[00:00:00] Speaker 01: Case number 23-3166, United States of America versus Daryl Neely appellant. [00:00:07] Speaker 01: Mr. Anzina for the appellant, Mr. Hill for the appellee. [00:00:13] Speaker 02: Morning, Your Honors, may it please the court. [00:00:14] Speaker 02: I'm Paul Anzina. [00:00:15] Speaker 02: I represent the appellant, Daryl Neely. [00:00:19] Speaker 02: Mr. Neely is a journalist who hosts an online news show. [00:00:23] Speaker 02: And it was in that capacity that he went to the Capitol on January 6th to observe and report. [00:00:28] Speaker 02: He did not bring any signs. [00:00:30] Speaker 02: He did not wear any kind of equipment. [00:00:32] Speaker 02: He did not bring any weapons. [00:00:34] Speaker 02: As I said, he was there to observe and report. [00:00:38] Speaker 04: What relevance does that have to any of the legal issues we are resolving today? [00:00:43] Speaker 04: It has no specific relevance to the legal issues, Your Honor. [00:00:46] Speaker 02: All right. [00:00:49] Speaker 02: After January 6th, Mr. Neely was interviewed twice by the FBI. [00:00:56] Speaker 02: In both cases, he cooperated fully. [00:00:58] Speaker 02: answered all their questions and even supplied them with evidence. [00:01:01] Speaker 02: Several months later, he was arrested, and he was met with agents who engaged him in a conversation. [00:01:10] Speaker 02: After that conversation, he was given his Miranda warnings, and then they conducted a videotaped interrogation. [00:01:18] Speaker 02: He was charged with six crimes, went to trial before Judge Bates, a bench trial, was acquitted on one crime, one allegation, that's civil disorder, [00:01:28] Speaker 02: convicted on the rest, and he was sentenced to 28 months in prison altogether. [00:01:33] Speaker 02: I've raised three issues on appeal. [00:01:35] Speaker 02: First, the district court erred in denying a motion to dismiss counts three and four. [00:01:39] Speaker 02: Second, the district court erred in denying the motion to suppress the interrogation. [00:01:44] Speaker 02: And third, the district court erred in denying the motion to transfer venue. [00:01:48] Speaker 02: And I'd like to start with that third point, the motion to transfer venue. [00:01:51] Speaker 02: Several months ago, the government filed a Rule 28J letter with the court [00:01:55] Speaker 02: regarding this court's decision in United States versus Webster, number 223064, where the court rejected a similar venue challenge. [00:02:04] Speaker 02: In that case, the court held that the court rejected the argument that the entire jury pool was presumptively prejudiced against the defendant in that case. [00:02:13] Speaker 02: And that is an argument that we made here, and that is addressed by the Webster court. [00:02:17] Speaker 02: However, the Webster decision leaves open several of our arguments. [00:02:24] Speaker 02: In order to determine the presumptive prejudice of a jury pool, court looks at a number of different factors. [00:02:31] Speaker 02: One is the size and characteristics of the jury pool. [00:02:34] Speaker 02: That, I believe, is foreclosed by Webster. [00:02:36] Speaker 02: But the others are the nature and extent of pretrial publicity and the proximity of time between the events and the publicity and the trial. [00:02:45] Speaker 02: Now here, what's different is that the nature and extent of pretrial publicity are different because in Webster, [00:02:51] Speaker 02: court held that January 6th coverage generally is not sufficient to create that presumptive prejudice. [00:02:57] Speaker 02: However, in this case, appellant Mr. Neely was singled out and Rolling Stone published an article about him that was incorrect that alleged that he was selling souvenirs from January 6th and that he had smoked marijuana in the Capitol. [00:03:10] Speaker 01: Why can't that be addressed in voir dire? [00:03:13] Speaker 01: If there's usually a question of the veneer panel, have you heard any coverage about this case? [00:03:20] Speaker 01: And if they answer, yes, you can follow up and you could for that reason. [00:03:25] Speaker 02: That particular issue, I believe, can be addressed in order. [00:03:29] Speaker 02: But the other issue is that the question of the proximity between the [00:03:38] Speaker 02: publicity and the trial. [00:03:40] Speaker 02: Here what happened is Mr. Neely's trial was two and a half years after January 6th. [00:03:46] Speaker 02: And in Webster, the trial was a year after January 6th. [00:03:48] Speaker 02: Now you might look at that and think, well, gee, this is even more time that's elapsed. [00:03:51] Speaker 02: So that's an even weaker argument. [00:03:54] Speaker 02: But here, Mr. Neely's trial occurred in the middle of the televised hearings by the House Select Committee on January 6th. [00:04:02] Speaker 02: And the passage of time here between [00:04:06] Speaker 01: January 6th and the time of the trial exacerbated the prejudice here, because if you look at what happened with the object on that basis in the court below, did he make a motion based on the January 6th hearings? [00:04:18] Speaker 01: Because that's different from general publicity that January 6th. [00:04:22] Speaker 02: Well, it is. [00:04:23] Speaker 02: And the argument I'm making is not based on the publicity from the proximity of time. [00:04:27] Speaker 01: And did he object on that basis that this trial is happening while these hearings are taking place and therefore it's unfair to me? [00:04:36] Speaker 02: Your Honor, I'm afraid I can't answer that question right now. [00:04:38] Speaker 02: I don't know the answer whether he specifically objected. [00:04:41] Speaker 01: But do you agree that he would have to specifically object to that in order to rely on it here? [00:04:45] Speaker 02: I think unless there were clear error. [00:04:49] Speaker 01: Or plain error? [00:04:50] Speaker 02: Plain error, I'm sorry. [00:04:51] Speaker 01: Okay. [00:04:51] Speaker 02: Plain error. [00:04:52] Speaker 04: But even if, let's assume for the sake of argument that he made that specific objection below, why isn't that also something that can just be taken care of in a fourth year? [00:05:06] Speaker 04: We've had trials in this courthouse relating to Watergate. [00:05:09] Speaker 04: We've had trials in this courthouse relating to Iran Contra. [00:05:14] Speaker 04: Um, lots of things where there have been televised congressional hearings, front page news, et cetera. [00:05:24] Speaker 02: That is correct, Your Honor. [00:05:25] Speaker 02: But what I would, those events like Watergate, Watergate happened 50 years ago. [00:05:31] Speaker 02: The Iran Contra scandal took place 40 years ago. [00:05:35] Speaker 02: The news media ecosystem is different today. [00:05:39] Speaker 02: It is all-encompassing. [00:05:41] Speaker 02: It is 24-7. [00:05:43] Speaker 02: It's constant. [00:05:44] Speaker 02: And January 6 has been in the news every day since January 6. [00:05:48] Speaker 02: And the January 6 hearings were a huge event. [00:05:52] Speaker 02: I believe the first hearing drew something like 25 million viewers, which is something like not Super Bowl, [00:05:58] Speaker 02: caliber, but along the level of, say, a Monday night football game, which is a huge number of people. [00:06:03] Speaker 02: And the statistics show that DC residents pay more attention to January 6th than other people. [00:06:09] Speaker 02: In all likelihood, a much greater proportion of DC residents watched all those hearings. [00:06:15] Speaker 02: And Mr. Neely's trial occurred after eight of those televised hearings and before the ninth. [00:06:20] Speaker 02: So in that situation, I think Webster is distinguishable because [00:06:28] Speaker 02: Webster went to trial. [00:06:30] Speaker 02: It was in the early stages of January 6. [00:06:32] Speaker 02: A lot of people were talking about things like it was just a slap-dash haphazard event that just kind of got out of control. [00:06:40] Speaker 02: But what the January 6 committee hearings did was they threw cold water on that because what they [00:06:47] Speaker 02: They conducted a detailed forensic analysis of everything that happened. [00:06:51] Speaker 02: They had thousands of witnesses, thousands of documents, and they talked about all the extensive violence that happened that day, conspiracies, activity to undermine democracy. [00:07:03] Speaker 02: I would submit that those events exacerbated the privilege, even though more time had passed. [00:07:09] Speaker 04: What evidence was put before the district court in support of the motion to transfer venue? [00:07:23] Speaker 02: Your honor, I think that what the [00:07:26] Speaker 02: The motion to transfer venue raised the same issues I'm raising here today, which is that I think what it relied on primarily was the notion that the D.C. [00:07:37] Speaker 02: War Deer was overwhelmingly prejudiced against January 6th dependence. [00:07:43] Speaker 04: I understand that argument, but what evidence was put before the district court? [00:07:48] Speaker 04: What evidence is in the record to support that argument? [00:07:50] Speaker 04: What polling data? [00:07:52] Speaker 04: What surveys? [00:07:53] Speaker 02: Your honor, the polling data took place, I believe the polling data took place prior to the January 6 committee hearings. [00:08:00] Speaker 02: So I don't believe that polling data supports this argument, frankly. [00:08:04] Speaker 02: And the polling data, I believe, at least one of the polls that the defendant put forward before the district court was expressly rejected by the Webster court. [00:08:15] Speaker 04: I guess the I think to me, one challenge you have is that, you know, it'd be one thing if, if, if you had attempted voir dire below you, meaning, meaning Mr. Neely's counsel below had attempted voir dire and were having trouble finding jurors or there was some, [00:08:44] Speaker 04: polling or survey data that demonstrated it would be difficult to find a fair and impartial jury poll. [00:09:00] Speaker 04: But if the data that was put before the district court [00:09:07] Speaker 04: is not really materially different than the data that was put before the district court in Webster that we rejected. [00:09:17] Speaker 04: I'm not sure how how how do we get around that? [00:09:22] Speaker 02: Your honor, I think the only I think what does distinguish this case from Webster is the timing of the trial. [00:09:29] Speaker 02: And that that was that was before the court in the sense that it was occurring when it was occurring. [00:09:34] Speaker 02: The court knew that those hearings had taken place. [00:09:38] Speaker 02: I understand. [00:09:40] Speaker 02: I'd like to turn, if I may, to the motion to dismiss, and specifically the second argument I raised in that. [00:09:48] Speaker 02: I made two arguments on the motion to dismiss. [00:09:50] Speaker 02: One was that the statute requires that the Secret Service restrict the area. [00:09:58] Speaker 02: The secondish argument I made was that even if the statute could be read as allowing anybody [00:10:05] Speaker 02: to restrict the area. [00:10:07] Speaker 02: It was still vague, still unconstitutionally vague because the history of the statute, this statute has never apparently been used to prosecute anyone for entry or remaining into a restricted area that was restricted by anyone other than the Secret Service. [00:10:24] Speaker 01: You know that. [00:10:25] Speaker 02: Well, I've looked and I have found nothing. [00:10:30] Speaker 01: It's just I don't know that it's normal to be researching who restricted what. [00:10:36] Speaker 01: as a prosecutor bringing one of these charges like I just don't think that would be something you'd be thinking about well restricted this area. [00:10:44] Speaker 02: Well, it's it's like what happened in the Bowie case that we versus City of Columbia where the protesters came into the restaurant and then someone hung up a no trespassing sign and the statute said trespassing means entry into a place and court said you can't prosecute these people for trespassing because [00:11:04] Speaker 02: A, the statute doesn't cover it, but also the statute, the court explicitly said, this interpretation, the interpretation given the statute by the South Carolina Supreme Court had not the slightest support in prior South Carolina decisions. [00:11:17] Speaker 02: Now, there are no decisions that I could find that. [00:11:20] Speaker 01: But just because there are no decisions you could find doesn't mean that they've never brought a prosecution. [00:11:26] Speaker 02: Well, that's why I said that was not. [00:11:28] Speaker 01: Whatever. [00:11:29] Speaker 02: That's why I said apparently. [00:11:31] Speaker 02: OK. [00:11:31] Speaker 02: Because. [00:11:32] Speaker 01: Well. [00:11:33] Speaker 01: Why do we use the words of the statute in this instance? [00:11:37] Speaker 01: It doesn't say that it has to be. [00:11:39] Speaker 02: Well, Your Honor, I do think that the statute does address it. [00:11:45] Speaker 02: In fact, if you look at the only court that's addressed the issue, the Bursey case, that court read the statute as requiring secret service restriction. [00:11:53] Speaker 00: Well, that was a very different factual situation. [00:11:56] Speaker 00: Let me ask you, what about the evidence in this case that the signs that were posted did refer to the Secret Service? [00:12:06] Speaker 02: Your Honor, I see that my time... You may answer my question. [00:12:10] Speaker 02: Thank you. [00:12:13] Speaker 02: Well, even if the signs referred to the Secret Service, the fact of the matter is that the statute requires that the property be restricted by someone. [00:12:22] Speaker 02: And here, that restriction was not put in place by the Secret Service, even if the signs are. [00:12:27] Speaker 00: Well, the statute is silent. [00:12:29] Speaker 00: Would you agree with that? [00:12:31] Speaker 02: The statute is. [00:12:31] Speaker 00: The text of the statute. [00:12:34] Speaker 02: The text of the statute, as the district court said, the text of the statute says nothing about who must do the restricting. [00:12:40] Speaker 00: So your client, [00:12:43] Speaker 00: enters this area where the signs are posted, and it refers to the Secret Service. [00:12:52] Speaker 00: What more was required under this statute? [00:12:55] Speaker 02: Well, Your Honor, I don't believe that factually that there is evidence that the signs were up when my client went in, because those signs, there's evidence in a lot of these cases that those signs came down. [00:13:07] Speaker 02: They were trampled. [00:13:09] Speaker 00: Well, [00:13:10] Speaker 00: The fact that the rioters trampled them doesn't mean, does it, that no one knew that it was a restricted area? [00:13:23] Speaker 00: That isn't the argument you presented as I understand it. [00:13:27] Speaker 00: The client was there as you started to tell us as a journalist. [00:13:38] Speaker 00: Correct. [00:13:38] Speaker 00: They were all over the place. [00:13:42] Speaker 00: Some signs were up, some signs were down. [00:13:45] Speaker 02: Well, Your Honor, even if the statutes, even if the signs had said this area is restricted by the Secret Service, that apparently would not have been correct because the area had not been restricted by the Secret Service. [00:13:55] Speaker 02: It had been restricted by the Capitol Police. [00:13:57] Speaker 00: Well, that's not the argument you made. [00:14:00] Speaker 00: That's what I'm trying to focus on. [00:14:03] Speaker 00: And I think that's what my colleagues have been focusing on, too. [00:14:07] Speaker 00: In looking at the district court's opinion, we are [00:14:12] Speaker 00: As are you confined to the arguments and the evidence that was presented? [00:14:18] Speaker 02: Yes. [00:14:20] Speaker 00: So you say it was vague. [00:14:24] Speaker 02: What I'm saying is that the statute required that that restriction be done by the Secret Service, but you have acknowledged that the statute does not say that. [00:14:35] Speaker 02: Statute does not explicitly say that correct. [00:14:38] Speaker 04: So the statute says. [00:14:41] Speaker 04: that it's a crime to knowingly enter or remain in any restricted building or grounds without lawful authority to do so, right? [00:14:49] Speaker 04: Yes. [00:14:50] Speaker 04: Just text. [00:14:52] Speaker 04: So someone like Mr. Neely, where the evidence shows that he's standing in a crowd, and the crowd faces a police barricade, and they're pushing past a police barricade and passing the Trump 2020 sign down [00:15:10] Speaker 04: basically using it kind of as a as a weapon to push back police officers. [00:15:17] Speaker 04: That person wouldn't be on notice that if they go past that area, they are entering restricted grounds, grounds that are being guarded by a police barricade. [00:15:30] Speaker 02: But your honor, in that case, if the statute said that the that it was illegal to go past the police barrier, [00:15:37] Speaker 02: or to knowingly go past a police barrier, they would be liable. [00:15:39] Speaker 04: Well, isn't that a clue that it's restricted if the police are cordoning it off and fighting physically to push people back from that area? [00:15:48] Speaker 04: Isn't that a clue that that might be a restricted area? [00:15:51] Speaker 02: But the question is, who restricted it? [00:15:54] Speaker 04: Because even if it's restricted, if it's restricted by someone other than the Secret Service... Well, I'm assuming we don't buy that argument since it's not in the text. [00:16:02] Speaker 04: then what's left? [00:16:03] Speaker 04: If you don't buy that argument, nothing's left, frankly. [00:16:06] Speaker 04: All right. [00:16:06] Speaker 04: Your time is up. [00:16:07] Speaker 04: We'll give you a little bit on rebuttal. [00:16:09] Speaker 04: Let's hear from the government. [00:16:10] Speaker 04: Thank you, Your Honor. [00:16:29] Speaker 05: Morning. [00:16:30] Speaker 03: Morning. [00:16:31] Speaker 03: May it please the court, Dietrich Hill, on behalf of the United States. [00:16:35] Speaker 03: To pick up on what the court was just discussing, I do think that the defendant here is asking the court to read into the statute something that just doesn't exist, which is a limitation that it only applies to restricted areas that have been restricted by the Secret Service. [00:16:53] Speaker 03: There's nothing in the statute that suggests or supports that. [00:16:56] Speaker 03: Instead, the statute applies to any [00:16:59] Speaker 03: area that has been posted bordered off or otherwise restricted. [00:17:03] Speaker 03: Any is an expansive term, and the Supreme Court has said that any should be read expansively, and that courts shouldn't generally be reading other language into the statute. [00:17:13] Speaker 00: Let me ask you, that's not inconsistent, is it, with an argument that, yes, it may have been restricted and posted, but [00:17:24] Speaker 00: That was done by some entity that had no authority to do so. [00:17:33] Speaker 03: Well, I don't think the defendant here is arguing that the entity that restricted it, which at the very least was the Capitol Police, didn't have the authority. [00:17:41] Speaker 03: The question instead, I think there's no dispute that the Capitol Police had the authority to restrict any part of the grounds. [00:17:49] Speaker 03: The question is just whether 1752 includes within its scope an area that's been restricted, certainly by the Capitol Police. [00:17:58] Speaker 03: And there's no reason to think it doesn't. [00:18:00] Speaker 03: That's entirely consistent with the language of the statute and its purpose, which as the original Senate report said, is to extend a minimum federal jurisdiction to cover any trespassing that threatens the president and subsequently the vice president or the special events of national significance. [00:18:19] Speaker 00: So this case is your understanding of the record that the signs that were posted [00:18:28] Speaker 00: were posted by the Capitol Police having been advised that the Secret Service would be bringing the Vice President to the Capitol for this official ceremony. [00:18:45] Speaker 00: And that's part A and then part B would be, and the signs in fact referred to the Secret Service. [00:18:55] Speaker 03: To part A, I believe the signs were posted by the Capitol Police. [00:18:59] Speaker 03: And yes, they were aware there was communication between the Secret Service and the Capitol Police, making clear that the Vice President was coming and that the ordinary procedures would be followed, which include restricting this whole area. [00:19:11] Speaker 03: To part B of the question, I don't believe that the signs that were posted at the perimeter actually referred to the Secret Service. [00:19:18] Speaker 03: I believe the perimeter signs said area closed by order of Capitol Police. [00:19:23] Speaker 03: So the Secret Service issue would not have been evident to a person on first entering the perimeter. [00:19:29] Speaker 03: But of course, the defendant here is not challenged knowledge that the area was restricted or knowledge that the vice president was in the area. [00:19:37] Speaker 03: So that's not part of the challenge here. [00:19:40] Speaker 00: Thank you. [00:19:43] Speaker 03: With respect to the Webster issue and the change of venue, I would like to point out two things. [00:19:50] Speaker 03: One is that there's really no distinction here in terms of media coverage of Neely personally and Webster. [00:19:58] Speaker 03: Both Webster and Neely identified exactly two articles that referred to them and their potential involvement personally. [00:20:05] Speaker 03: And in fact, the articles about Webster [00:20:07] Speaker 03: referred to him at one point as an eye gouger, at another point noted that a prosecutor had called him a junkyard dog. [00:20:14] Speaker 03: So clearly there was some evidence that there could be personal knowledge or knowledge of this person's involvement. [00:20:22] Speaker 03: But again, as both of your honors have pointed out, the solution is more dear to determine whether a juror is aware of those articles. [00:20:29] Speaker 03: And the second thing is that the court in Webster noted that before you even look at the dissipation of prejudice over time, it's the defendant's obligation to show that there's prejudice in the first place, which the defendant didn't in Webster, and we think Neely has not here either. [00:20:47] Speaker 01: With respect to... What about the distinction that the trial of Neely did take place while the House Select Committee hearings on January 6th were taking place? [00:20:58] Speaker 01: That's different from Webster. [00:21:00] Speaker 03: That is different. [00:21:01] Speaker 03: I don't think it's a material difference. [00:21:03] Speaker 03: I think, at most, it suggests that there could be less dissipation of prejudice. [00:21:10] Speaker 03: But I'm not sure. [00:21:12] Speaker 03: I think it could cut either way because, of course, as the defendant concedes, there was much less passage of time in Webster than in this case. [00:21:22] Speaker 00: And this is a trial before the court. [00:21:25] Speaker 03: And this is a trial before the court. [00:21:28] Speaker 03: Now, we didn't so the defendant here has waived any opportunity to go through voir dire and then argue that the jury that was in fact he says he opted for a bench trial because his venue motion was denied. [00:21:41] Speaker 03: That's right. [00:21:43] Speaker 03: We don't think that the defendant has waived the argument that the whole jury pool was so presumptively prejudiced that voir dire couldn't result in an impartial jury. [00:21:52] Speaker 03: But that's a much higher burden to me than just trying to show that particular jurors could not be chosen who were impartial. [00:22:00] Speaker 03: As this court pointed out in Webster, the Supreme Court has only accepted a claim of pervasive prejudice that doesn't even require voir dire in one case. [00:22:10] Speaker 03: That's the Rideau case. [00:22:12] Speaker 03: which involved televising a murder confession repeatedly. [00:22:17] Speaker 03: So this case just is not comparable to that. [00:22:22] Speaker 00: So as a matter of the record in this case, were questions asked about the hearings? [00:22:35] Speaker 03: Were questions asked during trial? [00:22:37] Speaker 00: No, no, no, no, no. [00:22:38] Speaker 00: In terms of the idea of the jury before, [00:22:43] Speaker 00: the trial. [00:22:45] Speaker 03: There was no voir dire in this case because the- Let me be clear then about the record in this case. [00:22:52] Speaker 00: I understood Judge Pan's question to say that Neely's position was he asked for a bench trial because he thought any pool would be so biased given the nature of the events here. [00:23:11] Speaker 03: That's my understanding as well. [00:23:13] Speaker 00: So here, and I realize this is outside the record, but presumably the court can take judicial notice or tell me if you think we can't. [00:23:26] Speaker 00: Not only were the television news programs continuously showing the events of January 6th, [00:23:41] Speaker 00: not only continuously, maybe for that week and the next week. [00:23:46] Speaker 00: I mean, you could not escape it. [00:23:50] Speaker 00: So that is a different scenario. [00:23:56] Speaker 00: It's not the murder confession being shown every day, but this was clearly top line news in this area. [00:24:12] Speaker 00: certainly on most of the national as well as the podcast events. [00:24:20] Speaker 00: I mean, the area was saturated with it is what I'm getting at. [00:24:23] Speaker 03: Yes, I certainly think any potential juror or almost any potential juror would be well aware of the events of January 6th. [00:24:31] Speaker 03: But as this court pointed out in Webster, that doesn't necessarily mean that any juror has formed a particular belief about this defendant. [00:24:41] Speaker 03: And of course, if a [00:24:42] Speaker 03: potential juror had such strong feelings about January 6th that they could not sit as an impartial juror. [00:24:49] Speaker 03: Again, that's something that Wardere is designed to inquire about, such that the defendant's counsel would have the opportunity to explore each juror's view of January 6th. [00:25:01] Speaker 03: I mean, this is outside the record, but certainly if you look at Wardere's that have occurred in other January 6th cases, that's obviously a hotly contested subject because there is pervasive media coverage. [00:25:16] Speaker 03: With respect to vagueness, I did want to point out that Bowie is different in that in Bowie, the state court that the Supreme Court was reversing had effectively added language to the statute and said, this trespassing statute that says you may not enter actually means you may not enter or remain. [00:25:36] Speaker 03: So by following the face of the statute, the defendants there had [00:25:41] Speaker 03: later been determined to violate the statute because it meant something different than it said on its face. [00:25:46] Speaker 03: Here, we're asking the court to apply the statute as it says on its face. [00:25:51] Speaker 03: And it's the defendant who's asking the court to interpret it to mean something different. [00:25:55] Speaker 03: So the defendant can't really claim to be to not have been on notice of what the statute said on its face. [00:26:05] Speaker 03: The other thing that I'd like to mention with respect to the meaning of 1752 in the restricted area is the very important context that in 2006 Congress added these special events of national significance to the definition of restricted area. [00:26:22] Speaker 03: Special events of national significance by definition involve many law enforcement agencies. [00:26:27] Speaker 03: And so it's not a sensible reading of the statute to try to add in this language suggesting that only a restricted area can only be set by the Secret Service. [00:26:38] Speaker 03: And Congress has specifically [00:26:40] Speaker 03: included areas that involve many law enforcement agencies. [00:26:44] Speaker 03: It would only be sensible to include all of the restricted areas set by those law enforcement agencies as well within the definition of restricted area. [00:26:56] Speaker 03: If there are no further questions. [00:27:00] Speaker 04: Judge Rogers, do you have any further questions for the government? [00:27:03] Speaker 04: Thank you. [00:27:04] Speaker 03: Then we would ask the court to affirm. [00:27:06] Speaker 04: All right. [00:27:07] Speaker 04: Thank you, counsel. [00:27:08] Speaker 04: All right. [00:27:10] Speaker 04: I believe your time was up. [00:27:14] Speaker 04: We'll give you 2 minutes. [00:27:19] Speaker 02: I'd like to start where my colleagues started when he talked about the language of the statute and he said that the statute says that it is meant to apply to any restricted area. [00:27:32] Speaker 02: That's what the statute says. [00:27:33] Speaker 02: The statute says posted cordoned off or otherwise restricted. [00:27:37] Speaker 02: And earlier, Your Honor asked me about suppose a defendant comes up to a phalanx of police officers and that's a clue to them that the area behind him is restricted. [00:27:46] Speaker 02: But let me posit a different scenario. [00:27:49] Speaker 02: Let's suppose you have a place like [00:27:52] Speaker 02: Hypothetically, I've talked about in my brief about the Kennedy Center, a place where a Secret Service protectee is temporarily visiting. [00:27:58] Speaker 02: And parts of it have been restricted by the Secret Service. [00:28:01] Speaker 02: But you have one lone cop standing in a hallway. [00:28:04] Speaker 02: And he says to the gentleman comes up and says, I want to go down that hallway. [00:28:07] Speaker 02: And the cop says, you can't. [00:28:08] Speaker 02: It's restricted. [00:28:10] Speaker 02: Why is it restricted? [00:28:10] Speaker 02: Because I said it's restricted. [00:28:14] Speaker 02: Is that a violation of the statute? [00:28:16] Speaker 02: Under the government's reading, it is. [00:28:19] Speaker 02: Because the government says it [00:28:21] Speaker 02: the district court said the statute says nothing about who must do the restrict. [00:28:25] Speaker 01: So it doesn't imply that whoever's doing the restricting had authority to do it. [00:28:29] Speaker 02: Well, that supposes that there's some authority that restricts the ability of someone to declare an area restrict. [00:28:38] Speaker 01: Well, there are other statutes other than this one that confer authority on capital police, for example, to control the grounds of the capital. [00:28:46] Speaker 02: Sure. [00:28:46] Speaker 01: So you don't dispute that they had authority to restrict? [00:28:49] Speaker 02: No, no, no. [00:28:49] Speaker 02: That's not my question. [00:28:50] Speaker 02: That's not my argument. [00:28:52] Speaker 02: My argument, though, is that under the government's reading of the statute, which is incredibly broad, any police officer can declare anything with respect. [00:29:00] Speaker 01: And my question is, why is that an implication of the government's reading? [00:29:05] Speaker 01: It implies that whoever restricted this area had authority to do so because there are other statutory provisions that provide such authority. [00:29:14] Speaker 02: Your honor, I think those are two different questions. [00:29:17] Speaker 02: One is, does an agency have authority to restrict an area? [00:29:22] Speaker 02: That does not mean that no one in the world has authority to declare something restricted, right? [00:29:30] Speaker 01: So we're looking at a statute that says that just talks about restricted areas without saying who should restrict them. [00:29:37] Speaker 01: And you're saying we should assume that if it doesn't say who's restricting them, then everybody restrict them. [00:29:42] Speaker 01: And I'm just saying, I don't know why we should assume that because there are lots of other statutes that deal with authority to restrict things. [00:29:49] Speaker 02: But we're not talking about statutes that say that nobody else can restrict something. [00:29:56] Speaker 01: But you're asking us to make an assumption that every anybody can restrict and I don't see why we need to make that assumption based on that's what the government argues the government says any restriction. [00:30:07] Speaker 01: Now it's a restricted area and they're saying it doesn't speak to who can do the restricting and their argument is the assumption is. [00:30:14] Speaker 01: whoever's doing the restricting had authority to do it. [00:30:16] Speaker 01: And I don't see why that's not true. [00:30:18] Speaker 02: Well, suppose someone comes into a deli. [00:30:21] Speaker 02: Suppose the president walks into a deli to buy a Coke, and the security guard in the deli says to a person, you can't go over there. [00:30:28] Speaker 02: It's restricted. [00:30:29] Speaker 02: Is he committed a crime if he goes over there? [00:30:33] Speaker 02: Security officer has authority in that deli. [00:30:36] Speaker 02: Maybe he has. [00:30:37] Speaker 02: So has that individual committed a crime if he steps into the area that the security guard has declared restricted? [00:30:43] Speaker 02: Under the government's view, he has. [00:30:45] Speaker 01: What's wrong with that? [00:30:47] Speaker 02: What's wrong with that is that it means that anybody. [00:30:51] Speaker 01: No, not anybody. [00:30:52] Speaker 01: The security guard had authority to restrict. [00:30:54] Speaker 01: The security guard, presumably, is hired by the premises. [00:30:58] Speaker 01: It could be all the premises. [00:31:00] Speaker 01: And maybe the security guard says, while the president is in here, we're not going to let other people come in right now. [00:31:06] Speaker 02: So what that means is that private citizens have the authority to set the scope of this criminal statute. [00:31:11] Speaker 01: The security guard is somebody with authority. [00:31:13] Speaker 01: It's not just anybody in the deli. [00:31:15] Speaker 04: You're making an as applied vagueness challenge, a constitutional challenge. [00:31:21] Speaker 04: That's what this argument is. [00:31:23] Speaker 04: I mean, there are unlawful entry, trespassing type statutes that are in every jurisdiction, they're prosecuted every day. [00:31:36] Speaker 04: One of the elements is always, as a person on notice, [00:31:42] Speaker 04: that they either have to leave and they can't remain in the area, or were they on notice that they could not enter the area? [00:31:52] Speaker 04: That's just common to all of these statutes. [00:31:57] Speaker 04: And the statutes don't say specifically by who. [00:32:04] Speaker 04: It's presumed that the notice is by someone with authority. [00:32:11] Speaker 04: um and if you were notified and it was and you should have reasonably believed that someone with authority notified you then you violated the statute and there's no vagueness issue i mean those statutes are prosecuted every day of the week twice on sundays right what's the vagueness problem there your honor those statutes [00:32:39] Speaker 02: trespassing statutes, breaking and entering statutes, and so on. [00:32:42] Speaker 02: They rely on the notion that the property that's being intruded upon is owned by someone who does not want you there. [00:32:50] Speaker 02: And that's different from the notion that anybody can restrict it. [00:32:55] Speaker 04: All I'm saying to you is that an argument about whether someone has the power or legal authority to restrict the statute is different than a vagueness problem. [00:33:09] Speaker 04: You could argue they didn't have the authority to restrict it, and therefore we didn't violate the statute because they didn't have any right to restrict it in the first place. [00:33:21] Speaker 04: That's not your argument. [00:33:23] Speaker 04: Your argument is a vagueness argument. [00:33:26] Speaker 04: Respectfully, Ron, I've made both arguments. [00:33:29] Speaker 02: Well, that first argument isn't a vagueness argument. [00:33:33] Speaker 02: No, it's not. [00:33:34] Speaker 02: It's a question of what the statute requires. [00:33:38] Speaker 02: And the issue is, as we've said, the statute does not currently explicitly say that restriction must be done by the Secret Service. [00:33:47] Speaker 04: Okay, and I'm saying if we don't buy that argument, then it's no longer relevant. [00:33:55] Speaker 04: Correct. [00:33:56] Speaker 04: In the vagueness sphere, whether it's the Secret Service or whomever [00:34:08] Speaker 04: who has restricted it as far as the void for vagueness as applied argument goes, right? [00:34:15] Speaker 02: No, Your Honor, respectfully, it is still relevant because the issue with respect to vagueness is my argument is based on the history of the statute, the history of its use. [00:34:24] Speaker 02: As I said, I don't believe it has ever been used to prosecute someone who entered into a restricted area that was restricted by anyone other than the Secret Service. [00:34:33] Speaker 02: And that's where the vagueness comes from. [00:34:36] Speaker 02: It's not from the statute itself. [00:34:37] Speaker 02: It's from the use of the statute, the history of the statute. [00:34:41] Speaker 04: All right. [00:34:42] Speaker 04: I think we have your argument. [00:34:43] Speaker 04: We'll take the matter under advisement. [00:34:45] Speaker 04: Thank you, Your Honor.