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case number 23-3178, United States of America versus Jolene Eicher at balance.

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Mr. Colburn for the appellant, Ms.

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Fleming for the appellate.

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Good morning, counsel.

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Good morning, your honor.

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May it please the court, Barry Colburn for the appellant, Jolene Eicher.

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I should note for the court that Ms.

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Eicher is here today.

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She's just in the gallery as opposed to at council table.

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So from my point of view, this case turns on some common principles.

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I mean, there are four counts that are at issue.

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Each one is analyzed just a wee bit differently from the others.

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But there are certain common circumstances, which I would submit to the court, are of critical importance and, in our view, dispositive.

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One has to do with how is what Ms.

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Eicher did here different from

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the notion of mere presence.

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You know, those of us who sort of grew up in the DC Superior Court were very familiar with this notion of mere presence.

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It's virtually never criminalized.

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And here in particular, I mean, there are requirements of knowledge and specific intent in certain instances and so on.

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And how is what she did different from simply being there, particularly because of a few circumstances?

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One is she didn't do any of the things that were dispositive in the Rivera case.

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In Rivera, the defense, as I understood it, was that the defendant slash appellant was functioning as a journalist.

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And I believe, and there may have been some different sort of a subset of the counts here at issue there, but in Rivera, if that had been demonstrably accurate based on the record,

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My reading of the opinion is that there may very well have been a different result in that case.

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Is mere presence enough on count one?

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And that's just trespassing.

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I don't think it's enough on count one.

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And I appreciate the question very much.

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I've been particularly focused on count one really just as a legal issue.

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There's a knowingness requirement.

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And so I think that distinguishes the requirements of that count from mere present.

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mere presence.

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And I should, by the way, note for the court, there's a particular case, and I apologize for this.

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It's not referenced in our briefing.

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It's just something that I considered when I was writing the brief, decided I should leave it out.

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But there is a case in the Fourth Circuit from back in 2005, US versus Bursey, EURSEY 416, F3rd, 301.

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And there, they seem to import that in your brief.

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I don't think it's in there, Your Honor.

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Did you hear it with the government or do a letter of the court?

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I haven't.

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So I'll just leave it there.

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Well, you can discuss it.

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It's just truly fair if the other side has notice of the case.

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No, I agree.

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I've done it myself as a lawyer.

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It's my, it's in.

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Just you always want to share it in advance with opposing counsel.

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I should have.

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It's a surprise.

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It's entirely my fault.

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And I don't know that it's necessarily going to be dispositive here.

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But I just would note that in that case,

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which turns on the same count.

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Knowingly remaining in a restricted area, the court appeared to instruct that it had to be willful and that the defendant had to know what they were doing was illegal.

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Now, none of those instructions appear.

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The trespass has to be knowing or willful.

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That may very well be.

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And I mean, I certainly take the court's point on that.

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But I mean, if in fact it has to be knowing,

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and willful.

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My suggestion is that there are a couple of factors here that are critically important.

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One is you've got an area, as witnessed by Ms.

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Eicher at the time, which is in, I mean, and this is a terrible thing, of course, but it's an utter disarray.

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So given the disarray, given the fact that none of the usual accoutrements of providing security at the US Capitol or other similarly

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situated buildings are, are working or operating at the time.

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You know, fences are down.

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Um, I mean, how does... Fences are knocked down, strewn around.

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There are many more police officers than normal.

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There is no indication that this is a walk on in at your pleasure.

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And in fact, when she jumps through the window, there is a wall

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of police officers in riot gears, pushing back, directing people out.

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That's directing and pushing her right back out.

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And she came in through a broken window.

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She had to know, or a jury, shall I say, could reasonably find, or a judge find, that she knowingly entered an area where she was not authorized.

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to be just it doesn't seem that's that is arguable and to me no I understand that is but that's precisely my issue.

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The question basically is in in given everything that your honor just described and I think all that is totally consistent with the evidence as it was elicited in front of the jury in this case.

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What if miss Iker is you know the person that Mister Rivera said he was a journalist what if

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She's a Trump-oriented journalist.

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What if she's an anti- It's not what if.

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We don't view the evidence in the light most favorable to Ms.

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Eicher, do we?

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No, sure.

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Your Honor, of course, that is the law.

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But from the perspective of- I don't understand why all these what ifs are relevant under this standard of review.

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Well, I'd submit they are relevant.

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I think from the perspective of whether or not a rational fact finder could decide that the knowingness, the knowingly requirement is satisfied, I think that the hypotheticals I was posing are illustrative.

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In other words, if they can't be excluded,

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by the evidence as it was elicited in this case, then from our point of view, that means that the evidence cannot have persuaded a rational fact finder

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of guilt beyond a reasonable doubt.

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And so if she were any... Sorry, please go ahead.

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No, no, I'm sorry.

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Go ahead.

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We don't take the inferences, if there's two possible inferences from the evidence, which I think is your argument, there's an inference that she was just there as an observer or you're a certain documenter, or that she was there as a participant.

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Two reasonable inferences from the evidence at this stage

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the jury having convicted, we take the inference in favor of the verdict, not in favor of the defendant.

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I mean, those are all perfectly fine arguments to make before the jury, but we are not the jury.

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No, I understood.

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Taking their verdict and saying, was it irrational?

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Was it irrational for them to conclude that she was there as a demonstrator?

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My submission, to your honor, is- So you have to sort of foreclose, at this point, for our purposes of arguing at this level, in this court, about a factual determination by the jury.

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You essentially have to argue that the evidence so overwhelmingly foreclosed any other conclusion that it was irrational for the jury to so find.

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And that is an extraordinary burden.

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And I think just saying that, well, could have been one, could have been the other.

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does not come close to meeting that burden?

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I'm not sure, obviously, respectfully, I'm not sure I agree with that formulation, as Your Honor put it.

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In other words, if a set of facts is susceptible of a series of different inferences, and if all those inferences are essentially equal, I mean, if one, if there's not any reason to believe the inculpatory inference as opposed to one of a number of exculpatory inferences

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My suggestion to Your Honor is that that means that the verdict is, to use Your Honor's term, which of course is the term used in the case law, irrational.

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I think the evidence can't just be… What's your best case that if evidence, or even three or four pieces of evidence, could be interpreted either way reasonably?

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Then when you add three or four together, it becomes irrational.

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What's your best case or best example of a court of appeals reversing a jury verdict under this type of analysis?

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You know, I apologize, Your Honor.

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I don't think I have a case right at my fingertips that falls within the ambit of what Your Honor just described.

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But in Rivera, I mean, the way I read that case,

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suggested to me that if the evidence was susceptible of the conclusion that that defendant had been a journalist, then the result, like I said, would have been different.

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And here, one of the key facts, which is not really emphasized, and frankly, I wish I had emphasized it more in the briefing, is that the evidence suggested that Ms.

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Eicher believed that the disturbance at the Capitol was being caused by what she understood to be antifa.

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So, and there is no contrary evidence.

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There is no evidence contradicting the proposition.

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The jury doesn't have to believe that, though.

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Just because there's no contrary evidence doesn't mean that it's taken as true.

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I agree with that.

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The jury doesn't have to believe it, but there has to be something that the jury would condition a decision to disbelieve it on.

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And here, I mean, she made the statement that she thought what was going on at the Capitol was engendered by this entity she knew of as Antifa.

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And I'm not aware of anything.

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Why would that change any elements?

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Um, well, in terms of whether or not they're unlawfully, she's still surrounded by an issue that she was not supposed to be there.

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So I'm kind of, I'm struggling to understand even if, if she thought notwithstanding the fact that these people had Trump signs, Trump hats, Trump bodywear, Trump painted on their body.

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that they were actually in TIFA, what would that matter?

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For the elements of which, I guess if you can help point me to which element of which count you're talking about that this is relevant to, that would be helpful.

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It's probably more relevant to two and three.

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Which aspect of two and three?

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Well, with respect to, if she thought that, I mean, and like I said, and I realize this argument doesn't seem to be gaining any traction here, but if, I mean, if she were,

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I'm sorry, if she were something other than what the government said she was, if she were a journalist, if she were a good Samaritan, if she were a journalist not oriented towards these demonstrators or something like that, if she believed, and like I said, I don't believe there's any contrary evidence, but if she believed that what was happening on the Capitol was engendered by this entity she knew of as Antifa, then I don't think it could possibly be said

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that she intentionally disrupted anything, or that she engaged in disruptive or disorderly conduct.

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I mean, that would connote the proposition that she saw a set of capital grounds in disarray.

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She walked onto the Capitol, possibly out of curiosity, possibly for any other reason, an innocuous reason.

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But if she didn't think that she was part of an entity that was attempting to disrupt

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the business on the Capitol, then it seems to me if there's an absence of evidence of that, and that's my suggestion to the court, she can't be guilty of disruptive or disorderly conduct.

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We have a lot of precedent that says even one person who's there unlawfully, so even if she wasn't with them, but was in a place where it was clear she was not authorized to be, massive police presence in riot gear, pepper spray, tear gas, things in turmoil,

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that that is disruptive of the proceedings because they could not resume proceedings.

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They could not bring the vice president back into the Capitol until it was fully cleared of every single person who was unauthorized to be there.

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Understood.

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But I mean, if that rubric were applied, you know, more broadly, I mean, that would criminalize, you know, the mere presence of any human being on the Capitol grounds at that moment in time.

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Anyone.

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And yet.

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So it doesn't criminalize the police being there.

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It doesn't criminalize credentialed press being there.

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It doesn't criminalize members of Congress and their staff from being there.

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So they're there unlawfully.

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Wouldn't it criminalize credentialed press?

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I mean, if credentialed.

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Well, if credentialed press doesn't go through a metal detector, I mean, just to sort of take your honor's point,

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If they don't go through a metal detector or through the usual security screening apparatus, they're there unlawfully.

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I mean, it seems to me, I know I'm over my time.

[00:13:20] Speaker 03:
That's okay.

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My council colleagues have any more questions?

[00:13:23] Speaker 03:
Okay.

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So I think now I understand your point.

[00:13:26] Speaker 00:
Thank you.

[00:13:26] Speaker 03:
I'm grateful for that.

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We will give you a little time on rebuttal.

[00:13:29] Speaker 00:
Okay.

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Appreciate it.

[00:13:40] Speaker 01:
Good morning and may it please the court, Mary Fleming representing the United States.

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Ms.

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Eicher cannot meet her high burden to show that no rational jury could convict on the four counts against her.

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To start with the question of how is this different from your presence, Ms.

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Eicher was first of all on the front lines of the West Plaza where she was face to face with police officers

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In the thick of the violence, she persisted all the way to the terrace up into the capitals as Judge Mallette noted through a broken window where she was met with lines of police officers and her own words show that she wasn't supposed to be there.

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She recognized that people were getting arrested and

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that she held the line and what in the video evidence or other evidence that you have shows that when she came into the Capitol through the window and there was a stream of people coming in, it was not a novel idea on her part.

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She's just there for a couple of minutes, just kind of looks around and then moves on out with the crowd.

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What is your

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How do you interpret that to support a jury verdict that she actually was parading or demonstrating?

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So we would point to this court's decision in Seif, which held that demonstrating can include gathering to express support for an identified viewpoint.

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When Ms.

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Eicher entered the Capitol, there were rioters chanting, fight for Trump, in whose house?

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Our house.

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She took a picture holding a Trump sign.

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She went to the Stop the Seal rally.

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So from that inside the Capitol.

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So I get your argument that she was part of demonstration outside the Capitol.

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But for three minutes or so she was inside the Capitol.

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It's how do you when you look at it, at least as I saw it she comes in kind of looks around.

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Some guys screaming and yelling around her and she kind of backs off, but she just seems to look around maybe take a picture and walk out I don't see her.

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Chanting, I don't see evidence, at least I could be wrong if you think if there's a reason the jury could have found that chanting, posing up with people who are demonstrating more loudly.

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So what is the theory for

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or demonstrated inside the Capitol.

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So that doesn't deal with the.

[00:16:15] Speaker 01:
Sure.

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So the evidence of outside the Capitol is just relevant to show that Ms.

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Iger was joining the crowd to support the viewpoint that they were clearly advocating for.

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You're correct that there is no evidence that she chanted inside the Capitol.

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But under Nassif, this court held that pretty similar facts inside the Capitol where the defendant didn't chant, as far as I remember.

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This court held that.

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Nasif was demonstrating when he joined a group of hundreds of people, many carrying signs, banners, or flags, who shouted and chanted as they descended on and entered the Capitol, seeking to halt the certification.

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So under- That's what I'm trying to- I'm not being clear on my question.

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There's a cluster of people who are sort of standing there chanting and yelling inside the Capitol.

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Don't we need some evidence that she joined that group as opposed to kind of walked around them and went out?

[00:17:10] Speaker 01:
I think by entering the Capitol and while other unauthorized persons were doing that, that is joining the group and adding her support to it.

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And I think that's pretty similar to the facts of Masif.

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I just wanted to ask you about the good guys prevailed.

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Sure.

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Comment at closing?

[00:17:33] Speaker 03:
Sure.

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I think it was closing, right?

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It was closing, yes.

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That's not summing up evidence.

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That is, as I hear it, when I hear words like good guys, that means there's good guys and then there must be bad guys.

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And the defendant must be part of the bad guys.

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When you say the good guys prevailed, you're us them.

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The prosecutor is us them between the jury and the defendant.

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That's not summarizing evidence.

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That seems to me completely improper.

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And in a case like this, explain to me why it was not prejudicial.

[00:18:10] Speaker 03:
When sort of the very question that I was just asking about what happened inside the Capitol was, was she associated?

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The jury was going to have to find was, was she associated with that demonstration when she went inside the Capitol?

[00:18:23] Speaker 03:
Or did she just kind of look to see what was going on and leave?

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And if you tell the jury, sort of poison the well by saying this is us, them, she's part of them, haven't you improperly prejudiced the jury's consideration of that very important question, at least on count four?

[00:18:44] Speaker 01:
So a couple of things, Your Honor.

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It was clear from the context that the prosecutor was talking about officers who were trying to prevent an incursion into the Capitol.

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And the point was that Ms.

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Eicher's culpability was not lessened because the police were ultimately successful in that effort.

[00:19:03] Speaker 03:
No, it's not.

[00:19:03] Speaker 03:
This is Supplemental Appendix 29, where you have this.

[00:19:10] Speaker 03:
Now, in the end, the good guys prevailed, and the very next words are, Ms.

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Eicher and the other rioter were eventually removed.

[00:19:18] Speaker 03:
So she's the bad guys, and she's collective with these other rioters.

[00:19:22] Speaker 03:
And so we know who

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They think the good guys are.

[00:19:27] Speaker 03:
But the problem is you're just labeling somebody bad guys and you're asking the jury to make a verdict based on an us-them categorization that is not a labeling, that is not based in evidence, when in fact it is actually one of the very questions before the jury is was she part of them inside the Capitol?

[00:19:50] Speaker 01:
So I'll point this court to Gartman, where the prosecutor's comment about the defendant being bad was not error.

[00:19:57] Speaker 01:
Also, the defense didn't seem to contest that this event was.

[00:20:02] Speaker 03:
I'm talking about dividing the courtroom into us and them, and then also putting her with them in a case where that is just really, on count four, that seems to be very much the central question.

[00:20:13] Speaker 03:
There's no dispute.

[00:20:14] Speaker 03:
She was inside the Capitol.

[00:20:16] Speaker 03:
There's video evidence of that.

[00:20:17] Speaker 03:
It really, her argument is

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I didn't go in there as part of the demonstration, so I was only in there for a couple of minutes.

[00:20:25] Speaker 03:
And so them putting her in the them group, as opposed to us, which is probably not just Capitol Police, but prosecutors and jurors, doesn't it, again, poison the well on that?

[00:20:38] Speaker 01:
So first the jury was instructed on that to disregard the or that the Arguments of counsel are not evidence and that the jurors are the sole finders of the fact.

[00:20:48] Speaker 01:
I think this drawn objection It didn't it didn't draw an objection.

[00:20:51] Speaker 01:
This is plain error and I think the fact that it didn't draw an objection and a very experienced trial judge but your break your your your briefing was this comment was just

[00:21:02] Speaker 03:
sort of an assembly of evidence, and this is not.

[00:21:06] Speaker 03:
I understand you said that for some of the horrible and tragic comments, but this one's not.

[00:21:11] Speaker 03:
It's a complete labeling and categorization.

[00:21:14] Speaker 01:
If your honor disagrees and thinks that that comment was improper, then we would argue that there was no substantial prejudice.

[00:21:25] Speaker 03:
You're arguing that it's not even error to us them

[00:21:28] Speaker 01:
Yes, that's correct.

[00:21:29] Speaker 01:
We don't think it was error in light of the fact.

[00:21:31] Speaker 03:
What's your best case that you're allowed to us them when one of the central issues on one of the counts is whether the defendant was part of them?

[00:21:39] Speaker 01:
Well, I would point again to this court's decision in Eicher where a comment that the defendant was bad was not error.

[00:21:45] Speaker 01:
And this court.

[00:21:46] Speaker 01:
But that's different.

[00:21:47] Speaker 03:
Bad behavior is different from this is an associational one when association is the question.

[00:21:53] Speaker 01:
If you have a case where

[00:21:57] Speaker 01:
an associational argument, not specifically, but this court's repeatedly held that the government is allowed to make hard-hitting closing arguments, and that we're not, the us-them is one inference and one way to view that comment, but under Donnelly- How else do you review good guys, bad guys?

[00:22:16] Speaker 03:
I don't know how else to think about good guys, bad guys.

[00:22:18] Speaker 01:
The prosecutor goes on to say that,

[00:22:23] Speaker 01:
The good guys prevailed, but that fact doesn't mean that Miss Iger's culpability is lessened.

[00:22:29] Speaker 02:
Could this be interpreted not to mean us, them, including the jury, when the victims in this case included police officers?

[00:22:38] Speaker 02:
So then it's not us including the jury.

[00:22:40] Speaker 02:
It's just the good guys, the law enforcement officers, the police officers versus the rioters.

[00:22:47] Speaker 02:
So it doesn't draw the jury into the

[00:22:51] Speaker 01:
Yes, that's exactly what the prosecutor was trying to convey.

[00:22:56] Speaker 01:
And under Donnelly and Monaghan and other decisions by this court, we don't assume that the jury is going to take the worst inference from the comment.

[00:23:08] Speaker 03:
The very next words are Ms.

[00:23:11] Speaker 03:
Eicher and the rioter.

[00:23:13] Speaker 03:
Very next words.

[00:23:15] Speaker 01:
Again, and Ms.

[00:23:16] Speaker 01:
Eicher and the rioters were removed from the building and the grounds, and that doesn't lessen her culpability.

[00:23:21] Speaker 01:
So that was the point that the prosecutor was trying to make.

[00:23:25] Speaker 01:
And we assume that the jury can use their logic and common sense to understand it that way.

[00:23:29] Speaker 01:
And again, the jury was instructed.

[00:23:32] Speaker 01:
This was a very small part of the argument.

[00:23:34] Speaker 01:
The jury was instructed that arguments are not evidence.

[00:23:40] Speaker 01:
No one again was disputing that January 6th was a negative event.

[00:23:46] Speaker 01:
If this court has no further questions, we'd rest on the briefs on the other issues.

[00:23:51] Speaker 03:
Thank you very much.

[00:23:51] Speaker 03:
Thank you.

[00:23:55] Speaker 03:
Okay, Mr. Coburn, we'll give you two minutes.

[00:23:58] Speaker 00:
Thank you so much.

[00:23:58] Speaker 00:
And with the court's permission, I would just devote myself the two minutes I have to the question of the government's opening and closing.

[00:24:07] Speaker 00:
And of course, look, it's understandable that anyone trying a case like this could feel the heat.

[00:24:17] Speaker 00:
It could become overheated.

[00:24:18] Speaker 00:
I understand that.

[00:24:19] Speaker 00:
It's just a matter of human nature.

[00:24:21] Speaker 00:
But to pick up on Your Honor's point about this being an associational argument, I just don't see the proposition that we're talking about somebody else

[00:24:34] Speaker 00:
you know, that it's somehow limited just to law enforcement and law enforcement prevailed and that's not us.

[00:24:40] Speaker 00:
That is, from my point of view, I just would tell the court, I think that's just totally irreconcilable with the way this case was argued.

[00:24:49] Speaker 00:
I mean, we're talking here about, and just to state the obvious, you know, about an event on January 6th, 2021, which is, I mean, it has preoccupied

[00:25:02] Speaker 00:
the nation's attention for years.

[00:25:05] Speaker 00:
It's one of the most inflammatory events of a political nature in the history of this country.

[00:25:13] Speaker 00:
And the notion that a prosecutor could make what I would suggest to the court is a plainly unambiguously associational argument here and could not just say what was referenced.

[00:25:28] Speaker 00:
Correct, Your Honor.

[00:25:28] Speaker 00:
There was no objection.

[00:25:29] Speaker 00:
I think that's unfortunate.

[00:25:31] Speaker 00:
For all I know, it may have been a tactical decision on the part of the trial lawyer.

[00:25:35] Speaker 02:
But that just means that you have to overcome the plain error standard, which is difficult.

[00:25:39] Speaker 02:
Not only does it have to be plain, but you have to show prejudice and rights and all the other things.

[00:25:45] Speaker 00:
Agreed.

[00:25:45] Speaker 00:
I mean, I'm not disputing for one moment that it's a plain error analysis.

[00:25:52] Speaker 00:
Here it seems to me unambiguously the case.

[00:25:54] Speaker 00:
It turns on, and here I'm referring to the Bechtin case,

[00:25:57] Speaker 00:
a 2010 case from this court.

[00:26:00] Speaker 00:
The closeness of the case, the centrality of the issue affected by the error, the steps taken to mitigate the errors effects, which were none.

[00:26:08] Speaker 00:
I mean, and certainly I'm not sort of, you know, blaming the trial judge.

[00:26:12] Speaker 00:
It's just a question of the fact that there unfortunately was no objection.

[00:26:16] Speaker 00:
But here, the nature of the argument, I mean, the inflammatory quality of it, you know, the fact that

[00:26:24] Speaker 00:
I mean, because it's not just the good guys prevail, but it was a horrible day in the history of this country.

[00:26:31] Speaker 00:
Ms.

[00:26:31] Speaker 00:
Eicher, which I think may address the point that was being made earlier, it's explicitly stated by the government, Ms.

[00:26:37] Speaker 00:
Eicher helped to make that horrible day possible.

[00:26:41] Speaker 00:
Terrifying, horrible, tragic, but the good guys prevailed.

[00:26:46] Speaker 00:
When all that verbiage is taken as a whole, I just don't think there can be any

[00:26:52] Speaker 00:
any question, that this is a patently associational argument.

[00:26:56] Speaker 00:
It is really sort of an ad hominem kind of a thing.

[00:27:00] Speaker 00:
It's encouraging the jury to detest personally the defendant.

[00:27:05] Speaker 00:
And I mean, it seems to me that that's well over the plain error threshold.

[00:27:12] Speaker 00:
And I'm thinking in particular about, for example, the Catala case, a 2022 case from this court.

[00:27:19] Speaker 00:
in which there was an appeal to nationalism.

[00:27:22] Speaker 00:
Here, we're talking about something that's far more inflammatory than an appeal to nationalism.

[00:27:26] Speaker 03:
Thank you.

[00:27:27] Speaker 03:
That's my colleagues.

[00:27:27] Speaker 03:
Have any further questions?

[00:27:29] Speaker 03:
Thank you very much.

[00:27:30] Speaker 03:
Mr. Colburn, you were appointed by this court to represent Ms.

[00:27:33] Speaker 03:
Eicher in this case.

[00:27:34] Speaker 03:
I'm very grateful for your assistance.

[00:27:36] Speaker 00:
Well, I'm very grateful to have been involved.

[00:27:38] Speaker 00:
Thank you very much.

[00:27:39] Speaker 03:
The case is submitted.