[00:00:00] Speaker 05: Case number 23-3133, United States of America versus Joshua Christopher Doolin at balance. [00:00:08] Speaker 05: Mr. Orenberg for the balance. [00:00:10] Speaker 05: Mr. Andrews for the appellee. [00:00:13] Speaker 04: Good morning. [00:00:14] Speaker 04: You may proceed when you're ready. [00:00:16] Speaker 00: Thank you, Your Honor. [00:00:17] Speaker 00: Good morning, and may it please this court. [00:00:20] Speaker 00: My name is Alan Orenberg, and I represent Joshua Christopher Doolin, who, by the way, has completed the prison term portion of his sentence [00:00:30] Speaker 00: and he chose not to be here today. [00:00:34] Speaker 00: In our opinion, the threshold issue is whether Mr. Doolin may challenge the Civil Disorder Statute 18 U.S. [00:00:40] Speaker 00: Code Section 231A3 as facially vague, even though Doolin did not challenge this statute as vague as applied. [00:00:55] Speaker 00: The Supreme Court [00:00:57] Speaker 00: in 2015 in Johnson versus United States, 576 U.S. [00:01:01] Speaker 00: 591, curb the principle which the appellee cites in their brief that a defendant may only challenge a statute as facially vague if the defendant also challenged the statute as vague as applied. [00:01:20] Speaker 00: Now, essentially the as applied challenge to the statute was impossible [00:01:27] Speaker 00: to determine pre-trial, and by the way, I was trial counsel, because there was no theory sufficiently alleged by the government as to how Mr. Dooland violated the statute. [00:01:39] Speaker 00: And there was no way to even know what the government was relying upon pre-trial until the facts were reduced at trial, which we alleged were insufficient facts as well. [00:01:51] Speaker 00: That's the problem with Section 231. [00:01:54] Speaker 00: There was no notice [00:01:57] Speaker 00: There was no fair notice to Mr. Doolin prior to trial to inform us what we were defending against. [00:02:06] Speaker 01: I mean, if that was a problem, then you file a motion for bill. [00:02:09] Speaker 00: I don't disagree with you, Judge Wilkins, but [00:02:18] Speaker 00: It was, shall we say, in the lead up to the trial, it was very difficult to ascertain what facts the government was relying upon to pursue the elements of 231. [00:02:39] Speaker 00: So it's our position for now. [00:02:42] Speaker 00: Anything and everything can constitute a violation of Section 231, which in this results in an unconstitutional vagueness. [00:02:51] Speaker 04: You say anything and everything and it's it's. [00:02:56] Speaker 04: It's a. Not anything and everything, right? [00:03:01] Speaker 00: Well, it's it's not the entire global universe. [00:03:04] Speaker 00: That's correct, but it's the universe of the evidence or the discovery, which is [00:03:11] Speaker 00: you know, produced and presented to defense counsel prior to trial. [00:03:14] Speaker 00: That's the universe of the evidence that we had at the time. [00:03:17] Speaker 04: And the defendant himself knows the conduct that he was involved in. [00:03:22] Speaker 04: And so to the extent that it's interfering with the duties of officers, he has to think about what he did. [00:03:29] Speaker 04: And then he probably knows what at least the government thinks constitutes that activity. [00:03:36] Speaker 00: I don't disagree with you, but we didn't have full fair notice of the government's theory of its prosecution to this particular statute at trial. [00:03:48] Speaker 00: Now, as you know, from my opening brief and reply brief, we also believe. [00:03:54] Speaker 05: I mean, you agree that the Supreme Court case law and the circuits case law does not allow avoid the vagueness challenge. [00:04:03] Speaker 05: if a person's conduct is clearly prescribed by the statute? [00:04:09] Speaker 00: Well, the problem is, and I am aware of this court's announcements, teachings in the United States versus Nassif from 2024, I believe. [00:04:19] Speaker 05: And Holder in the Supreme Court. [00:04:21] Speaker 00: Right. [00:04:23] Speaker 00: But we have only [00:04:26] Speaker 00: three other circuits that have addressed this issue. [00:04:29] Speaker 00: And two of those circuits was some 40, 50 years ago. [00:04:33] Speaker 05: But here, Mr. Dulin attempted to push through a police line with a riot shield. [00:04:41] Speaker 05: So how does that conduct not fit within the plain meaning of the statute, obstructing, impeding, or interfering with law enforcement officers performing their duties during a civil disorder? [00:04:53] Speaker 05: So it seems to me that you have to have an argument about why the particular conduct that was charged here is not within the statute in order to even bring a void for vagueness challenge. [00:05:06] Speaker 00: I don't disagree with you, either Judge Rao. [00:05:08] Speaker 05: So what's your argument? [00:05:09] Speaker 00: Well, the problem was we didn't have notice prior to trial, a full and fair notice of what the government was going to do or induce a trial. [00:05:19] Speaker 01: But that could have been, you could have made that argument [00:05:23] Speaker 01: And there was a remedy, if that were the case, which was motion for a bill of particulars that the court could have granted you that would have set forth specifically what their theory of prosecution was. [00:05:39] Speaker 01: But none of that was pursued, right? [00:05:43] Speaker 00: Right. [00:05:43] Speaker 00: Again, I don't disagree. [00:05:44] Speaker 00: That was not pursued. [00:05:46] Speaker 00: That was not pursued at the time. [00:05:54] Speaker 00: Does the court have any other questions about this particular argument or would like to hear about other arguments that were advanced? [00:06:04] Speaker 04: You can use the time as you see fit. [00:06:06] Speaker 00: Okay. [00:06:06] Speaker 00: Thank you, your honor. [00:06:08] Speaker 00: Um, we also challenged the enhancement for obstruction of justice and [00:06:29] Speaker 00: It's our position that Mr. Doolin did not willfully, knowingly attempt or commit obstruction of justice by deleting photographs from the keepsake, from his telephone that went into this keepsake program. [00:06:48] Speaker 00: Okay, he was very candid and honest and open with the investigating officers and with the court about how [00:06:57] Speaker 00: this particular program works. [00:06:58] Speaker 00: There was lots of testimony at trial about it, about how, I guess, data on a telephone can be moved to this particular program, which then automatically deletes it from his telephone. [00:07:12] Speaker 00: He was not trying to willfully or knowingly obstruct justice when doing so. [00:07:18] Speaker 00: It's our position that the district court judge was wrong when he found that he did commit obstruction of justice when [00:07:27] Speaker 00: performing this particular conduct. [00:07:30] Speaker 05: Mr. Ornberg, should we apply plain error review to this question because there was no challenge to the enhancement raised below? [00:07:39] Speaker 00: I recall there was a challenge prior to sentencing to this particular enhancement. [00:07:50] Speaker 05: But the grounds on which, you know, the district court judge, I believe, asked several times, you know, whether there was any clarification about that enhancement or any, you know, and there was nothing raised at the time. [00:08:05] Speaker 05: The government hasn't argued for plain error review here, but I thought I would give you a chance to address that. [00:08:11] Speaker 00: Well, I don't disagree with that either. [00:08:13] Speaker 00: I think plain error is the standard of review here. [00:08:16] Speaker 05: You do? [00:08:19] Speaker 04: And that, so there was the [00:08:23] Speaker 04: keepsake issue, but there was also the district court found that Mr. Doolin's testimony was incredible, that he testified falsely about not having noticed barricades in view of other evidence. [00:08:41] Speaker 04: I think it was a video recording of him commenting that he passed through them, that his claim that he didn't know the riot shield was government property in view of the fact that it said Capitol Police [00:08:51] Speaker 04: on it and that he somehow didn't understand the meaning of his own remarks in a video when he announced that they had taken the capital. [00:09:01] Speaker 04: I think those were also part of what the district court was relying on in applying the sentencing enhancement for obstruction of justice. [00:09:10] Speaker 04: Is that not your understanding? [00:09:12] Speaker 00: No, that's my understanding, but we believe that the district court abused its discretion when it made that final determination based on this. [00:09:19] Speaker 04: In what respect? [00:09:20] Speaker 04: walk us through that a little bit. [00:09:22] Speaker 00: Well, the district court had an opportunity to hear from Mr. Doolin, both at trial and at sentencing on that issue. [00:09:32] Speaker 00: And Mr. Doolin, like any other witness, took the oath and he testified truthfully about his recollection of the events that day and leading up to those days. [00:09:45] Speaker 00: So we believe it was abuse of discretion for the district court to apply that enhancement. [00:09:52] Speaker 00: I see that my time is about up. [00:09:54] Speaker 00: I wanted to reserve a little bit of time for rebuttal. [00:09:57] Speaker 00: Thank you. [00:09:58] Speaker 04: Thank you. [00:09:58] Speaker 04: Good morning Mr. Andrews. [00:10:09] Speaker 03: Good morning. [00:10:10] Speaker 03: May it please the court. [00:10:12] Speaker 03: Peter Andrews on behalf of the United States. [00:10:17] Speaker 03: On January 6, 2021, Mr. Doolin joined a mob that was besieged in the United States Capitol. [00:10:23] Speaker 03: He stole a riot shield and he joined a mob that was trying to force its way into the Capitol through the tunnel. [00:10:30] Speaker 03: He used his body to directly oppose police officers who were trying to protect the tunnel from the mob of rioters. [00:10:37] Speaker 03: That conduct is clearly prescribed by 18 USA 231, the civil disorder statute. [00:10:46] Speaker 03: And because that conduct is clearly prescribed, [00:10:49] Speaker 03: Mr. Doolin's vagueness challenge to the statute cannot succeed. [00:10:53] Speaker 03: He has not cleared the threshold of showing that his conduct in some way falls within any vagueness in the statute. [00:11:01] Speaker 03: As Mr. Doolin concedes in his brief, as he's conceded oral argument today, there's no ambiguity about whether or not his conduct falls within the scope of 231. [00:11:11] Speaker 03: And as this court has affirmed, as recently as in the Nassif case, this longstanding principle that a defendant cannot challenge a criminal statute on due process vagueness grounds without some, if their conduct is clearly prescribed by the statute, that principle should be applied here. [00:11:34] Speaker 03: As to Mr. Doolin's argument about the Supreme Court's decision in Johnson, [00:11:39] Speaker 03: Johnson did not abrogate this rule. [00:11:43] Speaker 04: I think he's backed away from that this morning. [00:11:46] Speaker 04: You could move on. [00:11:49] Speaker 03: Sure. [00:11:49] Speaker 03: If he's backed away from that, then we would agree with that. [00:11:55] Speaker 03: Does the court have any other questions about the civil disorder piece of this? [00:12:02] Speaker 03: If not, I'll briefly address the keep safe and issues related to the obstruction enhancement [00:12:10] Speaker 05: I ask you a question, Mr. Andrews. [00:12:12] Speaker 05: The district court said when he was imposing the enhancement that he was looking both at the behavior with regard to keep safe and also the false testimony during trial. [00:12:27] Speaker 05: So to uphold the enhancement, do we have to agree with both of those findings or just one of those findings? [00:12:35] Speaker 03: You just need to agree with one of those findings. [00:12:37] Speaker 05: And why is that? [00:12:38] Speaker 05: He says that it's the combination of these two things. [00:12:43] Speaker 03: So when we're looking at. [00:12:44] Speaker 03: On appellate review, I think either of those are independent bases for making out the obstruction enhancement under the they could be independent bases, but if if that's not what the district court found. [00:13:00] Speaker 05: We found you needed both. [00:13:02] Speaker 05: How should we think about that on appeal? [00:13:06] Speaker 03: The way to think about that is that either of these are independent bases for affirming the district court's decision to impose the enhancement. [00:13:13] Speaker 03: The fact that both of them were relied on by the district court certainly lends force to the district court's legal and factual findings, specifically the factual findings [00:13:24] Speaker 03: were that the district court understood that to apply the enhancement to Mr. Doolin based on his testimony, it needed to conclude that he acted willfully in misleading the court, as opposed to simply mistake or faulty memory. [00:13:41] Speaker 03: It's not enough to say Mr. Doolin took the stand and took an oath, and so the district court cannot have found that he testified falsely. [00:13:50] Speaker 04: I'm sorry, you just said that the district court found that he willfully testified falsely. [00:13:55] Speaker 03: The district court understood that willfully was the standard required to make a finding related to the obstruction enhancement. [00:14:03] Speaker 03: The district court did not specifically say, I find that he testified willfully, but the district court did say that willfully [00:14:10] Speaker 03: was the standard that is required for that piece of it. [00:14:14] Speaker 03: So either the false testimony on the stand, which this court has discussed, or Mr. Doolin's actions with respect to the photos on his phone, not just moving the photos into KeepSafe, but then lying to the FBI that the photos no longer existed, and then either his or his associates later attempt to delete whatever photos may have been in the KeepSafe cloud application, [00:14:39] Speaker 03: Either of those sort of courses of conduct is sufficient to apply the obstruction. [00:14:44] Speaker 04: Right. [00:14:45] Speaker 04: We understand that there is evidence in the record and that a district judge, if that judge so chose, could apply, could find the enhancement supported by some subset of that evidence. [00:14:57] Speaker 04: I think the difficulty that we're probing is that the district judge's sentencing didn't specify which of those [00:15:06] Speaker 04: he was relying on, he didn't specify which false statements of Doolin he thought satisfied the legal criteria for perjury and especially what was willfully false as opposed to there may be some things that Mr. Doolin said that the judge thought were inaccurate but weren't willfully false. [00:15:26] Speaker 04: And so if what the judge says is taking this all together is the basis and we think that maybe he's [00:15:33] Speaker 04: wrongly made a determination about willful falsehood with respect to some piece of the testimony. [00:15:39] Speaker 04: How do we know that that doesn't affect the validity of the enhancement? [00:15:48] Speaker 03: So a couple thoughts in response. [00:15:51] Speaker 03: So first, when we talk about the standard of review of what was found at sentencing, I believe the district court's factual findings are reviewed for clear error. [00:15:58] Speaker 03: So first, this court would need to conclude that there was some clear error in the district court's factual findings. [00:16:06] Speaker 03: The cases we've cited sort of second the cases we've cited in our brief stand for the idea that even if the district court does not make an explicit finding that X statement is perjury for why reasons that this court can nonetheless affirm if it's clear from the record what the district court what false statements the district court was focused on. [00:16:28] Speaker 03: The parties at sentencing were all focused on the same examples of false statements. [00:16:33] Speaker 03: And the district court's conclusion that these statements were incredible, at least some of the statements were incredible, when taken together with the keepsake evidence is more than enough for this court to affirm the application of the sentencing enhancement. [00:16:50] Speaker 05: Mr. Andrews, I'm wondering, the government here doesn't argue that plain error should apply to the enhancement. [00:16:58] Speaker 05: But it seems that your colleague on the other side has conceded that maybe plain error does apply. [00:17:04] Speaker 05: Is that something this court can apply, Sue Esponte? [00:17:07] Speaker 05: I mean, there seems to be some split in circuit authority about whether a court can apply plain error if the parties have not asked for it. [00:17:16] Speaker 05: Has the government forfeited the plain error argument? [00:17:18] Speaker 03: So I would say at a minimum, Judge Rao, we didn't raise plain error. [00:17:23] Speaker 03: And the brief doesn't argue plain error because [00:17:29] Speaker 03: I'm not sure plain error applies here because I understood Mr. Doolin to be objecting to the application of this enhancement below. [00:17:36] Speaker 03: So candidly, I'm not sure there is a plain error issue here. [00:17:41] Speaker 02: I believe he did object. [00:17:44] Speaker 02: I hope that answers the question. [00:17:46] Speaker 02: Thank you. [00:17:47] Speaker 04: Do you have any objection to a holding that 2231A3 requires that the defendant act with a purpose to obstruct law enforcement? [00:17:59] Speaker 03: The defendant, so should the court get past the threshold issue of Mr. Doolin's essentially standing to bring this claim, the government's view is that 231 requires the specific intent to obstruct, impede, or interfere with law enforcement officers. [00:18:17] Speaker 03: So acting with that purpose is consistent with the government's understanding of the statute. [00:18:25] Speaker 03: If there are no further questions from the court, we'd ask that the court affirm Mr. Doolin's convictions and sentence. [00:18:30] Speaker 04: Thank you. [00:18:31] Speaker 02: Thank you. [00:18:36] Speaker 04: Mr. Orenberg, reserve time. [00:18:37] Speaker 02: Thank you, Your Honor. [00:18:47] Speaker 00: With respect to the obstruction issue, [00:18:51] Speaker 00: The district court did not find that Mr. Doolin testified willfully when he was talking about the keepsake cap and the pictures and so forth and so on. [00:19:05] Speaker 00: And I agree with I think what Mr. Andrews conceded or agreed with Judge Rao is that [00:19:15] Speaker 00: arguments that we're saying that there should be both prongs of our challenge to this which is the keepsake photos prong and the trial testimony prong have to be satisfied in order for the district in order for the district court to have found a willful obstruction of justice in this case with regards to the 231 issue [00:19:47] Speaker 00: You know, it's our position. [00:19:49] Speaker 00: I just want to be clear that the statute is facially vague because it does lack the standards and it leads to arbitrary enforcement. [00:19:59] Speaker 00: You know, I still believe that this is somewhat of a case of first impression, although the court may have addressed this issue or at least heard or argument a few weeks ago in the St. [00:20:08] Speaker 00: Sire case. [00:20:10] Speaker 00: I don't think the court has issued an opinion in that case yet, and I know that it was in that brief. [00:20:15] Speaker 04: You filed your brief before the defendant in St. [00:20:19] Speaker 04: Cyr file? [00:20:20] Speaker 00: Yes, I did. [00:20:21] Speaker 04: And do you have any idea how it happened that the brief in that case seems to copy large portions of your brief? [00:20:30] Speaker 00: No, Your Honor. [00:20:31] Speaker 00: To be candid, someone brought that to my attention after oral argument, or right about the time that oral argument was said. [00:20:38] Speaker 00: I think it was around the first week of November. [00:20:44] Speaker 04: That wasn't that you had passed it along as a model brief on this issue. [00:20:47] Speaker 00: No, but my briefs were filed. [00:20:48] Speaker 00: They were on PACER. [00:20:52] Speaker 00: Anyway, if the court has no further questions, again, we ask that the court, you know, issue a decision which gives us the relief that we're seeking and if necessary, remand back to the district court for further findings. [00:21:07] Speaker 04: Thank you. [00:21:07] Speaker 04: And Mr. Armbrough, we recognize that you are appointed by the court to represent Mr. Doolin in this case, and the court thanks you for your. [00:21:18] Speaker 00: Thank you very much. [00:21:19] Speaker 00: Have a good morning.