.

[00:23:33] Speaker 02:
Yes, and the only precedent that applies this standard is in the tax context.

[00:23:41] Speaker 02:
And it seems to me that it makes a lot more sense in that context because in tax law, you can make a mistake.

[00:23:49] Speaker 02:
And if you're not trying to benefit yourself, it's just kind of a mistake.

[00:23:51] Speaker 02:
It shouldn't be a crime.

[00:23:53] Speaker 02:
But if you do your taxes in a way that you benefit, you get more money back, then it makes sense that that crosses the line to make something corrupt.

[00:24:04] Speaker 02:
It makes sense in that context.

[00:24:05] Speaker 02:
How does it make sense in this context?

[00:24:09] Speaker 04:
The tangible benefit, how does the tangible benefit make sense?

[00:24:13] Speaker 04:
I think it makes sense in the example that we were talking about earlier that the court talks about in the North case.

[00:24:21] Speaker 04:
If a client comes to a lawyer, says, I've been asked to testify before.

[00:24:26] Speaker 02:
No, I'm talking about this context, obstruction of an official proceeding.

[00:24:30] Speaker 02:
I'm saying it makes sense to import that requirement in the tax context because of the nature of tax law.

[00:24:37] Speaker 02:
Tax laws are complicated.

[00:24:39] Speaker 02:
So in order for you to be criminally liable for doing your taxes wrong, you had to have been trying to get a benefit for yourself.

[00:24:47] Speaker 02:
But why does it make sense in an obstruction of an official proceeding context to require a benefit.

[00:24:53] Speaker 04:
Fortunately, I think on this aspect of the case.

[00:24:56] Speaker 04:
I don't look.

[00:24:59] Speaker 04:
tax law as the model here.

[00:25:01] Speaker 04:
I look at the North case, which involved interference with a congressional committee under 1505.

[00:25:06] Speaker 04:
I look at 1503, the administration of justice statute.

[00:25:11] Speaker 04:
It seems to me and it's.

[00:25:13] Speaker 04:
But the North case didn't require the benefit.

[00:25:15] Speaker 02:
It was the Aguilar case that did.

[00:25:18] Speaker 04:
That's right.

[00:25:19] Speaker 04:
But and Aguilar was also not a tax.

[00:25:23] Speaker 02:
But if you're relying on North, North doesn't say that that's a necessary requirement of.

[00:25:28] Speaker 04:
No, I understand your honor where North was struggling with these terms.

[00:25:32] Speaker 04:
Fisher struggled with these terms.

[00:25:34] Speaker 04:
I'm struggling with these.

[00:25:36] Speaker 04:
we're all trying to give meaning to a word.

[00:25:39] Speaker 00:
Speaking of which, an important point that's- But wait, just going back to your reliance on North, I mean, this case seems very different from North, where the central issue in North was the admissibility or not of-

[00:25:54] Speaker 00:
whether the jury should have been instructed that North believed himself to be authorized and whether evidence of authorization, because that would go to his understanding of what he was doing.

[00:26:06] Speaker 00:
But there's no question here, either as a matter of instruction or as a matter of record, the sufficiency of the evidence, that Mr. Robertson thought that he was doing something that was lawful.

[00:26:23] Speaker 00:
I mean, that's not his defense.

[00:26:25] Speaker 00:
He was convicted of using violence to overcome police, to storm and vandalize capital, to enter restricted areas en masse during the certification proceeding, acting in a manner that was calculated to intimidate lawmakers to prevent them from fulfilling their duty.

[00:26:42] Speaker 00:
And so it just seems like the issue that was central in North is not helpful to your client.

[00:26:52] Speaker 04:
Your Honor,

[00:26:53] Speaker 04:
The North case is cited at length in the Fisher decision, cited at length in the government's brief.

[00:26:59] Speaker 04:
So it seems like it's a useful poll here to look at.

[00:27:06] Speaker 04:
Allow me to add an important point, please, which is that, as I noted in the brief, 1503, another obstruction statute, talks about corruptly or by force or threats of force.

[00:27:20] Speaker 04:
To my mind,

[00:27:21] Speaker 04:
What's going on there is that those concepts, although of equal moral culpability, horribly by threats of force, are distinct ways of obstructing.

[00:27:39] Speaker 04:
And my client, which I think goes in part to your question, Judge,

[00:27:43] Speaker 04:
is my client is being held accountable under 15C2 for basically using force and threatening physical injury and that's a distinct way of prosecuting someone for obstruction that I don't understand the lead opinion to be

[00:28:04] Speaker 04:
necessarily endorsing or at least endorsing to the point of reckless conduct.

[00:28:10] Speaker 04:
But the lead opinion talks about assaultive conduct.

[00:28:14] Speaker 04:
But my client was convicted of carrying a stick into the Capitol.

[00:28:20] Speaker 04:
And so are we going to stretch assaultive conduct to what I see as a reckless mindset

[00:28:27] Speaker 04:
It's we're already going into the physical force, which is not in the statute.

[00:28:32] Speaker 04:
And now we're going into reckless bringing a stick.

[00:28:38] Speaker 02:
So the lead opinion talks about independently unlawful conduct.

[00:28:42] Speaker 02:
And that is a concept that is also in the North opinion, also in Aguilar.

[00:28:49] Speaker 02:
And in Fisher, one of the independently unlawful conducts happened to be assault of conduct, but there are other types of independently unlawful conduct, such as brandishing a stick, being disorderly, et cetera.

[00:29:03] Speaker 02:
And the case law and the lead opinion seems to agree that independently unlawful conduct is a basis for finding corruptly.

[00:29:13] Speaker 04:
And you were disorderly just picking up on that.

[00:29:18] Speaker 04:
The difficulty I have is that are we going to now say someone committed the misdemeanor of disorderly conduct and that resulted in delaying the electoral count

[00:29:35] Speaker 04:
And now they're subject to a 20 year maximum.

[00:29:37] Speaker 02:
Well, no, there are other elements of the offense, but it might be sufficient to support corruptly, but you still have to meet other elements of the offense, including the nexus requirements and all the other things.

[00:29:50] Speaker 04:
Yeah, but let's assume the others are met.

[00:29:53] Speaker 04:
Let's assume that his actions during the riot did contribute Robertson's actions to somehow delaying the electoral count so that under

[00:30:04] Speaker 04:
Uh, that a jury could conclude that the act element was satisfied.

[00:30:08] Speaker 04:
Now are we going to say, well, and all you have to do is act disorderly in terms of your mental.

[00:30:14] Speaker 04:
which is because that's independently unlawful.

[00:30:18] Speaker 04:
You're now subject to a 20-year maximum sentence because you went and trespassed in Congress and acted in a disorderly manner.

[00:30:25] Speaker 04:
It seems to me, as Judge Kansas noted in dissent, this is a troublesome road to go down, that if you acted his words, not mine, in an illegal way, in some small way, his words,

[00:30:39] Speaker 04:
subject to the 20-year maximum of this statute.

[00:30:47] Speaker 00:
What about the subset if wrongful means is understood to at least encompass independently criminal means or even knowingly engaging in independently criminal means or even

[00:31:04] Speaker 00:
knowingly engaging in independently balonious means.

[00:31:07] Speaker 00:
It would seem that any of those definitions would be met by the evidence here would be sufficient to establish those.

[00:31:16] Speaker 04:
Unfortunately, yes.

[00:31:17] Speaker 04:
That's why I'm urging this court not to go down that road.

[00:31:21] Speaker 04:
And drafters of criminal law and interpreters of criminal law

[00:31:28] Speaker 04:
avoid saying your conduct was unlawful because it was felonious.

[00:31:34] Speaker 04:
And in fact, by the way, that is a holding of the majority in the North case.

[00:31:41] Speaker 04:
We don't do that.

[00:31:43] Speaker 04:
So we have to find another way in saying your conduct was felonious, your conduct was unlawful, to define a crime.

[00:31:53] Speaker 02:
I take your argument to be that because it is broad, we should interpret it too narrowly.

[00:31:59] Speaker 02:
The Congress can write a broad statute.

[00:32:01] Speaker 02:
Is the breadth in itself a reason for us to interpret this a certain way if we're not at the point of, I guess, unconstitutionally broad, which nobody's saying?

[00:32:11] Speaker 02:
And the fact that it's a 20-year maximum, that's just the maximum.

[00:32:16] Speaker 02:
Presumably, if this were to actually go to sentencing, a judge

[00:32:22] Speaker 02:
would take into account all the different factors, and it's very unlikely that anybody's going to get the maximum for some of the hypotheticals that you're positing.

[00:32:36] Speaker 04:
So let me show you understand the question is is if the question is will my client and my client get the 20 year maximum.

[00:32:43] Speaker 02:
No, no, my client.

[00:32:45] Speaker 02:
My point is that you're arguing that we shouldn't subject people who they're independently unlawful means as a misdemeanor.

[00:32:52] Speaker 02:
For example, they shouldn't be subjected to a 20 year maximum.

[00:32:57] Speaker 02:
Number one, I'm wondering, is breadth alone a reason to affect the way we interpret this, because Congress can write a broad statute?

[00:33:06] Speaker 02:
And number two, we're just talking about a maximum sentence.

[00:33:11] Speaker 02:
It seems like you're assuming that everybody's getting 20 years for this, but whoever the sentencing judge is, is going to take into account

[00:33:18] Speaker 02:
all the factors under 3553, and presumably if all they did was act in a disorderly way, they're not getting 20 years.

[00:33:27] Speaker 02:
That's just the max.

[00:33:29] Speaker 04:
Right.

[00:33:30] Speaker 04:
Let me then talk about Brett and talk about Matt.

[00:33:33] Speaker 04:
Okay.

[00:33:34] Speaker 04:
I do think that Brett is, it's, the Brett is talked about in Fisher, it's talked about in North.

[00:33:43] Speaker 04:
To some extent, candidly, as we say in our supplemental brief, I think those concerns about breadth are a bit exaggerated, but.

[00:33:51] Speaker 04:
that Brett is always a concern when one looks at a criminal statute.

[00:33:57] Speaker 04:
And as Judge Katz has noted, candidly, it seems like a really unlikely place for Congress to have placed a broad statute, Section 15C2.

[00:34:06] Speaker 04:
It doesn't really seem to be aimed at catching a lot of wrongdoers.

[00:34:13] Speaker 04:
So I think Brett should be a concern of this court, as it should be in interpreting all criminal statutes in a way.

[00:34:21] Speaker 04:
Now, turning to the max, my point on that, you're quite right.

[00:34:25] Speaker 04:
It's a realistic matter.

[00:34:26] Speaker 04:
Do criminal defendants get the maximum sentence?

[00:34:31] Speaker 04:
No, ordinarily.

[00:34:34] Speaker 04:
But the bigger point, though, is as one steps back and looks at the severity of the crime.

[00:34:45] Speaker 04:
And it's difficult to measure the severity of the crime other than by looking at the statutory maximum.

[00:34:51] Speaker 04:
Um, then essentially, if the statutory maximum is a pretty objective measure of the gravity of the crime, the question then becomes have you.

[00:35:01] Speaker 04:
by, as you were saying, gone to Congress and engaged in disorderly conduct, has the fact that that caused a delay in the electoral college suddenly aggravated the severity of your conduct, the culpability, to the point where you are now subject to a statute with a 20-year maximum, and where, yes, if you misbehave in some ways, you might get that maximum.

[00:35:30] Speaker 01:
Any more questions?

[00:35:31] Speaker 01:
All right, we'll give you a couple minutes and reply.

[00:35:33] Speaker 01:
Mr. Pierce.

[00:35:34] Speaker 04:
Thank you.

[00:35:35] Speaker 01:
Good morning.

[00:35:42] Speaker 03:
May it please the court, James Pierce, United States.

[00:35:45] Speaker 03:
A defendant who intentionally obstructs congressional proceeding by using independently unlawful means or animated by a corrupt purpose acts corruptly for purposes section 1512C2.

[00:35:58] Speaker 03:
Defendant Thomas Robertson acted corruptly through the intended and actual use of unlawful violence to obstruct the joint session on January 6th.

[00:36:08] Speaker 03:
The district court

[00:36:09] Speaker 03:
but also correctly applied to sentencing enhancements under Section 2J1.2, and this court should affirm.

[00:36:17] Speaker 03:
Now, I'd like to start with the corruptly issue.

[00:36:20] Speaker 03:
I think it's useful to situate Section 1512C2's mens rea somewhat more broadly.

[00:36:28] Speaker 03:
It, in our view, comprises three components.

[00:36:31] Speaker 03:
It's the defendant's intent to obstruct,

[00:36:34] Speaker 03:
that the defendant acted corruptly and that the nexus to a pending or reasonably foreseeable official proceeding.

[00:36:42] Speaker 03:
Of course, what is presented here is just the corruptly question, as my introduction made clear.

[00:36:49] Speaker 03:
Our view is, consistent with the case law with Judge Silverman's separate opinion in North, with what Congress itself did when it defined abruptly for purposes of Section 1505 in Section 1515B, is that a defendant can act abruptly either through the use of independently unlawful means or through corrupt purpose.

[00:37:11] Speaker 03:
And it's common ground with my friend on the other side that if we are in a world of corrupt purpose, there are various ways to get there, including using deceit or dishonesty, including seeking an unlawful advantage or benefit.

[00:37:26] Speaker 03:
I would actually add a couple of others that I think the case law includes.

[00:37:29] Speaker 03:
seeking to violate a legal duty.

[00:37:32] Speaker 03:
I think that one, for example, could deal with the hypothetical of the lawyer urging someone else to lie.

[00:37:37] Speaker 03:
In fact, I think there are two reasons why that would be corrupt.

[00:37:40] Speaker 03:
One is that's an act of corrupt persuasion that is independently criminalized under 1512B.

[00:37:46] Speaker 03:
But even if that weren't the case, it would be asking someone else to violate a legal duty.

[00:37:51] Speaker 03:
This court's decision in Morrison, I think a 1996 decision, talked about exhorting someone else to violate a legal duty.

[00:37:58] Speaker 03:
They're actually closely similar wasn't a lawyer, but I think a criminal defendant asked someone else to lock that's that's obstruction by asking someone else to violate a legal duty.

[00:38:11] Speaker 03:
In terms of, you know,

[00:38:16] Speaker 03:
Where's the line of independently criminal means?

[00:38:19] Speaker 03:
I think Judge Piller, your question highlights that certainly to resolve this case, all this court needs to say is independently felonious means is sufficient.

[00:38:30] Speaker 03:
I mean, here the defendant violated

[00:38:32] Speaker 03:
committed three felonies, criminal trespass of the dangerous weapon in a restricted area, disorderly and disruptive conduct for the dangerous weapon in a restricted area, and then an act of impeding or obstructing office.

[00:38:49] Speaker 01:
Let me ask you this.

[00:38:49] Speaker 01:
What if we, if you just indulge me a minute, what if we need to find more?

[00:38:55] Speaker 01:
What if we needed to find what I think is a holding in Fisher?

[00:38:59] Speaker 01:
I think I'm a minority in that view,

[00:39:02] Speaker 01:
that we need to find a benefit to the defendant or to another.

[00:39:07] Speaker 01:
Where is the evidence in this trial of a benefit either to Robertson or to another and based, I guess, on Fracker's testimony?

[00:39:22] Speaker 03:
So of course, we don't think that's necessary.

[00:39:26] Speaker 01:
I realize that.

[00:39:27] Speaker 03:
But I think it would be the evidence that the defendant's communications leading up to January 6 making clear his views that the election was stolen and was fraudulent, rigged, and that he intended to be part of a counterinsurgency to try to stop that election result from being certified in some way.

[00:39:49] Speaker 03:
with the benefit being retaining in office his preferred political candidate.

[00:39:56] Speaker 03:
I read the concurring opinion in Fisher to suggest that would be the type of benefit that would meet this test.

[00:40:04] Speaker 03:
I'm sorry.

[00:40:05] Speaker 01:
I realize that.

[00:40:07] Speaker 03:
I think Judge Pillard's concern, though, is quite accurate.

[00:40:11] Speaker 03:
here, which is that, frankly, in the context of congressional obstruction like we have here, and I read this in part of Judge Katz's critique in Fisher, it gets somewhat complicated to conceptualize what a benefit might look like.

[00:40:28] Speaker 03:
And one could conceivably just describe as a benefit whatever it is one wants to accomplish.

[00:40:34] Speaker 03:
And I think that's one of the real vices in going down that route here.

[00:40:39] Speaker 03:
Again, and I think Judge Pan correctly identified at least what is our position.

[00:40:44] Speaker 03:
We don't disagree that that is a sufficient way in certain contexts to establish that someone has acted roughly.

[00:40:51] Speaker 03:
I think the tax law, case law is the most clear example of that.

[00:40:56] Speaker 03:
But to my knowledge, there is not a single area of law that, whether we're talking about bribery, obstruction, that has used this unlawful benefit outside of the tax law context.

[00:41:13] Speaker 03:
I should walk that back.

[00:41:14] Speaker 03:
I think there's one Ninth Circuit case in a bribery case that talks about benefit.

[00:41:19] Speaker 03:
But by and large, when we're in the judicial context,

[00:41:23] Speaker 00:
uh many cases actually just say the intent to obstruct is enough to get you to corruptly but mr pierce just stepping back and thinking in it in the sort of common sense way when you hear the term corruptly how how can how does that really apply here it does seem like the core of corruptly is some kind of um

[00:41:48] Speaker 00:
Often secrecy, dishonesty, quid pro quo, behind the scenes, there's a sort of distortion, which the law, in the sort of archaic terms, somewhat unhelpfully refers to as depraved or evil.

[00:42:05] Speaker 00:
This open, angry,

[00:42:11] Speaker 00:
mob attacking the capital.

[00:42:13] Speaker 00:
Corruption is not, if you're just talking to people in ordinary problems, it doesn't really seem to fit.

[00:42:21] Speaker 00:
Can you respond sort of at that level of common sense understanding and why using felonious means is a corruption?

[00:42:32] Speaker 03:
So I do want to resist one of the, I think, sort of the sides you had in setting up that question, which is that the law unhelpfully refers to things like the base, evil, perverted.

[00:42:45] Speaker 03:
I think the core of what corruptly and corruption is, and it's not so much what I think, I mean, certainly the Supreme Court in Anderson says it, this court said it in Poindexter, is this idea of evil or wrongfulness.

[00:42:55] Speaker 03:
And I recognize that, as courts have said, and again, as this court certainly said, in Poindexter, asking a jury just to say, is this wrongful, could conceivably lead to, hey, this is a little bit too open-ended.

[00:43:09] Speaker 03:
And I think that what is in terms of, even when something is open, using independently unlawful means is here an effective proxy for what is wrongful in many respects.

[00:43:22] Speaker 01:
Now, there may be- Do you think you can be openly corrupt?

[00:43:26] Speaker 03:
Yes, I mean, and I think I heard your honor suggest you were aware of a number of politicians who are openly corrupt, but yes, I think it is possible to be openly corrupt, and I think the defendant was, as were many of the others involved in the violence on January 6th.

[00:43:43] Speaker 00:
Is it, I mean, one of the things I've been wondering about is the, you know, a non quid pro quo, non dishonest form of corruption is nonetheless sort of a twisting or a distortion of the way things are supposed to work.

[00:44:02] Speaker 00:
And in terms of thinking again, and kind of how do ordinary people use the term corrupt, the corruption here could be, you know, trying to

[00:44:14] Speaker 00:
to distort, contort the certification process.

[00:44:23] Speaker 00:
Is that captured by your definition?

[00:44:25] Speaker 00:
Does that resonate with you?

[00:44:27] Speaker 03:
I think that's correct.

[00:44:29] Speaker 03:
I believe we said in our brief, a Ninth Circuit case from 1949, Katrina, that talks about obstruction as sort of guarding against the imagination of the criminal mind

[00:44:42] Speaker 03:
to obstruct in all sorts of different ways and when congress enacted 1512 back in 1982 the legislative history as sort of similar language the idea being yes there is a distortion a contortion of uh you know statutorily it has to be an official proceeding here and in our view certainly that was the January 6th

[00:45:02] Speaker 03:
certification proceeding, but I think the point is that what Karakli does, you know, against the backdrop of what I just mentioned, is recognize the many ways in which people can go about doing that.

[00:45:14] Speaker 03:
They can go about doing it in the sort of the stealthy or sneaky ways that I think I heard my friend on the other side mention it.

[00:45:20] Speaker 03:
I think you ascribed sort of the common idea that this is some sort of backroom unlawful dealing

[00:45:25] Speaker 03:
But going and barging into Congress, just like somebody came barging in here to stop this proceeding, that contorts or distorts, obstructs, impedes the official proceeding, and thus would qualify it as corrupt.

[00:45:43] Speaker 01:
Can I ask you about, we're here reviewing a denial of a motion for judgment of acquittal.

[00:45:51] Speaker 01:
Do you agree that our two alternatives are either to affirm

[00:45:55] Speaker 01:
or vacate the conviction?

[00:45:58] Speaker 03:
I think there is some potential leeway to send it back to say the government's, the definition that the defendant sought below was so distinct from what they're asking for now that a retrial is potentially available.

[00:46:16] Speaker 03:
But generally, I do think the polls are the two that you described.

[00:46:24] Speaker 00:
And the interplay between, there's no forfeiture when we're doing a sufficiency analysis.

[00:46:31] Speaker 00:
There's no forfeiture of the particular theory.

[00:46:33] Speaker 00:
We're just trying to correctly interpret the statute and then assess the sufficiency of the evidence against that.

[00:46:42] Speaker 03:
That interpretation that is my understanding of the case, which this court then I think adopted in Hilly.

[00:46:50] Speaker 03:
Judge Anderson wrote separately there, perhaps identifying a different reading of it.

[00:46:55] Speaker 03:
But yes, our view is not withstanding what is at a at a minimum forfeiture arguably waiver.

[00:47:01] Speaker 03:
by suggesting essentially the jury instruction that was applied and then arguing for something else unappealed.

[00:47:07] Speaker 03:
I think sufficiency requires the court to interpret the statute what the statute requires and measure the evidence against that.

[00:47:14] Speaker 00:
And can you just briefly state what you think is the narrowest holding that would sustain this judgment?

[00:47:25] Speaker 03:
I think I started to set that up earlier, but I think if the court were to say independently felonious means used to obstruct an official proceeding is sufficient, and here the defendant used, I mentioned already, at least the three felonies in service of his obstruction, that I think would be the narrowest.

[00:47:51] Speaker 00:
We think- And the state of mind there is,

[00:47:55] Speaker 00:
knowingly engaging in is in independently felonious means or does it not matter as long as they're intending to do what they're doing and those are

[00:48:05] Speaker 00:
defined by the law as felonies?

[00:48:08] Speaker 03:
The latter.

[00:48:09] Speaker 03:
So I think the state of mind, this is sort of where I started in terms of the three components of mens rea.

[00:48:15] Speaker 03:
Certainly a defendant has to have the specific intent to obstruct the proceeding.

[00:48:20] Speaker 03:
In the course of that, if that person commits independently criminal conduct here,

[00:48:27] Speaker 03:
felonies.

[00:48:28] Speaker 03:
Obviously, we have to prove whatever the state of mind is for those particular felonies, but I don't think that corruptly adds some additional mens rea term to that independent binding of lawfulness.

[00:48:41] Speaker 03:
I will say, though that is the narrowest opening,

[00:48:44] Speaker 03:
That nonetheless, you know, this court will see cases that don't involve in the January six context that don't involve independently felonious and I don't think there's anything in the word roughly that would limit the word to that extent.

[00:49:01] Speaker 03:
I recognize, as Judge Katz said in dissent, that there are potentially some category of cases, a protester in the gallery, that kind of thing, that could raise some questions.

[00:49:13] Speaker 03:
But there are ways to deal with those that, you know, I think still preserve the core of what

[00:49:20] Speaker 03:
roughly is.

[00:49:21] Speaker 03:
I mean, the court, as an example, could read in something like a public welfare offense in the Morissette case that says basically, look, things that don't damage property or cause injury to persons and what Justice Jackson said don't involve sort of aggressive invasions.

[00:49:39] Speaker 03:
Things that aren't wrongful, right, to get back to the core of what Corruptly does, those are the kinds of things that might not be enough.

[00:49:46] Speaker 03:
Handedly, I don't think the court's going to see anything on January 6 that would fall into the public welfare category.

[00:49:52] Speaker 03:
And Judge Miller, to your point, I don't think the court has to actually reach that and address that here.

[00:49:57] Speaker 03:
But I just want to sort of sketch out the government's position that although the narrowest holding would be independently felonious means, we don't think that that is all of what Corruptly

[00:50:08] Speaker 00:
Is 1752, is that a felony or misdemeanor, or could it be either?

[00:50:12] Speaker 03:
It could be either.

[00:50:13] Speaker 03:
So 1752A, one through five sets out what are misdemeanors.

[00:50:18] Speaker 03:
Subsection B makes it into a felony if it involves the use or possession of a dangerous weapon.

[00:50:25] Speaker 03:
The defendant here possessed the large stick that the jury concluded was a dangerous weapon.

[00:50:30] Speaker 03:
that transformed 1752 in this context the two charges the trespass and the disorderly disruptive conduct into a felony effect.

[00:50:41] Speaker 01:
All right is there more questions?

[00:50:42] Speaker 01:
Thank you.

[00:50:43] Speaker 01:
Do you want to hear anything on sentencing?

[00:50:45] Speaker 03:
My time is up so I'm happy to sit down but I'd like to hear I'd like to hear on sentencing.

[00:50:50] Speaker 00:
your position on that.

[00:50:52] Speaker 03:
OK.

[00:50:52] Speaker 03:
So at the first cut, the defendant forfeited this argument below, and thus this court's review is for plain error.

[00:51:03] Speaker 03:
The fact that there is at least one judge, Judge McFadden, who is

[00:51:07] Speaker 03:
uh uh reach the conclusion that he has is uh counterposed by the district court's ruling below as well as some others we said in our brief i think i added one supplemental authority that we think reaches the right conclusion and so just as a matter of forfeiture and plain error review we don't think there's a clear clear error uh that would warrant uh relief why do you think we need to get to plain error we're on the review of a judgment

[00:51:33] Speaker 01:
of acquittal, and we're looking at the sufficiency of the evidence under a properly charged jury.

[00:51:41] Speaker 00:
I'm responding to the sentencing.

[00:51:43] Speaker 00:
Sentencing enhancements, you're talking about the sentencing.

[00:51:45] Speaker 03:
So I moved on to the sentencing enhancements, yeah, not plain error with respect to the sufficiency.

[00:51:51] Speaker 03:
I didn't hear that.

[00:51:53] Speaker 00:
And what about that sentencing?

[00:51:57] Speaker 00:
that Mr. Cohn pointed to in the defendant's appendix.

[00:52:08] Speaker 00:
For a fine, the enhancement applied, the offense did result in substantial interference.

[00:52:12] Speaker 00:
So there's clearly, it was raised and made an issue in that.

[00:52:17] Speaker 03:
But what was raised was the factual challenge.

[00:52:21] Speaker 03:
So the two enhancements, the eight level enhancement is for threatening or causing property damage or injury to a person.

[00:52:29] Speaker 03:
And the second one is for substantial interference.

[00:52:31] Speaker 03:
And the argument on the first was, I didn't engage in threatening behavior that warrants this enhancement.

[00:52:37] Speaker 03:
And the second is, my conduct didn't contribute to a substantial interference.

[00:52:43] Speaker 03:
It was not the argument that,

[00:52:45] Speaker 03:
Even if you were to reach that actual matter, it doesn't matter because what was obstructed was not the administration of justice.

[00:52:52] Speaker 03:
It was, in fact, a congressional proceeding, whereas instead administration of justice has this narrower conception of a judicial proceeding.

[00:53:02] Speaker 03:
The way Planera works is to ensure that

[00:53:05] Speaker 03:
You know, arguments have a full area below.

[00:53:07] Speaker 03:
The district court has a chance to resolve it.

[00:53:09] Speaker 03:
That didn't happen here.

[00:53:10] Speaker 03:
So that in our view is why that was not actively preserved.

[00:53:13] Speaker 03:
Just to object is not enough.

[00:53:15] Speaker 03:
It's to lay out the theory, let the district court consider that theory and land wherever the court would land.

[00:53:24] Speaker 01:
All right.

[00:53:25] Speaker 03:
Thank you.

[00:53:26] Speaker 01:
Thank you very much.

[00:53:27] Speaker 01:
Mr. Cohen, why don't you take two minutes?

[00:53:33] Speaker 04:
I, just on the plane error point, first judge the only case the government cites for plane error is a case where the defense counsel did not object at all.

[00:53:47] Speaker 04:
We clearly don't have that here.

[00:53:49] Speaker 04:
I don't agree with my esteemed adversary's reading of the sentencing transcript.

[00:53:58] Speaker 04:
Judge Pillard, you asked me for the page number of the lead opinion in Fisher that collected cases, it's pages 337 and 338.

[00:54:09] Speaker 00:
Got it, thanks, sorry.

[00:54:11] Speaker 04:
Of the opinion.

[00:54:12] Speaker 04:
And in those lists of cases, which again I see as extremely useful, the acts are lying in written responses to civil interrogatory questions.

[00:54:29] Speaker 04:
seeking a false alibi witness, attempting to orchestrate a grand jury witness' testimony.

[00:54:37] Speaker 00:
Just going back to the plain error question, you said the only case the government cites is one in which there was no objection at all.

[00:54:43] Speaker 00:
Do you have any cases in which there was an objection, but on different legal grounds, that we held preserved an objection to an enhancement on a different theory?

[00:54:58] Speaker 04:
Offhand, I do not remember.

[00:54:59] Speaker 04:
But I'm happy to look at such a case, and if the court would like to submit it as such.

[00:55:04] Speaker 00:
If you have such a case, it would help us to focus on the nature of what's required to preserve.

[00:55:13] Speaker 04:
Understood, Judge.

[00:55:16] Speaker 04:
I would only reiterate, if this is truly an issue, the statement of Judge Cooper in sentencing

[00:55:24] Speaker 04:
I think the argument, Mr. Rollins, defense counsel, is that the thing that was interfered with was the certification of the vote.

[00:55:33] Speaker 04:
And there was both a delay in the certification of the riot and substantial costs were incurred to respond to the damage caused by the riot.

[00:55:42] Speaker 04:
It's the reason, as you well know, is the whole plain error is to make sure that the trial judge had enough fair opportunity to address whether or not what the issue.

[00:55:55] Speaker 04:
And the trial judge understood, he's saying incorrectly, that the delay in certification of vote is

[00:56:05] Speaker 04:
is an injury, is obstructing the administration of justice.

[00:56:09] Speaker 00:
He's simply wrong.

[00:56:10] Speaker 00:
Well, doesn't that prove the opposite?

[00:56:12] Speaker 00:
Because he's saying, obviously, there's an obstruction with the administration of justice.

[00:56:17] Speaker 00:
Here, it's a certification.

[00:56:18] Speaker 00:
And nobody's saying, oh, Judge, no, that's not covered.

[00:56:21] Speaker 04:
But he's ruling at this point.

[00:56:23] Speaker 04:
Right.

[00:56:23] Speaker 04:
But he's ruling in response to the trial counsel's argument

[00:56:29] Speaker 04:
that this enhancement applies when there's, I'm quoting from trial counsel, a premature or improper termination of a felony investigation.

[00:56:41] Speaker 04:
And when someone has caused that investigation to spend more money, such as lying to officers or lying to the FBI where they're committing perjury, defense counsel is correctly saying, judge, that's obstructing the administration of justice.

[00:57:00] Speaker 04:
And that's not what my client was up to.

[00:57:02] Speaker 04:
That's what he's doing right there.

[00:57:05] Speaker 04:
And the government has to spend more money to kind of go around those lies.

[00:57:10] Speaker 04:
The defense counsel was exactly right.

[00:57:12] Speaker 04:
And he says, and he asked, hopefully for present purposes, and I think that's exactly what the enhancement applies to.

[00:57:20] Speaker 04:
And the judge on the same page rejects the, it says, counsel, Mr. Rollins, the argument is that the thing that was interfered with was the certification of the vote.

[00:57:34] Speaker 04:
The court is clearly rejecting this correct focus on whether or not an investigation was shot.

[00:57:44] Speaker 01:
All right, if there are no more questions.

[00:57:47] Speaker 01:
Mr. Cohn, you were appointed by this court to represent your client, and we thank you for your very able assistance.

[00:57:54] Speaker 01:
Thank you, John.