United States v. Jeffrey Brown

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 12, 2024 Decided January 17, 2025

No. 23-3074

UNITED STATES OF AMERICA,

APPELLEE

v.

JEFFREY SCOTT BROWN,

APPELLANT

Consolidated with 23-3075, 23-3104

Appeals from the United States District Court

for the District of Columbia

(No. 1:21-cr-00178-1)

(No. 1:21-cr-00178-2)

(No. 1:21-cr-00178-3)

Jerome A. Madden, appointed by the court, argued the

cause and filed the briefs for appellant Jeffrey S. Brown.

Dennis E. Boyle argued the cause and filed the briefs for

appellant Peter J. Schwartz.

2

Benjamin Schiffelbein, Assistant Federal Public Defender,

argued the cause and filed the brief for appellant Markus Maly.

Peter F. Andrews, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Matthew M.

Graves, U.S. Attorney, and Chrisellen R. Kolb and Nicholas P.

Coleman, Assistant U.S. Attorneys.

Before: MILLETT and GARCIA, Circuit Judges, and

ROGERS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Jeffrey Brown, Markus Maly,

and Peter Schwartz were tried and convicted by a jury for

assaulting police officers on the Capitol grounds on January 6,

2021. All three now challenge their convictions, and Brown

also challenges his sentence. We affirm Brown’s and Maly’s

convictions and Brown’s sentence. Per the parties’ stipulation,

we vacate Schwartz’s conviction on the 18 U.S.C. § 1512(c)(2)

charge. Lastly, we hold that, in compelling Schwartz to unlock

his cellphone, law enforcement violated the Fifth Amendment,

and so we remand Schwartz’s judgment to the district court to

determine which, if any, of his counts of conviction must be

vacated in light of that error.

I

A

Jeffrey Brown, Markus Maly, and Peter Schwartz did not

know each other prior to January 6, 2021. They travelled to

Washington, D.C. separately from their homes in California

(Brown), Virginia (Maly), and Pennsylvania (Schwartz) to

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attend then-President Trump’s “Stop the Steal” rally at the

Ellipse. After former President Trump’s speech, they each

made their own way to the Capitol grounds.

Trial evidence showed that Maly and Schwartz assaulted

law enforcement officers at two locations on the Capitol

grounds. The first was the Lower West Terrace. By around

2:00 that afternoon, police had formed a line on the terrace to

try and halt the rioters and were using bike racks as a make-

shift barrier. Over the next half hour, the rioters became “more

and more aggressive” and began removing the bike racks. J.A.

1435.

Around 2:30, the line of officers began to “collaps[e]” and,

at that moment, a rioter located in the same area where

Schwartz was standing threw a folding chair at the officers,

striking one of them on the head. J.A. 1439. That officer

testified that he did not see who threw the chair, J.A. 1485–

1488, but Schwartz wrote in a text message on January 7, 2021:

“I threw the first chair at the cops after they maced us.” J.A.

2020.

Shortly after that, Schwartz twice fired pepper spray at

police officers on the Lower West Terrace. The evidence also

showed Maly firing pepper spray at officers on the Terrace.

The violence then moved to the inauguration stage on the

West Front of the Capitol Building. Behind the center of the

stage, the Lower West Terrace door led to the lower Crypt of

the Capitol. The door was set back eight to ten feet from the

building’s façade, creating a “portico area” that, after January

6th, was commonly referred to as the “[T]unnel.” J.A. 970.

After rioters overcame officers’ defenses in other parts of the

Capitol exterior, police retreated to the Tunnel and formed a

line to protect the Lower West Terrace door. Over the course

of several hours, rioters repeatedly tried to push through the

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door, at times “rush[ing] the door” and forming a “crush”

against the line of police. J.A. 1011–1012, 1201. At some

point, the confrontation “broke out into full fighting”—“hand-

to-hand combat”—and rioters were attacking officers with

baseball bats, flagpoles, sticks, chairs, “pretty much anything

that you can think of[.]” J.A. 1585. Officers later testified that

their time in the Tunnel was “pretty terrifying[,]” J.A. 1205,

and described it as “hell[,]” J.A. 1585. One recounted that the

“tunnel was by far [his] worst experience” on January 6th. J.A.

1380.

By shortly after 3:00, Schwartz, Maly, and Brown had

each entered the Tunnel. Standing a few feet from the line of

police officers, Schwartz handed a canister of chemical spray

to Maly, who then passed it to Brown. After Brown appeared

to have trouble releasing the spray, he handed the canister back

to Schwartz, who adjusted something on the canister. Schwartz

passed the canister back to Brown, who then sprayed the line

of officers from close range.

Maly soon left the Tunnel. After Brown sprayed the

officers, Brown, Schwartz, and other rioters attempted to use

their weight to push through the officers, chanting “[h]eave-

ho.” J.A. 1845–1846, 2048.

B

A grand jury subsequently indicted Brown, Maly, and

Schwartz as follows:

(1) Assaulting, Resisting, or Impeding Certain Officers

Using a Dangerous Weapon, 18 U.S.C. § 111(a)(1),

(b) against Schwartz for throwing a chair at officers;

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(2) Civil Disorder, 18 U.S.C. § 231(a)(3), against

Brown, Maly, and Schwartz;

(3) Assaulting, Resisting, or Impeding Certain Officers

Using a Dangerous Weapon, 18 U.S.C. § 111(a)(1),

(b) against Schwartz for his first use of pepper spray;

(4) Assaulting, Resisting, or Impeding Certain Officers

Using a Dangerous Weapon, 18 U.S.C. § 111(a)(1),

(b) against Schwartz for his second use of pepper

spray;

(5) Assaulting, Resisting, or Impeding Certain Officers

Using a Dangerous Weapon, 18 U.S.C. § 111(a)(1),

(b) against Maly for his use of pepper spray;

(6) Assaulting, Resisting, or Impeding Certain Officers

Using a Dangerous Weapon and Aiding and

Abetting, 18 U.S.C. §§ 111(a)(1), (b) & 2 against

Brown, Maly, and Schwartz for their use of pepper

spray in the Tunnel;

(7) Obstruction of an Official Proceeding and Aiding and

Abetting, 18 U.S.C. §§ 1512(c)(2) & 2, against

Schwartz;

(8) Entering and Remaining in a Restricted Building or

Grounds with a Deadly or Dangerous Weapon, 18

U.S.C. § 1752(a)(1), (b)(1)(A), against Brown, Maly,

and Schwartz;

(9) Disorderly and Disruptive Conduct in a Restricted

Building or Grounds with a Deadly or Dangerous

Weapon, 18 U.S.C. § 1752(a)(2), (b)(1)(A), against

Brown, Maly, and Schwartz;

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(10) Engaging in Physical Violence in a Restricted

Building or Grounds with a Deadly or Dangerous

Weapon, 18 U.S.C. § 1752(a)(4), (b)(1)(A), against

Brown, Maly, and Schwartz;

(11) Disorderly Conduct in the Capitol Grounds or

Buildings, 40 U.S.C. § 5104(e)(2)(D), against

Brown, Maly, and Schwartz; and

(12) Act of Physical Violence in the Capitol Grounds or

Buildings, 40 U.S.C. § 5104(e)(2)(F), against Brown,

Maly, and Schwartz.

J.A. 2–7.

Brown, Maly, and Schwartz exercised their right to a trial.

Before trial, Schwartz filed motions, as relevant here: (1) to

suppress evidence obtained from his cellphone because FBI

agents forced him to unlock it with his thumbprint in violation

of the Fourth and Fifth Amendments; and (2) to sever the trials

under Federal Rule of Criminal Procedure 8(b).

The district court denied both motions. As for the Fifth

Amendment claim, the court found that the FBI had compelled

Schwartz to unlock his cellphone, but determined that act was

not testimonial and therefore did not give rise to a Fifth

Amendment violation. The court also found that the good faith

exception made suppression inappropriate in any event.

With respect to the motion to sever, the district court held

that the defendants were properly joined because of their

alleged coordinated conduct in the Tunnel—namely, passing a

canister of pepper spray among themselves. The court

reasoned that Schwartz, Brown, and Maly were “alleged to

7

have participated in ‘the same act or transaction, or in the same

series of acts or transactions, constituting an offense or

offenses.’” J.A. 281 (quoting FED. R. CRIM. P. 8(b)).

The defendants were tried before a jury in November

2022. At the close of the government’s case, each appellant

moved for acquittal under Federal Rule of Criminal Procedure

29. Schwartz and Maly moved generally for acquittal, and

Brown moved specifically for acquittal based on the “deadly or

dangerous [weapon] enhancement” applied to him under 18

U.S.C. §§ 111(b) and 1752(b)(1)(A) in four counts.

The district court denied those motions, reasoning that the

government had presented evidence that each defendant fired

pepper spray on January 6th and that, based on the evidence in

this case, a reasonable jury could find their use of pepper spray

constituted use of a deadly or dangerous weapon.

Maly also requested a specific unanimity instruction for

the 18 U.S.C. § 111 counts, which the district court denied.

The court held that a specific unanimity instruction is not

required when, as with Section 111, a statute lists alternative

means of committing a single offense.

The jury convicted Schwartz, Brown, and Maly on all

counts. The district court then sentenced Schwartz to 170

months of imprisonment, Maly to 72 months, and Brown to 54

months.

II

The district court had jurisdiction under 18 U.S.C. § 3231,

and we have jurisdiction under 28 U.S.C. § 1291.

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III

Schwartz, Brown, and Maly all argue that there was

insufficient evidence to convict them under 18 U.S.C.

§§ 111(b) and 1752(b)(1)(a) for using pepper spray on the

ground that it is not a deadly or dangerous weapon. Schwartz

claims the same is true for the chair he threw at officers.

Schwartz separately argues that the compelled opening of his

cellphone violated the Fifth Amendment, and so evidence

obtained from the phone should have been suppressed.

Schwartz also argues that the defendants’ cases should have

been severed. Maly, for his part, maintains that he was entitled

to a special unanimity jury instruction on the Section 111

counts. And Brown contends the district court abused its

discretion in sentencing him to a prison term of 54 months.

Lastly, Schwartz argues that his conviction under 18 U.S.C.

§ 1512(c)(2) should be vacated, and the government agrees in

light of Fischer v. United States, 603 U.S. 480 (2024). Gov’t

Br. 15 n.4.

We vacate Schwartz’s Section 1512(c) conviction and

remand for resentencing because, with that conviction vacated,

Schwartz’s sentence was based on an incorrect Guidelines

range. See Molina-Martinez v. United States, 578 U.S. 189,

198 (2016).

We also agree with Schwartz that the government violated

the Fifth Amendment when it compelled him to open his

cellphone, and so we remand for the district court to determine

whether that error was harmless or whether it infected some or

all of Schwartz’s offenses of conviction. We deny the rest of

the claims raised on appeal.

9

A

We turn first to Schwartz, Brown, and Maly’s joint

argument that there was insufficient evidence to convict them

of using a dangerous weapon—pepper spray and, for Schwartz,

a chair—while attacking police officers, in violation of 18

U.S.C. §§ 111(b) and 1752(a).

As relevant here, 18 U.S.C. § 111(a)(1) makes it a crime

to “forcibly assault[], resist[], oppose[], impede[], intimidate[],

or interfere[] with” a designated federal officer while that

officer is “engaged in or on account of the performance of

official duties[.]” Section 111(b) of that same provision

increases the maximum penalty to twenty years if, during

commission of the offense, the person “uses a deadly or

dangerous weapon * * * or inflicts bodily injury[.]” 18 U.S.C.

§ 111(b). In this case, the indictment relied on the “deadly or

dangerous weapon” component of that enhancement, and not

the “bodily injury” component. See J.A. 2–5.

Section 1752(a) of Title 18 separately punishes various

conduct in a “restricted building or grounds[,]” including, as

relevant to the charges here, knowingly “enter[ing] or

remain[ing]” in a restricted area, “engag[ing] in disorderly or

disruptive conduct[,]” or “engag[ing] in any act of physical

violence[.]” 18 U.S.C. § 1752(a)(1)-(2), (4). The statute then

increases the available penalty to ten years of imprisonment if,

“during and in relation to” commission of the Section 1752(a)

offense, the person “uses or carries a deadly or dangerous

weapon or firearm[.]” 18 U.S.C. § 1752(b)(1)(a).

Under Federal Rule of Criminal Procedure 29(a), “the

court on the defendant’s motion must enter a judgment of

acquittal of any offense for which the evidence is insufficient

to sustain a conviction.” FED. R. CRIM. P. 29(a). Where, as

10

here, defendants preserved their sufficiency challenges by

raising them before the district court, we review de novo

whether the evidence was sufficient, United States v. Stoddard,

892 F.3d 1203, 1213 (D.C. Cir. 2018), but “[o]ur review is

highly deferential to the jury’s decision[,]” United States v.

Reynoso, 38 F.4th 1083, 1089 (D.C. Cir. 2022); see also United

States v. Spinner, 152 F.3d 950, 955 (D.C. Cir. 1998). “We

consider the evidence taken as a whole, and with reasonable

inferences drawn in the light most favorable to the verdict.”

United States v. Griffin, 119 F.4th 1001, 1009 (D.C. Cir. 2024);

see also United States v. Kegler, 724 F.2d 190, 196 (D.C. Cir.

1983) (“In weighing the evidentiary support for [a] verdict, it

is elementary that we are required to view the evidence in the

light most favorable to the jury’s verdict.”). “We will affirm a

guilty verdict if ‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’”

Griffin, 119 F.4th at 1009 (quoting Musacchio v. United States,

577 U.S. 237, 243 (2016)). “We draw no distinctions between

direct and circumstantial evidence, and we give ‘full play to the

right of the jury to determine credibility, weigh the evidence

and draw justifiable inferences of fact.’” Reynoso, 38 F.4th at

1089 (quoting United States v. Clark, 184 F.3d 858, 863 (D.C.

Cir. 1999)).

Schwartz, Brown, and Maly argue that they did not use

pepper spray or a chair as deadly or dangerous weapons within

the meaning of 18 U.S.C. § 111(b) or 18 U.S.C.

§ 1752(b)(1)(a). More specifically, Maly disputes that there

was sufficient evidence to show he fired pepper spray at all, see

Maly Opening Br. 10–11, as does Schwartz with respect to the

thrown chair, see Schwartz Opening Br. 18. And all three

claim that the pepper spray and chair were not used as deadly

or dangerous weapons within the meaning of the two statutes.

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Sometimes a weapon is inherently deadly or dangerous,

like a gun. Other objects are not inherently deadly or

dangerous, but they can become so if used in certain ways. All

parties agree that the pepper spray and chair used here fall

within the latter category, and so we assume the same for

purposes of this opinion. See Brown Opening Br. 21, 25; Maly

Opening Br. 12; Schwartz Opening Br. 16–17; Gov’t Br. 19–

21, 23, 31. As a result, the “deadly or dangerous”

enhancements apply if the government proves beyond a

reasonable doubt that: (1) “the object [is] capable of causing

serious bodily injury or death to another person[,]” and (2) “the

defendant * * * use[d] it in that manner[.]” United States v.

Arrington, 309 F.3d 40, 45 (D.C. Cir. 2002) (analyzing Section

111(b)).

Neither Section 111(b) nor Section 1752(b) defines

“serious bodily injury,” but other parts of Title 18 define that

phrase as involving “(A) a substantial risk of death; (B)

extreme physical pain; (C) protracted and obvious

disfigurement; or (D) protracted loss or impairment of the

function of a bodily member, organ, or mental faculty[.]” 18

U.S.C. §§ 831(g)(4), 1864(d)(1), & 1365(h)(3). Schwartz,

Brown, and Maly, as well as the government, assume that

definition applies to Sections 111(b) and 1752(b), and so we

assume so as well for purposes of this case. See Brown

Opening Br. 21; Maly Opening Br. 3; Gov’t Br. 20; Schwartz

Opening Br. 15 (citing a substantively similar definition in the

Sentencing Guidelines).

Given the record in this case, sufficient evidence supported

the jury’s finding that Schwartz, Brown, and Maly each used

pepper spray as a deadly or dangerous weapon, and that

Schwartz also used a chair as a deadly or dangerous weapon.

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1

Pepper spray—also known as oleoresin capsicum spray or

OC spray, and sometimes referred to as mace—is a “mixture

of water and a chemical irritant” containing a small percentage

of pepper. J.A. 1089–1090, 1421, 1654.

The evidence in this case showed that pepper spray can

cause protracted vision loss. While the usual purpose of pepper

spray is to “incapacitate” another party “without leaving

serious injury,” J.A. 1089–1090, the record showed that misuse

of the spray can cause “permanent injury,” J.A. 1092. In

particular, if the spray is fired too close to the eyes, “hydraulic

needling” can occur, which happens when the spray “get[s] into

the [person’s] eye fluid” and “penetrate[s] [the] eyeball[,]”

causing “permanent” damage. J.A. 1092, 1661. For this

reason, the Metropolitan Police Department (“MPD”)

prescribes minimum safe distances for officers’ use of pepper

spray. Those distances vary based on the size of the pepper

spray canister. On January 6th, MPD officers carried three

different sizes of canisters: MK-4 canisters, which are roughly

the size of shaving cream bottles; MK-9 canisters, which are

medium-sized and come in various concentrations; and MK-46

canisters, which look like “large black fire extinguisher[s.]”

J.A. 1089, 1328, 1654, 1657–1659. Under MPD’s use-of-force

protocol, the minimum safe distance is three feet for use of

MK-4, six feet for MK-9, and twelve feet for MK-46. J.A.

1092, 1661. One officer testified specifically that the use of

MK-4 within three feet would constitute an “unauthorized level

of force” that could inflict “serious injury on someone[.]” J.A.

1092.

The evidence also showed that pepper spray can cause

extreme pain. During training, MPD officers are sprayed with

pepper spray to understand its effects. J.A. 1093. From more

13

than three feet away, an officer sprays each trainee in the face

with two one-second bursts. J.A. 1093, 1253. Officers

described the training experience as “blinding and painful but

not debilitating,” J.A. 1253; as causing “intense burning for a

long, long time[,]” J.A. 1566; and as amounting to a “9 or 10

out of 10” on a pain scale, J.A. 1377.

Officers testified that they felt such intense pain when

sprayed on January 6th. For example, Officer Christopher

Boyle stated that he felt a “9 or 10 out of 10” level of pain when

he was pepper sprayed on the Lower West Terrace. J.A. 1377.

Sergeant Jason Mastony testified that chemical irritants

absorbed through his uniform so his “legs and [his] arms [we]re

on fire.” J.A. 1204. The effects of the chemical irritants,

including “burning” “skin irritation[,]” lingered for about a

week, and he felt particular pain when he showered or tried to

change his contact lenses. J.A. 1247–1248. That is because

pepper spray is water-based and “reactivates with water.” J.A.

1093, 1253. Officer David Pitt testified that he had “severe

burning for the following three days in [his] hands” and “in

various places” from “when [he] was sprayed with various

sprays in the tunnel.” J.A. 1503. Finally, Sergeant Phuson

Nguyen described that, when he showered the night of the 6th,

“the chemical[s] [from the spray] soak[ed] through [his]

pore[s] and it start[ed] burning, and basically [his] whole body

was burning.” J.A. 1587.

That evidence provided a sufficient basis for a rational jury

to find that the pepper spray Schwartz, Brown, and Maly used

was capable of causing extreme pain, especially given the

officers’ testimony that they felt a “9 or 10 out of 10” on a pain

scale and that their limbs were “on fire” and “burning.”

Considering the intensely factual nature of an inquiry into the

extent of pain caused by violent conduct, the evidence in this

case, and the credibility judgments involved, there is no basis

14

for this court to overturn the jury’s verdict by finding as a

matter of law that the evidence came up short. See also United

States v. Mejia-Luna, 562 F.3d 1215, 1222 (9th Cir. 2009)

(“[T]he existence and definition of serious bodily injury in a

given case is primarily a jury question dependent upon an

evaluation of all the circumstances of the injury or injuries.”)

(quotation marks omitted); see also United States v. Peneaux,

432 F.3d 882, 891 (8th Cir. 2005) (“Determining whether an

injury is serious is an issue for the jury to decide based on its

‘common understanding’ of the term[.]”) (citation omitted).

Schwartz, Brown, and Maly object that the officers’ pain

did not constitute “serious bodily injury” because the pain was

temporary. Not so. Officers testified that the sensation of

“burning” skin lasted for several days after January 6th and

even up to “about a week[.]” J.A. 1247–1248, 1503. In any

event, nothing in law or logic supports the notion that intense

suffering and torture qualify as serious injury only if they are

clocked as crossing some unspecified time threshold.

The record evidence also supported the jury’s conclusion

that each defendant used pepper spray in a manner capable of

causing such serious bodily injury.

Starting with Schwartz, the record contained both video

evidence and witness testimony showing that, while on the

Lower West Terrace, Schwartz sprayed a large MK-46 canister

of pepper spray at police. Officer Boyle’s testimony and body-

worn camera footage showed Schwartz firing a fire-

extinguisher-sized canister of OC spray in the direction of

police officers. J.A. 1340–1344, 1666. The government also

presented video evidence and witness testimony that Schwartz

sprayed officers a second time around 2:35 PM—this time with

an MK-9 canister. J.A. 1574–1584, 1666; Exhs. 105A.1,

117.1. Video footage shows Schwartz firing the powerful

15

spray directly into one officer’s face. Exhs. 105A.1, 117.1. For

both incidents, a rational jury could find that Schwartz fired the

sprays in ways capable of causing either extreme physical pain

or hydraulic needling.

Schwartz objects that the government did not prove the

exact distance from which he fired the sprays, identify whether

any officers were actually hurt, or prove that Schwartz intended

to injure the officers. See Schwartz Opening Br. 16–17;

Schwartz Reply Br. 4. But none of that is necessary for a jury

to convict Schwartz of using pepper spray as a deadly or

dangerous weapon. The video evidence allowed the jury to

gauge whether the sprays came from unsafe distances and

supported a finding that they were used at too-close ranges.

Exhs. 105A.1, 117.1. Whether actual injury resulted is beside

the point. The enhancement applies whenever a weapon is

used in a manner that could have caused serious bodily injury.

Arrington, 309 F.3d at 45; see also United States v. Anchrum,

590 F.3d 795, 802 (9th Cir. 2009).

As for Schwartz’s intent argument, under Section 111(b),

a defendant must “intend to use the object[,]” but need not

“intentionally use the object as a weapon.” Arrington, 309

F.3d at 45–46. That same reasoning applies to Section

1752(b)(1)(a), which requires only that the defendant intend to

“use[] or carr[y]” the object. 18 U.S.C. § 1752(b)(1)(a). Here,

the evidence was more than sufficient to show that Schwartz

intended to carry and use the pepper sprays. The video footage

demonstrates beyond a reasonable doubt that he intentionally

fired the spray, as opposed to, for example, accidentally

bumping into the canisters and inadvertently compressing their

triggers.

As for Maly, the evidence showed that he fired pepper

spray at officers, including Officer Boyle, on the Lower West

16

Terrace. J.A. 1352–1365; Exh. 120.2. Officer Boyle testified,

consistent with his body-worn-camera footage, that Maly was

holding “what appear[ed] to be a chemical OC spray.” J.A.

1365. He further testified that when he was sprayed, “it hurt

immediately” and he felt “burning, pain[,]” that was

“[c]onsistent” with the feeling of his prior experiences with OC

spray. J.A. 1368. And Maly admitted upon his arrest that, on

January 6th, he “picked up a canister or two of [] pepper spray

and then sprayed them at police officers.” J.A. 1896. Viewed

in the light most favorable to the jury’s verdict, this evidence

establishes beyond a reasonable doubt that Maly deployed OC

or chemical spray in a manner capable of causing extreme pain

to one or more officers. See also Reynoso, 38 F.4th at 1089

(“[W]e give full play to the right of the jury to determine

credibility, weigh the evidence and draw justifiable inferences

of fact.”) (citation omitted).

Finally, the video evidence against Brown showed that he

shot pepper spray from close range at the line of officers

guarding the Tunnel. Exh. 103.9. Two officers who had been

stationed in the Tunnel testified that they heard a “hiss”

“consistent with a chemical irritant spray” or “aerosol spray”

at the time video evidence showed Brown discharging a

canister. J.A. 1210–1211; J.A. 1497–1498. Body-worn

camera videos corroborated that testimony. Reviewing a still

image taken from other footage, a third officer testified that

Brown fired a “civilian OC spray[]” that released “amber

spray” “consistent” with OC spray. J.A. 1214, 1218, 1693–

1695.

To be sure, officers did not testify that Brown fired spray

directly into their eyes, and the video evidence suggests that

officers in the Tunnel had protective gear, including helmets

and shields. Exh. 103.9. But officers told the jury that they

suffered pain from sprays in the Tunnel even though they wore

17

gear and even though some sprays were not fired into their

eyes. Sergeant Mastony explained that chemical irritants

absorbed through his uniform so that his legs and arms were

“on fire.” J.A. 1204. His “body [wa]s pretty much on fire.”

J.A. 1204. Sergeant Nguyen testified that Brown’s particular

spray affected him in “one way or another” because the officers

were “in such a confined space” and the wind that day blew

sprays back into the officers in the Tunnel. J.A. 1590. Officer

Boyle stated that shields were ineffective at preventing police

from being sprayed because “when you get sprayed it

splashes[.]” J.A. 1376. Spray “can go anywhere.” J.A. 1376.

In sum, sufficient evidence supported the jury’s findings

that Schwartz, Brown, and Maly each used pepper spray as a

weapon and did so in a deadly or dangerous manner.

2

The evidence likewise supported the jury’s verdict that

Schwartz threw a chair at officers and, in so doing, used it as a

deadly or dangerous weapon. The evidence showed that,

around 2:30, the line of officers on the Lower West Terrace

began to collapse. J.A. 1439. A Capitol police officer who was

“trying to keep [rioters] back from breaking the line” then “got

overextended into the crowd” and fell. J.A. 1439. Officer

David Pitt “moved up” to “grab[]” his colleague’s vest and try

to “pull him back behind [the] police line to stop him from

being assaulted.” J.A. 1439. As Officer Pitt was doing so, he

was hit in the head by a folding chair that a rioter had thrown.

J.A. 1439; see also Exh. 116.12. Officer Pitt did not see who

threw the chair, J.A. 1485–1488, but Schwartz wrote in a text

message on January 7, 2021: “I threw the first chair at the cops

after they maced us.” J.A. 2020. An FBI case agent also

testified at trial that, based on video evidence, Schwartz was

standing in the part of the crowd from which the folding chair

18

was thrown. J.A. 2039. The video evidence also shows that

the chair was thrown with force and at high speed directly at

the police officers and that it actually struck Officer Pitt in the

head. Exh. 116.12.

Given the content of the video and Schwartz’s text

message about throwing a chair, the jury reasonably found both

that Schwartz was the one who threw the chair that struck the

officer and that his action posed a risk of serious injury to the

officers as they were attempting to hold back the mob.

Schwartz counters that there was no risk of serious injury

because the officers were outfitted with “helmet[s], pads, and

other protective gear.” Schwartz Opening Br. 18. That is

incorrect. A chair is used in a dangerous manner when, even

though “[f]ortuitously[] the wound inflicted was not serious,”

circumstances could have made it so. United States v. Johnson,

324 F.2d 264, 266 (4th Cir. 1963) (A chair “brought down” on

a victim’s head was used as a dangerous weapon even though

it caused no “serious” injury because “had the blow fallen an

inch lower it could have endangered [the victim’s] eye, or if

slightly higher, a dangerous head wound was likely.”).

Although Officer Pitt and the colleague he assisted both wore

helmets and pads, that gear did not cover their entire bodies.

And the video evidence shows that, right after the chair hit

Officer Pitt, his colleague fell back and his eye visor lifted.

Exh. 116.12. Video evidence from around that same time

reveals that other officers on the Lower West Terrace had lifted

their visors. Exhs. 106A.4; 105A.1. One officer had no

helmet, visor, or apparent padding at all. Exh. 105A.1.

All of this to say, the fortuity that neither Officer Pitt nor

his colleague were seriously injured does nothing to detract

from the jury’s conclusion that Schwartz’s hurling of the

chair—indiscriminately at a line of officers with varying levels

19

of protective gear—could have caused serious injury. For that

reason, sufficient evidence supported the jury’s finding that

Schwartz used the chair as a deadly or dangerous weapon.

B

Schwartz separately argues that the district court should

have suppressed evidence obtained from his cellphone because

the compelled unlocking of his phone violated the Fourth and

Fifth Amendments. Because we agree with Schwartz that the

compelled opening violated the Fifth Amendment, we need not

address his Fourth Amendment claim.

1

Before trial, Schwartz moved to suppress evidence

obtained from his cellphone, which was seized at the time of

his arrest. J.A. 95–102. The district court held a hearing and

made numerous relevant factual findings. The district court

then denied suppression, finding that no constitutional

violation occurred.

In so holding, the court found that FBI Agent Michael

Nealon was part of the team that executed a search warrant at

Schwartz’s residence on February 4, 2021. J.A. 406; see also

J.A. 380. By the time Agent Nealon arrived, Schwartz had

already been taken into custody pursuant to an arrest warrant

and placed in an FBI vehicle. J.A. 376–377, 406. During the

search, Agent Nealon found a black cellphone on the bedroom

dresser in Schwartz’s one-bedroom apartment. J.A. 406.

Agent Nealon then approached Schwartz and asked for the

password to the phone. J.A. 406. Schwartz offered three

options, which Agent Nealon tried, but none unlocked the

device. J.A. 406.

20

Agent Nealon returned to the vehicle and was “able to

obtain Mr. Schwartz’s thumbprint to open the phone.” J.A.

406–407. Agent Nealon, however, did not “recall precisely

how that was done” and did not “remember the conversation”

he had with Schwartz. J.A. 407. The agent testified that his

“ordinary practice” was to ask whether the person in custody

“wishe[d] to have any numbers accessed so that they c[ould]

be provided” for use at the jail. J.A. 407. The district court

found that Agent Nealon “presumably” thought he followed

that practice and that “Mr. Schwartz, in response to that

request, did put his thumb on the telephone, thereby opening

it.” J.A. 407.

Agent Nealon brought the unlocked phone inside, and

another FBI agent photographed information on it, including

text messages. J.A. 407; see also J.A. 460. The agents did not

conduct a forensic search of the phone at that time.

Seven months later, the FBI obtained a second warrant to

conduct a forensic search of the cellphone. J.A. 393–394, 407.

The affidavit accompanying the search warrant application

included photographs taken during the February 4th search and

stated that FBI agents had “used Schwartz’s fingerprint to

unlock” the device during the search. Gov’t Rule 28(j) Letter

(Nov. 14, 2024), Exh. 2 at 16–20.

In its initial briefing before the district court, the

government argued that Schwartz’s thumbprint was not

testimonial and that he had consented to use of his thumb to

open the phone. Gov’t Opp. to Schwartz’s Mot. to Suppress at

8–11. But after the suppression hearing, the government

conceded that Schwartz had been “compelled” to produce his

fingerprint. Gov’t Resp. to Schwartz’s Suppl. to Mot. to

Suppress at 6. In other words, the government admitted that

21

Schwartz’s opening of the cellphone with his thumbprint was

involuntary.

The government did not explain the reason for this

concession, but the record suggests that the change may have

had to do with the timing of Schwartz’s request for an attorney

while in custody. According to the government, when

Schwartz was initially questioned by police, he was advised of

his Miranda rights and agreed to speak to agents without an

attorney present. Id. at 1–2. 1 At some point, and agents “could

not recall” whether that point fell before or after Schwartz

opened the phone, Schwartz requested an attorney. Id. at 3 n.3.

Given this concession, the district court found that the FBI

“compelled” Schwartz to “open and inspect his mobile

phone[.]” J.A. 477. The court nevertheless concluded that the

compelled disclosure was not a testimonial act, reasoning that

the Fifth Amendment privilege does not apply when “‘the

[g]overnment merely compels some physical act, i.e., where

the individual is not called upon to make use of the contents of

his mind.’” J.A. 477 (quoting In re Search of [Redacted]

Washington, D.C., 317 F. Supp. 3d 523, 537 (D.D.C. 2018)).

The court also found that the good faith exception, though

typically relevant in the Fourth Amendment context, applied to

Schwartz’s Fifth Amendment claim. J.A. 478.

In reviewing the district court’s denial of a suppression

motion, we review legal conclusions de novo and factual

findings for clear error. United States v. Guertin, 67 F.4th 445,

449 (D.C. Cir. 2023). “We will affirm the judgment of the

district court if ‘any reasonable view of the record supports its

denial of the motion to suppress.’” United States v. Hutchings,

1

As noted below, Schwartz disputes this account.

22

99 F.4th 604, 607 (D.C. Cir. 2024) (quoting United States v.

Miller, 799 F.3d 1097, 1101 (D.C. Cir. 2015)).

2

The district court erred in denying Schwartz’s suppression

motion because the compelled opening of the cellphone was

testimonial under the Fifth Amendment.

a

The Fifth Amendment provides that “[n]o person shall be

* * * compelled in any criminal case to be a witness against

himself[.]” U.S. Const. Amend. V. To fall within the Fifth

Amendment’s protection, “a communication must be

testimonial, incriminating, and compelled.” Hiibel v. Sixth

Jud. Dist. Ct. of Nevada, Humboldt County, 542 U.S. 177, 189

(2004). The district court found, and the government agrees,

that the police “compelled” Schwartz to open the phone. J.A.

477; Gov’t Br. 38.

The parties also do not dispute that the compelled opening

of the cellphone was incriminating as it identified Schwartz as

the likely owner of, and a person with access to and control

over, the phone and its inculpatory messages. See Kastigar v.

United States, 406 U.S. 441, 445 (1972) (The Fifth

Amendment “protects against any disclosures which the

witness reasonably believes could be used in a criminal

prosecution or could lead to other evidence that might be so

used.”).

That leaves only the first prong of the Fifth Amendment

claim at issue in this case—whether disclosing to police

Schwartz’s way of opening the cellphone and his ability to do

so was testimonial. Testimonial communications are those

that, “explicitly or implicitly, relate a factual assertion or

23

disclose information.” Doe v. United States, 487 U.S. 201, 210

(1988). Communications need not be verbal or written to

qualify, Schmerber v. California, 384 U.S. 757, 763–765

(1966), and the question of whether a communication is

testimonial often “depend[s] on the facts and circumstances of

[a] particular case[,]” Fisher v. United States, 425 U.S. 391,

410 (1976).

Because Agent Nealon could not recall his conversation

with Schwartz, the district court found only that Agent Nealon

followed his “ordinary practice” of asking Schwartz if he

wanted to access information on the phone for use later at the

police station, and that the agent then “compelled” Schwartz to

open the phone. J.A. 407, 477. In other words, the record

reveals that an FBI agent ordered Schwartz to open the

cellphone, and Schwartz complied by placing his thumb on the

cellphone.

That compelled biometric unlock of a cellphone arises at

the intersection of the Fifth Amendment’s physical-trait and

act-of-production precedents. See United States v. Payne, 99

F.4th 495, 508 (9th Cir. 2024).

Generally, the use of an individual’s physical traits by

police is not considered testimonial. For example, the Fifth

Amendment does not protect against the involuntary furnishing

of a blood sample, Schmerber, 384 U.S. at 765; submitting to

fingerprinting, see United States v. Wade, 388 U.S. 218, 223

(1967); providing a handwriting exemplar, Gilbert v.

California, 388 U.S. 263, 266–267 (1967); providing a voice

exemplar, United States v. Dionisio, 410 U.S. 1, 7 (1973);

standing in a police lineup, Wade, 388 U.S. at 221–222; or

donning particular clothing, Holt v. United States, 218 U.S.

245, 252–253 (1910). “[T]he privilege was not implicated in

each of those cases, because the suspect was not required ‘to

24

disclose any knowledge he might have,’ or ‘to speak his

guilt[.]’” Doe, 487 U.S. at 210–211 (citations omitted).

But the inquiry is contextual. Some displays of physical

traits can be testimonial. For example, lie detector tests “may

actually be directed to eliciting responses which are essentially

testimonial.” Schmerber, 384 U.S. at 764. Compelling a

person to submit to a test “in which an effort will be made to

determine his guilt or innocence on the basis of physiological

responses, whether willed or not, is to evoke the spirit and

history of the Fifth Amendment.” Id.

The physiological changes observed during a lie detector

test—e.g., an uptick in heart rate or an increase in respiration—

are testimonial because they are manifestations of testimonial

thoughts in the defendant’s mind. A racing heartbeat is a

physical representation of the thought “what I said is false” or

“I am scared to say this,” which—if the subject had been

compelled to say—would be testimonial. Put differently, the

physical response “disclose[d]” the subject’s “knowledge” and

the thoughts of his mind. Doe, 487 U.S. at 211 (quoting Wade,

388 U.S. at 222). By contrast, standing in a police lineup or

providing a blood sample or handwriting exemplar—when

instructed to do so—communicates only that the subject knows

how to comply with orders. But those acts are not

manifestations of any testimonial thoughts.

Though placing a thumb on a phone may seem akin to

submitting to fingerprinting or providing a handwriting

exemplar, the act, as performed here, is much closer to

responding to a lie detector test or complying with a command

to say a password. When Schwartz was ordered to open the

cellphone, his act of unlocking the phone represented the

thoughts “I know how to open the phone,” “I have control over

and access to this phone,” and “the print of this specific finger

25

is the password to this phone.” If Schwartz had instead been

compelled to disclose whether he could open the phone, and

made to say yes or to verbally disclose the password, those

answers unquestionably would be testimonial

communications. The compelled opening of the cellphone that

occurred here is no different.

Another way of understanding the Supreme Court’s

physical trait cases is that testimonial acts are those physical

actions that require no additional information to communicate

an incriminatory message. A blood draw reveals the blood-

alcohol content of an individual only when chemically

analyzed. See Schmerber, 384 U.S. at 765. A handwriting

exemplar reveals the identity of its author only when compared

to another handwriting sample. See Gilbert, 388 U.S. at 266–

267. But the compelled opening of a cellphone itself directly

announces the owner’s access to and control over the phone, as

well as his mental knowledge of how to unlock the device.

There is no additional information that is needed to understand

the messages communicated by the act of opening a phone. In

that way too, forcing Schwartz to open the phone was

testimonial.

The act-of-production line of cases confirms that

compelling Schwartz to open the phone was testimonial. The

act-of-production doctrine recognizes that physical acts can be

“communicative” “wholly aside from the contents” of anything

produced, Fisher, 425 U.S. at 410, when the action “impl[ies]

assertions of fact,” Doe, 487 U.S. at 209; see also Payne, 99

F.4th at 509 (“Although act of production cases have dealt

exclusively with responses to document subpoenas, their

reasoning applies to other situations.”). Take Doe and United

States v. Hubbell, 530 U.S. 27 (2000)—the two cases that,

according to Payne, show the “act of production doctrine’s

triggering point[.]” Payne, 99 F.4th at 509.

26

In Doe, the government forced Doe to sign a form

consenting to disclosure of “any and all [foreign bank]

accounts over which Doe had a right of withdrawal, without

acknowledging the existence of any such account.” 487 U.S.

at 204. The Court held that neither the consent directive nor

Doe’s signature on it were testimonial. The Court reasoned

that the form was “carefully drafted not to make reference to a

specific account,” and therefore did “not acknowledge that an

account in a foreign financial institution [wa]s in existence or

that it [wa]s controlled” by Doe. Id. at 215. Likewise Doe’s

signing of the form “ma[de] no statement, explicit or implicit,

regarding the existence of a foreign bank account or his control

over any such account. Nor would his execution of the form

admit the authenticity of any records produced by the bank.”

Id. at 215–216.

The Supreme Court was careful not to hold that any kind

of compelled consent would be non-testimonial. The Court

held only that the specific consent form at issue in that case,

which was “carefully drafted” to avoid reference to or the

identification of any specific bank accounts, was not

testimonial. Doe, 487 U.S. at 215. Because of that drafting,

the Court explained, Doe’s signature on the form did not

confirm the existence of or his control over any account, nor

did he authenticate the records from the bank.

This case is the opposite. Because the FBI directed

Schwartz to open the phone, the government compelled

Schwartz to disclose his knowledge of how the phone could be

opened, and specifically his understanding that his thumb

would unlock the device, and those disclosures revealed his

ownership or control over the phone and the messages it

contained.

27

Similarly, in Hubbell, the government issued a subpoena

duces tecum for the production of eleven categories of

documents. 530 U.S. at 31. After receiving an assurance of

immunity, the respondent produced 13,120 pages of documents

and “responded to a series of questions that established that

those were all of the documents in his custody or control that

were responsive to the commands in the subpoena[.]” Id.

The Supreme Court found that this act of production

communicated two testimonial messages. First, the subpoena

response established “the existence, authenticity, and custody

of the items” produced. Hubbell, 530 U.S. at 41. Second, the

identification and assembly of those hundreds of documents

required the respondent to make “extensive use of ‘the contents

of his own mind’” and were “tantamount to answering a series

of interrogatories asking a witness to disclose the existence and

location of particular documents fitting certain broad

descriptions.” Id. at 41, 43 (citation omitted).

So too here. When, in response to the command to unlock

the phone, Schwartz opened it, that act disclosed his control

over the phone, his knowledge of how to access it, and the

existence, authenticity, and ownership of documents within it.

In addition, opening the phone was tantamount to answering a

series of questions about ownership or control over the phone,

including how it could be opened and by whom.

In short, under both the physical-trait and act-of-

production caselaw, Schwartz’s compelled unlocking of the

phone was testimonial. 2

2

This holding is consistent with the Ninth Circuit’s decision in

Payne, 99 F.4th at 509–513. In that case, instead of instructing the

defendant to open his phone, as the FBI instructed Schwartz to do,

28

b

Because the compelled opening of the cellphone was

testimonial, both the message communicated by that action and

any evidence obtained from that communication must be

suppressed. See Kastigar, 406 U.S. at 445 (The Fifth

Amendment “protects against any disclosures which the

witness reasonably believes could be used in a criminal

prosecution or could lead to other evidence that might be so

used.”); Harrison v. United States, 392 U.S. 219, 222 (1968)

(“[T]he same principle that prohibits the use of confessions

[wrongfully obtained] also prohibits the use of any testimony

impelled thereby—the fruit of the poisonous tree, to invoke a

time-worn metaphor.”). In unlocking the phone, Schwartz

disclosed that he had access to the phone and therefore also the

ability to use it, and the government then used those testimonial

acts in prosecutorial actions against Schwartz.

First, as a consequence of Schwartz unlocking the phone,

the FBI agents gained access to the phone and photographed

text messages “related to Schwartz’s presence at the U.S.

Capitol on January 6.” J.A. 407, 460.

Second, the government relied on those text messages, as

well as the fact that “Schwartz’s fingerprint [] unlock[ed]” the

phone, to establish probable cause to obtain a second warrant

the police “forcibly grabbed Payne’s thumb and used it to unlock the

phone.” Id. at 500. The Ninth Circuit found that act was not

testimonial, id. at 509–512, but the court emphasized that its

“opinion should not be read to extend to all instances where a

biometric is used to unlock an electronic device[,]” id. at 513.

“Indeed, the outcome on the testimonial prong may have been

different[,]” the Ninth Circuit recognized, “had [the] [o]fficer []

required Payne to independently select the finger that he placed on

the phone.” Id. That is this case.

29

for a forensic analysis of the phone. Gov’t Rule 28(j) Letter,

Exh. 2 at 16–20. With that warrant in-hand, an FBI computer

analyst “extracted the data from the phone” and produced a

“usable report” of the phone’s contents. J.A. 2014.

Third, the government introduced that report into evidence

at trial, relied on the report to prove Schwartz was the “owner

and user of the telephone[,]” and then introduced incriminating

text messages reflected in the report. J.A. 2014–2036.

Because the evidence on Schwartz’s phone was the

product of a Fifth Amendment violation, the district court erred

in denying Schwartz’s motion to suppress use of that evidence

and its fruits in his prosecution.

The government maintains, however, that even if the

evidence was obtained in violation of the Fifth Amendment,

suppression is unnecessary both because the phone’s contents

and linkage to Schwartz inevitably would have been

discovered, and because the officers acted in good faith.

Neither argument succeeds.

(i)

The inevitable-discovery doctrine “allows for the

admission of evidence that would have been discovered even

without the unconstitutional source.” Utah v. Strieff, 579 U.S.

232, 238 (2016); see also Nix v. Williams, 467 U.S. 431, 448

(1984) (When “the evidence in question would inevitably have

been discovered without reference to the police error or

misconduct, there is no nexus sufficient to provide a taint and

the evidence is admissible.”); McKathan v. United States, 969

F.3d 1213, 1232 (11th Cir. 2020) (“The inevitable-discovery

doctrine can apply when a Fifth Amendment violation

occurs.”); United States v. Griffin, 48 F.3d 1147, 1150 (10th

Cir. 1995) (“The inevitable discovery doctrine allows the

30

introduction of evidence acquired in violation of a defendant’s

Fourth, Fifth, or Sixth Amendment rights[.]”); United States v.

Fisher, 700 F.2d 780, 784 (2d Cir. 1983); United States v.

Schmidt, 573 F.2d 1057, 1065–1066 n.9 (9th Cir. 1978); Nix,

467 U.S. at 440–441 n.2.

The government bears the burden of proving by a

preponderance of the evidence that the evidence would have

been discovered independently of the Fifth Amendment

violation. Nix, 467 U.S. at 444–445 n.5.

Here, the government argues that it would have inevitably

confirmed Schwartz’s ownership of his phone and discovered

its contents because FBI agents obtained a second warrant

seven months later to search the phone. Gov’t Br. 45. The

affidavit in support of that warrant, however, relied on the Fifth

Amendment violation—that Schwartz’s thumbprint unlocked

the phone—and the inculpatory text messages the phone

contained to establish probable cause for that later warrant. See

Gov’t Rule 28(j) Letter, Exh. 2 at 16–20. Reliance on tainted

evidence generally indicates that the later discovery was not so

inevitable after all. See Nix, 467 U.S. at 448 (“[T]he evidence

in question” must “have been discovered without reference to

the police error or misconduct[.]”) (emphasis added).

The government insists, though, that probable cause to

search the contents of the phone existed even without reference

to the tainted evidence. See Gov’t Rule 28(j) Letter. Maybe.

But even if it did, the government has not shown that it could

have unlocked the cellphone without relying on a testimonial

communication.

As it turns out, the government later was able to unlock

Schwartz’s cellphone by using a variation of one of the

passwords Schwartz had supplied during the custodial

interview following his arrest. Gov’t Resp. to Schwartz’s

31

Suppl. to Mot. to Suppress at 10. Yet the government concedes

that Schwartz’s disclosure of his passwords was testimonial.

Gov’t Opp. to Schwartz’s Mot. to Suppress at 8–9

(“[C]ompelling a defendant to communicate a password * * *

would be ‘testimonial’ under the Fifth Amendment[.]”). The

government tries to surmount that hurdle by arguing that

Schwartz voluntarily supplied those passwords. Gov’t Resp.

to Schwartz’s Suppl. to Mot. to Suppress at 2 (“Schwartz

voluntarily provided three passwords[.]”). In other words, it

claims the passwords were not compelled. See Hiibel, 542 U.S.

at 189 (To receive Fifth Amendment protection, “a

communication must be testimonial, incriminating, and

compelled.”) (emphasis added).

The government, however, has failed to carry its burden of

proving the voluntariness of the password disclosures.

According to the government, an FBI agent had begun

questioning Schwartz and had advised him of his Miranda

rights before Agent Nealon approached to ask for the cellphone

passwords. Gov’t Resp. to Schwartz’s Suppl. to Mot. to

Suppress at 2 n.2. But Schwartz disputes that account, see

Schwartz Reply Br. 12, and the district court made no factual

findings about the timing or adequacy of any Miranda

warnings or the voluntariness of those password disclosures,

see J.A. 405–409. Given this bare record and conflicting views

of what occurred based on unresolved factual disputes, the

government has failed to establish by a preponderance of the

evidence that Schwartz voluntarily supplied the passwords to

his phone.

All of this is a long way of saying that, on this record, the

government has not met its burden of showing that it would

have gained access to the phone’s contents by some

independent, lawful means.

32

(ii)

The government’s second tack is to argue, as the district

court found, that the Fourth Amendment’s good faith exception

to the exclusionary rule should be extended to Fifth

Amendment violations as well. Gov’t Br. 45 n.14.

That argument fails for multiple reasons.

To start, the government cannot show good faith here

because the officer could not remember the relevant facts of

how he compelled Schwartz to open the phone. In particular,

at no point did the officer claim to have relied upon the warrant

or any other relevant legal authority as empowering him to

compel Schwartz to open his phone.

Nor could the agent have. The warrant expressly withheld

authority to “demand” that Schwartz provide the password or

“identify the specific biometric characteristics (including the

unique finger(s) or other physical features) that may be used to

unlock or access the Device(s)[,]” unless the agents “ma[d]e

clear that providing any such information is voluntary and that

[Schwartz] [wa]s free to refuse the request.” Suppl. App. 10.

The good faith exception does not apply when officers fail to

comply with express limitations in the warrant. See United

States v. Leon, 468 U.S. 897, 920 (1984) (The good faith

exception is appropriate “when an officer acting with objective

good faith has obtained a search warrant from a judge or

magistrate and acted within its scope[.]”) (emphasis added).

Finally, the government fails to provide any developed

argument in support of extending the good faith exception to

the Fifth Amendment, offering only a cursory footnote. So the

argument is forfeited, and we need not decide whether the good

faith exception applies to Fifth Amendment violations. CTS

Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (“A footnote is

33

no place to make a substantive legal argument on appeal;

hiding an argument there and then articulating it in only a

conclusory fashion results in forfeiture.”).

Accordingly, the district court erred in denying Schwartz’s

motion to suppress the evidence obtained from the compelled

opening of the cellphone. We remand to the district court to

decide whether that error was harmless beyond a reasonable

doubt as to any counts. See Chapman v. California, 386 U.S.

18, 19, 24 (1967) (applying harmless beyond a reasonable

doubt standard when prosecution commented on defendants’

failure to testify); Milton v. Wainwright, 407 U.S. 371, 372

(1972) (applying harmless beyond a reasonable doubt standard

when defendant’s incriminating statements were admitted at

trial in a federal habeas case predating Brecht v. Abrahamson,

507 U.S. 619 (1993)).

3

Schwartz also claims the government violated the Fourth

Amendment because the use of his thumbprint did not comply

with the procedures in the February 2021 search warrant.

Because Schwartz seeks to suppress the same records under the

Fourth and Fifth Amendments, and the harmless error analysis

is the same under both, we need not decide his Fourth

Amendment claim. See Bumper v. North Carolina, 391 U.S.

543, 550 (1968) (applying the harmless beyond a reasonable

doubt standard to admission of evidence seized in violation of

the Fourth Amendment); Chambers v. Maroney, 399 U.S. 42,

53 (1970) (same).

C

As his final argument on appeal, Schwartz claims the

district court violated Federal Rule of Criminal Procedure 8

34

when it permitted joinder of the three co-defendants’ cases.

Even assuming the joinder was error given their very limited

interactions, Schwartz has not shown, or even argued, that he

suffered any prejudice from the district court’s decision to join

the cases. “[A]n error involving misjoinder ‘affects substantial

rights’ and requires reversal only if the misjoinder results in

actual prejudice because it ‘had substantial and injurious effect

or influence in determining the jury’s verdict.’” United States

v. Lane, 474 U.S. 438, 449 (1986) (quoting Kotteakos v. United

States, 328 U.S. 750, 776 (1946)).

D

Next, we turn to Maly’s challenge to the district court’s

jury instructions. He claims the district court erred by refusing

to give the jury a special unanimity instruction for Counts Five

and Seven—the two Section 111 charges against him. Maly

Opening Br. 19–24; J.A. 3–5. By way of reminder, Section

111(a)(1) provides that whoever “forcibly assaults, resists,

opposes, impedes, intimidates, or interferes with [an officer]

while engaged in or on account of the performance of official

duties” is subject to criminal penalties. 18 U.S.C. § 111(a)(1).

According to Maly, the court should have directed the jury

that, to convict, it had to unanimously agree on which verb—

that is, assault, resist, oppose, impede, intimidate, or

interfere—applied to his conduct. The district court denied the

request on the ground that unanimity is “required as to an

element of an offense[,]” but not “the means by which an

element is satisfied.” J.A. 2554.

We review de novo the district court’s refusal to provide a

requested jury instruction. United States v. Wilson, 605 F.3d

985, 1018 (D.C. Cir. 2010). “The pertinent question is

‘whether, taken as a whole, [the instructions] accurately state

35

the governing law and provide the jury with sufficient

understanding of the issues and applicable standards.’” Id.

(quoting United States v. Washington, 106 F.3d 983, 1002

(D.C. Cir. 1997)).

No special unanimity instruction was required here.

Though federal juries must reach unanimity on each element of

an offense, they “need not always decide unanimously which

of several possible sets of underlying brute facts make up a

particular element, say, which of several possible means the

defendant used to commit an element of the crime.”

Richardson v. United States, 526 U.S. 813, 817 (1999).

The critical question, then, is whether the verbs in Section

111(a) constitute distinct “elements” or “means” of committing

the offense. In Section 111(a)(1), the listed ways in which the

offense could be committed are means, not elements.

To start, that is what the language of the statute says. See

Richardson, 526 U.S. at 818. The statute lists all of the acts of

violation in one sentence, and imposes a single, identical

penalty for all of them. That construction “‘indicates that

Congress did not mean to create more than one offense.’”

United States v. Street, 66 F.3d 969, 974 (8th Cir. 1995)

(quoting United States v. Mal, 942 F.2d 682, 688 (9th Cir.

1991)); see United States v. McIntosh, 753 F.3d 388, 393 (2d

Cir. 2014); see also U.S.S.G. § 2A2.4 (not distinguishing

among the verbs in imposing a sentence for Section 111

offenses). In so holding, we agree with the decisions of the

Second and Eighth Circuits that the statutory text sets out

alternative means of committing a single offense, rather than

different offenses. See Street, 66 F.3d at 974; McIntosh, 753

F.3d at 393.

That reading of Section 111(a) accords with Congress’s

purpose to protect “the safety of federal officers insofar as it

36

was tied to the efficacy of law enforcement activities.” United

States v. Feola, 420 U.S. 671, 681 (1975). For that reason, “the

statute must be read as prohibiting any acts or threats of bodily

harm that might reasonably deter a federal official from the

performance of his or her duties.” United States v. Walker, 835

F.2d 983, 987 (2d Cir. 1987). That purpose does not admit of

gradations among different kinds of interfering conduct or

different types of threats. Instead, it makes a “single crime of

harming or threatening a federal official” during the

performance of her duties, and “specifie[s] six ways by which

the crime c[an] be committed.” Street, 66 F.3d at 975; see

McIntosh, 753 F.3d at 393.

Of course, the statutory meaning must also comport with

the Constitution, which “limits [Congress’s] power to define

crimes in ways that would permit juries to convict while

disagreeing about means, at least where that definition risks

serious unfairness and lacks support in history or tradition.”

Richardson, 526 U.S. at 820. In Schad v. Arizona, 501 U.S.

624 (1991), abrogated on other grounds by Ramos v.

Louisiana, 590 U.S 83 (2020), the Supreme Court ruled that the

need for specificity turns on the Due Process Clause’s demands

for fundamental fairness, “and for the rationality that is an

essential component of that fairness,” id. at 637 (plurality

opinion); see also id. at 650, 652 (Scalia, J., concurring in part

and concurring in the judgment) (“It is precisely the historical

practices that define what is ‘due.’ * * * Th[e] requirement of

[due process] is met if the trial is had according to the settled

course of judicial proceedings.”) (citation omitted).

Schad found no constitutional problem where the two

means of committing the offense (there, murder) “reasonably

reflect notions of equivalent blameworthiness or culpability[.]”

Schad, 501 U.S. at 643 (plurality opinion).

37

So too for Section 111(a)(1). Each of the qualifying

actions—“assaults, resists, opposes, impedes, intimidates, or

interferes with” an officer—must be committed “forcibly.” 18

U.S.C. § 111(a)(1). In that way, the statute assigns equivalent

blameworthiness to conduct that forcibly obstructs law

enforcement officers in the performance of their duties. While

only “assault” requires actual injury or threat of injury, the

other actions listed necessarily carry a risk of injury because

they must be undertaken “forcibly.” Id.; see also WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY 887 (1993) (def. 1c)

(defining “force” as “power to affect in physical relations or

conditions”); BLACK’S LAW DICTIONARY 718 (9th ed. 2009)

(defining “force” as “[t]o compel by physical means or by legal

requirement”). Shoving someone risks that the person will fall

and hurt herself. Kicking someone risks that the person will

bruise or bones will be broken. And, as relevant here, spraying

someone with pepper spray at an unsafe range risks causing

injuries to the eye and the intense pain of burning skin. Moral

equivalence between assault and the other means of violating

Section 111(a)(1) can thus “reasonably be found[.]” See

Schad, 501 U.S. at 644 (plurality opinion).

Maly relies on United States v. North, 910 F.2d 843 (D.C.

Cir. 1990) (“North I”), withdrawn and superseded in part by

United States v. North, 920 F.2d 940 (D.C. Cir. 1990). To start,

the part of that opinion that Maly relies on was vacated and so

lacks precedential force.

Anyhow, in North I, the defendant could have been found

guilty for “destroying, altering, or removing” documents.

North I, 910 F.2d at 876. The critical difference is that the

defendant had testified to doing each of those kinds of conduct

at distinct points in time. He destroyed certain documents,

altered some, and removed still others. Id. at 876–878. As a

result, the panel was concerned that different jurors could have

38

found that the government had proven different criminal acts

at different times, without ever agreeing that one single

criminal act was committed. Id. at 878.

Here, by contrast, the relevant counts did not sweep in

multiple acts at different times or locations. Count Five

charged Maly only with a Section 111 offense “at

approximately 2:35 PM with pepper spray” on the Lower West

Terrace. Count Seven separately charged him with a Section

111 offense “between approximately 3:07 pm and 3:10 pm

with pepper spray[]” in the Tunnel. J.A. 2273. Each count

charged a distinct incident and, at most, jurors disagreed about

which verb best fit Maly’s conduct on each of those two

occasions.

Maly nonetheless argues that jurors might have convicted

him on Count Five for two “separate act[s].” Maly Opening

Br. 23. Specifically, Maly disputed at trial whether the

cannister he pointed at Officer Boyle contained any OC or

pepper spray. He thus claims “some jurors could have

concluded that [he] opposed officers” when he pointed a “less-

than-lethal” spray bottle at them, while other jurors “might

have concluded that he engaged in a separate act by actually

deploying the spray in their direction.” Id. But these two

different versions of events still refer to the same action and

moment in time: Maly pointing a spray canister at Officer

Boyle at 2:35 PM on the Lower West Terrace. Jurors may have

disagreed about what exactly happened at that moment. But

because Section 111 criminalizes forcibly “oppos[ing]” an

officer with an empty canister, threatening to assault him, or

actually assaulting him, jurors reached unanimity that the same

incident violated the statute.

For those reasons, the district court properly declined to

give a special unanimity instruction.

39

E

Lastly, Brown claims the district court abused its

discretion by not granting a downward variance to a sentence

of no more than 40 months. Brown Opening Br. 25. He argues,

in particular, that the 54-month sentence he received was

disproportionate to that imposed on comparably culpable

defendants.

Brown does not claim that there was any procedural error

in the district court’s sentencing. He just disputes its bottom-

line appropriateness. We review the substantive

reasonableness of criminal sentences for an abuse of discretion.

Gall v. United States, 552 U.S. 38, 51 (2007). “Our review is

‘quite deferential,’ meaning that it is an ‘unusual case’ in which

the district court abuses its discretion.” United States v. Alford,

89 F.4th 943, 948 (D.C. Cir. 2024) (citation omitted). This is

not an unusual case.

Most relevantly, the district court did grant Brown a

downward variance from the Sentencing Guidelines range.

Brown’s suggested Guidelines range was 63 to 78 months of

imprisonment, but the district court sentenced him to only 54

months. J.A. 2679, 2689. So Brown got a variance as

requested. It just was not as large as he desired.

That was in no way an abuse of discretion. Sentences

within the Guidelines range receive a “presumption of

reasonableness,” Alford, 89 F.4th at 953 (quoting United States

v. Gardellini, 545 F.3d 1089, 1092 (D.C. Cir. 2008)), and are

presumed to be “not excessive[,]” United States v. Otunyo, 63

F.4th 948, 960 (D.C. Cir. 2023). That presumptive

reasonableness has particular force when a defendant alleges

an unwarranted disparity, as Brown does here, because the

“avoidance of unwarranted disparities was clearly considered

40

by the Sentencing Commission when setting the Guidelines

ranges.” Id. (quoting Gall, 552 U.S. at 54). So when a district

court is afforded a presumption of reasonableness, its decision

“will almost never be reversed on appeal as substantively

unreasonable.” Alford, 89 F.4th at 953 (citation omitted).

Because sentences within the Guidelines range receive this

strong presumption, it is “hard to imagine” how a below-

Guidelines sentence could be unreasonably high or

disproportionate. United States v. Jones, 744 F.3d 1362, 1368

(D.C. Cir. 2014) (citation omitted). And Brown’s arguments

do nothing to fuel our imagination.

First, Brown argues that the presumption of

reasonableness should not apply to a January 6th defendant.

Brown Reply Br. 1–2. This court has already held otherwise.

See Alford, 89 F.4th at 953. Plus, any considerations unique to

Brown’s circumstances were already factored into the

downward variance the court gave. J.A. 2682.

Second, Brown fails to demonstrate any unreasonableness

when his sentence is compared to those of other January 6th

rioters. See 18 U.S.C. § 3553(a)(6) (Judges should avoid

“unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar

conduct[.]”). Brown points to eight other January 6th

defendants whose sentences he believes show that his sentence

was too long. Brown Opening Br. 26–34. But the comparisons

do not hold up to scrutiny.

Four received shorter sentences than Brown did, but each

pled guilty. See Judgment at 2, United States v. Richardson,

No. 21-cr-721-CKK (46 months); Judgment at 2, United States

v. Languerand, No. 21-cr-353-JDB (44 months); Judgment as

to Jerod Wade Hughes at 2, Order Reducing Sentence as to

Joshua Calvin Hughes at 1, United States v. Hughes, No. 21-

41

cr-106-TJK (46 months and 33 months for co-defendant

brothers). “Defendants who go to trial are not ‘similarly

situated’ to those who plead guilty, and therefore ‘the disparity

in their treatment’ is generally permissible.” United States v.

Webster, 102 F.4th 471, 490 (D.C. Cir. 2024) (quoting Otunyo,

63 F.4th at 960); see also United States v. Lopesierra-

Gutierrez, 708 F.3d 193, 208 (D.C. Cir. 2013) (“That some

defendants pled guilty while others did not provides a perfectly

valid basis for a sentencing disparity, and such disparity

impose[s] no impermissible burden on [a defendant’s] jury-

trial right[.]”) (citations omitted).

In addition, each of those defendants pled guilty to only

one felony, unlike Brown who was convicted of two felonies.

See Plea Agreement at 1, United States v. Richardson, No. 21-

cr-721-CKK (defendant pled guilty to 18 U.S.C. § 111(a)(1));

Plea Agreement at 1, United States v. Languerand, No. 21-cr-

353-JDB (defendant pled guilty to 18 U.S.C. § 111(a)(1) and

(b)); Plea Agreement as to Jerod Wade Hughes at 1, Plea

Agreement as to Joshua Calvin Hughes at 1, United States v.

Hughes, No. 21-cr-106-TJK (both defendants pled guilty to 18

U.S.C. §§ 1512(c)(2) and 2).

The other four defendants Brown points to received longer

sentences than he did. See Judgment at 3, United States v.

Gardner II, No. 21-cr-622-APM (55 months); Judgment at 2,

United States v. Mazza, No. 21-cr-736-JEB (60 months);

Judgment at 2, United States v. Palmer, No. 21-cr-328-TSC (63

months); Judgment at 2, United States v. Caldwell, No. 21-cr-

181-CKK (68 months). So even assuming they were more

culpable than Brown, as he insists, see Brown Opening Br. 30–

33, their sentences already reflect that difference. Plus each of

these defendants also pled guilty. See Plea Agreement at 1,

United States v. Gardner II, No. 21-cr-622-APM; Plea

Agreement at 1, United States v. Mazza, No. 21-cr-736-JEB;

42

Plea Agreement at 1, United States v. Palmer, No. 21-cr-328-

TSC; Plea Agreement at 1, United States v. Caldwell, No. 21-

cr-181-CKK. So they are not similarly situated to Brown to

begin with. See Webster, 102 F.4th at 490.

In short, “there are material differences between

[Brown’s] situation and the January 6th [defendants] who

received lesser sentences.” Alford, 89 F.4th at 954.

Third, even if some disparity existed, the district court’s

sentencing determination would still be substantively

reasonable so long as the district court properly accounted for

and balanced the Section 3553(a) factors. A sentencing

disparity “is only one factor among many that district courts

must balance when sentencing.” Alford, 89 F.4th at 954.

Courts must also “consider, for example, the circumstances of

the offense, the characteristics of the defendant, the seriousness

of the offense, the need for deterrence and the protection of the

public.” Id. (citing 18 U.S.C. § 3553(a)).

In this case, the district court fairly considered and

balanced the Section 3553 factors. To start, the court “weighed

several in [Brown’s] favor,” Alford, 89 F.4th at 955, crediting

positive accounts of his character, his lack of criminal history,

and his conduct while detained pre-trial, and noting that it was

“laudable” that he “worked and served others” during that time,

J.A. 2679–2680, 2691. The court also acknowledged that

Brown did not have “any kind of gear that would suggest he

was readying himself for potential aggression” on January 6th

and did not “go on social media after the fact to crow about his

actions * * * or suggest that they were justified in some way.”

J.A. 2682.

On the other side of the scale, the district court found that

Brown fired pepper spray at officers in the Tunnel, engaged in

43

a “heave-ho” that “resulted in injuries to officers, and a great

deal of stress [and] anxiety,” and more broadly participated “in

disrupting the peaceful transfer of power in a way that brought

about violence and injuries and, frankly, shame.” J.A. 2681–

2682, 2685. The record thus reflects that the district court

carefully balanced the relevant factors and did not abuse its

discretion.

IV

For the foregoing reasons, we affirm Brown and Maly’s

convictions and Brown’s sentence. We vacate Schwartz’s

conviction on Count Eight, and we hold that the district court

erred in denying his suppression motion. We remand to the

district court to decide whether that error was harmless as to

any counts.

So ordered.