[00:00:01] Speaker 01:
Good morning, counsel.

[00:00:12] Speaker 03:
Mr. McComber, please proceed when you're ready.

[00:00:25] Speaker 04:
Good morning, Your Honors, and may it please the court, Sam McComber.

[00:00:27] Speaker 04:
On behalf of Ms.

[00:00:28] Speaker 04:
Yvonne St.

[00:00:28] Speaker 04:
Cyr, I hope to reserve two minutes for rebuttal.

[00:00:32] Speaker 04:
The primary issue for the jury to decide in Ms.

[00:00:34] Speaker 04:
Sear's trial was her mental state.

[00:00:37] Speaker 04:
And I will focus my time on two mens rea issues, the exclusion of video evidence that went to her mental state, and the vagueness of Section 231 because it lacks a mens rea requirement.

[00:00:50] Speaker 04:
Beginning with the video evidence, Ms.

[00:00:52] Speaker 04:
St.

[00:00:52] Speaker 04:
Sear offered two pieces of evidence that went to her mental state, her testimony,

[00:00:58] Speaker 04:
in a video that she took at the ellipse of the president's speech on January 6th.

[00:01:04] Speaker 04:
Let's be very clear about what happened at the district court when that video was attempted to be admitted.

[00:01:12] Speaker 04:
Defense counsel created a 20 minute exhibit from an hour and 20 minute video that Miss St.

[00:01:17] Speaker 04:
Cyr took on her cell phone of the president's speech.

[00:01:20] Speaker 04:
When defense counsel attempted to admit that exhibit, the trial court asked for justification

[00:01:26] Speaker 04:
and defense counsel provided one saying that it went to Ms.

[00:01:28] Speaker 04:
St.

[00:01:28] Speaker 04:
Cyr's intent.

[00:01:32] Speaker 04:
Without viewing the video, the district court excluded 17 minutes of that 20-minute video, and the district court's exclusion of that video exhibit was both a denial of Ms.

[00:01:45] Speaker 04:
St.

[00:01:46] Speaker 04:
Cyr's constitutional right to present a complete defense and an abuse of discretion.

[00:01:53] Speaker 04:
The district court, sui sponte and without objection, asked for justification of that video.

[00:02:01] Speaker 04:
And I think the key point for oral argument today on this issue is that the video was important.

[00:02:07] Speaker 04:
The video corroborates Ms.

[00:02:08] Speaker 04:
Stantier's testimony and makes it more persuasive.

[00:02:11] Speaker 04:
It gave the jury a shared experience to relate to her testimony and showed the crescendo of her belief that the election was stolen and that she was there to witness history.

[00:02:23] Speaker 02:
What difference does it make if she believed in the jury credited her belief that the election was stolen and she was there to witness history?

[00:02:36] Speaker 02:
How does any of that exculpate her?

[00:02:40] Speaker 04:
Because it goes to her intent for the section 231 offense, which shows that she had a mens rea to witness history and not a mens rea to obstruct.

[00:02:52] Speaker 02:
And that long things are mutually exclusive.

[00:02:57] Speaker 02:
No, your honor, but you can witness history by obstructing.

[00:03:02] Speaker 04:
Correct, your honor.

[00:03:02] Speaker 04:
But the video is important to showing the narrative relevance of her mental state.

[00:03:08] Speaker 04:
And that's the was the defense theme at trial was that she was there to witness history, not to obstruct.

[00:03:14] Speaker 04:
So although she could have both the defense argument was that she only had the intent to witness history, not the intent to obstruct.

[00:03:21] Speaker 01:
What did her mens rea an hour or so before the activities with which she was charged have such relevance?

[00:03:31] Speaker 01:
I mean, you put it in a jury, and even if the jury viewed the evidence in the way your client wishes them to, the question is, mens rea at the time of the conduct with which she's charged.

[00:03:43] Speaker 01:
And there's a significant time gap.

[00:03:45] Speaker 04:
Correct, Your Honor.

[00:03:46] Speaker 04:
The timing is important because, well, for three reasons.

[00:03:50] Speaker 04:
First, motive is always important when mental state is at issue.

[00:03:57] Speaker 04:
Second is the narrative relevance, which is a low standard that has any tendency to make a fact more or less probable.

[00:04:04] Speaker 04:
And that line drawing between her intent at the ellipse

[00:04:08] Speaker 04:
and her intent of the rally is abused of discretion because it's the district court's adoption of the government's theory of the case without allowing the defense to present its theory of the case, which goes to the prejudice point.

[00:04:20] Speaker 01:
If we're talking about apart from the government's case, I mean, there was significant time left and there was the jury saw videos of her behavior at the Capitol and her words at the Capitol.

[00:04:33] Speaker 01:
Um, and that seems to me,

[00:04:37] Speaker 01:
whether we're looking at this from harmless error or otherwise.

[00:04:40] Speaker 01:
The much more powerful, her motive to be at the rally is a very different question of her motive to be at the Capitol and to engage in the, her motive and then obviously most relevantly, her mens rea, to be engaged in the activities at the Capitol itself.

[00:05:00] Speaker 04:
She carried the same intent throughout the entire day, and her testimony makes that clear.

[00:05:05] Speaker 04:
And the exclusion of the video evidence is important because it shows that she had that intent at the rally and carried that intent through to the Capitol.

[00:05:15] Speaker 04:
And it did not, the video, showing that video to show that narrative relevance of her intent throughout time was not prejudicial because it was short.

[00:05:29] Speaker 04:
It was only a 20-minute video, and in context of trial, that exclusion is an abuse of discretion relative to the government's case.

[00:05:38] Speaker 04:
The government had two days of testimony and video, and Ms.

[00:05:40] Speaker 04:
St.

[00:05:40] Speaker 04:
Cyr had four hours of testimony.

[00:05:44] Speaker 04:
The video was introduced at 2.30 in the afternoon, and the district court could have viewed that evidence.

[00:05:49] Speaker 04:
outside the jury's presence, and it chose not to do so, to decide on its relevance.

[00:05:53] Speaker 04:
And it's a double standard for the court to allow the government to show 70 minutes of video and deny... Did you object?

[00:06:02] Speaker 01:
Did your client object to the government's videos as duplicative?

[00:06:06] Speaker 04:
Some of them, yes, Your Honor.

[00:06:08] Speaker 01:
Some of them?

[00:06:10] Speaker 04:
Yes.

[00:06:10] Speaker 04:
For example, when there was...

[00:06:14] Speaker 04:
Videos from different angles, yes.

[00:06:16] Speaker 04:
And I think that the more important piece is that the defense theory matters.

[00:06:21] Speaker 04:
So it's not that the government should not have had that time.

[00:06:25] Speaker 04:
It's that the defense should have had the opportunity to make their case.

[00:06:29] Speaker 01:
And that's a different argument than the government got to put in videos that the court considered relevant because they captured her actual conduct at the Capitol.

[00:06:37] Speaker 01:
And then just your defense theory.

[00:06:41] Speaker 01:
argument, that's different from a duplicativeness or the government got its videos and we didn't get ours.

[00:06:46] Speaker 01:
Correct.

[00:06:46] Speaker 04:
And I think the more important one is that this court does not have to agree with the defense's theory in order to find that Miss St.

[00:06:52] Speaker 04:
Cyr should be able to tell her story, should be able to present her defense.

[00:06:56] Speaker 02:
Did you, did you, did counsel present a defense theory instruction?

[00:07:07] Speaker 02:
I don't request the defense theory instruction and submit one to the court.

[00:07:11] Speaker 02:
I have one given to the jury.

[00:07:13] Speaker 04:
I don't believe so, your honor.

[00:07:15] Speaker 04:
But the closing arguments were all about Miss St.

[00:07:19] Speaker 04:
Cyr for the most part about Miss St.

[00:07:20] Speaker 04:
Cyr's mental state, if that's what you're asking.

[00:07:24] Speaker 02:
OK.

[00:07:24] Speaker 02:
I'm just trying to make sure, because I didn't see one in the record.

[00:07:31] Speaker 02:
So I was just trying to see whether there was a defense theory instruction.

[00:07:35] Speaker 02:
No, I don't believe so.

[00:07:36] Speaker 02:
But the theory of the defense was that she didn't have the requisite mental state either because she didn't know she was entering a restricted area or she didn't intend to obstruct.

[00:07:50] Speaker 02:
Correct.

[00:07:51] Speaker 02:
She did.

[00:07:54] Speaker 02:
And why?

[00:07:55] Speaker 02:
I mean, you've got a high burden to meet to show that there was a essentially a due process violation.

[00:08:05] Speaker 02:
Um,

[00:08:07] Speaker 02:
in three minutes of the video were presented and her testimony about that issue were presented.

[00:08:15] Speaker 02:
So how does that meet the very high standard to become a constitutional violation?

[00:08:22] Speaker 04:
First, it's not harmless because the video goes to an element of the offense.

[00:08:26] Speaker 04:
And the government has the burden to prove harmlessness beyond a reasonable doubt.

[00:08:31] Speaker 04:
And the trial court cannot assume that the jury knows the context of the case, cannot piecemeal admit the speech and expect it to show the full force of that video.

[00:08:41] Speaker 04:
And that's the difference between a cold record and the emotional effects of trial.

[00:08:46] Speaker 04:
For example, the government gives five bullet points of content that came from the president's speech in the three-minute clip, and that's correct.

[00:08:53] Speaker 04:
But Miss St.

[00:08:53] Speaker 04:
Cyr wanted to put the jury in her shoes to feel the size and commitment of the crowd, the coldness of the day.

[00:08:59] Speaker 04:
And the probative value of evidence is not the same as probative value of TikTok or a sound bite.

[00:09:05] Speaker 04:
The point is not to fit as much information into it as short a time as possible.

[00:09:09] Speaker 02:
What's your, I mean, every day judges restrict evidence, they restrict scope across examination, et cetera.

[00:09:21] Speaker 02:
In order to turn that from just an abuse of discretion kind of review non-constitutional harmlessness into a constitutional error is a big leap.

[00:09:36] Speaker 02:
What is your best case or precedent that this meets that standard?

[00:09:46] Speaker 04:
I think our strongest case might be McCoy versus City of Columbia.

[00:09:49] Speaker 04:
And that was a South Carolina case in which the court invalidated a local ordinance, making it lawful for any person to interfere or molest with a police officer.

[00:09:59] Speaker 04:
And that dealt more with the First Amendment issue than the vagueness issue.

[00:10:02] Speaker 04:
But I think the statutes are analogous.

[00:10:05] Speaker 04:
And I also see that I'm running out of time.

[00:10:07] Speaker 04:
So thank you.

[00:10:09] Speaker 03:
I'm sure my colleagues don't have additional questions for you this time.

[00:10:11] Speaker 03:
OK.

[00:10:11] Speaker 03:
We'll get a little bit of rebuttal time.

[00:10:13] Speaker 04:
Thank you.

[00:10:21] Speaker 00:
Good morning and may it please the court, Mary Fleming for the United States.

[00:10:27] Speaker 00:
This court should affirm St.

[00:10:28] Speaker 00:
Cyr's convictions.

[00:10:30] Speaker 00:
All of the claims that she raises on appeal are mirrorless.

[00:10:34] Speaker 00:
I'll focus on the evidentiary issue, the exhibition of the video.

[00:10:38] Speaker 00:
We're talking about a 19 minute and 27 second video that St.

[00:10:42] Speaker 00:
Cyr recorded at the ellipse before she went to the Capitol.

[00:10:47] Speaker 00:
The district court permitted the defense to play three minutes of that video and the court instructed that allowed the defense to pick out the most salient portions of the video, which happened to be three minutes.

[00:10:59] Speaker 00:
The court didn't put a time limit on it.

[00:11:01] Speaker 00:
There was no abuse of discretion in limiting the video in that way.

[00:11:06] Speaker 00:
The excluded portion was irrelevant.

[00:11:10] Speaker 00:
Trump's statements that the election was stolen, that everyone should go to the Capitol, do not negate her intent to obstruct or impede law enforcement hours later while she's on the West Front wining against the barricades or even after that when she's in the tunnel obstructing officers there.

[00:11:32] Speaker 00:
And even if this court thinks that there's some minimal probative value, it certainly was not an abusive discretion under Rule 403.

[00:11:43] Speaker 00:
What was driving this was a concern about a public authority defense that this was going to suggest that Trump had somehow authorized St.

[00:11:51] Speaker 00:
Cyr.

[00:11:51] Speaker 00:
to take the conduct.

[00:11:53] Speaker 00:
She had the conduct that she undertook later at the Capitol.

[00:11:56] Speaker 00:
And so there's a concern that it was a backdoor way of introducing a public authority defense.

[00:12:02] Speaker 00:
The district court limited the video and under rule 403 balancing, there was no abuse of discretion.

[00:12:08] Speaker 00:
And in any event, it was harmless.

[00:12:11] Speaker 00:
St.

[00:12:11] Speaker 00:
Cyr testified extensively about her intent.

[00:12:13] Speaker 00:
The three minutes of the video was the content of that.

[00:12:16] Speaker 00:
There was similar to the other 17 minutes.

[00:12:21] Speaker 00:
So for all of those reasons, the evidentiary issue is meritless.

[00:12:28] Speaker 00:
I'll rest on the briefs on the other issues, the vagueness challenge and the sufficiency challenges, unless this court has questions.

[00:12:36] Speaker 03:
Thank you, counsel.

[00:12:37] Speaker 00:
Thank you.

[00:12:43] Speaker 03:
Mr. Macomber, we'll give you the two minutes you asked for for rebuttal.

[00:12:48] Speaker 03:
Thank you, Your Honor.

[00:12:52] Speaker 04:
The direct evidence from trial is Ms.

[00:12:55] Speaker 04:
St.

[00:12:55] Speaker 04:
Cyr's testimony.

[00:12:56] Speaker 04:
That's the direct evidence of her intent.

[00:12:58] Speaker 04:
And it shows no intent to obstruct or impede.

[00:13:02] Speaker 04:
And I just want to read two questions from her examination.

[00:13:08] Speaker 04:
On direct, the question was, was your intent in any way to participate in the violence that was occurring around you?

[00:13:13] Speaker 04:
Ms.

[00:13:13] Speaker 04:
St.

[00:13:13] Speaker 04:
Cyr said, absolutely not.

[00:13:15] Speaker 04:
Absolutely not.

[00:13:16] Speaker 04:
I took an oath to no violence.

[00:13:18] Speaker 04:
Council asked, was your intent in any way to interfere or disrupt law enforcement's purpose that day?

[00:13:23] Speaker 04:
And Ms.

[00:13:24] Speaker 04:
St.

[00:13:24] Speaker 04:
Cyr's answer was no, it was not.

[00:13:28] Speaker 03:
Is this going to sufficiency or what?

[00:13:30] Speaker 04:
To her intent, to her mens rea, for excluding the video evidence.

[00:13:35] Speaker 04:
That the direct evidence was her testimony.

[00:13:38] Speaker 04:
in the video, cooperates or supports that testimony.

[00:13:42] Speaker 04:
And it's a constitutional violation.

[00:13:43] Speaker 04:
It's a denial of a right to complete defense when it arbitrarily or disproportionately, when a court arbitrarily or disproportionately.

[00:13:49] Speaker 01:
You can't sort of pull it out like that.

[00:13:51] Speaker 01:
You have to look at her full testimony, including cross-examination, where repeatedly, repeatedly she acknowledged that the police, that she was pushing on police lines, that she was refusing to move when ordered to move.

[00:14:05] Speaker 01:
saying I have a right to be here, I have a right to be here, and that she was encouraging other rioters and pushing against the police.

[00:14:16] Speaker 01:
So I'm not sure, I get that you've got those two lines, but if we're doing due process or even just an ordinary exclusion of evidence analysis, we have to look at the full thing and evaluating the consequences of the district court's

[00:14:34] Speaker 01:
request that she limit the video to the most salient evidence, which she did.

[00:14:40] Speaker 01:
Over-objection, for sure.

[00:14:41] Speaker 04:
And I think that that's how the government is using Section 231 to criminalize actions without evidence of intent.

[00:14:48] Speaker 04:
Her actions are inconclusive to her intent, and her testimony is conclusive.

[00:14:54] Speaker 04:
I see that I'm out of time.

[00:14:55] Speaker 04:
May I finish my answer?

[00:14:58] Speaker 04:
They don't demonstrate her intent to obstruct.

[00:15:00] Speaker 04:
Those are different elements.

[00:15:02] Speaker 04:
And here, the exclusion of the video was arbitrary, disproportionate, and went to a weighty interest.

[00:15:08] Speaker 04:
And that's why it's a constitutional violation, and that's why it's an abuse of discretion.

[00:15:12] Speaker 04:
It's arbitrary in that the government didn't object, and the district court didn't even watch the video.

[00:15:16] Speaker 04:
It's disproportionate in that it's a 20-minute video over the course of a week-long trial.

[00:15:21] Speaker 04:
and that it's a weighty interest and that it is the only contested element of the offense.

[00:15:25] Speaker 01:
Have you identified what was salient that you still needed beyond the part that was admitted that would have made, I mean, we keep bargaining about the 20 minutes in or out, it's a total thing, but you were allowed three minutes of the most salient information.

[00:15:41] Speaker 01:
What piece or statement was left out that would have made all the difference in your client's perspective?

[00:15:49] Speaker 04:
those missing 16 and a half or 17 all 16 and a half minutes.

[00:15:55] Speaker 04:
Well, there are a couple of themes that come out in those 16 minutes and that's her deep beliefs.

[00:16:00] Speaker 04:
For example, she's saying her testimony and the video is important because it corroborates her testimony speaking in the video.

[00:16:07] Speaker 04:
Someone else is speaking.

[00:16:08] Speaker 01:
No, but it doesn't corroborate her, her, her mens rea that may speak to other people's mindsets.

[00:16:15] Speaker 04:
I think it does, Your Honor.

[00:16:16] Speaker 04:
I think it shows both her deep beliefs and the rationale for recertification, which again, the jury does not have to agree with the rationale for recertification to find that that influenced Miss St.

[00:16:26] Speaker 04:
Cyr's mens rea.

[00:16:27] Speaker 04:
For example, when she pans the crowd, when she sings along to God bless the USA,

[00:16:32] Speaker 04:
when the crowd cheers, when the president thanks law enforcement, those show her or confirm her deeply held beliefs were part of the crowd's momentum that day.

[00:16:41] Speaker 04:
Or another example is the president's conversations about the media and mistrust of fake news.

[00:16:49] Speaker 04:
She put on a great deal of evidence about her mistrust of the government when she talked about her food and food industry labels.

[00:16:57] Speaker 04:
And that's at the beginning of her direct testimony when she talks about being

[00:17:00] Speaker 04:
skeptical of the government because it influenced the way the food is labeled, influenced her diet, and made her family unhealthy.

[00:17:07] Speaker 04:
The video shows that mistrust of media and so does her testimony.

[00:17:10] Speaker 02:
But the trial court didn't say you've got three minutes, right?

[00:17:16] Speaker 02:
Trial court said, I'm not going to let you play this whole 20 minutes.

[00:17:22] Speaker 02:
Pick out some sort of salient excerpts.

[00:17:28] Speaker 02:
and present that right.

[00:17:31] Speaker 02:
Correct.

[00:17:32] Speaker 02:
So to the extent that something was excluded, it was because defense counsel picked whatever they thought was most salient and they didn't think that was the most salient defense counsel already picked what they thought was the most salient when they added to her video from an hour and 20 minutes down to 20 minutes.

[00:17:54] Speaker 04:
And correct, they had the opportunity to play the last three minute truncated sound bite, but a sound bite is different than an exhibit.

[00:18:04] Speaker 02:
I mean, neither side cited it.

[00:18:15] Speaker 02:
My estimation, the seminal case on denial to present a defense violating due process as Chambers v Mississippi.

[00:18:26] Speaker 02:
That's a case where essentially an entire kind of category of evidence that the defense needed to present their defense was excluded.

[00:18:44] Speaker 02:
not just something that was corroborative.

[00:18:50] Speaker 02:
So it seems to me you got a big problem in that like you weren't kind of like categorically denied from presenting any such evidence.

[00:18:59] Speaker 02:
And then to the extent that there was some exclusion, it was because defense counsel did the excluding.

[00:19:07] Speaker 02:
They picked what they thought was most salient.

[00:19:10] Speaker 02:
You got to convince us that there was no way

[00:19:15] Speaker 02:
that out of that 20 minutes, they couldn't have, you know, there was no, no kind of, it's physically impossible for them to have, you know, use that three minutes to present what they did present without, you know, adding in this other, you know, whatever else

[00:19:44] Speaker 02:
whatever other excerpts or I guess your argument is that that's impossible.

[00:19:51] Speaker 02:
And so, you know, it's 20 minutes or bus.

[00:19:56] Speaker 04:
What is your that the speech was important in its 20 minute editing and that the district court's exclusion for relevance was incorrect and an abuse of discretion and the government

[00:20:09] Speaker 04:
itself acknowledges that the video is important, because they've indicted the president based on that speech.

[00:20:14] Speaker 04:
And so it's inconsistent to say that the video is not important here, but is important enough to indict the president.

[00:20:21] Speaker 01:
There's no inconsistency at all.

[00:20:22] Speaker 01:
It's just completely, that's apples and oranges.

[00:20:24] Speaker 01:
The question is, is relevance to presenting a defense for her video of what other people said?

[00:20:31] Speaker 01:
That's a completely different question.

[00:20:34] Speaker 04:
Then the point remains that it's relevant to her mental state, Your Honor.

[00:20:40] Speaker 03:
Is there anything short of 20 minutes?

[00:20:42] Speaker 03:
I mean, is your submission that it would have been a violation of due process to truncate it at all?

[00:20:46] Speaker 04:
No, Your Honor, but that the district court's reason for excluding it was incorrect, that it was relevant and it was not prejudicial, and that

[00:20:57] Speaker 04:
asking defense counsel at the table to just play the last segment is a constitutional right of her denial to make a complete defense and an abuse of discretion.

[00:21:10] Speaker 04:
And I see they've gone well over time, so.

[00:21:12] Speaker 03:
Let me make sure my colleagues don't have additional questions for you.

[00:21:15] Speaker 03:
Okay.

[00:21:16] Speaker 03:
Thank you, counsel.

[00:21:17] Speaker 03:
Thank you to both counsel.

[00:21:18] Speaker 03:
We'll take this case under submission.