[00:00:00] Speaker 03: Case number 23-3208, et al. [00:00:04] Speaker 03: United States of America versus Casey Cusick Appellants. [00:00:07] Speaker 03: Mr. Roots for the Appellant, Mr. Dietrich Hill for the Appellee. [00:00:11] Speaker 02: Good morning. [00:00:28] Speaker 01: Thank you so much, Your Honors. [00:00:30] Speaker 01: May it please this Honorable Court. [00:00:31] Speaker 01: My name is Roger Roots and I represent the appellants in this case, Mr. James Cusick and Casey Cusick. [00:00:40] Speaker 01: The Cusicks, I should say they are father and son. [00:00:42] Speaker 01: James is the father of Casey. [00:00:44] Speaker 01: They are January Sixers. [00:00:46] Speaker 01: They are among the hundreds of defendants who've been prosecuted for essentially going inside the U.S. [00:00:52] Speaker 01: Capitol on January 6, 2021. [00:00:56] Speaker 01: And I note that this Court of Appeals has addressed a couple very, very similar cases. [00:01:04] Speaker 01: In particular, these are cases involving what we call the four standard misdemeanors. [00:01:09] Speaker 01: Hundreds of people have been prosecuted for these four standard misdemeanors. [00:01:13] Speaker 01: Count one is always entering and remaining in a restricted area. [00:01:16] Speaker 01: Count two is disorderly conduct in a restricted area. [00:01:19] Speaker 01: Count three is always [00:01:21] Speaker 01: It involves the statutes relating to the U.S. [00:01:24] Speaker 01: Capitol, so disorderly conduct inside the U.S. [00:01:27] Speaker 01: Capitol. [00:01:28] Speaker 01: And then there's count four, which is picketing and or parading inside the U.S. [00:01:33] Speaker 01: Capitol. [00:01:34] Speaker 01: This Court of Appeals has previously dealt with two very similar cases that I want to point out. [00:01:41] Speaker 01: First, the Nassif case. [00:01:44] Speaker 01: The Nassif case was essentially a First Amendment challenge to count for, and that's that picketing and parading statute. [00:01:53] Speaker 01: the Court of Appeals upheld Nassif's conviction. [00:01:59] Speaker 01: Then there was the Alford case, also involved the four standard misdemeanors. [00:02:04] Speaker 01: Alford challenged variations of what has become known as the raindrop theory, the idea that disorderly conduct can be simply being inside the Capitol without doing much more. [00:02:19] Speaker 01: In this case, the Cusick case, I submit, involves the most innocent [00:02:25] Speaker 01: people yet. [00:02:27] Speaker 01: In other words, the Q6, unlike Alfred and unlike Nassif, did even less than either Nassif or Alfred. [00:02:35] Speaker 01: Alfred didn't do much, but he did trigger, he triggered an alarm, he did try to push open a door, things like that. [00:02:45] Speaker 01: Nassif, of course, did chant and he made noise and shouted and things. [00:02:49] Speaker 00: Can I confirm with you, your argument is a challenge to the sufficiency of the indictment, not a challenge to the sufficiency of the evidence. [00:02:59] Speaker 00: Is that right? [00:03:02] Speaker 01: I believe we're challenging both. [00:03:04] Speaker 00: Well, your brief seems to challenge the indictment. [00:03:07] Speaker 00: It keeps referring to Judge Bates' opinion that denied the pretrial motion. [00:03:19] Speaker 00: that said that there was insufficient probable cause to support the indictment. [00:03:24] Speaker 01: Yes, yes. [00:03:25] Speaker 00: And so if you're challenging the sufficiency of the indictment, these arguments that you're making now are not really relevant. [00:03:33] Speaker 01: Well, we're making a number of challenges, obviously. [00:03:35] Speaker 02: Where is your sufficiency of the evidence argument in your opening brief? [00:03:40] Speaker 01: It's in there. [00:03:41] Speaker 01: We don't emphasize. [00:03:43] Speaker 02: I'm not emphasis. [00:03:44] Speaker 02: Just tell me where it is. [00:03:46] Speaker 02: You don't have to emphasize it. [00:03:50] Speaker 01: Well, I do know that we bring that up. [00:03:53] Speaker 01: Let me just see here. [00:04:05] Speaker 01: Let me just see if I can. [00:04:14] Speaker 01: I guess at heart, I could sum up that we're making a couple of different challenges to several issues. [00:04:23] Speaker 02: You have the First Amendment claims. [00:04:24] Speaker 02: You clearly have the First Amendment claims. [00:04:27] Speaker 02: Yes. [00:04:27] Speaker 02: You got that. [00:04:28] Speaker 02: The other one, I had read your brief the same way as Judge Pan, and that was that you were challenging the information in this case, and the district, in particular, district court's refusal to dismiss based on your argument that the information was insufficient. [00:04:44] Speaker 02: to state criminal count against your clients. [00:04:49] Speaker 02: Is that understanding correct? [00:04:51] Speaker 01: Yes, we do make that challenge in this way. [00:04:57] Speaker 01: The Q6 were accused of committing these four crimes essentially by being there. [00:05:05] Speaker 01: And that goes to the heart of all that we know about criminal prosecutions. [00:05:11] Speaker 01: The most fundamental jury instruction in every jury trial is an instruction that says that an individual must be judged. [00:05:17] Speaker 00: But a challenge to the sufficiency of the information. [00:05:20] Speaker 00: Thank you, it's an information, not an indictment. [00:05:22] Speaker 00: It's the charging document. [00:05:24] Speaker 00: And the charging document in this case just laid out what they allegedly did on those days by mostly using the statutory language. [00:05:33] Speaker 00: and there's precedent saying that that's a sufficient information, that's a sufficient charging document. [00:05:39] Speaker 00: So if you're challenging the charging document, it's a different analysis from what you're making at the podium. [00:05:45] Speaker 00: We're just looking at what does the information say, and is it sufficient to put the defendant on notice of what the charges are? [00:05:53] Speaker 00: And the information in this case is very consistent with others that we have upheld in the past. [00:05:59] Speaker 01: Sure, I'll just say that [00:06:02] Speaker 01: In this case, there's an overarching First Amendment aspect to this. [00:06:06] Speaker 01: This was at the U.S. [00:06:07] Speaker 01: Capitol where the U.S. [00:06:08] Speaker 01: Congress is meeting. [00:06:09] Speaker 00: No, I understand. [00:06:09] Speaker 00: Your First Amendment claim we can discuss, and I think we can, but just focusing first on your theory about the raindrop theory, that seems to me to be a challenge to the sufficiency of the evidence at the trial. [00:06:23] Speaker 00: It's not a challenge to the sufficiency of the information, which is what you're making. [00:06:28] Speaker 01: Sure, yeah. [00:06:29] Speaker 01: I would say the information, though, was worded in such a way that it would apply to completely innocent behavior, which cannot be a crime. [00:06:39] Speaker 01: That was the basis of that challenge. [00:06:42] Speaker 00: The information just charges the defendants with knowingly and with intent to impede and disrupt the orderly conduct of the government business, et cetera, for engaging in disorderly and disruptive conduct. [00:06:54] Speaker 00: It alleges what the government [00:06:57] Speaker 00: thinks they did and that is not innocent conduct is it. [00:07:04] Speaker 01: No it's not but let me just say that in the context of the entire information has to be read with this notion that [00:07:11] Speaker 01: essentially they were committing these crimes by being there. [00:07:15] Speaker 02: Well, by being somewhere that they were not lawfully allowed to be. [00:07:18] Speaker 02: I think that's, we have to, we have to start with that. [00:07:20] Speaker 02: We can't just say they were just there. [00:07:22] Speaker 02: They were there where they were not lawfully authorized to be. [00:07:29] Speaker 02: So that's not, that's not perfectly innocent conduct. [00:07:32] Speaker 01: Sure. [00:07:32] Speaker 01: Let's put it this way. [00:07:33] Speaker 02: We agree that they were not lawfully authorized to be there. [00:07:35] Speaker 02: Do we not? [00:07:37] Speaker 01: I believe they, certainly the evidence did not substantiate that. [00:07:42] Speaker 01: This goes to the civilians. [00:07:44] Speaker 01: The evidence didn't substantiate what? [00:07:46] Speaker 01: It did not substantiate that they were notified properly that they weren't supposed to be there. [00:07:51] Speaker 04: Oh, really? [00:07:55] Speaker 04: When they see people pushing past lines of officers, when they see pepper spray and [00:08:05] Speaker 04: Fencing and everything else pushed down. [00:08:08] Speaker 04: There wasn't sufficient evidence for a rational jury taking everything in the light most favorable to the government to reasonably find that there was evidence that they weren't supposed to be there. [00:08:24] Speaker 04: That's your argument? [00:08:26] Speaker 01: The evidence was very clear. [00:08:27] Speaker 01: Jim and Casey Cusick walked through an open door. [00:08:30] Speaker 01: They essentially were following the crowd. [00:08:33] Speaker 01: They had interest in what the crowd was doing. [00:08:36] Speaker 00: They went past two area closed signs and by officers in riot gear and toppled barricades. [00:08:43] Speaker 02: That was the evidence. [00:08:45] Speaker 02: Was that not alert a reasonable person that perhaps they're not supposed to be there? [00:08:49] Speaker 01: I, there's a lot of video in this and it did not show that they walked past or through, they did not pass a barrier that was directly in front of them. [00:08:56] Speaker 02: There was evidence that they, they wouldn't pass barriers, they wouldn't pass toppled barricades, that broken glass, alarms going off, and officers fighting against protesters. [00:09:08] Speaker 02: And that, so I'm, we're having, I guess I'm struggling, I want to speak for my colleagues, we're struggling with how that [00:09:15] Speaker 02: was not evidence that they were in a place they were not supposed to be. [00:09:21] Speaker 01: I have to confess, the memory of the trial is over a year ago, but I don't believe there was evidence that these particular appellants saw fighting with officers. [00:09:33] Speaker 04: There's evidence that one of your clients made a remark, we need to hurry up because I don't want to get hit in the head by a belly club. [00:09:43] Speaker 01: Remember that evidence? [00:09:46] Speaker 01: I don't really remember that. [00:09:47] Speaker 01: I do recall some statements sort of, hey, there's some pepper spray. [00:09:51] Speaker 01: I believe Casey Cusick . [00:09:53] Speaker 01: . [00:09:53] Speaker 01: . [00:09:53] Speaker 02: Another good sign that they're in a place they're not supposed to be then. [00:09:56] Speaker 01: Well, it's certainly evidence of something. [00:10:00] Speaker 01: Let's put it this way. [00:10:02] Speaker 01: It can be . [00:10:02] Speaker 01: . [00:10:02] Speaker 01: . [00:10:02] Speaker 02: Well, no, no, no. [00:10:03] Speaker 02: It's not evidence of something. [00:10:04] Speaker 02: It's whether a reasonable jury could conclude that that's evidence that they knew they were someplace they weren't supposed to be. [00:10:10] Speaker 01: Well, is that the case? [00:10:12] Speaker 01: If I see pepper spray over here, does that mean that I know I'm not supposed to be here? [00:10:16] Speaker 02: Pepper spray is going off. [00:10:17] Speaker 02: If you're afraid of getting hit in the head at the belly club, if you hear alarms going off. [00:10:22] Speaker 02: I mean, we can't suspend reality here. [00:10:28] Speaker 02: We don't sort of just look at these two and ignore all the evidence around them. [00:10:34] Speaker 02: We don't expect a jury to do that. [00:10:36] Speaker 02: A jury might be able to do that. [00:10:39] Speaker 02: But the jury didn't do that in this case. [00:10:43] Speaker 02: And so even assuming you have raised a sufficiency of evidence challenge, what's your best case that that is not sufficient? [00:10:51] Speaker 01: I submit that these two appellants are thus far the most innocent that have come before this court of appeals. [00:10:56] Speaker 02: Well, they may be less obviously guilty may be the better phrase. [00:11:01] Speaker 02: But that doesn't mean that they aren't guilty of being somewhere they weren't supposed to be. [00:11:06] Speaker 02: If you're not innocent, if you're somewhere you're not, if you were to come up here right now and stand up here at the dais right over me, looming over me, you could be perfectly innocent. [00:11:17] Speaker 02: You wouldn't break anything, not steal anything. [00:11:20] Speaker 02: You wouldn't even raise your voice, but you would be where you're not supposed to be, correct? [00:11:26] Speaker 01: Sure. [00:11:26] Speaker 02: You would be where you're not supposed to be. [00:11:28] Speaker 02: And you know that you're not supposed to be there. [00:11:32] Speaker 02: And that would be disruptive to my work, would it not? [00:11:35] Speaker 01: Of course, let me just say, in a setting where a hundred other people have already done this in front of me, it becomes less clear whether or not it's a restricted area proper. [00:11:49] Speaker 04: Sir, there was evidence that they were there for a long period of time before they went in, right? [00:12:01] Speaker 04: Yes. [00:12:01] Speaker 04: At the Capitol? [00:12:02] Speaker 04: Yes, on the Capitol grounds area. [00:12:05] Speaker 04: So they saw that how the people got in was that they overpowered the police. [00:12:12] Speaker 04: And then they got in and then they went in. [00:12:15] Speaker 04: So to just act like they walked in, you know, because everybody else was walking in and they didn't know that they weren't supposed to be there, et cetera, et cetera. [00:12:24] Speaker 04: They went in after they saw a mob push past the police and go in. [00:12:29] Speaker 04: And then they're like, OK, we're going to go into. [00:12:32] Speaker 04: That's what a reasonable jury could find based on the evidence. [00:12:36] Speaker 04: And that's not consistent with innocent conduct or not violating this statute. [00:12:43] Speaker 04: It's consistent with violating the statute. [00:12:47] Speaker 04: Tell me why it isn't, if that's the evidence that the jury could have found. [00:12:53] Speaker 01: I believe the evidence in this case was that the Q6 were way down lower at the time, you know, the doors up above were breached. [00:13:02] Speaker 01: It was hundreds of yards away. [00:13:04] Speaker 01: So they did not really see how that happened. [00:13:07] Speaker 01: They did ultimately walk through an open door. [00:13:08] Speaker 01: They were inside the Capitol building for about ten minutes. [00:13:12] Speaker 04: So it would have been unreasonable for the jury to find that they knew that there was fighting going on and pushing past the police based on what the jury was told here. [00:13:23] Speaker 01: I don't believe there's any evidence that they saw any fighting. [00:13:27] Speaker 01: I don't believe that came into the trial in this case. [00:13:32] Speaker 01: I'd have to rack my brain a little bit, but I just don't recall. [00:13:34] Speaker 02: Is there evidence that there were alarms going off? [00:13:36] Speaker 01: Sure, there were alarms going off. [00:13:38] Speaker 01: That they heard? [00:13:40] Speaker 01: I believe so. [00:13:40] Speaker 02: Yes. [00:13:42] Speaker 02: Was there evidence of broken glass? [00:13:45] Speaker 02: Yes. [00:13:46] Speaker 02: Evidence of broken doors? [00:13:49] Speaker 01: I think perhaps. [00:13:51] Speaker 01: But I believe Jim Cusick took the witness stand and testified that his understanding was, you know, it was a chaotic moment in time and that there was a lot of things going on and that the officers that they did see were not saying get out, go away. [00:14:08] Speaker 01: In fact, there was some testimony that officers were fist bumping members of the crowd, etc. [00:14:14] Speaker 01: It was a chaotic situation. [00:14:16] Speaker 04: What's the standard of our review on sufficiency of the evidence? [00:14:20] Speaker 04: How are we supposed to look at the evidence? [00:14:24] Speaker 01: Well, obviously you would look at the case in the light of the government, in the light most favorable to the governments. [00:14:32] Speaker 04: The jury didn't have to credit a word of your client's testimony, right? [00:14:37] Speaker 01: That is correct. [00:14:39] Speaker 01: I see that my time is expired, but I would say that this falls under that Adderley. [00:14:46] Speaker 01: We cite the Tinker case, the Supreme Court case from 1969, and the Adderley case, where a legislative capital is assumed to have more First Amendment protection than other places. [00:15:00] Speaker 01: Of course, Tinker involved a public school. [00:15:03] Speaker 01: Adderley involved the grounds of a jail. [00:15:05] Speaker 01: where these places are not known as public forums for free speech. [00:15:10] Speaker 01: All of that law says that legislative capitals are the fundamental reason for their existence. [00:15:16] Speaker 01: And so it has to be, I think, we have to recognize the give and take of that situation, that the U.S. [00:15:23] Speaker 01: Capitol is a place where people come to confront, to protest, to angrily perhaps at times let their voices be heard. [00:15:34] Speaker 02: Well, I think the distinction is between the capital grounds and inside the capital building when there are legislative proceedings underway. [00:15:43] Speaker 02: I mean, I assume you would agree that the public can't routinely walk in while Congress is trying to vote on measures and yell everything down and prevent business from going. [00:15:56] Speaker 02: I mean, to your client's credit, they didn't, at least on this record, as far as we know, break things or hurt anybody. [00:16:04] Speaker 02: and reflected in the charges and the sentence. [00:16:08] Speaker 02: But it remains that the inside, I think the difference is the inside the capital versus capital grounds. [00:16:14] Speaker 02: I mean, do you have a case that says inside the capital? [00:16:18] Speaker 02: While legislative, maybe any time, but even certainly while legislative business is underway, it's a public forum? [00:16:23] Speaker 02: Inside. [00:16:24] Speaker 01: Yeah, and I think most people intuitively recognize that distinction. [00:16:30] Speaker 02: In the case of January 6th... The charge here is with what they did inside the Capitol, not outside. [00:16:36] Speaker 01: Yes, especially with regard to the counts three and four, yes. [00:16:40] Speaker 01: But I would say in the case of January 6th. [00:16:42] Speaker 02: I'm talking about your First Amendment claim. [00:16:43] Speaker 02: That's what I'm talking about here. [00:16:44] Speaker 01: Yeah. [00:16:45] Speaker 01: Obviously, there are greater First Amendment. [00:16:47] Speaker 01: There's a lot of case law, a lot of First Amendment rights outside, not so much inside. [00:16:52] Speaker 01: But in January 6th, it was a unique situation. [00:16:55] Speaker 01: There was a lot going on. [00:16:56] Speaker 01: There was a lot of chaos where I submit these boundaries were not that clear. [00:17:01] Speaker 01: People were going in and out. [00:17:02] Speaker 02: So people's behavior [00:17:04] Speaker 02: a crowd's behavior can turn a non-public forum into a public forum? [00:17:08] Speaker 02: Is that your First Amendment argument? [00:17:11] Speaker 02: Or if they were confused as to whether it was a public forum, that creates a First Amendment, right? [00:17:15] Speaker 02: I'm just trying to understand then what your point is. [00:17:17] Speaker 02: I would say the confusion certainly, it's like a- In any case, it allows confusion to take something that's not a public forum and make it a public forum? [00:17:24] Speaker 02: Confusion by the speaker? [00:17:27] Speaker 01: I'd have to think about that. [00:17:29] Speaker 02: I can imagine the consequences of a doctrine like that. [00:17:32] Speaker 01: Well, I think this is everyday life. [00:17:34] Speaker 01: Basketball games, NCAA championship games at the end, where the first few people that jump onto the floor, the crowd, they're doing something wrong. [00:17:43] Speaker 01: But the second hundred people, not so much. [00:17:46] Speaker 01: And frankly, it becomes, after a while, it becomes an unrestricted area. [00:17:50] Speaker 02: The referees themselves... Three wrongs make a right. [00:17:52] Speaker 01: The referees themselves surrendered. [00:17:56] Speaker 02: Really, it's less wrong. [00:17:57] Speaker 02: I mean, something's wrong. [00:17:58] Speaker 02: It's wrong. [00:17:59] Speaker 02: Whether 10 people, I thought we lived in a country where if you did something wrong and illegal, the fact that five people did it in front of you, or even 100 people did it before you, doesn't suddenly make it legal. [00:18:11] Speaker 02: Is that your argument? [00:18:12] Speaker 01: It looks a little bit like property rights, easements. [00:18:15] Speaker 01: There can be an easement in time. [00:18:17] Speaker 02: There's no easement on the Capitol, inside the Capitol, full stop. [00:18:24] Speaker 01: Thank you so much. [00:18:26] Speaker 02: No, but your argument wasn't wrong anymore. [00:18:29] Speaker 02: Is that your argument? [00:18:30] Speaker 01: When the referees seed the field, they are essentially making it a non-restricted area. [00:18:35] Speaker 02: It's not the referee's field. [00:18:36] Speaker 02: They don't own it. [00:18:37] Speaker 04: Sir, there's a difference between seating and saying, oh, it's okay for you to be here and moving aside because you've been overpowered and the only way to stop would be to use deadly force or to escalate matters beyond what might be deemed sufficient or appropriate in the circumstance. [00:19:08] Speaker 04: We're ceding some time to you beyond the 10 minutes you were given. [00:19:16] Speaker 04: It doesn't mean that you have a right to speak more than 10 minutes, but we're giving you more than 10 minutes. [00:19:25] Speaker 01: That's a very good example. [00:19:28] Speaker 01: I would submit that January 6th was such a unique event that there was this sort of [00:19:34] Speaker 01: almost a popular sovereignty moment where the crowd was so large that the authorities, such as they were, did, sort of, for those moments, unrestricted. [00:19:48] Speaker 01: I thank you so much. [00:19:49] Speaker 02: Any questions? [00:19:50] Speaker 02: Thank you very much. [00:19:51] Speaker 02: We'll give you a couple of minutes for rebuttal. [00:20:06] Speaker 03: May it please the court, Dietrich Hill, on behalf of the United States? [00:20:10] Speaker 03: The defendants did forfeit their sufficiency argument. [00:20:14] Speaker 03: But if the court reaches it, this case is not distinguishable from Alford. [00:20:19] Speaker 03: There was more than sufficient evidence for a rational jury to conclude that the defendant's conduct was disorderly and disruptive when they entered the Capitol grounds and joined this disruptive mob, magnifying its disruptiveness and increasing chaos within the Capitol, which is what this court held in Alford. [00:20:40] Speaker 03: is more than sufficient for a jury to conclude constitutes disorderly and disruptive conduct. [00:20:47] Speaker 02: What conduct did they engage in beyond entering and remaining? [00:20:51] Speaker 02: You have a separate count already for entering and remaining. [00:20:54] Speaker 02: And then if we're going to say, was there any factual, what is the factual addition in their behavior that makes it disruptive? [00:21:06] Speaker 03: To be honest, Your Honor, I don't think there is much more, but in this context, entering and remaining as part of this mob, increasing the numbers of the mob, making it more difficult for Congress to continue its work. [00:21:19] Speaker 02: Congress, which had already- But even if they were the only two people who entered and remained and had to be removed if their Congress could resume, so if there were no mob, it was just the two of them, would you agree that you could also charge disruptive conduct? [00:21:37] Speaker 03: Your Honor, I think it would be a jury question. [00:21:39] Speaker 02: I'm asking as a matter of law, do you have another element that makes it disruptive conduct? [00:21:45] Speaker 02: Because I assume you would have the same argument, they have to be removed before Congress could resume its work. [00:21:52] Speaker 03: I don't think as a matter of law, we would need more. [00:21:56] Speaker 03: It's possible that that would also constitute disruptive or disorderly conduct. [00:22:00] Speaker 03: But again, I think the evidence would be much weaker, but it would still be a jury question as to whether that constituted disruptive or disorderly conduct under all the circumstances. [00:22:10] Speaker 03: Of course, that's not the case we have. [00:22:12] Speaker 03: as Alfred held, the jury is entitled to look at all of the circumstances which here made this entering and remaining fundamentally. [00:22:21] Speaker 02: It just seems like at some level this may be sort of double counting on the enter and remain when you don't have any other conduct. [00:22:30] Speaker 02: I don't think you even had evidence that they yelled at anybody. [00:22:32] Speaker 03: No. [00:22:34] Speaker 03: There was some yelling certainly on the grounds that's recorded on their videos. [00:22:38] Speaker 02: That's not relevant to this charge. [00:22:42] Speaker 03: or at least not to the 5104. [00:22:44] Speaker 03: It could be relevant to the 1752, which is in the restricted area. [00:22:49] Speaker 03: But no, frankly, as the Defendants' Council suggested, these defendants are relatively low on the scale of disruptive conduct, but so was Alford. [00:23:00] Speaker 03: And what this court held is it may be the same conduct, but context matters. [00:23:07] Speaker 03: You don't need different conduct if it violates both statutes. [00:23:15] Speaker 03: With respect to the First Amendment claim, this court held in Nassif that the interior of the Capitol is a non-public forum, and the government therefore has substantial latitude to regulate. [00:23:30] Speaker 03: In Nassif, this court upheld a regulation that prohibited all demonstrating, picketing, and parading, acknowledging that that was somewhat over-inclusive, that that would prohibit some conduct that was not inherently disruptive to Congress. [00:23:44] Speaker 03: But the court said, in a non-public forum like the Capitol, you don't need the most narrowly tailored regulation. [00:23:51] Speaker 03: That's acceptable. [00:23:52] Speaker 03: This regulation is more narrowly tailored than that. [00:23:55] Speaker 03: So almost a fortiori, it is a reasonable regulation. [00:23:59] Speaker 03: It prohibits only actually disruptive and actually disorderly conduct. [00:24:09] Speaker 03: With respect to their reply, I would just say that their intent argument is doubly forfeited. [00:24:13] Speaker 03: There's no sufficiency argument properly presented in the opening brief and nothing about intent. [00:24:19] Speaker 03: So there's certainly no reason for this court to reach that, which is presented only in the reply. [00:24:25] Speaker 03: And with respect to Adderley, that's a case in which the Supreme Court rejected the First Amendment claim and upheld the conviction of the protesters. [00:24:33] Speaker 03: And as Your Honor suggested, [00:24:36] Speaker 03: The Supreme Court suggested that perhaps state legislative grounds would be a public forum under which different rules might apply. [00:24:43] Speaker 03: Everybody agrees that the U.S. [00:24:44] Speaker 03: Capitol grounds are also a public forum, but that's not what we have here on this as-applied First Amendment challenge to conduct within the Capitol. [00:24:53] Speaker 02: It's clear that none of the charges pertain to what they did outside the Capitol building, outside the building. [00:25:01] Speaker 03: Well, certainly with respect to the First Amendment challenge, we look at, as applied to their conduct, all of their conduct, including their conduct within the building. [00:25:10] Speaker 03: I hesitate only because I think the jury could have concluded, even based on their conduct outside the building, that they had violated the statute, but they certainly didn't need to look at that because of their conduct within the building. [00:25:23] Speaker 02: Why would the jury under the First Amendment be allowed to consider what they said outside the building? [00:25:31] Speaker 03: There would be a different analysis as to whether the First Amendment protected the conduct outside the building, which is in a public forum. [00:25:38] Speaker 03: The government would have to meet a higher degree of scrutiny. [00:25:40] Speaker 03: But that's, again, I would say this is an as-applied challenge to their conduct within the building. [00:25:46] Speaker 04: Did the jury instructions permit the jury to consider acts that occurred outside of the Capitol building to be part of the actus reus, the body of the crime? [00:26:01] Speaker 03: I don't recall, Your Honor. [00:26:04] Speaker 03: I believe it did, but I can't say for sure. [00:26:08] Speaker 04: You mean if it did, wouldn't that be a problem? [00:26:12] Speaker 03: Not for the 1752 charges, which apply to the entire restricted area. [00:26:20] Speaker 02: What is it relevant to? [00:26:22] Speaker 03: Excuse me? [00:26:22] Speaker 02: I'm confused as to what their conduct outside the Capitol building [00:26:28] Speaker 02: what charge you think that was relevant to, because I had understood all these charges to pertain to their entry and presence inside the Capitol building. [00:26:37] Speaker 02: Am I wrong about that? [00:26:39] Speaker 03: The 1752 charges could also be supported anywhere within the restricted area, which included the immediate perimeter of the Capitol grounds. [00:26:48] Speaker 02: OK. [00:26:48] Speaker 02: All right. [00:26:49] Speaker 02: I'm sorry. [00:26:49] Speaker 02: You're not talking about marching up to the Capitol or anything like that, or before they came to the restricted area? [00:26:55] Speaker 03: Right. [00:26:55] Speaker 03: No. [00:26:56] Speaker 03: That's right. [00:26:58] Speaker 03: If there are no further questions, we would ask the government to affirm. [00:27:05] Speaker 02: Thank you. [00:27:06] Speaker 02: Mr. Ritz, we'll give you two minutes. [00:27:12] Speaker 01: Thank you, Your Honor. [00:27:14] Speaker 01: You know, we pointed out in our brief, the Tinker decision, which the government argues is not relevant. [00:27:22] Speaker 01: It directly involves a claim of disorderly conduct in a place that all people admit is not a traditional public forum for free speech. [00:27:30] Speaker 02: But a place where those students were not only lawfully allowed, but probably lawfully required to be. [00:27:37] Speaker 01: Exactly. [00:27:37] Speaker 02: Right. [00:27:38] Speaker 02: And that's the difference here. [00:27:40] Speaker 02: Your speech was in a place that it was unlawful for them to be and a jury could and did find that they were aware that they were not. [00:27:51] Speaker 02: They were not lawfully allowed to be there. [00:27:53] Speaker 02: So that that I don't know what to do. [00:27:55] Speaker 02: I don't see how Tinker. [00:27:57] Speaker 01: Well Tinker involved conduct similar to the conduct in this case which is standing in a place no standing in a place you're not allowed to be. [00:28:06] Speaker 02: is very different from standing or wearing an arm badge in a place you are allowed to be. [00:28:12] Speaker 02: I mean, the point here is that it was their presence that was unlawful. [00:28:18] Speaker 02: No one argued about that in Tinker. [00:28:21] Speaker 01: Yes, you're correct. [00:28:23] Speaker 01: I will say that the application to this case is that [00:28:29] Speaker 01: A public school is a very controlled setting, just as in the interior halls of the Capitol are, you know, there has to be maintenance of control. [00:28:39] Speaker 01: But the Supreme Court looked at the wearing of an armband and said, well, it has to be a substantial disruption to qualify as disorderly conduct or whatnot. [00:28:50] Speaker 02: And it's similar to our case where... So if they had prevented the teacher from teaching, that would have been different in Tinker. [00:28:58] Speaker 02: if the conduct had prevented the teachers from teaching. [00:29:01] Speaker 02: Sure. [00:29:03] Speaker 01: OK. [00:29:03] Speaker 01: Yeah. [00:29:04] Speaker 01: In this case, the CUSIX arrived after Congress had long ago recessed. [00:29:10] Speaker 01: Any questions? [00:29:12] Speaker 02: Any questions? [00:29:14] Speaker 02: All right. [00:29:14] Speaker 01: Thank you very much, counsel. [00:29:15] Speaker 01: Thank you so much. [00:29:16] Speaker 02: The case is submitted.