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USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 1 of 9
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF COLUMBIA
`
`UNITED STATES OF AMERICA
`
`----------------X
`CR Nos l;21-cr-0
`0175-TJK-l
`1:21-cr-00175-TJK-2
`1;21-cr-00175-TJK-3
`l;21-cr-00175-TJK-5
`l;21-cr-00175-TJK-6
`
`V.
`
`1-ETHAN NORDEAN
`
`2-JOSEPH R. BIGGS
`
`3-ZACHARY REHL
`5-ENRIQUE TARRIO
`6-DOMINIC J. PEZZOLA,
`
`Washington, D.C.
`Thursday, April 20, 2023
`9:15 a.m.
`
`Defendants.
`
`----- X
`
`TRANSCRIPT OF JURY TRIAL - DAY 68
`
`*** MORNING SESSION ***
`
`HELD BEFORE THE HONORABLE TIMOTHY J. KELLY
`
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES:
`
`For the United States
`
`For the Defendants:
`
`Jason B.A. McCullough, Esq.
`Erik M. Kenerson, Esq.
`Nadia Moore, Esq.
`Conor Mulroe, Esq.
`U.S. ATTORNEY'S OFFICE
`555 4th Street, NW
`Washington, DC 20530
`(202) 252-7233
`
`Nicholas D. Smith, Esq.
`DAVID B. SMITH, PLLC
`7 East 20th Street
`
`Suite 4r
`New York, NY 10003
`(917) 902-3869
`
`Norman A. Pattis, Esq.
`PATTIS & SMITH, LLC
`383 Orange Street
`1st Floor
`New Haven, CT 06511
`(203) 393-3017
`
`John D. Hull, IV, Esq.
`HULL MCGUIRE PC
`1420 N Street, NW
`Washington, DC 20005
`(202) 429-6520
`
`EXHIBIT A-1
`
`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 2 of 9
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` Ms. Hernandez ticked — sent around on email was just the
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` issue of Fischer and the impact of Fischer on the jury
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` instructions. So I'm going to lay out an oral ruling on
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` that right now, and then there's another matter that, I
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` think, we do need to take up before the — we begin with the
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` jury, and then I think most of the other things we can pick
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` up on the other side of where we are on all of that.
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` So as far as Fischer goes, before me are two
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` motions relating to the D.C. Circuit's recent — and
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`fractured — decision in United States v. Fischer which is
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`2023 WL 2817988. It's a D.C. Circuit opinion from April
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`7th, 2023.
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`MS. HERNANDEZ: It seems like yesterday. Your
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`Honor, that it was —
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`THE COURT: In that case, the Circuit reversed the
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`District Court's dismissal of 18 United States Code
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`1512(c)(2) counts in three January 6th cases. The District
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`Court had concluded that the statute's actus reus, quote,
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`"requires that the defendant have taken some action with
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`respect to a document, record, or other object in order to
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`corruptly obstruct, impede, or influence an official
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`proceeding." That was United States v. Miller, 589 F. Supp.
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`3d 60 at 78, a D.D.C. case from 2022, Judge Nichols.
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`A majority of the panel. Judges Pan and Walker,
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`disagreed with the District Court and reversed its judgment.
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`EXHIBIT A-2
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`

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`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 3 of 9
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` But those two judges parted ways on what to do with the
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` element of 1512(c)(2) requiring that a defendant acted
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` corruptly. Judge Pan concluded that a — that ruling on a
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` precise definition for "corruptly" was unnecessary and
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` unwise, because the District Court did not reach the issue
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` because it wasn't, in her view, thoroughly briefed and the
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` court could otherwise find that the indictment adequately
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` stated an offense. Judge Walker, on the other hand,
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` resolved that a defendant's act is only corrupt under
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`Section 1512(c)(2) if the defendant takes the action —
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`takes an action, quote, "with an intent to procure an
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`unlawful benefit either for himself or some other person."
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`This reading, he contended, quote, "resolves otherwise
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`compelling structural arguments for affirming the District
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`Court as well as the defendant's vagueness concerns," closed
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`quote. Judge Katsas, on the other hand, dissented from the
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`majority outright, instead endorsing an, quote,
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`"evidence-focused interpretation," closed quote, of
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`1512(c)(2)'s actus reus that — it was a more
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`evidence-focused interpretation, although it wasn't
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`precisely — it was slight- — it was more broad than what
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`the District Court had endorsed.
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`Defendant Nordean, joined by Defendant Tarrio,
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`asks me to instruct the jury on the definition of
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`"corruptly" in 18 United States Code Section 1512(c)(2) in
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`EXHIBIT A-3
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`

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`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 4 of 9
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` the way endorsed by Judge Walker in his concurring opinion,
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` or else dismiss both 1512 counts in the indictment. And
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` Defendant Rehl, joined by Defendants Biggs and Tarrio,
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` separately move to dismiss Counts 2 and 3.
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` To start, Nordean argues that Judge Walker's
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` opinion is binding on me under Marks v. United States, 430
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` United States Code — U.S. 188, a Supreme Court case from
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` 1997, a position does — Judge Walker also says, quote,
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` "may" be correct. The Marks rule provides that, quote,
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`"when the Supreme Court issues fragmented opinions, the
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`opinion of the Justices concurring in the judgment on the
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`narrowest grounds should be regarded as the Court's
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`holding," closed quote. That's King v. Palmer, 950 F.2d 771
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`at 780, aD.C. Circuit case from 1991 that is quoting Marks
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`at 193. So Nordean argues I must instruct the jury in this
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`case using Judge Walker's definition of "corruptly." And so
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`I've already indicated as we discussed the jury instructions
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`in the case, I disagree with that.
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`To start, authority for applying the Marks rule to
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`Circuit opinions, as opposed to Supreme Court opinions, is
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`scarce. It does not appear the D.C. Circuit has ever done
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`so, and Judge Walker himself questioned whether a future
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`panel would apply it here. Instead [sic], he, quote,
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`"expressed no opinion about whether it should," closed
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`quote, noting that the rule, quote, "has generated
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`EXHIBIT A-4
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`

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`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 5 of 9
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` considerable confusion."
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` But even assuming the Marks rule should apply
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` here, I'm not convinced that Judge Walker's concurrence is,
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` quote, "the opinion," quote, "concurring in the judgment on
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` the narrowest grounds," closed quote. As the Circuit has
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` explained, quote, "one opinion can be meaningfully regarded
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` as narrower than another," closed quote, open quote, "only
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` when one opinion is a logical subset of other, broader
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` opinions." That's the King case I mentioned before at 781.
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`Put another way, quote, "The narrowest opinion must
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`represent a common denominator of the court's reasoning,"
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`closed quote; meaning, it, open quote, "must embody a
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`position implicitly approved by at least a majority of the
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`judges who support the judgment," closed quote.
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`The posture of this case is critical to applying
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`the D.C. Circuit's "logical subset" test for Marks. Here,
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`the Fischer court reviewed only a motion to dismiss under
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`Rule 12 for failure to state an offense. So to hold, as the
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`court did, that the defendants' indictments stated an
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`offense under Section 1512(c)(2), it needed to conclude only
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`that the statute applied to defendants' alleged conduct and
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`that the indictments state essential facts constituting the
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`offense charged. That's from Judge Pan's lead opinion,
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`citing Hamling v. United States, 418 U.S. 87 at 117, a
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`Supreme Court case from 1975, and Federal Rule of Criminal
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`EXHIBIT A-5
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`

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`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 6 of 9
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` Procedure 7(c)(1).
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` Judge Pan did just that in her lead opinion.
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` After concluding that the District Court erred in
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` constraining the actus reus of 1512(c)(2) to obstructive
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` acts taken, quote, "with respect to a document, record, or
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` other object," closed quote, she examined several prevailing
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` definitions of "corruptly." She included [sic] that under
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` each of the formulations, "corrupt intent exists at least
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` when an obstructive action is independently lawful [sic],"
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`closed quote. She also noted that even if Section
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`1512(c)(2) requires an [sic], quote, "additional element,"
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`closed quote, that a defendant intends to confer an unlawful
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`benefit on himself or a third party, the defendants'
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`"alleged intentions of helping their preferred candidate" —
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`in that case — "overturn the election results would
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`suffice," closed quote. So she said, the sufficiency of the
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`indictments in this case does not turn on the precise
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`definition of "corruptly."
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`So for that reason. Judge Pan's ruling on
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`"corruptly" was decidedly narrow: an indictment adequately
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`alleges that a defendant's obstructive conduct was corrupt
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`at least when it states that a defendant committed unlawful
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`acts with the intent to confer a benefit on another person.
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`Beyond that, the opinion takes no position on the reach of
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`"corruptly," ultimately, including on whether either or both
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`EXHIBIT A-6
`
`

`

`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 7 of 9
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` of those conditions is necessary or sufficient.
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` Judge Walker's opinion sweeps much broader,
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` conclusively deciding that to act corruptly is, quote, "to
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` act with an intent to procure an unlawful benefit either for
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` himself or for some other person," closed quote, apparently
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` with [sic] regard to whether the defendant used
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` independently lawful or unlawful means. That's his
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` concurrence at Page 17. His opinion, thus, reaches beyond
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` the defendants charged in Fischer, its companion cases, and
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`those similarly situated to any defendant charged with
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`1512(c)(2) in any context.
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`Now, as the D.C. Circuit applies the Marks rule at
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`least to Supreme Court opinions. Judge Pan's decision is the
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`logical subset of Judge Walker's, not the other way around,
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`in my view. For a ruling to prevail under Marks, it most —
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`it "must embody a position implicitly improved [sic] by the
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`majority of judges who support the judgment." That's King,
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`again, at 781. The only gloss on the meaning of "corruptly"
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`on which Judge Pan — Judges Pan and Walker agree and is
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`necessary to support the judgment is that the Fischer
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`defendants' actions, as alleged in that indictment, would be
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`corrupt. But beyond that. Judge Pan's silence on what else
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`may or may not be enough to satisfy Section 1512(c)(2)'s
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`requirement that a defendant act corruptly is not, quote,
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`"implicit approval," closed quote, of Judge Walker's views
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`EXHIBIT A-7
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`

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`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 8 of 9
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` on the matter.
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` Judge Walker's contrary view, and Mr. Nordean's
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` reliance on the same, doesn't persuade me otherwise. Judge
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` Walker says, for — I mean, I'm sorry, Mr. Nordean says, for
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` example, that he reads (c)(2) to cover only some of the
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` conceivable defendants the lead opinion might allow a court
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` to convict. But the lead opinion — at least with respect
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` to the "corruptly" element — does not allow a court to
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` convict any defendant beyond those charged in the Fischer
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`cases or those charged with sufficiently analogous conduct.
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`Rather, it takes no position on what a court might do in
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`circumstances beyond those charged. Consider further Judge
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`Walker's observation that, quote, "if a defendant is guilty
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`under his approach, he will be guilty under the lead
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`opinion's, but some of the defendants guilty under the lead
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`opinion's approach will not be guilty under his approach."
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`As I read it, the lead opinion does not really articulate an
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`approach and it takes no position on the viability of
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`1512(c)(2) charges against defendants beyond those charged
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`in that case. Judge Walker's opinion, though, does.
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`So to summarize, I agree with Judge Walker and
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`Nordean that Judge Pan's lead opinion must take some
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`position on the meaning of the word "corruptly" because,
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`under the circumstances, I agree that without taking a
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`position, the lead opinion would not conclude, as it does.
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`EXHIBIT A-8
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`

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`USCA Case #22-3038 Document #1996380 Filed: 04/25/2023 Page 9 of 9
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` that the indictments should be upheld. But I part ways with
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` what that position is. In this Circuit, and consistent with
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` Judge Pan's lead opinion, a defendant acts corruptly at
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` least where he commits an unlawful act with the intent to
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` unlawfully benefit himself or another person. But whether
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` either or both of those conditions are necessary remains an
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` open question in this Circuit. Therefore, I'll deny
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` Mr. Nordean's motion to the extent it argues I'm bound to
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` instruct the jury on 1512(c)(2)'s "corruptly" element
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`consistent with Judge Walker's concurrence.
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`So I'll now turn to Mr. Rehl's motion to dismiss
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`and Mr. Nordean's alternative argument for dismissal, both
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`of which I will also deny. Nordean and Rehl would have me
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`find that Judge Katsas's dissent controls. They argue that
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`Judge Walker set a condition precedent to his concurrence
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`whereby he would only join Judge — lead — Judge Pan's lead
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`opinion if she agreed with his definition of "corruptly."
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`But Judge Pan did not agree with that definition, and so
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`defendants contend that Judge Walker, in fact, dissented,
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`creating a new majority and requiring me to dismiss Counts 2
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`and 3 in this case.
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`But judicial opinions are not contracts, and
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`judgments are not open to interpretation depending on how a
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`lower court — at least judgments — judgments and who
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`joined the judgment and who did not, that question is not
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`EXHIBIT A-9
`
`

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