throbber
USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 1 of 22
`ARGUED ON DECEMBER 12, 2022
`
`Nos. 22-3038, 22-3039 & 22-3041
`
`In the United States Court of Appeals for the
`District of Columbia Circuit
`______________
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellant
`
`v.
`
`
`
`JOSEPH FISCHER, EDWARD LANG, AND GARRET MILLER,
`Defendants-Appellees
`
`______________
`
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`D. CT. NOS. 1:21-CR-53, 1:21-CR-119, 1:21-CR-234 (NICHOLS, J.)
`______________
`
`RESPONSE FOR THE UNITED STATES
`IN OPPOSITION TO PANEL REHEARING
`______________
`
`KENNETH A. POLITE
`Assistant Attorney General
`
`LISA H. MILLER
`Deputy Assistant Attorney
`General
`
`MATTHEW M. GRAVES
` United States Attorney
` District of Columbia
`
`DENISE CHEUNG
`CHRISELLEN R. KOLB
` Assistant U.S. Attorneys
`
`
`
`
`
`
`
`JAMES I. PEARCE
`Special Assistant U.S. Attorney
`601 D Street, NW
`Washington, DC 20530
`(202) 532-4991
`James.Pearce@usdoj.gov
`
`
`
`
`
`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 2 of 22
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`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ...................................................................... ii
`GLOSSARY OF ABBREVIATIONS ........................................................ iv
`INTRODUCTION ...................................................................................... 1
`BACKGROUND ........................................................................................ 2
`ARGUMENT ............................................................................................. 5
`Panel rehearing is unwarranted. ..................................................... 5
`I.
`The Court’s
`judgment correctly reflects the
`disposition of the case. ................................................... 6
`II. Determining Fischer’s precedential effect is not a
`basis for panel rehearing. ............................................ 11
`CONCLUSION ........................................................................................ 15
`CERTIFICATE OF SERVICE
`CERTIFICATE OF COMPLIANCE
`
`
`
`
`
`
`
`
`
`
`
`i
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`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 3 of 22
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`
`TABLE OF AUTHORITIES
`
`Cases
`
`Elliott By & Through Elliott v. United States,
`37 F.3d 617 (11th Cir. 1994) (en banc) ............................................... 10
`Greenlaw v. United States,
`554 U.S. 237 (2008) ............................................................................. 12
`Gregg v. Georgia,
`428 U.S. 153 (1976) ............................................................................. 13
`In re Long-Distance Tel. Serv. Fed. Excise Tax Refund Litig.,
`751 F.3d 629 (D.C. Cir. 2014) ............................................................... 5
`LeDure v. Union Pac. R.R. Co.,
`142 S. Ct. 1582 (2022) ......................................................................... 10
`Major League Baseball Players Ass’n v. Garvey,
`532 U.S. 504 (2001) ............................................................................. 14
`Marks v. United States,
`430 U.S. 188 (1977) ......................................................................... 6, 13
`Missouri v. Jenkins,
`495 U.S. 33 (1990) ................................................................................. 5
`United States v. Fischer,
`64 F.4th 329 (D.C. Cir. 2023)................................................ 1, 3-5, 7-14
`United States v. Montgomery,
`578 F. Supp. 3d 54 (D.D.C. 2021) ....................................................... 12
`United States v. Poindexter,
`951 F.2d 369 (D.C. Cir. 1991) ............................................................... 9
`United States v. Sineneng-Smith,
`140 S. Ct. 1575 (2020) ......................................................................... 12
`
`ii
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`

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`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 4 of 22
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`
`Statutes and Rules
`
`18 U.S.C. § 1505 ........................................................................................ 9
`18 U.S.C. § 1512 .................................................................................... 1, 2
`Fed. R. App. P. 35 ...................................................................................... 5
`Fed. R. App. P. 40 ...................................................................................... 5
`
`
`
`
`
`
`iii
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`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 5 of 22
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`
`App.
`
`Pet.
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`
`
`GLOSSARY OF ABBREVIATIONS
`Appellant’s Appendix
`
`Appellees’ Petition for Panel Rehearing
`
`
`
`
`
`iv
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`

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`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 6 of 22
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` INTRODUCTION
`For their participation in the attack on the United States Capitol
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`on January 6, 2021, defendants Joseph Fischer, Edward Lang, and
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`Garret Miller were separately indicted for violations of 18 U.S.C.
`
`§ 1512(c)(2), which makes it unlawful to “corruptly . . . obstruct[],
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`influence[], or impede[] any official proceeding.” The district court
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`dismissed the Section 1512(c)(2) counts pretrial, concluding that the
`
`statute requires a defendant to “have taken some action with respect to
`
`a document, record, or other object in order to corruptly obstruct, impede
`
`or influence an official proceeding,” App.117, and that the defendants
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`were not alleged to have taken any such action. This Court reversed the
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`district court’s ruling that Section 1512(c)(2) “does not apply to assaultive
`
`conduct, committed in furtherance of an attempt to stop Congress from
`
`performing a constitutionally required duty.” United States v. Fischer,
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`64 F.4th 329, 332 (D.C. Cir. 2023). That straightforward disposition
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`represents the binding holding of the two judges in the panel majority.
`
`In their petition for panel rehearing, the defendants do not request
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`a single substantive change in the Court’s analysis of Section 1512(c)(2).
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`Instead, they argue that the Court should recharacterize its binding
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`
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`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 7 of 22
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`holding, rename the Court’s opinions accordingly, and amend the
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`judgment. The Court should deny the defendants’ request. The
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`defendants overlook the common ground shared by the lead and
`
`concurring opinions in reversing the district court’s decision. And any
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`uncertainty about the definition of “corruptly” in Section 1512(c)(2),
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`which was neither squarely presented nor authoritatively resolved in this
`
`case, is properly addressed in other cases before this Court and on
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`remand.
`
`BACKGROUND
`The defendants were charged with several offenses in connection
`
`with the attack on the United States Capitol on January 6, 2021,
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`including one count of obstructing a congressional proceeding, in
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`violation of 18 U.S.C. § 1512(c)(2). They moved to dismiss the Section
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`1512(c)(2) count, contending that (1) Congress’s counting of the electoral
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`votes on January 6 was not an “official proceeding”; (2) Section 1512(c)(2)
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`did not criminalize their alleged conduct; and (3) the statute’s mens rea
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`element,
`
`requiring
`
`that
`
`the defendant act
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`“corruptly,”
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`is
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`“unconstitutionally vague.” See App.95-96. The district court rejected
`
`the first argument, id. at 98-99, but agreed that the defendants’ alleged
`
`2
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`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 8 of 22
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`conduct did not fit within the scope of Section 1512(c)(2) because the
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`statute “requires that the defendant have taken some action with respect
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`to a document, record, or other object,” id. at 117, which these defendants
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`were not alleged to have done, id. at 99-118. In light of that holding
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`related to the offense’s actus reus, the district court did not address the
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`defendants’ constitutional vagueness challenge to the mens rea of
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`“corruptly.” See App.405 n.3 (declining to interpret “corruptly” in order
`
`denying government’s motion for reconsideration).
`
`Following a government appeal, this Court reversed. United States
`
`v. Fischer, 64 F.4th 329, 332 (D.C. Cir. 2023). According to the per curiam
`
`judgment, the district court’s orders are “reversed and the cases [are]
`
`remanded for further proceedings, in accordance with the opinion of the
`
`court[.]” Judgment (Apr. 7, 2023) (emphasis added). A notation at the
`
`bottom of the judgment further clarifies that Judge Pan filed the
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`“[o]pinion for the court” and that Judge Walker joined that opinion
`
`“except as to Section I.C.1 and footnote 8.” Id. In addition, Judge Walker
`
`filed a separate opinion “concurring in part and concurring in the
`
`judgment,” and Judge Katsas filed a dissenting opinion. Id.
`
`3
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`

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`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 9 of 22
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`In the portions of the lead opinion1 joined in full by the concurring
`
`judge, the Court relied on Section 1512(c)(2)’s text and structure, as well
`
`as case law interpreting the statute, see Fischer, 64 F.4th at 335-39, to
`
`conclude that Section 1512(c)(2)’s actus reus element “encompasses all
`
`forms of obstructive conduct, including . . . efforts to stop Congress from
`
`certifying the results of the 2020 presidential election.” Id. at 335; see id.
`
`at 351 (Walker, J., concurring) (noting that he “concur[s] in the Court’s
`
`judgment and join[s] the lead opinion’s interpretation of [Section
`
`1512](c)(2)’s act element”). In a section of the lead opinion that Judge
`
`Walker did not join, Judge Pan reasoned that “[t]he requirement of
`
`‘corrupt’ intent prevents [Section 1512](c)(2) from sweeping up a great
`
`deal of conduct that has nothing to do with obstruction,” but refrained
`
`from defining “the exact contours of ‘corrupt’ intent” because “the task of
`
`defining ‘corruptly’” was not before the Court. Id. at 339-40 (opinion of
`
`Pan, J.). Judge Walker, believing that defining “corruptly” was necessary
`
`to “make sense” of “[Section 1512](c)(2)’s act element,” wrote a concurring
`
`opinion in which he proposed defining the term to mean “act[ing] with an
`
`
`1 Following the convention used in the three opinions, this response refers
`to the opinion for the Court as the “lead opinion.”
`
`4
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`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 10 of 22
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`intent to procure an unlawful benefit either for himself or for some other
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`person.” Id. at 351-52 (Walker, J., concurring) (internal quotation marks
`
`omitted). The dissenting opinion (Katsas, J.) did not endorse any
`
`definition of the statute’s mens rea element and instead would have
`
`interpreted Section 1512(c)(2)’s actus reus element to encompass only
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`“acts that impair the integrity or availability of evidence.” Id. at 370
`
`(Katsas, J., dissenting).
`
`ARGUMENT
`Panel rehearing is unwarranted.
`Panel rehearing is appropriate only to “bring to the panel’s
`
`
`
`attention points of law or fact that it may have overlooked.” Missouri v.
`
`Jenkins, 495 U.S. 33, 46 n.14 (1990) (citing Fed. R. App. P. 40(a)). The
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`defendants’ rehearing petition2 identifies no legal principles or factual
`
`matters that the Court overlooked, and thus fails to meet that standard.
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`Instead, the defendants principally argue (Pet. 10-15) that panel
`
`rehearing is warranted to amend the judgment, which they contend is
`
`
`2 The defendants do not request rehearing en banc, which is “reserved for
`‘question[s] of exceptional importance’ or to preserve ‘uniformity of the
`court’s decisions.’” In re Long-Distance Tel. Serv. Fed. Excise Tax Refund
`Litig., 751 F.3d 629, 636 (D.C. Cir. 2014) (quoting Fed. R. App. P. 35(a)).
`
`5
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`

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`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 11 of 22
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`inaccurate because Fischer’s three opinions read together should have
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`resulted in affirmance of the district court’s order dismissing the Section
`
`1512(c)(2) counts for failure to state a claim. The Court’s judgment,
`
`however, correctly reflects the panel majority’s agreement that Section
`
`1512(c)(2) encompasses the defendants’ alleged conduct and that the
`
`district court erred in concluding otherwise. The Court should reject the
`
`defendants’ suggestion that the panel members did not understand the
`
`ways in which they agreed and disagreed and that they mistakenly
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`issued the judgment. Any additional question concerning Section
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`1512(c)(2)’s mens rea element or Fischer’s precedential effect on other
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`cases is not a basis to grant rehearing in this case. The defendants’ panel
`
`rehearing petition should be denied.
`
`I.
`
`The Court’s judgment correctly reflects the disposition of the
`case.
`The per curiam judgment correctly identified the lead opinion as
`
`the “[o]pinion for the court.” Unlike in cases decided by a “fragmented”
`
`court that fails to articulate a holding that finds majority support, here a
`
`“single rationale explain[s] the result.” Marks v. United States, 430 U.S.
`
`188, 193 (1977). Specifically, a two-judge majority agreed on the
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`“interpretation of [Section 1512](c)(2)’s act element,” United States v.
`
`6
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`

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`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 12 of 22
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`Fischer, 64 F.4th 329, 351 (D.C. Cir. 2023) (Walker, J., concurring), and
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`adopted all but Section I.C.1 (declining to interpret “corruptly”) and
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`footnote 8 of the lead opinion. Because the lead and concurring opinions
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`agreed on the analysis in Section I.A, i.e., that Section 1512(c)(2) was
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`“unambiguous” in that it “applies to all forms of corrupt obstruction of an
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`official proceeding” other than the document destruction and evidence
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`tampering covered in Section 1512(c)(1), id. at 336 (lead opinion), the
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`Court reversed the district court’s contrary ruling. The judgment
`
`appropriately reflects that disposition.
`
`The defendants’
`
`rehearing petition mischaracterizes
`
`the
`
`interrelationship of the three opinions. For example, the defendants
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`inaccurately claim (Pet. 10-11) that Judge Walker’s concurrence was
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`conditioned upon the lead opinion’s “acceptance” of his “corruptly”
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`interpretation and that the lead opinion “refused to accept” that
`
`interpretation. To be sure, the concurrence would have determined that
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`“corruptly” means “a criminal intent to procure an unlawful benefit,”
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`Fischer, 64 F.4th at 357 (Walker, J., concurring). But the resolution of
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`that mens rea issue was not necessary to the Court’s holding concerning
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`the offense’s actus reus—which Judge Walker joined by concurring in all
`
`7
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`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 13 of 22
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`but a section and a footnote in the lead opinion and concurring in the
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`judgment reversing the district court’s dismissals of the Section
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`1512(c)(2) count. Even if Judge Walker’s concurrence were conditioned
`
`on his interpretation of “corruptly,” the defendants wrongly assert that
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`the lead opinion rejected that interpretation. Rather, the lead opinion
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`recognized the concurrence’s “corruptly” interpretation as one potential
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`“candidate[],” id. at 339-40 (opinion of Pan, J.), but adopted no definitive
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`interpretation because “the task of defining ‘corruptly’” was not before
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`the Court, id. at 340.
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`The defendants further misstate (Pet. 12-13) the common ground
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`between the concurring and dissenting opinions. The two opinions did
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`not “agree[]” that the lead opinion’s construction of Section 1512(c)(2)’s
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`actus reus requirement was “breathtakingly broad, vague, and
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`unconstitutional.” Pet. 12. On the contrary, the concurrence’s author
`
`joined the lead opinion’s actus reus analysis and separately confirmed
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`that the defendants’ ‘“efforts to stop Congress from certifying the results
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`of the 2020 presidential election’ are the kind of ‘obstructive conduct’
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`proscribed by [Section 1512](c)(2).” Fischer, 64 F.4th at 351 (Walker, J.,
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`8
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`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 14 of 22
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`concurring) (quoting the lead opinion).3 Nor did the concurrence and
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`dissent agree that the interpretation of “corruptly” was before the Court.
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`By contrast, as both the lead and dissenting opinions recognized, the
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`definition of “corruptly” in Section 1512(c)(2) was not squarely presented
`
`and therefore not resolved. See id. at 339 (opinion of Pan, J.) (“expressing
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`[no] preference for any particular definition of ‘corruptly’” because “the
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`allegations against appellees appear to be sufficient to meet any proposed
`
`definition of ‘corrupt’ intent”); id. at 341 (noting that the dissent also
`
`“declines to settle on a precise meaning of ‘corruptly’ at this time” and
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`thus “share[s] much common ground” with the lead opinion “on the issue
`
`of mens rea”); id. at 379-81 (Katsas, J., dissenting) (surveying possible
`
`definitions of “corruptly” but declining to adopt one). The defendants
`
`
`3 The defendants’ related contention (Pet. 14) that the concurring and
`dissenting opinions “view Section 1512(c) as unconstitutionally vague
`and overbroad” is incorrect. Neither opinion addressed a vagueness or
`overbreadth challenge. The defendants raised a vagueness challenge
`below, but the district court did not reach it. See App.95-96, 405 n.3.
`Moreover, a vagueness challenge targeting “corruptly” would require
`analysis of Section 1512(c)(2)’s application to the defendants’ conduct, see
`United States v. Poindexter, 951 F.2d 369, 385-86 (D.C. Cir. 1991)
`(concluding, following a conviction at trial, that the congressional
`obstruction provision in 18 U.S.C. § 1505 was “unconstitutionally vague
`as applied to [the defendant’s] conduct”), not of the sufficiency of the
`indictment’s allegations.
`
`9
`
`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 15 of 22
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`likewise err when they suggest (Pet. 13) that the dissenting opinion
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`agreed with the concurrence’s “unlawful benefit” interpretation of
`
`“corruptly.” To the contrary, the dissenting opinion criticized the
`
`concurrence’s definition of
`
`“corruptly” because
`
`it
`
`“require[d]
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`transplanting” into Section 1512(c)(2) a “corruptly” interpretation “that
`
`appears to have been used so far only in tax law.” Fischer, 64 F.4th at
`
`381 (Katsas, J. dissenting).
`
`The defendants’ proposed “[a]lternative[]” (Pet. 14-15) to recast the
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`Court’s judgment as an affirmance by an “equally divided panel” also
`
`lacks merit. Although such a result is appropriate when judges “are
`
`equally divided on the proper disposition of [a] case,” Elliott By &
`
`Through Elliott v. United States, 37 F.3d 617, 618 (11th Cir. 1994) (en
`
`banc) (per curiam); see LeDure v. Union Pac. R.R. Co., 142 S. Ct. 1582
`
`(2022) (per curiam) (affirming by an equally divided Court where one
`
`Justice did not participate), the defendants provide no authority
`
`supporting their claim that such a disposition “can occur” (Pet. 15 n.8) in
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`a three-judge panel. Indeed, the district court’s dismissal of the Section
`
`1512(c)(2) counts was either correct, and should be affirmed, or incorrect,
`
`and should be reversed; two judges must necessarily agree on one of those
`
`10
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`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 16 of 22
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`binary choices. But even if an equally divided three-way split were
`
`possible, it would not be present where, as here, two members of a three-
`
`judge panel agree on the case’s disposition.
`
`II. Determining Fischer’s precedential effect is not a basis for panel
`rehearing.
`The defendants suggest (Pet. 2, 14 n.7) that panel rehearing is
`
`warranted to determine whether the concurrence represents the Court’s
`
`holding. They likewise suggest (Pet. 2 n.2) that the concurrence’s
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`“corruptly” interpretation will effectively be subject to a “collateral
`
`challenge” in another case before this Court with the result that they
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`might not be able to “benefit” from the concurrence’s “mens rea
`
`definition.” Neither concern supplies a basis for panel rehearing.
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`First, the controlling effect,
`
`if any, of the concurrence’s
`
`interpretation of “corruptly” is a question to be resolved by a “future
`
`panel,” as the concurrence itself recognized. Fischer, 64 F.4th at 362 n.10
`
`(Walker, J., concurring). There are good reasons for the panel in Fischer
`
`to have left unresolved the definition of “corruptly” in Section 1512(c)(2):
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`the district court declined to interpret the term, see App.405 n.3; the
`
`question on appeal concerned Section 1512(c)(2)’s actus reus
`
`requirement; and the parties addressed “corruptly” “only peripherally” in
`
`11
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`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 17 of 22
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`their briefs, see Fischer, 64 F.4th at 340 (opinion of Pan, J.).
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`Furthermore, treating the concurrence’s “corruptly” definition as a
`
`binding holding is in tension with the party-presentation principle, under
`
`which courts “rely on the parties to frame issues for decision and assign
`
`to courts the role of neutral arbiter of matters the parties present.”
`
`United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (quoting
`
`Greenlaw v. United States, 554 U.S. 237, 243 (2008)).4 Whatever the
`
`merits of those arguments, however, they are properly considered and
`
`resolved not through panel rehearing but by the Court in a future case.
`
`
`4 The concurrence correctly observed that the defendants challenged the
`“corruptly” mens rea element below. Fischer, 64 F.4th at 352 n.1
`(Walker, J. concurring). As explained, however, they raised only a
`constitutional vagueness challenge—not a statutory construction claim—
`and the district court never addressed that issue. And although the
`concurrence noted “lengthy discussion[s of the meaning of ‘corruptly’] by
`several district judges in similar cases,” id., those judges also declined to
`definitively interpret the term. See, e.g., United States v. Montgomery,
`578 F. Supp. 3d 54, 84 n.5 (D.D.C. 2021) (“[B]ecause the Court has yet to
`hear from the parties on the proper jury instructions, the Court will leave
`for another day the question whether this formulation [of corruptly]—or
`a slightly different formulation—will best guide the jury.”). Indeed, no
`district court judge appears to have instructed a jury using the
`concurrence’s “corruptly” interpretation. See, e.g., United States v.
`Reffitt, No. 21-cr-32, ECF No. 119 at 25-26 (D.D.C. Mar. 7, 2022); United
`States v. Hale-Cusanelli, No. 21-cr-37, ECF No. 84 at 24, 27 (D.D.C. May
`27, 2022).
`
`12
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`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 18 of 22
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`That is particularly true where, as here, another case squarely
`
`presenting the question of how “corruptly” in Section 1512(c)(2) should
`
`be understood has been briefed and is pending before this Court. See
`
`United States v. Robertson, No. 22-3062 (oral argument scheduled for
`
`May 11, 2023).
`
`
`
`The same is true for any determination of the potential applicability
`
`of Marks v. United States, supra, to the separate opinions in this case.
`
`As noted above, the Supreme Court in Marks held that, “[w]hen a
`
`fragmented Court decides a case and no single rationale explaining the
`
`result enjoys the assent of five Justices, ‘the holding of the Court may be
`
`viewed as that position taken by those Members who concurred in the
`
`judgments on the narrowest grounds[.]’” 430 U.S. at 193 (quoting Gregg
`
`v. Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality op.)). There are good
`
`reasons, as the lead opinion noted, see Fischer, 64 F.4th at 341 n.5
`
`(opinion of Pan, J.), not to apply Marks to this case. In any event, the
`
`defendants are mistaken when they posit (Pet. 11) that the lead opinion
`
`“rejected” application of the Marks rule; rather, both the lead opinion and
`
`the concurrence recognized that the question of Marks’s applicability is
`
`for “future panels” to resolve. Fischer, 64 F.4th at 341 n.5 (opinion of
`
`13
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`

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`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 19 of 22
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`Pan, J.); id. at 362 n.10 (Walker, J., concurring). Determining the
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`precedential effect, if any, of the concurrence’s “corruptly” definition is
`
`thus not a ground for panel rehearing.
`
`
`
`Second, the defendants’ related argument (Pet. 2 n.2) that they may
`
`not avail themselves of the benefit of the concurrence’s “corruptly”
`
`definition because of a so-called “collateral challenge” in United States v.
`
`Robertson, supra, is incorrect. If the Robertson panel construes
`
`“corruptly” to have the narrower definition suggested in Judge Walker’s
`
`concurrence, that holding will bind the district court in this case. If
`
`Robertson defines “corruptly” more broadly, the defendants may re-raise
`
`their challenge to the actus reus element of their offense on appeal from
`
`a final judgment in this case. See, e.g., Major League Baseball Players
`
`Ass’n v. Garvey, 532 U.S. 504, 508 n.1 (2001) (per curiam) (noting court’s
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`“authority to consider questions determined in earlier stages of the
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`litigation” on review of final judgment). Such a claim would be informed
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`not only by the forthcoming decision in Robertson but also by the evidence
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`and jury instructions at trial—which the defendants are free to argue
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`should track Judge Walker’s opinion. The defendants will therefore have
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`14
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`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 20 of 22
`
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`ample opportunities to continue to press their claims if panel rehearing
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`is denied.
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`CONCLUSION
`The Court should deny the defendants’ petition for panel rehearing.
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`Respectfully submitted,
`
`
`
`
`
`MATTHEW M. GRAVES
` United States Attorney
` District of Columbia
`
`DENISE CHEUNG
`CHRISELLEN R. KOLB
` Assistant U.S. Attorneys
`
`
`
`
`
`
`May 9, 2023
`
`KENNETH A. POLITE
`Assistant Attorney General
`
`LISA H. MILLER
`Deputy Assistant Attorney
`General
`
`
`/S/ JAMES I. PEARCE
`Special Assistant U.S. Attorney
`601 D Street, NW
`Washington, DC 20530
`(202) 532-4991
`James.Pearce@usdoj.gov
`
`
`
`15
`
`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 21 of 22
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`CERTIFICATE OF SERVICE
`In accordance with Fed. R. App. P. 25(d), the undersigned counsel
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`
`
`of record certifies that the foregoing Brief for the United States was this
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`day served upon counsel for appellees, by notice of electronic filing with
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`the District of Columbia Circuit CM/ECF system.
`
`DATED: MAY 9, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
`
`
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`
`
`
`
`
`
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`
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`/s/ James I. Pearce
`JAMES I. PEARCE
`Special Assistant U.S. Attorney,
`601 D Street, NW
`Washington, DC 20530
`(202) 532-4991
`James.Pearce@usdoj.gov
`
`
`
`

`

`USCA Case #22-3038 Document #1998461 Filed: 05/09/2023 Page 22 of 22
`
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`CERTIFICATE OF COMPLIANCE
`1. This brief complies with the type-volume limitations in this Court’s
`
`order issued on April 26, 2023, because it contains 2,902 words, excluding
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`the parts of the brief exempted by Fed. R. App. P. 32(f).
`
`2. This brief complies with the typeface requirements of Fed. R. App. P.
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`32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
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`because it has been prepared in a proportionally spaced typeface using
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`Microsoft Word for Office 365 in Century 14-point font in text and
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`Century 14-point font in footnotes.
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`3. This brief complies with the privacy redaction requirement of Fed R.
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`App. 25(a)(5) because it contains no personal data identifiers.
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`4. The digital version electronically filed with the Court on this day is an
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`exact copy of the written document to be sent to the Clerk; and
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`5. This brief has been scanned for viruses with the most recent version of
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`McAfee Endpoint Security, version 10.7, which is continuously updated,
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`and according to that program is free of viruses.
`
`DATED: MAY 9, 2023
`
`
`
`
`
`/s/ James I. Pearce
`JAMES I. PEARCE
`
`
`
`
`
`

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