USCA Case #22-3038 Document #2002500 Filed: 06/06/2023 Page 1 of 12
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`Nos. 22-3038 & 22-3041
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`In the United States Court of Appeals for the
`District of Columbia Circuit
`______________
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`UNITED STATES OF AMERICA,
`Plaintiff-Appellant
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`v.
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`JOSEPH FISCHER AND GARRET MILLER,
`Defendants-Appellees
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`______________
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`OMNIBUS OPPOSITION TO APPELLEES’ MOTION TO STAY THE MANDATE
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`Defendant-appellees Joseph Fischer and Garrett Miller
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`(defendants) move to stay the mandate pending a disposition by the
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`Supreme Court of the United States of their petition for a writ of
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`certiorari. This Court should deny that motion because the defendants
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`fail
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`to
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`establish
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`that
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`any
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`certiorari
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`petition
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`“would
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`present a substantial question and that there is good cause for a stay.”
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`Fed. R. App. P. 41(d)(1); Cir. R. 41(a)(2).
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`BACKGROUND
`The defendants were charged with several offenses in connection
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`with the attack on the United States Capitol on January 6, 2021,
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`Nos. 22-3038 & 22-3041
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`
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`In the United States Court of Appeals for the
`District of Columbia Circuit
`______________
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`UNITED STATES OF AMERICA,
`Plaintiff-Appellant
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`v.
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`JOSEPH FISCHER AND GARRET MILLER,
`Defendants-Appellees
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`______________
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`OMNIBUS OPPOSITION TO APPELLEES’ MOTION TO STAY THE MANDATE
`****
`Defendant-appellees Joseph Fischer and Garrett Miller
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`(defendants) move to stay the mandate pending a disposition by the
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`Supreme Court of the United States of their petition for a writ of
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`certiorari. This Court should deny that motion because the defendants
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`fail
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`to
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`establish
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`that
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`any
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`certiorari
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`petition
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`“would
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`present a substantial question and that there is good cause for a stay.”
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`Fed. R. App. P. 41(d)(1); Cir. R. 41(a)(2).
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`BACKGROUND
`The defendants were charged with several offenses in connection
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`with the attack on the United States Capitol on January 6, 2021,
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`USCA Case #22-3038 Document #2002500 Filed: 06/06/2023 Page 2 of 12
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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,
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`requiring
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`that
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`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
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`the first argument, id. at 98-99, but agreed that the defendants’ alleged
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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
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`denying government’s motion for reconsideration).
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`Following a government appeal, this Court reversed. United States
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`v. Fischer, 64 F.4th 329, 332 (D.C. Cir. 2023). According to the per curiam
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`judgment, the district court’s orders are “reversed and the cases [are]
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`2
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`USCA Case #22-3038 Document #2002500 Filed: 06/06/2023 Page 3 of 12
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`remanded for further proceedings, in accordance with the opinion of the
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`court[.]” Judgment (Apr. 7, 2023) (emphasis added). A notation at the
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`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
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`“except as to Section I.C.1 and footnote 8.” Id. In addition, Judge Walker
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`filed a separate opinion “concurring in part and concurring in the
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`judgment,” and Judge Katsas filed a dissenting opinion. Id.
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`In the portions of the lead opinion* joined in full by the concurring
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`judge, the Court relied on Section 1512(c)(2)’s text and structure, as well
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`as case law interpreting the statute, see Fischer, 64 F.4th at 335-39, to
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`conclude that Section 1512(c)(2)’s actus reus element “encompasses all
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`forms of obstructive conduct, including . . . efforts to stop Congress from
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`certifying the results of the 2020 presidential election.” Id. at 335; see id.
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`at 351 (Walker, J., concurring) (noting that he “concur[s] in the Court’s
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`judgment and join[s] the lead opinion’s interpretation of [Section
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`1512](c)(2)’s act element”). In a section of the lead opinion that Judge
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`Walker did not join, Judge Pan reasoned that “[t]he requirement of
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`* Following the convention used in the three opinions, this response refers
`to the opinion for the Court as the “lead opinion.”
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`3
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`USCA Case #22-3038 Document #2002500 Filed: 06/06/2023 Page 4 of 12
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`‘corrupt’ intent prevents [Section 1512](c)(2) from sweeping up a great
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`deal of conduct that has nothing to do with obstruction,” but refrained
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`from defining “the exact contours of ‘corrupt’ intent” because “the task of
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`defining ‘corruptly’” was not before the Court. Id. at 339-40 (opinion of
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`Pan, J.). Judge Walker, believing that defining “corruptly” was necessary
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`to “make sense” of “[Section 1512](c)(2)’s act element,” wrote a concurring
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`opinion in which he proposed defining the term to mean “act[ing] with an
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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
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`omitted). The dissenting opinion (Katsas, J.) did not endorse any
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`definition of the statute’s mens rea element and instead would have
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`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
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`(Katsas, J., dissenting).
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`ARGUMENT
`Stay of the mandate is unwarranted.
`A stay of the mandate is appropriate only where the movant
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`demonstrates that a petition for a writ of certiorari “would present a
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`substantial question and there is good cause for a stay.” Fed. R. App. P.
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`4
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`USCA Case #22-3038 Document #2002500 Filed: 06/06/2023 Page 5 of 12
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`41(d)(1); Cir. R. 41(a)(2); United States v. Microsoft Corp., No. 00-5212,
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`2001 WL 931170, at *1 (D.C. Cir. Aug. 17, 2001). The defendants’
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`motions fail on both counts.
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`I.
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`Any certiorari petition would not present a substantial question
`of federal law.
`The defendants contend (Fischer Mot. 7-10; Miller Mot. 6-10) that
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`a stay is appropriate here because their appeals present an important
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`question of federal law and conflict with circuit and Supreme Court
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`precedent. Those contentions are incorrect.
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`First, while the defendants’ prosecution ensures that those charged
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`with assaulting law enforcement officers in connection with the attack on
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`the United States Capitol on January 6, 2021, may be brought to trial for
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`a violation of 18 U.S.C. § 1512(c)(2), it does not follow that their case
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`presents an “substantial question of federal law.” Fed. R. App. App.
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`41(d)(1). For one, and as described in more detail below, the defendants
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`cannot identify “‘an important question of federal law that has divided
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`the state or federal courts,” for which “certiorari review is usually
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`reserved.” Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1657
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`(2018) (Thomas, J., dissenting) (citation omitted). Additionally, none of
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`other metrics on which the defendants rely—that other individuals who
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`5
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`USCA Case #22-3038 Document #2002500 Filed: 06/06/2023 Page 6 of 12
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`participated in the attack on the United States Capitol have been charged
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`under Section 1512(c)(2); that the application of Section 1512(c)(2) to
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`congressional obstruction is novel; that panel members disagreed in this
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`case; and that federal legislators have discussed Section 1512(c)(2)’s
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`scope—transform the actus reus issue in this case into a “substantial,”
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`Fed. R. App. P. 41(d)(1), or “important,” S. Ct. R. 10(c), question of federal
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`law.
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`Second, and relatedly, the defendants’ claim (Fischer Mot. 9-10;
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`Miller Mot. 9-10) that the decision in this case conflicts with decisions
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`from this Court and the Supreme Court is inaccurate. As the lead opinion
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`noted, courts have applied Section 1512(c)(2) to a “wide range of
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`obstructive acts,” Fischer, 64 F.4th at 337, whereas no court of appeals
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`has adopted the district court’s limitation that Section 1512(c)(2) applies
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`only where the defendant “takes some action with respect to a document,”
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`App.117, or the dissent’s proposed interpretation that Section 1512(c)(2)
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`be construed to reach only “acts that impair the integrity or availability
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`of evidence,” 64 F.4th at 370 (Katsas, J., dissenting). This Court does not
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`appear to have considered Section 1512(c)(2)’s actus reus requirement
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`previously, and the sole case to which the defendants point (Fischer Mot.
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`6
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`USCA Case #22-3038 Document #2002500 Filed: 06/06/2023 Page 7 of 12
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`9; Miller Mot. 9), United States v. Poindexter, 951 F.2d 369 (D.C. Cir.
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`1991), involved a constitutional vagueness challenge to the mens rea
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`component of a different obstruction statute, 18 U.S.C. § 1505. Equally
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`flawed is the defendants’ argument (Fischer Mot. 9; Miller Mot. 9) that
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`the Court’s decision conflicts with the Supreme Court’s interpretation of
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`the residual clause in the Armed Career Criminal Act, 18 U.S.C.
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`§ 924(e)(2)(B)(ii), in Begay v. United States, 553 U.S. 137 (2008). Begay
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`is “inapposite because it interpret[ed] a statute with a very different
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`structure” and “did not ultimately rely on the more obscure reading of
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`‘otherwise’ embraced by the district court and the appellees.” Fischer, 64
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`F.4th at 345.
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`Finally, this case would be a poor vehicle for Supreme Court
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`consideration of Section 1512(c)(2)’s actus reus element. As the
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`defendants note, the three different opinions here present some
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`uncertainty concerning the interplay of the actus reus and “corruptly”
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`mens rea components in Section 1512(c)(2) in this case. If this Court in
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`a subsequent case, such as United States v. Robertson, No. 22-3062 (D.C.
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`Cir.) (argued May 11, 2023), defines “corruptly” more broadly than the
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`concurring opinion here, the defendants may re-raise their challenge to
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`7
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`USCA Case #22-3038 Document #2002500 Filed: 06/06/2023 Page 8 of 12
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`the actus reus element of their offense on appeal from a final judgment
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`in this case. See, e.g., Major League Baseball Players Ass’n v. Garvey,
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`532 U.S. 504, 508 n.1 (2001) (per curiam) (noting court’s “authority to
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`consider questions determined in earlier stages of the litigation” on
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`review of final judgment). Such a claim would be informed not only by
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`the forthcoming decision in Robertson but also by the evidence and jury
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`instructions at trial—which the defendants are free to argue should track
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`the concurring opinion in this case. Given the potential for further
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`litigation in the defendants’ case, the Supreme Court would have no
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`reason to consider the actus reus question in this pretrial posture, if ever.
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`II. Good cause does not support a stay of the mandate.
`A stay is also unwarranted because the defendants fail to establish
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`good cause. A movant must “demonstrate a[] substantial harm that
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`would result from the reactivation of proceedings in the district court
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`during the limited pendency of the certiorari petition.” Microsoft Corp.,
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`2001 WL 931170, at *1. Neither defendant can make this showing.
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`Fischer argues (Fischer Mot. 10) that a stay is appropriate because
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`absent a stay, he will “face trial” on a count charging a violation of Section
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`1512(c)(2), a felony carrying a 20-year maximum penalty, which would
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`8
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`USCA Case #22-3038 Document #2002500 Filed: 06/06/2023 Page 9 of 12
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`have a “significant effect on the calculation of his sentencing guideline
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`range.” Fischer’s argument is flawed in several respects. First, issuing
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`the mandate will not require that he stand trial before his certiorari
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`petition is resolved; it simply returns the case to the district court, which
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`may end up setting trial sufficiently in the future that the certiorari
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`petition would be resolved before any trial. Relatedly (and as noted
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`below), an order by this Court issuing the mandate does not prevent
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`Fischer from seeking, and the district court from imposing, a stay of the
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`proceedings while the certiorari petition is pending. Second, even putting
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`aside the count charging a violation of Section 1512(c)(2), Fischer has
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`been charged with two other felony offenses, see App. 445 (charging
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`violations of 18 U.S.C. § 111(a) (eight-year statutory maximum sentence)
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`and 18 U.S.C. § 231(a)(3) (five-year statutory maximum sentence)), and
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`four misdemeanor offenses, id. He can identify no additional harm, let
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`alone a substantial harm, in proceeding to trial on a Section 1512(c)(2)
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`count in addition to those other charges. And if he is convicted, he will
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`almost certainly not be sentenced before the Supreme Court decides
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`whether to grant his certiorari petition.
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`9
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`USCA Case #22-3038 Document #2002500 Filed: 06/06/2023 Page 10 of 12
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`Miller contends (Miller Mot. 10-11) that good cause for a stay exists
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`because he pleaded guilty to eleven counts for his conduct on January 6
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`and was sentenced to 38 months in prison in February 2023, and thus
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`should not have to proceed to trial under Section 1512(c)(2). In
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`particular, Miller observes that a conviction under Section 1512(c)(2)
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`could subject him to a higher sentencing guideline. But the speculative
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`possibility of a higher potential sentence upon conviction, particularly
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`where the defendant is already serving a lengthy prison sentence, does
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`not constitute a substantial harm that counsels in favor of a stay.
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`Moreover, should the Supreme Court grant either defendant’s certiorari
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`petition, nothing precludes that defendant from seeking a stay of any
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`further proceedings in the district court at that point.
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`CONCLUSION
`The Court should deny the defendants’ motion for a stay of the
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`mandate.
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`Respectfully submitted,
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`MATTHEW M. GRAVES
` United States Attorney
` District of Columbia
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`10
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`USCA Case #22-3038 Document #2002500 Filed: 06/06/2023 Page 11 of 12
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`June 6, 2023
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`DENISE CHEUNG
`CHRISELLEN R. KOLB
` Assistant U.S. Attorneys
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`/S/ JAMES I. PEARCE
`Special Assistant U.S. Attorney
`601 D Street, NW
`Washington, DC 20530
`(202) 532-4991
`James.Pearce@usdoj.gov
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`USCA Case #22-3038 Document #2002500 Filed: 06/06/2023 Page 12 of 12
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`CERTIFICATE OF SERVICE AND COMPLIANCE
`In accordance with Fed. R. App. P. 25(d), the undersigned counsel
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`of record certifies that the foregoing Opposition for the United States,
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`which contains 1,871 words, was this day served upon counsel for
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`appellees, by notice of electronic filing with the District of Columbia
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`Circuit CM/ECF system.
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`DATED: JUNE 6, 2023
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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
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