throbber
USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 1 of 23
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`PETITION FOR PANEL REHEARING
`UNDER APPELLATE RULE 40
`
`UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`NO’S. 22-3038, 22-3039 & 22-3041
`
`
`
`UNITED STATES OF AMERICA,
`Appellant
`v.
`JOSEPH W. FISCHER, EDWARD LANG, and GARRET MILLER,
`Appellees,
`
`
`
`
`
`
`
`
`
`
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`D. CT. NO’S. 1:21-CR-234, 1:21-CR-119, 1:21-CR-53 (NICHOLS, J.)
`
`
` HEIDI R. FREESE, ESQ.
`
`
`
`
`
`
`
`
`
`Federal Public Defender
`
`
`
` Middle District of Pennsylvania
`
`
`
`
`
`
`
`
`FREDERICK W. ULRICH, ESQ.
`Asst. Federal Public Defender
`
`
`
`
`
`
`
`
`
`
`
`AMANDA R. GAYNOR, ESQ.
`
`
`
`Staff Attorney
`
`
`
`
`
`RYAN F. SHELLEY, ESQ.
`
`
`
`
`Staff Attorney
`
`
`
`
`STEVEN A. METCALF, II, ESQ.
`
`
`
`
`
`
`
`
`Metcalf & Metcalf, P.C.
`
`100 Chestnut Street, 3rd Floor
`
`
`99 Park Avenue
`
`Harrisburg, PA 17101
`
`
`
`717-782-2237 New York, NY 10016
`
`
`
`
`
`
`
`
`
`Attorneys for Appellees
`
`
`F. CLINTON BRODEN, ESQ.
`Broden & Mickelsen
`2600 State Street
`Dallas, TX 75204
`214-720-9552
`
`NICHOLAS D. SMITH, ESQ.
`David B. Smith, PLLC
`1123 Broadway, Ste. 909
`New York, NY 10010
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 2 of 23
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`CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
`
`
`Based on District of Columbia Circuit Rule 28(a)(1), the
`
`undersigned certifies:
`
`A. Parties and Amici
`
`The parties that appeared in the district court and that are now
`
`before this Court are the United States (Appellant) and Joseph Fischer,
`
`Edward Lang, and Garret Miller (Appellees). There are no amici curiae
`
`or intervenors.
`
`B. Rulings Under Review
`
`The current petition seeks panel rehearing of the divided
`
`judgment and opinions reversing the orders of the district court that
`
`dismissed counts under 18 U.S.C. § 1512(c)(2). See United States v.
`
`Fischer, et al., No’s 22-3038, 22-3039, 22-3041. The government
`
`originally sought review of the orders by The Honorable Carl J. Nichols
`
`at:
`
`
`
`• United States v. Miller, No. 21-cr-119, ECF No. 72, 2022 WL
`
`823070 (D.D.C. Mar. 7, 2022) (App.90-118), motion for
`
`reconsideration denied by ECF 86, 2022 WL 1718984 (D.D.C. May
`
`27, 2022) (App.397-408);
`
`i
`
`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 3 of 23
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`
`
`• United States v. Fischer, No. 21-cr-234, ECF No. 64, 2022 WL
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`782413 (D.D.C. Mar. 15, 2022) (App.502-11), motion for
`
`reconsideration denied by Minute Order (May 30, 2022) (App.421);
`
`and
`
`• United States v. Lang, No. 21-cr-53, Minute Order (D.D.C. June
`
`7, 2022) (App.12).
`
`
`
`C. Related Cases
`
`The only procedurally related cases are the three that this Court
`
`consolidated. That said, many defendants prosecuted in the United
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`States District Court for the District of Columbia for offenses under 18
`
`U.S.C. § 1512(c)(2) and in connection with January 6th have raised
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`“substantially the same or similar issues.” See D.C. Cir. R. 28(a)(1)(C).
`
`One of those cases is currently before a different panel of this Court.
`
`See United States v. Robertson, No. 22-3062. Another is United States
`
`v. Hale-Cusanelli, No. 22-3075. Counsel is unaware of any other cases
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`presenting “substantially the same or similar issues” pending before
`
`this Court.
`
`
`
`
`
`
`
`ii
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`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 4 of 23
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`
`
`TABLE OF CONTENTS
`
`
`Table Of Authorities ............................................................................................... iv
`I.
`Preliminary Statement in Support of Panel Rehearing ..................... 1
`II. Background ...................................................................................................... 2
`A. District Court proceedings ................................................................ 2
`B.
`The Appeal ............................................................................................. 4
`1. The Lead Opinion ............................................................... 4
`2. The Concurring Opinion ..................................................... 6
`3. The Dissenting Opinion ...................................................... 8
`III. Reasons for Rehearing ................................................................................ 10
`A.
`The judgment—a two to one reversal of the district court’s
`order—does not reflect the actual positions of the three
`opinions. ............................................................................................... 10
`IV. Conclusion ......................................................................................................... 16
`Certificate of Compliance
`
`Certificate of Service
`
`Exhibit A
`
`
`
`
`
`
`
`iii
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`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 5 of 23
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`
`
`TABLE OF AUTHORITIES
`
`
`
`
`
`Cases
`Marks v. United States,
`430 U.S. 188 (1977) .......................................................................... 2, 14
`Reagan v. Abourezk,
`484 U.S. 1 (1987) .................................................................................. 15
`United States v. Brooks,
`610 F.3d 1186 (9th Cir. 2010) .............................................................. 14
`United States v. Miller,
`589 F. Supp. 3d 60 (D.D.C. 2022) ........................................................... 3
`United States v. Nordean, et al.,
`No. 1:21-CR-00175................................................................................ 11
`Wooden v. United States,
`142 S. Ct. 1063 (2022) ............................................................................ 5
`Statutes
`18 U.S.C. §1512(c) .......................................... 1, 2, 3, 4, 7, 8, 10, 12, 13, 14
`Other Authorities
`Tristan Justice, Tom Cotton Confronts Deputy Attorney General Over
`DOJ Double Standards, The Federalist (April 19, 2023) ....................... 13
`Forbes Breaking News, Tom Cotton Asks Deputy AG If DOJ Will
`Investigate 'Democratic Mob' Disrupting Tennessee Legislature,
`YouTube (Apr. 19, 2023),
`https://www.youtube.com/watch?v=DAQ1g5hC824&t=159s. ................ 13
`
`
`
`
`
`iv
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`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 6 of 23
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`I.
`
`
`Preliminary Statement in Support of Panel Rehearing
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`Panel rehearing is necessary because no two opinions constitute a
`
`plurality on either of the dispositive legal issues: Section 1512(c)(2)’s
`
`mens rea and actus rei elements. Judge Walker agreed with Judge
`
`Katsas’ dissenting opinion on the vagueness and overbreadth of Section
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`1512(c)(2)’s actus rei. See United States v. Fischer, et al., No. 22-3038,
`
`slip op. (Walker J., concurring at 1-2, 19) (“Concurring Op.”). But he
`
`joined Judge Pan’s lead opinion, conditioned on his narrowing definition
`
`of Section 1512(c)(2)’s mens rea. See (Concurring Op. at 22 n.10). In
`
`other words, Judge Walker viewed his definition of the mens rea—
`
`acting corruptly—as necessary to narrow the reach of an otherwise
`
`overbroad and vague provision.
`
`Yet Judge Pan’s lead opinion did not address the merits of that
`
`definition. In her view, the mens rea element was not before the court.
`
`See United States v. Fischer, et al., No. 22-3038, slip op. (Pan, J., lead
`
`op. at 19-20) (“Lead Op.”). Id.1 And the lead opinion rejected that
`
`
`1 The mens rea element, however, constituted the lynchpin of the
`government’s construction of Section 1512(c)(2). And for this reason,
`the parties spent considerable time addressing it. See Doc. 1958170 at
`63-69 (Appellant’s brief); Doc. 1963748 at 44-48 (Appellees’ brief); Doc.
`1967589 at 32-37 (Appellant’s reply brief).
`1
`
`
`
`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 7 of 23
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`Judge Walker’s concurrence had any precedential value. See (Lead Op.
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`at 21 n.5) (declining to find as applicable the prudential rule in Marks v.
`
`United States, 430 U.S. 188 (1977)).2
`
`Without satisfaction of the condition necessary for joinder of the
`
`lead opinion, Judge Walker stated that he would join Judge Katsas’
`
`dissenting opinion. See (Concurring Op. at 22 n.10). That condition
`
`was not satisfied. The Panel should therefore rehear the case to amend
`
`the opinions to reflect Judge Walker’s joinder with Judge Katsas, that
`
`the Panel was equally divided, or that Judge Walker’s concurrence is
`
`the holding of the Court. In either of the first two events, the judgment
`
`should denote affirmance of the district court’s order.
`
`II. Background
`
`
`A. District Court proceedings
`The government indicted Mr. Fisher and Appellees Miller and
`
`Lang for their roles in the January 6th demonstrations at the Capitol
`
`
`
` 2
`
`
`
` Indeed, a different Panel of this Court has ordered briefing on
`“Fischer’s precedential effect, if any” on the mens rea element in
`Section 1512(c)(2). See United States v. Robertson, No. 22-3062, Doc.
`1994482. This effectively subjects Judge Walker’s concurrence to a
`collateral challenge. As a result, the Appellees might not receive the
`benefit of Judge Walker’s mens rea definition.
`2
`
`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 8 of 23
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`building. The charges included an offense under Section 1512(c) of the
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`Victim, Witness, or Informant Tampering statute, 18 U.S.C. § 1512,
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`which Congress enacted to criminalize the obstruction of its legislative
`
`inquiries and investigations. Section 1512(c) criminalizes evidence-
`
`impairment crimes in connection with, among other things, “a
`
`proceeding before the Congress.” Before trial, Fischer, Miller, and
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`Lang, moved to dismiss the obstruction count. They argued that their
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`conduct fell outside the purview of Section 1512(c). See Lead Op. at 6.
`
`The district court agreed. The court found that the text of Section
`
`1512(c) supported three possible readings, but only two of them were
`
`plausible. United States v. Miller, 589 F. Supp. 3d 60, 67 (D.D.C. 2022).
`
`In this regard, the court observed that subsection (c)(2) could be read as
`
`either prohibiting any act that obstructs an official proceeding or as a
`
`residual clause, reaching only acts similar to ones listed in (c)(1). See
`
`id. at 67-72. Given the text, structure, historical background, and
`
`legislative history of Section 1512, as well as the rule of lenity, the court
`
`found that the latter reading applied. See id. at 66, 72-76. The court
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`thus held that the acts of Fischer, Miller, and Lang fell outside the
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`reach of Section 1512(c)(2).
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`
`
`3
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`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 9 of 23
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`
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`The government appealed.
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`B. The Appeal
`
`On appeal, this Court—in a deeply divided set of opinions—
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`reversed.
`
`1. The Lead Opinion
`
`In the lead opinion, Judge Pan conceded that there was no
`
`precedent for applying Section 1512(c) to the conduct unrelated to
`
`evidence impairment at issue, and that such application was beyond
`
`Congress’ expressed purpose in amending that section. See (Lead Op.
`
`at 16, 30-31). Yet Judge Pan viewed the terms in Section 1512(c)(2) to
`
`be clear, unambiguous, and supporting a broad reading. See id. at 10-
`
`12. Indeed, she characterized any argument to the contrary as
`
`“implausible” based on Congress’ chosen language. See id. at 26.
`
`Consistent with this view, Judge Pan declined to find any inconsistency
`
`with the statutory context, historical development, and legislative
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`history. See id. at 30-37. And absent a “grievous ambiguity,” Judge
`
`
`
`4
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`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 10 of 23
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`Pan did not believe the rule of lenity had any role to play. See id. at
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`37.3
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`As to the government’s argument that the mens rea of “corruptly”
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`limited the statutory reach, Judge Pan demurred. See id. at 19. At the
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`outset, she observed that the district court declined to interpret
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`corruptly, the parties only discussed this issue “peripherally,” and no
`
`one requested the standard adopted by Judge Walker’s concurrence.
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`See id. 17, 19.4 For those reasons and because the assault allegations,
`
`in her view, satisfied any mens rea standard, Judge Pan did not reach
`
`the issue. And she offered that the definition adopted in Judge
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`Walker’s concurrence should, for the same reasons, await briefing in a
`
`
`3 Parenthetically, it’s far from clear that ambiguity must meet some sort
`of threshold standard of “grievousness” before the rule of lenity applies.
`See Wooden v. United States, 142 S. Ct. 1063, 1074, 1084-86 (2022)
`(Gorsuch and Sotomayor, J.J., concurring) (tracing the history of using
`“grievous” when describing an ambiguity).
`
` Although the district court declined to define corruptly, it noted that
`there was no consistent definition by other judges. See App. 405 n.3.
`And, as important, the court “conclude[ed] that the common meanings
`of corruptly are sufficiently capacious so as not to limit or clarify the
`actus reus charged in the Indictment.” Id. In any event, as noted
`above, the parties briefed the issue and Appellees cited the definition
`adopted by the concurring opinion. See supra n.1 & Doc. #1963748 at 47
`(Appellees’ brief).
`
` 4
`
`
`
`5
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`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 11 of 23
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`different case. See id. at 19-20. Finally, Judge Pan emphasized that
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`the concurring opinion warranted no precedential effect. See id. at 21
`
`n.5.
`
`2. The Concurring Opinion
`
`Judge Walker concurred in the judgment. See (Concurring Op. at
`
`1). In his assessment, the lead opinion’s rationale was “not enough to
`
`uphold the indictments” because it declined to define Section 1512(c)’s
`
`mens rea element. See id. at 22 n. 10. Judge Walker repeatedly
`
`characterized the government’s construction of Section 1512(c)(2)’s act
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`and mental state as breathtaking in scope, subjecting it to vagueness
`
`and overbreadth concerns. See id. at 1-2, 10, 14, 19, 20, 21. On this
`
`point, Judge Walker’s views aligned with those of Judge Katsas’
`
`dissent. But Judge Walker differed with the dissent on the best way to
`
`address those problems. In Judge Walker’s judgment, the most efficient
`
`way to narrow the breathtaking scope resulting from the lead opinion’s
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`construction was through the mens rea element—corruptly. See id. at
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`2, 10, 13-16, 19, 21.
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`In particular, Judge Walker defined corruptly as requiring “proof
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`that the defendant not only knew he was obtaining an ‘unlawful benefit’
`
`
`
`6
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`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 12 of 23
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`but that his ‘objective’ or ‘purpose’ was to obtain that unlawful benefit.”
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`Id. at 13. Judge Walker explained that narrowing the mens rea makes
`
`sense of subsection (c)(2)’s placement within the statutory scheme. See
`
`id. at 13, 15. And it avoided some, although not all, of the statutory
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`surplusage problems that exist with the dissenting opinion’s
`
`construction of the actus reus. See id. at 17-18. Finally, Judge Walker
`
`emphasized the conditional nature of his concurrence:
`
`• “Though the district court did not reach the meaning of
`‘corruptly,’ we have no choice. As I will explain . . . my
`vote to uphold the indictments depends on it.”
`
`• “Because I read ‘corruptly’ as courts have read it for
`hundreds of years—and only because I read it that way—I
`concur in the Court’s judgment.”
`
`• “[M]y reading of ‘corruptly’ is necessary to my vote to join
`the lead opinion’s proposed holding on ‘obstructs,
`influences, or impedes’ an ‘official proceeding.’”
`
`• “If I did not read ‘corruptly’ narrowly, I would join the
`dissenting opinion. That’s because giving ‘corruptly’ its
`narrow, long-established meaning resolves otherwise
`compelling structural arguments for affirming the district
`court, as well as the Defendants’ vagueness concerns.”
`
`• “[I]n my view, the rationale in the lead opinion is not
`enough to uphold the indictments.”
`
`
`
`
`
`
`
`
`See id. at 3 n.1, 22 & n.10 (emphasis added).
`
`
`
`
`
`
`
`7
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`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 13 of 23
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`3. The Dissenting Opinion
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`For his part, Judge Katsas concluded that both the government
`
`and lead opinion dubiously read the term “otherwise” in Section
`
`1512(c)(2) to mean in a different manner, as opposed to in a manner like
`
`the list in subsection (c)(1). See (Dissenting Op. at 1). Such reading,
`
`Judge Katsas explained, rendered subsection (c)(1) ineffective. See id.
`
`And it made 1512(c) implausibly broad and unconstitutional in many
`
`applications. See id. at 2.
`
`As Judge Katsas observed, the meaning of “otherwise” in
`
`subsection (c)(2) cannot be determined in isolation but must be drawn
`
`from the context in which it’s used. Id. at. 5. To begin, Judge Katsas
`
`relied on normal linguistic usage that the verbs preceding “otherwise”
`
`help frame and narrow its meaning. Id. at 6. This usage is consistent
`
`with textualism’s goal, that is, not to explore definitional possibilities
`
`but to assess how an ordinary person would understand the phrases
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`Congress strung together. Id. at 7.
`
`This goal also coincides with several canons of construction.
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`Those canons include avoiding surplusage by giving effect to every
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`clause and word. Id. at 7-8. Another canon, ejusdem generis, cautions
`
`
`
`8
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`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 14 of 23
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`that when general words follow specific ones, the general words are
`
`construed as embracing only objects like those enumerated. Id. at 8, 24-
`
`25. Similarly, the canon of nocitur a sociis provides that “a word is
`
`given precise content by the neighboring words with which it is
`
`associated.” Id. at 8, 24-25 (citations omitted). Here, “otherwise” takes
`
`meaning from the specific examples preceding it. Id. As Judge Katsas
`
`recognized, the expansive interpretation by the government and the
`
`lead opinion “would swallow up various other Chapter 73 offenses
`
`outside of Section 1512.” Id. at 20.
`
`Judge Katsas next noted that the statutory history surrounding
`
`Section 1512 and its application in the courts went against the lead
`
`opinion’s unprecedented expansion of its reach. See id. at 27-28. Given
`
`the ambiguity surrounding the statutory reach and unconstitutional
`
`breadth, Judge Katsas believed that the rule of lenity applied. See id.
`
`at 17, 28-29.
`
`Finally, as for the approach suggested in the concurrence, Judge
`
`Katsas lauded the goal of narrowing the government and lead opinion’s
`
`breathtaking and untenable construction of the statute. See id. at 36.
`
`But in Judge Katsas’ view, the heightened mens rea requirement that
`
`
`
`9
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`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 15 of 23
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`the concurrence proposed would not alter the improbable breadth of the
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`actus rei. Id. In other words, Judge Katsas viewed the unlawful-
`
`benefit mens rea definition as necessary but not sufficient. That Judges
`
`Katsas and Walker agreed that “corruptly” irreducibly entails an intent
`
`to secure some unlawful benefit is reflected in the concurring opinion.
`
`Concurring Op. at 10 n. 5 (“The dissenting opinion says a defendant can
`
`act ‘corruptly’ only if the benefit he intends to procure is ‘financial,
`
`professional, or exculpatory advantage.’”) (emphasis added).
`
`III. Reasons for Rehearing
`
`A. The judgment—a two to one reversal of the district
`court’s order—does not reflect the actual positions of
`the three opinions.
`
`
`To start, Judge Walker’s concurrence was, as noted above,
`
`conditional. See (Concurring Op. at 3 n.1, 22 & n.10). His condition
`
`was the acceptance, presumably by someone, of his heightened mens
`
`rea definition for “corruptly.” As he emphasized, absent a mens rea
`
`that a “defendant not only knew he was obtaining an unlawful benefit
`
`but that his objective or purpose was to obtain that unlawful benefit,”
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`Section 1512(c)(2) was breathtakingly broad and vague. Id. at 1-2, 13.
`
`
`
`10
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`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 16 of 23
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`
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`Yet it’s clear from Judge Pan’s lead opinion that she refused to
`
`accept the definition of “corruptly” proposed in Judge Walker’s
`
`concurrence. See (Lead Op. at 19-20, 21 n.5). She viewed that issue as
`
`outside the scope of the appeal. See id. Even if Judge Walker
`
`conditioned his joinder on the acceptance of his definition of corruptly
`
`through application of the Marks rule, Judge Pan’s lead opinion rejected
`
`that too. See id. at 21 n.5. And at least one district court judge has
`
`sided with the lead opinion on that point. See, e.g., United States v.
`
`Nordean, et al., No. 1:21-CR-00175, (Ex. “A” Kelly, J. ruling)
`
`(determining that the district court will instruct the jury with a reading
`
`of § 1512(c)(2) rejected by Judges Walker and Katsas).
`
`So with no acceptance of Judge Walker’s concurrence, his
`
`expressed preference would be to join the dissent. See (Concurring Op.
`
`at 22 n.10). This position has more commonality than the judgment
`
`acknowledges, as the illustration below reveals:
`
`
`
`11
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`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 17 of 23
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`
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`Both the concurrence and dissent agreed that the government,
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`and by extension, the lead opinion’s construction of Section 1512(c)(2)’s
`
`act rei would create a breathtakingly broad, vague, and
`
`unconstitutional provision. Compare (Concurring Op. at 1-2, 10, 14, 19,
`12
`
`
`
`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 18 of 23
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`20 & 21) with (Dissenting Op. at 2, 17, 29, 31, 36 & 37).5 Both opinions
`
`agreed that the required mens rea under Section 1512(c)(2) was before
`
`this Court. Compare (Concurring Op. at 3 n.1) with (Dissenting Op. at
`
`31-36). And both opinions agreed that the required mens rea for acting
`
`corruptly includes the improper or unlawful benefit test. Compare
`
`(Concurring Op. at 15) with (Dissenting Op. at 35).
`
`
`
`Where they part ways is with the best method to rein in an
`
`otherwise overbroad, vague, and unconstitutional provision. Judge
`
`Walker’s concurrence would heighten the mens rea by defining
`
`corruptly to require that “[a] defendant intend an unlawful benefit that
`
`he knows is unlawful.” (Concurring Op. at 15). While Judge Katsas
`
`believes that an “unlawful benefit” mens rea is necessary, he viewed it
`
`as insufficient to limit the statute’s unconstitutional reach. And so he
`
`
`5 Indeed, the very concerns expressed by Judge Katsas in his dissent, see
`(Dissenting Op. at 31), have been realized. Senator Cotton has begun
`probing why Justice Department officials have not launched criminal
`investigations under Section 1512(c)(2) for those protesting gun violence
`at the Tennessee Capitol and those protesting Representative Jordan’s
`House Judiciary Committee hearing in New York City. See Tristan
`Justice, Tom Cotton Confronts Deputy Attorney General Over DOJ
`Double Standards, The Federalist (April 19, 2023); Forbes Breaking
`News, Tom Cotton Asks Deputy AG If DOJ Will Investigate 'Democratic
`Mob' Disrupting Tennessee Legislature, YouTube (Apr. 19, 2023),
`https://www.youtube.com/watch?v=DAQ1g5hC824&t=159s.
`13
`
`
`
`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 19 of 23
`
`
`would construe the actus rei consistent with the other language in the
`
`subsection, the statute’s history, and existing precedent.6 This
`
`construction thus limits the reach of Section 1512(c)(2) to efforts to
`
`impair physical or other kinds of evidence. See (Dissenting Op. at 15).
`
`
`
`What is apparent from the text and illustration above is that the
`
`concurrence and dissent view Section 1512(c) as unconstitutionally
`
`vague and overbroad. And neither shares the views of the lead opinion.
`
`As a result, the judgment should be amended to reflect a two-one
`
`affirmance.
`
`Alternatively, the opinions could be viewed as exclusive of each
`
`other. For example, in her lead opinion Judge Pan found nothing wrong
`
`with the scope of the actus rei in Section 1512(c)(2). But she declined to
`
`reach the question of the required mens rea, as she believed that it was
`
`beyond the scope of the appeal. Judge Walker, however, thought that
`
`the mens rea issue was central to resolving the scope of the statute.7
`
`
`6 Accord United States v. Brooks, 610 F.3d 1186, 1200-01 (9th Cir. 2010)
`(construing “otherwise” in the Sentencing Guidelines as relating to the
`examples in the preceding subsection).
`7 The Court could alternatively consider amending the judgment to
`clarify that Judge Walker’s concurrence is the Court’s holding. See
`(Concurring Op. at 22 n.10) (explaining why the concurring opinion may
`be controlling under Marks).
`
`
`
`14
`
`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 20 of 23
`
`
`And his opinion depends on that perspective. On the opposite end,
`
`Judge Katsas hinged his opinion on a narrowing construction of Section
`
`1512(c)(2)’s actus rei. This divergence of opinion has many—if not all—
`
`of the hallmarks of an equally divided panel. In which case, the order
`
`below should be affirmed. E.g., Reagan v. Abourezk, 484 U.S. 1, 2
`
`(1987) (affirming the judgment in the lower court by a three-three
`
`equally divided court because of Justice Blackmun and Justice Scalia's
`
`recusals, as well as Justice Powell's recent retirement from the Court).8
`
`
`
`
`
`
`
`
`8 An equally divided three-judge panel is rare, but it can occur.
`15
`
`
`
`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 21 of 23
`
`
`IV. Conclusion
`
`For these reasons, this Honorable Court should grant the petition
`
`for panel rehearing, vacate the judgment, and amend it to reflect
`
`affirmance of the district court’s decision.
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ F. Clinton Broden
`F. CLINTON BRODEN, ESQ.
`Broden & Mickelsen
`2600 State Street
`Dallas, TX 75204
`214-720-9552
`
`/s/ Nicholas D. Smith
`NICHOLAS D. SMITH, ESQ.
`David B. Smith, PLLC
`1123 Broadway, Ste. 909
`New York, NY 10010
`
`
`
`
`/s/ Frederick W. Ulrich
`FREDERICK W. ULRICH, ESQ.
`Asst. Federal Public Defender
`
`AMANDA R. GAYNOR, ESQ.
`Staff Attorney
`
`RYAN F. SHELLEY, ESQ.
`Staff Attorney
`
`100 Chestnut Street, Suite 306
`Harrisburg, PA 17101
`717-782-2237
`/s/ Steven A. Metcalf
`
`
`STEVEN A. METCALF, II, ESQ.
`
`
`
`Metcalf & Metcalf, P.C.
`
`
`
` 99 Park Avenue
`
`
`
`New York, NY 10016
`
`
`Dated: April 25, 2023
`
`
`
`
`
`
`
`16
`
`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 22 of 23
`
`
`
`CERTIFICATE OF COMPLIANCE
`I, Frederick W. Ulrich, Esquire, of the Federal Public Defender’s
`
`Office, certify, in compliance with the Federal Rules of Appellate
`
`Procedure and the Third Circuit Local Appellate Rules, that: (i) I am a
`
`member in good standing of the bar of this Court; (ii) the text of the
`
`electronic version of this petition is identical to the text of the paper
`
`copies submitted; (iii) no virus was detected in the electronic version of
`
`this petition when a virus check was performed using Trend Micro Apex
`
`One; and (iv) this petition complies with applicable type-volume
`
`requirements because it contains 2,784 words, less than the 3,900 word
`
`limit.
`
`
`
`Date: April 25, 2023
`
`
`
`
`
`
`
`
`
`
`/s/ Frederick W. Ulrich
`FREDERICK W. ULRICH, ESQ.
`Asst. Federal Public Defender
`
`
`
`17
`
`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 23 of 23
`
`
`
`CERTIFICATE OF SERVICE
`I, Frederick W. Ulrich, Esquire, of the Federal Public Defender’s
`
`Office, certify that I served on this date a copy of the Petition for Panel
`
`Rehearing Under Appellate Rule 40 by Electronic Case Filing,
`
`addressed to:
`
`
`
`
`
`
`
`/s/ F. Clinton Broden
`F. CLINTON BRODEN, ESQ.
`Broden & Mickelsen
`
`
`/s/ Nicholas D. Smith
`NICHOLAS D. SMITH, ESQ.
`David B. Smith, PLLC
`
`
`JAMES I. PEARCE, ESQUIRE
`
`U.S. Department of Justice
`james.pearce@usdoj.gov
`
`
`
`
`/s/ Frederick W. Ulrich
`FREDERICK W. ULRICH, ESQ.
`Asst. Federal Public Defender
`
`
`
`
`
`
`
`/s/ Steven A. Metcalf
`
`
`STEVEN A. METCALF, II, ESQ.
`
`
`
`Metcalf & Metcalf, P.C.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Date: April 25, 2023
`
`
`
`
`
`
`18
`
`

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