UNITED STATES OF AMERICA, APPELLEE v. THOMAS ROBERTSON, APPELLANT
No. 22-3062
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided October 20, 2023
Argued May 11, 2023
Timothy Cone, appointed by the court, argued the cause and filed the briefs for appellant.
James I. Pearce, Special Assistant U.S. Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief was Chrisellen R. Kolb, Assistant U.S. Attorney.
Before: HENDERSON, PILLARD and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge PAN.
Dissenting opinion filed by Circuit Judge HENDERSON.
PAN, Circuit Judge: Defendant-appellant Thomas Robertson participated in the riot that took place on January 6, 2021, at the United States Capitol. The riot interrupted and delayed Congress‘s certification of the Electoral College vote that determined the outcome of the 2020 presidential election. A jury convicted Robertson of obstructing the vote certification, in violation of
I. BACKGROUND
A.
January 6, 2021, was a significant day. It was the day on which the United States Congress convened to declare the winner of the 2020 presidential election, after certifying the Electoral College vote. The vote certification must take place on January 6 following an election, after electors have met in their respective states, cast their votes for President and Vice President, and transmitted their certified and sealed ballots to the President of the Senate.
Robertson invited two companions to travel with him to the District of Columbia on January 6: a work colleague, Jacob Fracker, and a neighbor. Robertson packed ready-to-eat meals, water, gas masks, and a large stick into his car. He drove Fracker and the neighbor to a metro station outside of the District; they then took a train into the city. The three men attended a rally near the Washington Monument, where they listened to speeches by Rudolph Giuliani and former President Donald Trump. They then joined a crowd that was headed to the Capitol. When they arrived at a lower plaza on the west side of the Capitol building, “[a] huge crowd [was] getting pretty out of hand.” S.A. 121. The crowd was “yelling” and “screaming.” Id. “[P]eople were throwing things,” like “flash bangs” and “smoke grenades,” so Robertson and his companions donned their gas masks. Id. at 121, 124-25. When Metropolitan Police Department officers tried to move through the crowd, Robertson blocked their way by standing in front of them with his stick in a “tactical” grip that allowed offensive and defensive movement. Trial Tr. 521:17–523:23, ECF No. 108; S.A. 85. Robertson used the stick to hit one officer and “swipe[]” at another. S.A. 103.
Robertson and Fracker followed a group that had broken through scaffolding on the west side of the Capitol, heading up a set of stairs and into a courtyard just outside the building. They crossed barricades and passed outnumbered officers who were trying to keep rioters out of the area. As Robertson and Fracker went up the stairs, another rioter threw a “stick-like object” at officers. S.A. 132–33.
Although they were briefly separated, both Robertson and Fracker entered the Capitol building at around 2:16 p.m., minutes after other members of the mob first breached the building at 2:13 p.m. Fracker observed rioters climbing through windows to gain access to the Capitol. He also saw broken glass and overturned furniture, and heard an alarm blaring. Robertson and Fracker made their way to the Capitol Crypt, where they took “selfie[s]” and other photos of the chaos. The Crypt was filled with rioters who began chanting, and Robertson pounded his stick on the floor to their beat.
When Robertson entered the Capitol building, the House and the Senate “were meeting in both the House and Senate chambers of the Capitol to certify the vote count of the electoral college of the 2020 presidential election which had taken place on Tuesday, November 3, 2020.” Trial Tr. 641:13–18, ECF No. 109. The Vice President was in the building and presiding over the joint session. Id. at 641:23–25. Robertson was part of the mob that forced members of Congress to flee from the Senate chamber at 2:12 p.m. and from the House chamber at 2:30 p.m. See id. at
After January 6, Robertson celebrated his participation in the riot on social media. He posted one message stating, “We were stomping on the roof of their safe room chanting WHOS[E] HOUSE? OUR HOUSE,” S.A. 186; and another stating, “[I‘ve] seen for the first time in my life [a] government scared of its people. The pictures of them huddled in the floor crying is the most American thing I have ever seen.” Id. at 192–93. Commenting on a photo of himself with Fracker in the Crypt, Robertson proclaimed: “I am fucking PROUD of it. It shows 2 men willing to actually put skin in the game and stand up for their rights. . . . Enjoy your feel good protests and fame. I‘ll simply accept a ‘Thank you’ for the very blanket of freedom that you live and sleep under.” Id. at 180–81. He also said that “CNN and the Left are just mad because we actually attacked the government who is the problem . . . The Right IN ONE DAY . . . took the fucking U.S. Capitol. Keep poking us.” Id. at 184–85. He described his actions as “storm[ing]” the Capitol, id. at 193, and as being “part of the next American revolution,” id. at 187.
Law-enforcement authorities informed Robertson and Fracker that warrants had been issued for their arrest, and gave them an opportunity to turn themselves in. Before they surrendered, Robertson took his and Fracker‘s phones and hid them. When officers later searched Robertson‘s home, they found a cell phone that had been activated the day after his arrest. They also discovered that Robertson had texted a friend that “[a]nything that may have been problematic is dеstroyed,” “[i]ncluding [his] old phone” that “[t]ook a lake swim” and “had a tragic boating accident.” S.A. 196, 198–200.
B.
Robertson was charged with “corruptly” obstructing Congress‘s certification of the Electoral College vote, in violation of
Robertson moved to dismiss the
Robertson‘s case proceeded to trial. At the close of the government‘s case, and again at the close of all the evidence, Robertson moved for judgment of acquittal under
Robertson revisited the definition of “corruptly” in his proposed jury instructions. He requested that the jury be instructed as follows:
To act “corruptly,” the defendant must use unlawful means or have a wrongful or an unlawful purpose, or both. An act is done “corruptly” if the defendant acted knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice. The defendant must also act with “consciousness of wrongdoing.” “Consciousness of wrongdoing” means with an understanding or awareness that what the person is doing is wrong or unlawful. Not all attempts to obstruct or impede an official procеeding involve acting corruptly. For example, a witness in a court proceeding may refuse to testify by invoking his constitutional privilege against self-incrimination, thereby obstructing or impeding the proceeding, but he does not act corruptly. In contrast, an individual who obstructs or impedes a court proceeding by bribing a witness to refuse to testify in that proceeding, or by engaging in other independently unlawful conduct, does act corruptly.
S.A. 35 (citation omitted). The government objected to the reference to “dishonestly” as duplicative and unnecessary.
The district court declined to adopt the requirement of “dishonestly” but otherwise gave an instruction that largely tracked what Robertson had requested. The final instruction on “corruptly” provided:
To act corruptly the defendant must use unlawful means, or act with an unlawful purpose, or both. The defendant must also act with consciousness of wrongdoing. Consciousness of wrongdoing means with an understanding or awareness that what the person is doing is wrong. Not all attempts to obstruct or impede an official proceeding involve acting corruptly. For example, a witness in a court proceeding may refuse to testify by invoking his constitutional privilege against self-incrimination, thereby obstructing or impeding the proceeding. But he does not act corruptly. In contrast, an individual who obstructs or impedes a court proceeding by bribing a witness to refuse to testify in that proceeding or by engaging in other independently unlawful conduct does act corruptly.
S.A. 203; see also ECF No. 86 (Final Jury Instructions). The jury found Robertson guilty on all counts.
After the trial, Robertson renewed his motion for judgment of acquittal on the
Robertson faced a statutory maximum sentence of 20 years’ imprisonment for his convictions under
II. ANALYSIS
A.
Robertson challenges his conviction under
Robertson contends that the evidence presented at his trial was insufficient to prove that he acted “corruptly.” The district court held that “corruptly” signifies acting with independently unlawful means, unlawful purpose, or both, and with consciousness of wrongdoing. Robertson II, 610 F. Supp. 3d at 233, 236. Although Robertson previously endorsed most of the district court‘s definition, he now argues that a proper construction of “corruptly” holds a different meaning. He claims that the term describes only “an act dishonestly done ‘with a hope оr expectation of
We conclude that “corruptly” must be construed according to its plain meaning; that the “corruptly” element in
1.
Robertson frames his claim as one of insufficient evidence.1 The parties agree that our standard of review is de novo. Gov‘t Br. 21; Def. Br. 12. The government further states that our review does not rest on how the jury was instructed and that we should assess Robertson‘s claim based on how a properly instructed jury would assess the evidence. See Gov‘t Br. 21 (citing United States v. Hillie, 39 F.4th 674, 679–80
(D.C. Cir. 2022); Reynoso, 38 F.4th at 1089).2 We thus apply that standard even though Robertson‘s claim on appeal is inconsistent with the jury instruction that he requested in the trial court.
In reviewing the sufficiency of the evidence de novo, we consider the evidence “in the light most favorable to the government.” United States v. Shi, 991 F.3d 198, 205 (D.C. Cir. 2021). “As an appellate court, we owe tremendous deference to a jury verdict.” United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir. 1990). We must affirm where ”any rational trier of fact” could have found guilt beyond a reasonable doubt. Id. (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Our task here is to make only a “limited inquiry“— we must examine the record in this case just to determine the
2.
In defining “corruptly,” we do not write on a clean slate. Both the Supreme Court and this court have examined the meaning of “corruptly” in statutes that address obstructive
behavior. See Arthur Andersen, 544 U.S. at 704–07 (analyzing
The Supreme Court noted in Arthur Andersen that the “natural meaning” of “corruptly” is “clear“: The word is “normally associated with wrongful, immoral, depraved, or evil.” Arthur Andersen, 544 U.S. at 705. Similarly, we stated in North that “‘corruptly’ is the adverbial form of the adjective ‘corrupt,’ which means ‘depraved, evil: perverted into a state of moral weakness or wickedness.‘” North, 910 F.2d at 881 (quoting Corrupt, Webster‘s Third New International Dictionary 512 (1976)). Those cases provide guidance on how to apply the ordinary meaning of “corruptly” in statutory interpretation. Arthur Andersen, 544 U.S. at 705 (the “natural meaning” of “corruptly” “provides a clear answer” for how it should be applied in the statute); North, 910 F.2d at 882, 884 (“corruptly” is to be understood according to its “common meaning[]“).
In Arthur Andersen, the Supreme Court reviewed the jury instructions for an obstruction charge arising from conduct that could have been either an ordinary business practice or criminal obstruction: document shredding. 544 U.S. at 703–08. In that case, the Court reversed the conviction of accounting firm Arthur Andersen LLP under
Like the Supreme Court, we have relied on the ordinary meaning of “corruptly.” In North, we reviewed a conviction under
Arthur Andersen and North show that the type of proceeding and the nature of a defendant‘s conduct matter. In contexts where obstructive actions are not inherently corrupt, the requirement to act “corruptly” separates innocent from illegal behavior. See Arthur Andersen, 544 U.S. at 706. The “corruptly” element protects non-culpable conduct—such as a corporation following a document retention policy for routine reasons, id. at 704, or lobbyists and protestors exercising their rights to influence
North suggests that where an individual “chooses the illegal or dubious course” to obstruct a congressional proceeding when a lawful means was available, no further showing of “corrupt motive” is required beyond his intent to commit the illegal, obstructive act. North, 910 F.2d at 883–84 (rejecting defendant‘s argument that he did not act “corruptly” if his supervisors authorized his conduct where evidence showed that he employed unlawful means to do their bidding);
see also Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (citing with approval a jury instruction for
Where neither the obstruction itself nor the defendant‘s means of obstruction are “inherently malign,” however, consideration of a defendant‘s actions alone does not suffice. Arthur Andersen, 544 U.S. at 704. In that circumstance, a jury must find that the defendant acted with a “corrupt” purpose—in other words, a purpose that was “depraved, evil, or wrongful.” See North, 910 F.2d at 942–43 (Silberman, J., concurring in part and dissenting in part) (“Whenever the means used are not independently criminal, the jury cannot avoid considering the defendant‘s purpose if it is to meaningfully determine whether the endeavor was corrupt or evil or depraved.“). As the Supreme Court explained in Arthur Andersen, a manager‘s instruction to employees to shred documents in compliance with an established document retention policy “under ordinary circumstances” is not corrupt, 544 U.S. at 704; but a manager who knows that the shredded documents are relevant to a pending judicial proceeding may act “corruptly” in giving the same instruction. Id. at 708. Similarly, a jury considering the culpability of a lawyer who “advise[d] his client not to testify before a congressional committee conducting an inquiry” must consider the lawyer‘s purpose in giving that advice to “meaningfully determine whether the endeavor was corrupt or evil
North and Arthur Andersen confirm that there are multiple ways to prove that a defendant acted “corruptly.” Those cases provide examples of how corrupt intent or action may be established and demonstrate that “corruptly” need not be proved in the same way in every case. See North, 910 F.2d at 883 (declining to adopt a rule that a defendant must have a “corrupt motive” to act “corruptly” because, “[j]ust as . . . there are myriad ways of ‘impeding’ or ‘obstructing’ congressional investigations that are not in themselves corrupt; so are there equally corrupt ways of impeding or obstructing Congress that do not proceed from corrupt motives“). Thus, “choos[ing] the illegal or dubious course” to obstruct a congressional proceeding can suffice to establish that a defendant acted corruptly. Id. at 887. Alternatively, a defendant‘s purpose may prove to be “corrupt” where, as in the hypothetical of the lawyer who convinces his client not to testify against him, the defendant “attempt[s] to secure some advantage for himself . . . that was . . . not in accordance with [his] legal rights.” Id. at 944 (Silberman, J., concurring in part and dissenting in part). Or one might establish a defendant‘s corrupt intent by proving that he acted “dishonestly” in “persuad[ing] another to withhold information from the Government,” or that he committed obstructive acts with “consciousness of wrongdoing.” Arthur Andersen, 544 U.S. at 704, 706–07. As Congress has recognized in a related context, “the variety of corrupt methods by which the proper administration of justice may be impeded or thwarted . . . [is] limited only by the imagination of the criminally inclined.” Poindexter, 951 F.2d at 382 (quoting S. Rep. No. 97-532, at 18 (1982)); see also S. Rep. No. 97-532, at 18 (1982) (noting that the “obstruction of justice statute,” i.e., what became
3.
For present purposes, we need only identify one way in which the evidence at trial could have supported a finding that Robertson acted “corruptly” when he obstructed, impeded, or influenced the Electoral College vote certification. That is because his claim on appeal challenges only the sufficiency of the evidence, and evaluating such a claim requires us to make only a “limited inquiry.” Musacchio, 577 U.S. at 243. In our view, the district court correctly instructed the jury, in relevant part, that one way to prove that a defendant acted “corruptly”
is to demonstrate that he “obstruct[ed] or impede[d] . . . by engaging in other independently unlawful conduct.” S.A. 203.
That part of the district court‘s instruction falls squarely within our holding in North that a defendant acts “corruptly” when he “chooses the illegal or dubious course when other legal action” is possible. North, 910 F.2d at 883; id. at 942-43 (Silberman, J., concurring in part and dissenting in part). Moreover, courts that have construed “corruptly” in
Accordingly, the district court correctly informed the jury that it could find that Robertson acted “corruptly” if the government proved that he “use[d] [independently] unlawful means” when he obstructed, impeded, or influenced the Electoral College vote certification. S.A. 203. Defining “corruptly” as “wrongfully” — and treating independently unlawful conduct as “wrongful” — provides an objective measure of culpable conduct that is straightforward to apply: A court or a jury can easily determine whether the evidence shows that a defendant took unlawful action to obstruct, impede, or influence the proceeding. See North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part). Although words like “immoral, depraved, or evil” may also accurately convey what it means to be “corrupt,” see Arthur Andersen, 544 U.S. at 705; North, 910 F.2d at 881, “wrongful” capturеs the “core” meaning of “corrupt” intent or action and readily describes Robertson‘s conduct. See Poindexter, 951 F.2d at 385 (noting that defining “corruptly” as prompting the “violat[ion] [of] a legal duty . . . may be useful as a description of the ‘core’ behavior to which [
In sum, the ordinary meaning of the word “corruptly” in
The evidence presented at Robertson‘s trial was undoubtedly sufficient to prove that he acted “corruptly.” We must consider that evidence “in the light most favorable to the government.” Shi, 991 F.3d at 205. And we undertake this review mindful of the “tremendous deference” owed to a jury verdict. Long, 905 F.2d at 1576.
Before January 6, Robertson declared his intention to join a “counterinsurgency” and to participate in an “open armed rebellion.” S.A. 112, 190. To accomplish that end, Robertson broke the law in multiple ways. He used a stick to hit a police officer and to swipe at another. Wielding that stick as a show of force and intimidation, he joined the “out of hand” crowd surging into the Capitol building despite the blaring of alarms and warnings by police officers that the area was restricted. Id. at 83, 85, 121, 140, 142. Once inside the Capitol, he beat his stick on the floor while other rioters chanted. The riot, which Robertson enthusiastically joined, forced both houses of Congress to suspend the Electoral College vote certification for six to seven hours. That evidence amply supported the jury‘s finding that Robertson committed two felony offenses to obstruct the vote certification: i.e., remaining in a restricted building or grounds without lawful authority, and disorderly conduct at the Capitol, both with a deadly or dangerous weapon. See
Applying the “corruptly” element of the statute in this case is “rather simple” because Robertson took action to obstruct Congress by force. Cf. North, 910 F.2d at 940 (Silberman, J., concurring in part and dissenting in part) (interpreting
We emphasize that Robertson‘s independently wrongful conduct was felonious
5.
Robertson advocates a definition of “corruptly” that he claims is the sole and exclusive meaning of that term: He asserts that the only way to satisfy the element of “corrupt” intent under
The asserted exclusivity of Robertson‘s definition of “corruptly” is at odds with the view of that term taken by the Supreme Court, this court, and Congress. See supra Section II.A.2. Moreover, the two requirements espoused by Robertson are not mandated by the ordinary meaning of “corruptly” or any other relevant text in the statute. The word “dishonestly” is not included in
The broader statutory context also undermines Robertson‘s position. As we have discussed, “corruptly” encompasses multiple
Nor do precedents support Robertson‘s limited and exclusive interpretation of “corruptly.” With respect to the asserted requirement of dishonesty, he relies on Arthur Andersen. In that case, the Supreme Court faulted the trial judge for removing from the proposed jury instructions the requirement that the defendant acted “dishonestly” — but only because that deletion relieved the government of its obligation to prove any culpable state of mind and thereby “diluted the meaning of ‘corruptly’ so that it covered innocent conduct.” Arthur Andersen, 544 U.S. at 706-07. We do not read Arthur Andersen to require proof of “dishonesty” in every case in which “corruptly” is an element.
As for the asserted requirement that the defendant have a “hope or expectation” of a “benefit,” Robertson and our dissenting colleague cite two sources: (1) Judge Walker‘s concurring opinion in United States v. Fischer, which asserted that “corruptly” means acting “with an intent to procure an unlawful benefit either for [one]self or for some other person,” Fischer, 64 F.4th at 352, 357 (Walker, J., concurring in pаrt and concurring in the judgment) (quoting Marinello v. United States, 138 S. Ct. 1101, 1114 (2018) (Thomas, J., dissenting)); see also Dissenting Op. 11; and (2) Justice Scalia‘s partial dissent in Aguilar, which approved of a jury instruction defining “corruptly” under
Both Judge Walker and Justice Scalia characterized the expectation-of-benefit formulation of “corruptly” as “longstanding,” and Judge Walker reasoned in Fischer that Congress must have intended “corruptly” as used in
In actuality, the expectation-of-benefit requirement is not “longstanding” at all in the context of obstruction statutes: Instead, its use has been almost exclusively confined to bribery and tax law. See Fischer, 64 F.4th at 381 (Katsas, J., dissenting) (“The concurrence‘s approach thus requires transplanting into section 1512(c)(2) an interpretation of corruptly that appears to have been used so far only in tax law.” (emphasis in original)); see also United States v. Lonich, 23 F.4th 881, 902-03 (9th Cir. 2022) (noting similar interpretation in
The Fischer concurrence argued that its narrow view of “corruptly” must be exclusive to “ensure[] that [
We note, too, that concerns about constraining lobbying and advocacy are not implicated in January 6 cases because the electoral-vote certification by Congress is not a policymaking exercise open to
The interpretations of “corruptly” posited by Robertson and the Fischer concurrence appear to confuse sufficiency with necessity: Their proposed definitions of “corruptly” may be sufficient to prove corrupt intent, but neither dishonesty nor seeking a benefit for oneself or another is necessary to demonstrate “wrongful, immoral, depraved, or evil” behavior within the meaning of
For all the foregoing reasons, we decline to adopt the limited constructions of “corruptly” proffered by Robertson and the Fischer concurrence, which each insist that the broad concept of “corrupt” intent must be proved in only one way. To the extent that Robertson seeks reversal of his conviction under
6.
We respectfully disagree with our dissenting colleague, who asserts that the record evidence was insufficient to support Robertson‘s conviction under
i.
The dissent contends that the concurring opinion in Fischer is binding precedent that we must follow. See Dissenting Op. 1, 12-14. That contention is based on the erroneous belief that “[t]he definition of ‘corruptly’ endorsed by Judge Walker . . . was necessary to create a
In Fischer, we reversed the district court‘s decision to dismiss the
The district court in Fischer had expressly declined to address the meaning of “corruptly” in
Our holding in Fischer was that the district court erroneously dismissed the defendants’
Robertson and the government agree that the three separate opinions in Fischer produced no holding on the meaning of “corruptly.” Def.‘s Suppl. Br. 1; Gov‘t‘s Suppl. Br. 1. The lead Fischer opinion saw no need to settle on a statutory interpretation of that term, 64 F.4th at 339-42, nor did Judge Katsas in dissent, id. at 382. Only Judge Walker, concurring in part and concurring in the judgment, presented his view of how “corruptly” in
Judge Walker agreed with Judge Pan that the district court erred in dismissing the indictments for failure to sufficiently
Judge Walker suggested that his interpretation of “corruptly” might be binding on the court, emphasizing its importance to him in his decision to embrace the broader reading of “otherwise obstructs.” Fischer, 64 F.4th at 362 n.10 (Walker, J., concurring in part and concurring in the judgment). Although Judge Walker was free to forecast in his concurrence how he would interpret “corruptly” in an appeal requiring that it be resolved, the role his interpretation played in his own thinking did not make it precedent that is binding on this court. See Doe v. Fed. Democratic Republic of Ethiopia, 851 F.3d 7, 10 (D.C. Cir. 2017) (“[B]inding circuit law comes only from the holdings of a prior panel, not from its dicta.” (cleaned up)).
In any event, even if we assume, arguendo, that Fischer included a holding about “corruptly,” any such holding was limited to a conclusion that the “corruptly” element was adequately alleged. Two members of the panel agreed on that outcome but relied on different reasoning — a way to resolve an appeal that is not unusual. See, e.g., W. Org. of Res. Councils v. Zinke, 892 F.3d 1234, 1246 (D.C. Cir. 2018) (Henderson, J., concurring) (“I do not join the portion of the opinion that identifies alternative avenues by which the plaintiffs might press their claim. . . . I would leave it up to a future court to decide whether the alternatives discussed are sufficient to pursue the claim we reject in this appeal.“).
The lead opinion in Fischer determined that the facts alleged in the indictments were sufficient to support any definition of “corruptly,” but did not adopt a definition, i.e., the opinion did not state what was necessary to prove corrupt intent. See 64 F.4th at 339-41 (opinion of Pan, J.); id. at 340 (“[T]he sufficiency of the indictments in this case does not turn on the precise definition of ‘corruptly.‘“). By contrast, Judge Walker opined in his concurrence that it was necessary to prove that a defendant intended to procure an unlawful benefit to establish corrupt intent, and that the allegations in the indictments satisfied that requirement. id. at 361-62 & 362 n.10 (Walker, J., concurring in part and concurring in the judgment). Thus, in reversing the judgment of the trial court dismissing the indictments, both Judge Pan and Judge Walker agreed that the “corruptly” element — as well as the “otherwise obstructs” element — was adequately alleged. Contrary to the dissent‘s analysis, it was not necessary for Judge Pan and Judge Walker to adopt the same reasoning about the definition of “corruptly” to conclude that the element was met. Although the dissent emphasizes that “Judge Walker conditioned his vote on one definition — the one he called the ‘long-standing meaning’ of ‘corruptly,‘” Dissenting Op. 12, Judge Walker‘s statement did not, and could not, change Judge Pan‘s view of the “corruptly” requirement, which was plainly different from his.
In any event, even under Marks, the narrowest holding must be the lowest common denominator, or a “subset,” of any broader opinion‘s reasoning: In that circumstance, the narrower “subset” commands the majority needed to bind the court and therefore can be characterized as a “holding.” Cf. King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc) (Silberman, J., concurring) (”Marks is workable — one opinion can be meaningfully regarded as ‘narrower’ than another — only when one opinion is a logical subset of other, broader opinions.“). In Fischer, where the lead opinion reasoned that proof of options A, B, or C would be sufficient to establish “corrupt” intent, Fischer, 64 F.4th at 339-41 (opinion of Pan, J.), and the concurrence stated that option C is necessary to prove “corruptly,” id. at 352, 361-362 (Walker, J., concurring in part and concurring in the judgment), the concurrence is not a subset of the lead opinion — the two opinions rely on rationales that do not overlap.9 Judge Pan‘s acceptance of C as sufficient but not necessary — i.e., that C need not be proved in every case — conflicts with Judge Walker‘s insistence that C is invariably required. Thus, neither opinion is narrower than the other.10 The Fischer concurrence is not a “holding” but instead reflects the opinion of a single judge.
ii.
The dissent claims that we are bound by Judge Walker‘s view that “corruptly” in
Instead, the dissent contends that we must overturn the jury‘s verdict in this case because “[t]here is no evidence in the record suggesting Robertson obstructed the election certification proceeding in order to obtain an unlawful benefit for himself or someone else.” Dissenting Op. 33. That is incorrect. Robertson believed that the election was “rigged“; announced that he refused to be “disenfranchised“; and declared that he was “prepared to start” an “open armed rebellion.” S.A. 110, 190. That evidence was plainly sufficient to support a finding that Robertson intended to secure the unlawful benefit of installing the loser of the presidential election, Donald J. Trump, as its winner. See Fischer, 64 F.4th at 361 (Walker, J., concurring in part and concurring in the judgment); see also id. at 356 n.5 (reasoning that “the beneficiary of an unlawful benefit need not be the defendant or his friends” and
To shore up its assessment of the evidence, the dissent states in a footnote that “[t]he ‘unlawful benefit’ the defendant seeks must be financial, professional or exculpatory.” Dissenting Op. 34 n.18. But Judge Walker‘s concurring decision in Fischer, which the dissent believes is binding, see id. at 1, did not endorse such a limited definition. See Fischer, 64 F.4th at 356 n.5 (Walker, J., concurring in part and concurring in the judgment). And Judge Walker himself emphasized that, even were the requisite “benefit” so limited, the defendants’ conduct “may have been an attempt to help Donald Trump unlawfully secure a professional advantage — the presidency,” so would likely suffice. Id. The dissent‘s position, in any event, ignores the fact that it can be “corrupt” to obstruct an official proceeding for the purpose of gaining a personal, social, or political favor. See United States v. Brenson, 104 F.3d 1267, 1273-81 (11th Cir. 1997) (affirming defendant‘s conviction under
iii.
In explaining their adoption of the expectation-of-benefit formulation of “corruptly,” the dissent and the Fischer concurrence rely on bribery and tax law as asserted foundations of the expectation-of-benefit requirement. See 64 F.4th at 352-56 (Walker, J., concurring in part and concurring in the judgment); Dissenting Op. 15-19. But both of those types of cases are poor comparators. For a bribe to be a bribe and not merely a payment, there must be some sort of quid pro quo, i.e., an agreement by a public official to perform an official act to benefit the payee. See McDonnell v. United States, 579 U.S. 550, 562-63 (2016); United States v. Gatling, 96 F.3d 1511, 1522 (D.C. Cir. 1996); Lonich, 23 F.4th at 902-07. Likewise, it is difficult to “imagine a scenario where a taxpayer would ‘willfully’ violate the Tax Code (the mens rea requirement of various tax crimes, including misdemeanors) without intending someone to obtain an unlawful advantage.” Marinello, 138 S. Ct. at 1108. Thus, in bribery and tax cases, the expectation of a benefit is inherent in the crime in a way that it is not in the obstruction context. Unlike in tax and bribery cases, there are many corrupt ways or reasons for a defendant to obstruct an official proceeding that do not involve seeking to obtain an unlawful advantage for himself or another. Moreover, for a person who attempts to influence a congressional proceeding, the intent to procure a benefit —
We also reject the assertion by the dissent and the Fischer concurrence that the common-law history of bribery determines the meaning of “corruptly” in this obstruction statute. Our court has previously traced the historical provenance of a related obstruction statute,
intimidate, or impede any juror, witness, or officer” or to “corruptly, or by threats or force, obstruct, or impede, or endeavour to obstruct or impede, the due administration of justice.” Act of Mar. 2, 1831, ch. 98, § 2, 4 Stat. 487, 488; see Poindexter, 951 F.2d at 380 (citing Walter Nelles & Carol Weiss King, Contempt by Publication in the United States, 28 COLUM. L. REV. 401, 430-31 (1928)); see also Felix Frankfurter, Power of Congress over Procedure in Criminal Contempts in “Inferior” Federal Courts — A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1026-27 n.75 (1924) (recounting legislative history of Act of Mar. 2, 1831).
That predecessor contempt statute does not include any mention of a required intent to procure a benefit. Moreover, courts interpreting a later version of that provision, which incorporated similar statutory language, have held that the word “corruptly” is “capable of different meanings in different connections,” and that requiring that obstruction be accompanied by a promise of payment would “quite unreasonably restrict the obvious purpose of the legislation.” See Bosselman v. United States, 239 F. 82, 86 (2d Cir. 1917) (“As used in this particular [contempt] statute, we think any endeavor to impede and obstruct the due administration of justice in the inquiries specified is corrupt.“); see also United States v. Polakoff, 121 F.2d 333, 334 (2d Cir. 1941) (“Exact precedents appear to be lacking, but the decisions under the [contempt] statute are illuminating in their unwillingness to limit the court‘s protection from improper obstructions.“); id. at 335 (discussing Bosselman). Neither the dissent nor the Fischer concurrence address contempt statutes in the history that they recount.
The dissent raises three additional objections to our holding that a defendant obstructs “corruptly” when he does so by independently felonious means. First, the dissent reiterates concerns expressed by the Fischer dissent that relying on independently unlawful means to prove “corruptly” could inappropriately “supercharge a range of minor advocacy, lobbying, and protest offenses into 20-year felonies.” Dissenting Op. 30, 32 (quoting Fischer, 64 F.4th at 380 (Katsas, J., dissenting)). But that is not so: Obstruction of Congress by corrupt means is a distinct harm from that associated with the unlawful means used to carry out the obstruction. In any event, prosecutions seeking to demonstrate that a defendant “сorruptly” obstructed a proceeding by relying on proof that the defendant‘s means were misdemeanors or otherwise unlawful are not before us and should be addressed when they arise. See supra Section II.A.4.
Second, the dissent complains that our opinion responds to such concerns by “imposing a limitation plucked from thin air,” i.e., that we “suggest[] that the ‘unlawful-means’ requirement is satisfied only when a defendant acts through ’
Third, and finally, the dissent contends that our reading of “corruptly” “strip[s] the word of any independent meaning.” Dissenting Op. 24. That, too, is wrong. The requirement that a defendant act via corrupt means or corrupt purpose plays the crucial role of ensuring that
For all the foregoing reasons, we respectfully disagree with our dissenting colleague.
B.
Robertson challenges his sentence, arguing that the district court erroneously applied an 11-point increase to his offense level based on the specific offense characteristics in U.S.S.G.
In Robertson‘s view, his conduct does not fall within either subsection (b)(1)(B) or (b)(2) because Congress‘s certification of the Electoral College vote does not implicate the “administration of justice.” Instead, he asserts, “administration of justice” refers only to judicial or quasi-judicial proceedings and related investigations, relying primarily on a district court decision issued after his sentencing. See Opening Br. 24-28 (citing United States v. Seefried, 639 F. Supp. 3d 8, 11-19 (D.D.C. 2022)).
Although Robertson objected to the application of subsections (b)(1)(B) and (b)(2) in the district court, he never argued that Congress‘s certification of the election was not an “administration of justice.”11 We therefore review Robertson‘s claims for plain error. See United States v. Hunter, 809 F.3d 677, 681 (D.C. Cir. 2016); United States v. Gewin, 759 F.3d 72, 78-79 (D.C. Cir. 2014). Under that standard, Robertson bears the burden of showing “(1) that there was an error, (2) thаt the error was clear or obvious, (3) that it affected [his] substantial rights, and (4) that it seriously affected the fairness, integrity, or public reputation
Robertson‘s argument fails to clear the second hurdle: We need not even decide whether the district court erred to conclude that it is far from clear or obvious that it did so. First, the ordinary meaning of “administration of justice” does not necessarily exclude Congress‘s certification of the Electoral College vote under
* * *
For the reasons discussed, we affirm the judgment of the district court. The evidence at trial was sufficient to support a finding that Robertson acted “corruptly” under
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
The best laws should be constructed as to leave as little as possible to the decision of the judge.
Aristotle*
I. BACKGROUND
Every four years, state-appointed “Electors,” equal to the total number of Senators and Representatives for each state, “vote by Ballot” for the President and the Vice President of the United States.
On January 6, 2021, as the certification of the electoral vote progressed, hundreds of people made their way past law enforcement and into the United States Capitol building to protest the certification.1 Some of them assaulted police officers and damaged property, halting the certification proceeding for nearly six hours.
Thomas Robertson was among the protesters who entered the Capitol. He was then a patrol sergeant in the Rocky Mount (Virginia) Police Department. According to the record, he believed that the 2020 presidential election had been “rigged.” Suppl. App. 110. Robertson and two other men — a neighbor and a fellow police officer, Jacob Fracker — drove together to Washington, D.C., on January 6, 2021. They carried with them water, food, three gas masks and a large wooden stick. Both Robertson and Fracker brought their department-issued handguns but, at Robertson‘s suggestion, left them in Robertson‘s car at a northern Virginia Metro station.
Upon arriving in D.C., Robertson, Fracker and Robertson‘s neighbor headed to the Washington Monument, where they listened to speeches by then-President Donald Trump, among others. The three men then walked with a “big crowd” toward the Capitol building. Suppl. App. 120. By the time they arrived, the crowd was “pretty out of hand.” There was “yelling, screaming, [and] people . . . throwing things,” including “flash bangs [and] smoke grenades.” Id. at 121. Capitol Police were “overwhelm[ed]” by the rioters, id., and “severely outnumbered,” id. at 67. Fearing the Capitol Police‘s use of pepper
Not long after, Metropolitan Police Department (MPD) officers arrived to reinfоrce the Capitol Police. One group of MPD officers, known as unit CDU-42, walked in two single-file lines toward the Capitol building, passing through protesters who were holding “large sticks” and “[t]hrowing cement.” Suppl. App. 93-95. When the MPD officers approached his position, Robertson stood in their path, holding his wooden stick in the “[p]ort arms” position.2 Id. at 103. One MPD officer testified that Robertson used the wooden stick to strike another officer before taking a “swipe[]” at the testifying officer. Id.
Robertson and Fracker then entered the Capitol. While inside, they posed for pictures in the Capitol Crypt (the room directly beneath the Capitol Rotunda), where they remained for about ten minutes. As police observed them from across the room, the crowd began chanting and Robertson banged his wooden stick to the chant. Eventually, law enforcement officers regained control of the area and directed Robertson and Fracker to leave, which they did. Following January 6th, Robertson made a number of social media posts, including one with a photograph of him and Fracker in the Capitol Crypt, expressing his pride in having protested.
After the FBI contacted Robertson and Fracker and told them to turn themselves in, Robertson asked Fracker for Fracker‘s cell phone. Fracker understood that Robertson intended to “make it disappear.” Suppl. App. 169-70. When Robertson was arrested on January 13, 2021, he did not have a cell phone on his person. An FBI search of his house the following week discovered a cell phone that had been activated on January 14, 2021 — one day after Robertson‘s arrest. In a text message exchange the day after he activated the phone, Robertson told a correspondent that “[a]nything that may have been problematic is destroyed.” Id. at 196.
On March 23, 2022, Robertson was charged in a second superseding indictment with six counts based on his January 6th-related conduct. Five of the counts charged: (1) civil disorder; (2) entering and remaining in a restricted building while carrying a dangerous weapon; (3) disorderly conduct in a restricted building while carrying a dangerous weapon; (4) disorderly conduct in the Capitol building; and (5) destroying cell phones with the intent to render them unavailable for a grand jury investigation.
The sixth count forms the basis of Robertson‘s appeal. It charged Robertson with obstructing an official proceeding in violation of
Whoever corruptly —
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object‘s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
Before trial, Robertson moved to dismiss the subsection (c)(2) count. Robertson argued inter alia that the mens rea adverb “corruptly” rendered subsection (c)(2)
The jury charge defined “corruptly” as used in section 1512(c)(2) as follows:
To act corruptly the defendant must use unlawful means, or act with an unlawful purpose, or both. The defendant must also act with consciousness of wrongdoing. Consciousness of wrongdoing means with an understanding or awareness that what the person is doing is wrong.
Not all attempts to obstruct or impede an official proceeding involve acting corruptly. For example, a witness in a court proceeding may refuse to testify by invoking his constitutional privilege against self-incrimination, thereby obstructing or impeding the proceeding. But he does not act corruptly.
In contrast, an individual who obstructs or impedes a court proceeding by bribing a witness to refuse to testify in that proceeding or by engaging in other independently unlawful conduct does act corruptly.
Suppl. App. 203.
The jury convicted Robertson on all counts. After trial, Robertson moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure.3 Robertson argued that, in order to prove he acted “corruptly,” the Government was required to show that he acted “knowingly and dishonestly with the intent to obtain an unlawful advantage for himself or an associate, and that he influenced another to violate their legal duty.” App. 38. Robertson argued that the Government failed to meet that burden, relying instead on his “mere presence” inside the Capitol to establish that he acted “corruptly.” Id. at 39.
The district court denied Robertson‘s motion, holding that section 1512(c)(2) is “properly narrowed” by the requirement that the Government prove Robertson acted with “consciousness of wrongdoing,” United States v. Robertson, 610 F. Supp. 3d 229, 233 (D.D.C. 2022) (quoting Robertson, 588 F. Supp. 3d at 123), and concluding that the evidence “comfortably support[ed] the jury‘s verdict on each element,” id. at 235.
Robertson was sentenced to eighty-seven months’ imprisonment followed by three years of supervised release. He timely appealed.
II. ANALYSIS
Robertson appeals the denial of his motion for judgment of acquittal and seeks vacatur of his section 1512(c)(2) conviction because the Government‘s evidence was insufficient to show that he acted “corruptly.”
Reviewing a sufficiency-of-the-evidence challenge, the court asks “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted). Our sufficiency review
A. UNITED STATES V. FISCHER
To assess whether a properly instructed jury could have found the essential elements of the offense beyond a reasonable doubt, the court must first determine what the essential elements of the properly formulated offense in fact are. Robertson‘s appeal involves only one of section 1512(c)‘s elements: the requirement that the defendant obstruct an official proceeding “corruptly.”
The three Fischer defendants were indicted on various offenses arising from their participation in the January 6, 2021, Capitol protest. Id. at 332. Of relevance here, each was charged with one count of Obstruction of an Official Proceeding under
This Court reversed. The Fischer majority held that under “the most natural reading of the statute,” section 1512(c)(2) unambiguously “applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by
In a section of her opinion not joined by Judge Walker, who was the concurring judge, Judge Pan discussed the meaning of “corruptly.” She began with the observation that “the allegations against appellees appear to be sufficient to meet any proposed definition of ‘corrupt’ intent.” Id. (emphasis added). Although she declined to “express[] a preference for any particular definition of ‘corruptly,‘” she “consider[ed] three candidates.”6 Id. Using any of the three definitions, she concluded, a jury could find that the defendants acted “corruptly.” Id. at 339-40. She then opined that the sufficiency of the indictments did not turn on the “precise definition of ‘corruptly‘” and the “exact contours of ‘corrupt’ intent” could be left “for another day.” Id. at 340.
Judge Walker‘s concurrence — required in part to achieve a majority holding — adamantly (and, in my view, correctly) disagreed, declaring that “we must define [corruptly] to make sense of (c)(2)‘s act element,” thereby not joining Judge Pan‘s failure to do so. Id. at 351 (Walker, J., concurring in part). He gave “corruptly” its “long-standing meaning,” which requires a defendant to act “with an intent to procure an unlawful benefit either for himself or for some other person.” Id.
Judge Katsas dissented. In his view, section 1512(c)(2) applies only to obstructive acts related to the specific acts of evidence spoliation covered by subsection (c)(1). To reach that conclusion, he read “otherwise” in (c)(2) to mean “in a manner similar to” rather than “in a manner different from.” Id. at 363 (Katsas, J., dissenting). He also relied on “normal linguistic usage” and interpretive canons to find that subsection (c)(2), a catch-all provision, must not render superfluous the longer, more complex list of examples in (c)(1). Id. And, most notably here, he concluded that the majority‘s reading renders subsection (c)(2) implausibly broad and unconstitutional in a significant number of its applications. Id. at 363, 378-79. On the mens rea question, Judge Katsas explained that, in his view, none of the three definitions of “corruptly” proposed by Judge Pan “inspire[d] much confidence.” Id. at 379. Thus, “[r]ather than try to extract meaningful limits out of that broad and vague adverb,” he would have “acknowledged that Congress limited the actus reus to conduct that impairs the integrity or availability of evidence.” Id. at 382.
The determinative question for us is whether Fischer constitutes a holding regarding the meaning of “corruptly.” It does. Judges Pan and Walker agreed that a defendant acts “corruptly” if he acts with the intent to obtain an unlawful benefit for himself or another. Recall that Judge Pan considered three definitions of “corruptly” and concluded that the indictments sufficiently charged the Fischer defendants under any of the three. Id. at 339-40 (opinion of Pan, J.). And Judge Walker conditioned his vote on one definition — the one he called the “long-standing meaning” of “corruptly.” See id. at 352, 362 n.10 (Walker, J., concurring in part). That “long-standing meaning” was one of the three definitions Judge Pan considered.7 Two judges, then, agreed that the Fischer defendants could be found to have acted “corruptly” if they obstructed the election certification proceeding with the intent to obtain an unlawful benefit.8
The majority resists this conclusion by focusing only on the result in Fischer while ignoring its rationale. According to the majority, “the only holding in Fischer was the majority‘s ruling reversing the district court‘s erroneous interpretation of a different part of the statute — the ‘otherwise obstructs’ clause.” Maj. Op. 32. But that overlooks entirely how the Court reached the result of reversal. What gives a judicial opinion precedential effect beyond the parties is not its judgment but its rationale. Ramos v. Louisiana, 140 S. Ct. 1390, 1404 (2020) (plurality opinion) (“It is usually a judicial decision‘s reasoning — its ratio decidendi — that allows it to have life and effect in the disposition of future cases.“); see also United States v. Montague, 67 F.4th 520, 531 n.2 (2d Cir. 2023) (“[W]e do not apply prior judgments ‘stripped from any reasoning’ articulated in those cases.“) (citation omitted). The reasoning necessary to the result in Fischer includes Judge Walker‘s definition of “corruptly” because he expressly conditioned his interpretation of the “otherwise obstructs” clause on his understanding of “corruptly.” Fischer, 64 F.4th at 362 n.10 (Walker, J., concurring in part). Thus, Fischer did reach a holding on the question before us.
B. MEANING OF “CORRUPTLY”
Even assuming arguendo that Fischer did not decide what “corruptly” means, I believe “corruptly” is best read to require the defendant to act with the intent of obtaining an unlawful benefit for himself or another. To reach that conclusion, I rely on (1) the historical treatment of the “corrupt” mental state; (2) other federal statutes requiring evidence of “corrupt” intent; (3) the structure of Chapter 73 of Title 18 in general and of section 1512(c) in particular; and (4) the rule of lenity.
1. Common-Law Meaning of “Corruptly”
As Judge Walker explained in Fischer, “corruptly” has a settled mens rea meaning. See Fischer, 64 F.4th at 352 (Walker, J., concurring in part); see also United States v. Aguilar, 515 U.S. 593, 616 (1995) (Scalia, J., concurring in part) (“[T]he term ‘corruptly’ in criminal laws has a longstanding and well-accepted meaning.“). The criminal
proscription against “corrupt” behavior first appeared in England around the 13th century—a time when public officials, most notably the sheriff, “carried a broad range of powers” and “were only loosely accountable to any central authority.” Jeremy N. Gayed, “Corruptly“: Why Corrupt State of Mind Is an Essential Element for Hobbs Act Extortion Under Color of Official Right, 78 Notre Dame L. Rev. 1731, 1737 (2003). Despite wielding considerable power, officials “were both poorly and irregularly paid [by the Crown].” 2 William Holdsworth, A History of English Law 294 (4th ed. 1936); see Gayed, supra, at 1737 (“Although the sheriff was revenue collector, administrator, and law enforcer for the king, he received little or no compensation from the crown for his duties.“). To compensate for this deficiency, officials exacted fees from those they served, which fees were fixed by law or custom. See Gayed, supra, at 1737-38; 10 Holdsworth, supra, at 153. Because the amount that officials were authorized to charge was in their view insufficient, however, they resorted to “blatant and widespread disregard for legal and customary limits on their fees.” Gayed, supra, at 1738.
This practice gave rise to the earliest laws against corruption, “particularly th[ose] proscribing extortion and bribery.” Id. at 1739. Early extortion laws provided that officials “could not knowingly charge more than the customary amount.” Fischer, 64 F.4th at 353 (Walker, J., concurring in part) (citing Gayed, supra, at 1735-38). Thus, even if an official overcharged for his services, if he did not knowingly do so, he did not act “corruptly.” See Gayed, supra, at 1748 (“[T]he case law ostensively defines ‘corruptly’ as ... the purpose to give, take, receive, or accept, anything of value that is illegal or inappropriate to that particular office, knowing that it is illegal or inappropriate.“). Common-law bribery statutes provided that “the mere payment of a fee to an official for a benefit was not enough—the bribe payer had to know he was seeking an unlawful benefit.” Fischer, 64 F.4th at 353 (Walker, J., concurring in part); see also James Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. Rev. 815, 823
The English courts’ understanding of the “corrupt” mental state carried over to early American courts. The Supreme Court of Pennsylvania declined to hold one official liable for charging concededly “illegal” (excessive) fees because he did not have “criminal intentions.” Respublica v. Hannum, 1 Yeates 71, 74 (Pa. 1791) (per curiam). Three years later that same court held that a criminal information lay against a justice of the peace who released the defendant on his recognizance notwithstanding the defendant‘s grossly insufficient bail payment because the justice of the peace “could not have been so ignorant as not to have known, that the taking of recognizances in such sums, was a reproach to the public justice of the country.” Respublica v. Burns, 1 Yeates 370, 370 (Pa. 1794) (per curiam). The fact that the justice of the peace issued a certificate stating that the defendant “had entered into recognizance with sufficient securities, prove[d] that he knew he was acting wrong in his office.” Id. at 371. In Runnells v. Fletcher, the Supreme Judicial Court of Massachusetts assessed whether the defendant, a deputy sheriff collecting a debt, had committed extortion by “demanding and receiving of the plaintiff a greater fee” than he was authorized to collect. 15 Mass. 525, 525 (1819). The court decided he had not, reasoning that he had not demanded the excess fees “wilfully and corruptly” but had believed they were warranted “as a compensation for labor and trouble attending a supposed injury.” Id. at 526; cf. Jenifer v. Lord Proprietary, 1 H. & McH. 535, 535 (Md. 1774) (sheriff convicted of receiving “greater and larger fees” than he was entitled to). In Cleaveland v. State, the Supreme Court of Alabama rejected the argument that an official could be held criminally liable for imposing unlawful charges without knowing they were illegal. 34 Ala. 254, 259 (1859). To be liable, the court held, officers must “intentionally charge and take fees which they know at the time they are not authorized to collect.” Id.
The long history of the “corrupt” mental state, then, has imposed two requisites: to act “corruptly,” the defendant must intend to secure an unlawful benefit for himself or another; and, the defendant must know that the benefit he seeks is unlawful or improper. Prominent legal treatises, both historical and modern, reaffirm these principles. See 2 Francis Wharton, A Treatise on the Criminal Law of the United States § 2518 (7th ed. 1874) (to be “corrupt,” act must be done “above all with knowledge that it was wrong“); 2 Emlin McClain, Treatise on the Criminal Law as Now Administered in the United States 130 (1897) (official did not extort if he “had ground to believe and did believe that he was justified in taking the fees received“); Rollin M. Perkins & Ronald N. Boyce, Criminal Law 446-47 (3d ed. 1982) (“[E]xtortion is not committed by the officer who innocently receives an unlawful fee as a result of an honest mistake of fаct or of law.“). In addition, modern legal dictionaries confirm the unlawful-benefit element of “corruptly.” Black‘s Law Dictionary states, “[a]s used in criminal-law statutes, corruptly usu[ally] indicates a wrongful desire for pecuniary gain or other advantage.” Corruptly (def. 2), Black‘s Law Dictionary (11th ed. 2019). And Ballentine‘s Law Dictionary defines “corruptly” as “[w]rongfully; acting with the intent to obtain an improper advantage for self or others.” Corruptly, Ballentine‘s
2. “Corruptly” Used in In Pari Materia Statutes
Like common-law extortion and bribery, modern federal statutes using a “corrupt” mens rea generally require proof that the defendant acted with the intent to secure an unlawful benefit. For example,
“Corruptly” is also used in other obstruction-of-justice statutes. For most of those provisions, courts have not interpreted “corruptly” to require proof that the defendant intended to secure an unlawful benefit. As Judge Walker observed in Fischer, that omission reflects that, for many provisions, “the connection between ‘corruptly’ and the defendant‘s intent to procure an unlawful benefit is implicit,” as the statutes criminalize conduct that necessarily results in securing some unlawful benefit. Id. at 362 (Walker, J., concurring in part). For example,
Like in section 7212(a), section 1512(c)(2)‘s actus reus can capture conduct that does not produce an improper benefit. Not every attempt to influence an official proceeding is carried out “corruptly.” For example, a lobbyist “who persuades a congressman to ask hard questions at a committee hearing has influenced the proceeding” and might therefore come within
3. Statutory Structure and History: Chapter 73 and Section 1512
Both the structure and history of Chapter 73 in general and of section 1512 specifically offer further support for the unlawful-benefit reading. Chapter 73 comprises twenty-two distinct obstruction-of-justice sections, several prescribing multiple offenses. Section 1512 was initially enacted as part of the Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, § 4, 96 Stat. 1248, 1249. The codified statute is titled “[t]ampering with a witness, victim, or an informant” and criminalizes specific types of obstructive conduct,
Section 1512(c), the provision under which Robertson was charged and convicted, became law twenty years later as part of the Corporate Fraud Accountability Act of 2002, see Pub. L. No. 107-204, § 1102, 116 Stat. 745, 807, one of several acts composing the broader Sarbanes-Oxley Act of 2002, the enactment of which “was prompted by the exposure of [energy giant] Enron‘s massive accounting fraud and revelations that the company‘s outside auditor, Arthur Andersen LLP, had systematically destroyed potentially incriminating documents,” see Yates v. United States, 574 U.S. 528, 535-36 (2015) (plurality opinion). The Enron scandal revealed a “yawning gap” in the obstruction-of-justice enforcement scheme: although then-current statutes prohibited an individual from inducing someone else to destroy evidence, none imposed liability on an individual who destroyed evidence himself. Id. at 557-58 (Kagan, J., dissenting). In 2002, the Congress cured that “conspicuous omission” by enacting
Section 1512(c) was enacted at the same time as section 1519 but as a last-minute addition, having been “introduced in a floor amendment late in the legislative process.” Fischer, 64 F.4th at 347 (citing 128 Cong. Rec. S6542 (daily ed. July 10, 2002)). Section 1512(c) has two subsections: “(c)(1) prohibits ‘corruptly’ altering or destroying a ‘document, or other object ... with the intent to impair the object‘s integrity or availability for use in an official proceeding‘” and “(c)(2) is a residual clause, making it an offense to ‘corruptly’ ‘otherwise obstruct[], influence[], or impede[] any official proceeding.‘” Id. at 358 (Walker, J., concurring in part) (alterations in original). “Subsection (c)(2)‘s inconspicuous place within the statutory scheme suggests that it is an odd place for Congress to hide a far-reaching criminal provision,” id., including, in particular, the egregiously ill-fit of prosecuting trespassing protesters. Giving “corruptly” its common-law meaning correctly limits its reach. “Even though (c)(2) has a broad act element—there are many ways to obstruct, influence, or impede an official proceeding—its mental state keeps it in check: A defendant is liable only if he intends to procure an unlawful benefit.” Id. Indeed, to conclude that hundreds—perhaps thousands—of individuals entered the Capitol building “corruptly“—by reading “corruptly” to mean nothing more than “acting with an independently unlawful purpose or through independently unlawful means“—would strip the word of any independent meaning.
4. Other—Flawed—Definitions of “Corruptly”
Citing Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the lead Fischer opinion suggested that “corruptly” may simply mean “wrongful, immoral, depraved, or evil.” 64 F.4th at 340 (opinion of Pan, J.) (quoting Arthur Andersen, 544 U.S. at 705). And other courts have adopted this definition (or a variation thereof), both in the context of section 1512(c), see, e.g., United States v. Matthews, 505 F.3d 698, 706 (7th Cir. 2007), and related obstruction statutes, see, e.g., United States v. Edlind, 887 F.3d 166, 173 (4th Cir. 2018) (interpreting
For starters, Arthur Andersen, the primary authority for the colloquial definition, simply noted that “corruptly” is “normally associated with” the adjectives “wrongful, immoral, depraved, or evil.” 544 U.S. at 705. The opinion never “suggested that this adjectival string could supply a complete definition.” Fischer, 64 F.4th at 379 (Katsas, J., dissenting); accord United States v. Watters, 717 F.3d 733, 735 (9th Cir. 2013) (“While the Court in Arthur Andersen did observe ... that ‘corruptly’ is generally associated with ‘wrongful, immoral, depraved, or evil,’ the Court‘s holding was not that the definition of ‘corruptly’ had to include those words.” (quoting Arthur Andersen, 544 U.S. at 705)). Indeed, the Arthur Andersen Court expressly declined to “explore[]” the “outer limits” of the term because, regardless of the precise definition, the jury instructions in question “simply failed to convey the requisite consciousness of wrongdoing.” Arthur Andersen, 544 U.S. at 706. The Arthur Andersen defendant argued that “corruptly” in
Arthur Andersen plainly warns against giving “corruptly” in section 1512(c) its colloquial meaning. In fact, because section 1512(c)‘s actus reus is broader than section 1512(b)‘s actus reus, the need to cabin “corruptly” is even more pressing here. Whereas section 1512(b) reaches comparatively discrete categories of wrongful conduct such as causing someone to withhold evidence, section 1512(c)(2) encompasses any attempt to influence or impede an official proceeding, including conduct that is otherwise lawful. See Fischer, 64 F.4th at 344-45. Moreover, the defendant‘s mental state is ordinarily a question of fact for the jury. See North, 910 F.2d at 942 (Silberman, J., concurring in part) (“[I]t seems inescapable that this is a question of fact for the jury to determine whether an endeavor was undertaken corruptly.“). Reading section 1512(c) to criminalize “wrongful, immoral, depraved, or evil” conduct would support a guilty verdict based on “little more than a jury‘s subjective disapproval of the conduct at issue.” See Fischer, 64 F.4th at 379-80 (Katsas, J., dissenting); see also Kolender v. Lawson, 461 U.S. 352, 358 (1983) (“Where the legislature fails to provide ... minimal guidelines, a criminal statute may permit ‘a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.‘” (alteration in original) (quoting Smith v. Goguen, 415 U.S. 566, 575 (1974))).13
Defining “corruptly” by reference to ambiguous adjectives is also objectionable because this Court expressly rejected that definition in United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991). That case involved the prosecution of Admiral John Poindexter for his role in the Iran-Contra Affair. We held that “corruptly” as used in
Consider an altеrnative definition of “corruptly“—the one the majority adopts. “Corruptly,” it contends, encompasses “act[ing] with a corrupt purpose or via independently corrupt means.” Maj. Op. 17.14 To avoid circularity, the majority then equates “corrupt” with “unlawful.” Id. at 20-21.15 My colleagues’ definition gives section 1512(c)(2) an eye-popping sweep. Start with “unlawful means.” As Judge Katsas explained in Fischer, “even if independently unlawful means were necessary, section 1512(c)(2) still would cover large swaths of advocacy, lobbying, and protest.” Fischer, 64 F.4th at 380 (Katsas, J., dissenting). Consider “[a] protestor who demonstrates outside a courthouse, hoping to affect jury deliberations.” Id. Or a federal employee who convinces a congressman to change his vote on pending legislation. Id. Or an individual who peacefully protests a bill in the Senate gallery. Id. Under a “corrupt means” interpretation of “corruptly,” all three would violate section 1512(c)(2) because all attempted to influence an official proceeding by violating an independent statute to do so. Id.; see also
Like Judge Katsas, I doubt whether, in enacting section 1512(c)(2), the Congress intended to “supercharge a range of minor advocacy, lobbying, and protest offenses into 20-year felonies.” Id. Take
The majority responds by imposing a limitation plucked from thin air. It suggests that the “unlawful-means” requirement is satisfied only when a defendant acts through “independently felonious means.” Maj. Op. 24-25. But as far as I can tell, no decision of any court has even suggested, much less held, that “corruptly” can bear such a meaning. And in any event, imposing a “felonious means” requirement fails to cure the remarkable overbreadth of section 1512(c)(2) as interpreted by the majority. Even with that limitation, the majority‘s reading is difficult to reconcile with Chapter 73‘s reticulated scheme of penalties. For example,
Moreover, defining “corruptly” to mean “acting through independently unlawful means” requires the jury to find beyond a reasonable doubt that the defendant committed some other offense, aside from section 1512(c), in order to find him guilty of violating section 1512(c). The majority‘s definition effectively requires proof of a predicate offense that is not listed in the statute, an atextual and baffling result. The majority fails to point to a single statute in which the Congress uses a mens rea term—much less this particular mens rea term—to impose a similar requirement.16
The “unlawful purpose” facet of the majority‘s definition is no less dubious. Defining “corruptly” to mean, in essence, “acting with an independently unlawful purpose” does nothing to limit the scope of section 1512(c)(2). What does it mean to act with an independently unlawful purpose? See Maj. Op. 18. Perhaps the majority means that the defendant must intend to violate a law other than section 1512(c)(2). But if so, the defendant would always act “corruptly” so long as he also has a distinct illegal purpose—distinct from corruption, that is. If that reading is truly what the Congress intended in enacting section 1512(c)(2), sadly, Mark Twain had it right.17
Unlike the majority‘s definition of “corruptly,” the unlawful-benefit definition properly limits the scope of section 1512(c)(2). The requirement that a defendant act with intent to obtain an unlawful
5. Rule of Lenity
If Fischer had not decided the meaning of “corruptly,” and if the remainder of the foregoing analysis left any doubt, I believe the rule of lenity tips the scales in Robertson‘s favor. The rule of lenity instructs courts that “ambiguities about the breadth of a criminal statute should be resolved in the defendant‘s favor.” United States v. Davis, 139 S. Ct. 2319, 2333 (2019). Or, as the rule is often expressed, “when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” Dowling v. United States, 473 U.S. 207, 214 (1985) (quoting Williams v. United States, 458 U.S. 279, 290 (1982)). The Supreme Court has frequently applied the rule of lenity in obstruction-of-justice cases. See, e.g., Yates, 574 U.S. at 547-48 (plurality opinion); Arthur Andersen, 544 U.S. at 703-04; Aguilar, 515 U.S. at 600; see also Fischer, 64 F.4th 382 (Katsas, J., dissenting) (“In the specific context of obstruction of justice, the Supreme Court repeatedly has emphasized the need for caution.“). I would follow the Supreme Court‘s instruction.
C. DID ROBERTSON ACT “CORRUPTLY“?
Having concluded that “corruptly” is best read to require a defendant to act with the intent of obtaining an unlawful benefit for himself or another, I turn again to the facts of this case. The question, to reiterate, is whether a properly instructed juror could have found Robertson guilty under section 1512(c) beyond a reasonable doubt. Hillie, 14 F.4th at 682. The answer is no. There is no evidence in the record suggesting Robertson obstructed the election certification proceeding in order to obtain an unlawful benefit for himself or someone else. In fact, the Government does not contend that any such evidence exists.
In denying Robertson‘s motion for judgment of acquittal, the district court isolated the following evidence to support the jury‘s finding that Robertson acted “corruptly“: (1) communications Robertson made before and after the January 6th protest; (2) Robertson‘s intent to use violence; (3) Robertson‘s decision to carry a dangerous weapon—a large wooden stick—outside and inside the Capitol building; (4) Robertson‘s admission that he entered and remained in the Capitol without lawful authority and engaged in disorderly conduct in a restricted area; (5) Fracker‘s testimony that, when he and Robertson arrived at the Capitol building, MPD officers were “in trouble” and the crowd was “out of hand“; (6) Robertson impeded MPD officers as the officers marched through the protesters and (7) Robertson banged his wooden stick while the protesters chanted in the Capitol Crypt. None of this evidence comes close to establishing at all—much less beyond a reasonable doubt—that Robertson acted with the intent to obtain an unlawful benefit for himself
I would vacate Robertson‘s section 1512(c)(2) conviction and remand for resentencing on the remaining counts.
Accordingly, I respectfully dissent.
Notes
The majority argues that Judge Walker‘s and Judge Pan‘s opinions “rely on rationales that do not overlap” because the latter focused on the sufficiency of the three possible definitions but the former found one definition necessary. Maj. Op. 36-37. That characterization does not prevent Judge Walker‘s concurrence from forming a logical subset of the lead opinion. Another way of phrasing Judge Walker‘s conclusion that C is necessary is to say that only C is sufficient. Thus, Judge Pan found that A or B or C is sufficient and Judge Walker found that only C is sufficient. That yields a logical subset.