United States v. Jeffrey Brown, 125 F.4th 1186

Jeffrey Brown, Markus Maly, and Peter Schwartz were tried and convicted for assaulting police officers during the January 6, 2021, Capitol riot, specifically for using pepper spray and, in Schwartz’s case, throwing a chair at officers.
All three defendants appealed their convictions, raising arguments on sufficiency of evidence (weapon use), jury instructions, joinder, and, for Schwartz, constitutional violations regarding his compelled unlocking of his cellphone by law enforcement.
The government conceded that Schwartz’s conviction for obstruction of an official proceeding (18 U.S.C. § 1512(c)(2)) should be vacated based on recent Supreme Court precedent.
The court affirmed Brown’s and Maly’s convictions and Brown’s sentence, but remanded Schwartz’s case to determine whether evidence derived from his compelled cellphone unlock tainted any of his remaining convictions.
The court found the district court incorrectly found no Fifth Amendment violation when Schwartz was compelled to unlock his phone; the panel clarified that this act was testimonial and thus protected.
No error was found in the district court's jury instruction or sentencing of Brown or Maly, nor was any prejudice demonstrated from the joinder of defendants for trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether pepper spray and a chair were “deadly or dangerous weapons” under 18 U.S.C. §§ 111(b), 1752(b)	Defendants: Insufficient evidence; not deadly or dangerous; use/pain were temporary, not serious	Government: Evidence showed both items used in a manner capable of serious injury	Sufficient evidence supported jury’s findings; convictions affirmed
Fifth Amendment violation for compelled cellphone unlock	Schwartz: Compelled act was testimonial, incriminating, and thus violated the Fifth Amendment	Government: Act was not testimonial; suppression inapplicable	Compelled unlock was testimonial; suppression required unless error harmless
Severance of defendants' trials under Rule 8(b)	Schwartz: Improper joinder given minimal coordination among defendants	Government: Conduct in Tunnel sufficiently connected for joinder	No prejudice shown; misjoinder alone doesn’t warrant reversal
Entitlement to special unanimity jury instruction (Section 111 counts)	Maly: Jury needed to agree on specific statutory verbs applicable to conduct	Government: Statute lists alternative means, not separate elements	No special instruction required; verbs are alternative means, not elements
Sentencing variance (Brown)	Brown: Sentence disproportionate to similar defendants	Government: Sentence already below Guidelines; differences justified	Sentence reasonable and within discretion; affirmed

Musacchio v. United States, 577 U.S. 237 (standard for sufficiency of the evidence)
Schmerber v. California, 384 U.S. 757 (distinguishes between testimonial and physical evidence for Fifth Amendment)
Hiibel v. Sixth Jud. Dist. Ct. of Nevada, 542 U.S. 177 (testimonial, incriminating, and compelled statements under Fifth Amendment)
Fisher v. United States, 425 U.S. 391 (act-of-production doctrine under Fifth Amendment)
Doe v. United States, 487 U.S. 201 (testimonial communications and act-of-production doctrine)
United States v. Hubbell, 530 U.S. 27 (act-of-production privilege; compelled production of documents)
United States v. Leon, 468 U.S. 897 (good faith exception to the exclusionary rule)
Chapman v. California, 386 U.S. 18 (harmless error standard for constitutional violations)
Richardson v. United States, 526 U.S. 813 (distinguishes elements and means for jury unanimity)
Schad v. Arizona, 501 U.S. 624 (Due Process and alternative means of committing an offense)
Gall v. United States, 552 U.S. 38 (standard for review of sentencing discretion)