United States v. Thomas Robertson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 2023 Decided October 20, 2023

No. 22-3062

UNITED STATES OF AMERICA,

APPELLEE

v.

THOMAS ROBERTSON,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cr-00034-1)

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.

2

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 18 U.S.C. § 1512(c)(2). In this

appeal, Robertson contends that the evidence was insufficient

to show that he acted “corruptly,” as § 1512(c)(2) requires. He

also challenges his 87-month sentence, making new arguments

on appeal that the district court erred in applying two specific

offense characteristics for obstruction of the “administration of

justice.” Because the evidence was sufficient to establish that

Robertson acted “corruptly,” and the district court did not

plainly err in applying the specific offense characteristics, we

affirm.

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. U.S. Const. amend. XII; 3 U.S.C

§ 15 (2018), amended by Consolidated Appropriations Act,

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136 Stat. 4459, 5238 (2022). To certify the vote, the Vice

President of the United States, acting as President of the

Senate, “shall, in the presence of the Senate and House of

Representatives, open all the certificates and the votes shall

then be counted.” U.S. Const. amend. XII. “The person having

the greatest number of votes for President, shall be the

President, if such number be a majority of the whole number

of Electors appointed.” Id. “Such joint session shall not be

dissolved until the count of electoral votes shall be completed

and the result declared.” 3 U.S.C. § 16 (2018), amended by

136 Stat. 4459, 5240 (2022). The vote certification is thus a

pivotal moment in the peaceful transition of presidential power

in the United States.

Thomas Robertson is an Army veteran, who was

employed as a police sergeant in Rocky Mount, Virginia. He

believed that the results of the 2020 presidential election were

“rigged.” Gov’t’s Suppl. App. (“S.A.”) 110. In the aftermath

of the election, he repeatedly shared his views on social media.

He posted messages like the following: “I won’t be

disenfranchised. I’ll follow the path our founders gave us.

Redress of grievances (already done) civil disobedience (here

now) and then open armed rebellion. I’ve spent the last 10

years fighting an insurgency in Iraq and then Afghanistan.

[I’m] prepared to start one here . . . .” Id. at 190. Because he

was “tired of always taking the high road and being beat by

those who cheat, lie, and [steal] to win,” id., Robertson made

plans to travel to Washington, D.C., on January 6, 2021, when

Congress would be in session to certify the results of the

election.

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

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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

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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 642:3–18. Even after the rioters had been

cleared, the chaos and disruption caused by the mob prevented

the Senate and the House from resuming their work until “8:06

p.m. and 9:02 p.m., respectively.” Id. at 642:14–15.

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

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“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 destroyed,”

“[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 18 U.S.C. § 1512(c)(2). He also was charged with

five additional offenses, including three more felony counts:

knowingly entering a restricted building when the Vice

President was there, while carrying a deadly and dangerous

weapon (the large wooden stick), in violation of 18 U.S.C.

§ 1752(a)(1); knowingly impeding the orderly conduct of

government business, while carrying a deadly and dangerous

weapon (the large wooden stick), in violation of 18 U.S.C.

§ 1752(a)(2); and altering, destroying, mutilating, or

concealing cell phones with intent to impair their use in an

ensuing investigation (here, the grand jury investigation of the

January 6 riot and Robertson’s criminal prosecution), in

violation of 18 U.S.C. § 1512(c)(1). See 18 U.S.C.

§ 1752(b)(1)(A) (providing that a violation of § 1752(a) shall

be a felony if “during and in relation to the offense, [a person]

uses or carries a deadly or dangerous weapon or firearm”). The

remaining charges were misdemeanors: interfering with law

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enforcement officers during the commission of a civil disorder,

in violation of 18 U.S.C. § 231(a)(3) and 18 U.S.C. § 2; and

engaging in disorderly and disruptive conduct in a Capitol

building with the intent to disturb the orderly conduct of

Congress, in violation of 40 U.S.C. § 5104(e)(2)(D).

Robertson moved to dismiss the § 1512(c)(2) charge,

which alleged that he “corruptly” obstructed, influenced, or

impeded the vote certification. He argued that the term

“corruptly” is ambiguous, and that the statute was

unconstitutionally vague as applied to him because it did not

give him fair notice that his conduct was unlawful. The district

court denied the motion, explaining that “corruptly” means

“acting ‘with consciousness of wrongdoing.’” United States v.

Robertson (Robertson I), 588 F. Supp. 3d 114, 123 (D.D.C.

2022) (citing Arthur Andersen LLP v. United States, 544 U.S.

696, 705–06 (2005)).

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 Rule 29 of

the Federal Rules of Criminal Procedure. He argued that the

government had failed to prove that he had acted “corruptly.”

The district court reserved ruling on his motions until after the

jury’s verdict.

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

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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

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. 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

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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 § 1512(c)(2) count. He again asserted that

“corruptly” is unconstitutionally vague. He also argued for the

first time that the government did not prove that he acted

corruptly because it did not show that he “acted knowingly and

dishonestly with the intent to obtain an unlawful advantage for

himself or an associate.” Robertson’s App. (“App.”) 38.

The district court denied the motion, reiterating that

“corruptly” is not unconstitutionally vague and that the term

means acting with consciousness of wrongdoing and with

independently unlawful means or purpose. United States v.

Robertson (Robertson II), 610 F. Supp. 3d 229, 233, 236

(D.D.C. 2022). The court further determined that the evidence

supported the jury’s finding that Robertson acted “corruptly.”

Id. at 236. The district court relied on evidence that Robertson

“engaged in other independently unlawful conduct, by entering

and remaining in a restricted area without lawful authority and

by engaging in disruptive and disorderly conduct in a restricted

area,” and determined that such evidence demonstrated “using

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unlawful means or acting with an unlawful purpose.” Id.

(cleaned up).

Robertson faced a statutory maximum sentence of 20

years’ imprisonment for his convictions under 18 U.S.C.

§ 1512(c)(1) and (c)(2), while his other felony convictions each

carried a statutory maximum of 10 years’ imprisonment, see 18

U.S.C. § 1752(b)(1)(A). The district court sentenced

Robertson to a total of 87 months’ imprisonment (seven years

and three months), followed by 36 months of supervised

release. That sentence was at the bottom of the calculated

guidelines range of 87 to 108 months, which was based on a

total offense level of 29 and a Category I criminal history. To

determine the offense level, the district court first looked to the

obstruction-of-justice sentencing guideline, U.S.S.G. § 2J1.2,

which has a base offense level of 14. Over Robertson’s

objections, the court then added 15 more levels to the offense:

an eight-level increase for “causing or threatening to cause

physical injury to a person, or property damage, in order to

obstruct the administration of justice,” U.S.S.G.

§ 2J1.2(b)(1)(B); a three-level increase because “the offense

resulted in substantial interference with the administration of

justice,” id. § 2J1.2(b)(2); a two-level adjustment for being an

organizer of criminal activity, id. § 3B1.1(c); and another two-

level enhancement for obstruction of justice based on

destroying his and Fracker’s cell phones, id. § 3C1.1.

II. ANALYSIS

A.

Robertson challenges his conviction under 18 U.S.C.

§ 1512(c)(2), which prohibits “corruptly . . . obstruct[ing],

influenc[ing], or imped[ing] any official proceeding, or

attempt[ing] to do so.” The jury was instructed that, in order

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to convict Robertson of violating § 1512(c)(2), it had to find

beyond a reasonable doubt that he (1) “attempted [to] or did

obstruct or impede an official proceeding”; (2) “acted with the

intent to obstruct or impede the official proceeding”; (3) “acted

knowingly with awareness that the natural and probable effect

of his conduct would be to obstruct or impede the official

proceeding”; and (4) “acted corruptly.” Trial Tr. 980:14-20,

981:6-8, ECF No. 111. On appeal, Robertson takes issue with

only the “corruptly” element. He does not challenge any of the

other elements or dispute that they were met.

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 or expectation of either financial gain or other

benefit to oneself or a benefit to another person.’” Opening Br.

21 (quoting United States v. Aguilar, 515 U.S. 593, 616–17

(1995) (Scalia, J., concurring in part and dissenting in part)).

Under that interpretation, he urges, the trial evidence was

insufficient to prove that he “corruptly” obstructed an official

proceeding. He contends that he did not act “dishonestly,” that

he did not seek any personal benefit by participating in the

January 6 riot, and that any benefit to former President Trump

was “too remote” to be considered. Id.

We conclude that “corruptly” must be construed according

to its plain meaning; that the “corruptly” element in

§ 1512(c)(2) delineates whether a defendant’s conduct is

culpable; and that there are a range of ways to prove a

12

defendant’s “corrupt” intent or action. On review of the

sufficiency of the evidence, we need only determine that the

“corruptly” element was satisfied by the evidence presented in

Robertson’s trial. See Musacchio v. United States, 577 U.S.

237, 243 (2016). We hold that the jury could have found,

consistent with the district court’s instructions, that Robertson

acted “corruptly” based on evidence that he used felonious

“unlawful means” to obstruct, impede, or influence the

Electoral College vote certification. The evidence was

therefore sufficient to support Robertson’s conviction of

violating § 1512(c)(2). Robertson’s contention that his

preferred definition of “corruptly” is the sole and exclusive

meaning of that term finds no support in the text, structure, or

context of the statute, and is inconsistent with relevant

precedents.

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

1

It may be that the type of claim brought by Robertson, in which

he essentially asserts that the jury instructions omitted a requirement

under the statute, is not properly characterized as a challenge to the

sufficiency of the evidence. See United States v. Reynoso, 38 F.4th

1083, 1086–87 (D.C. Cir. 2022). But the government does not

question the framing of Robertson’s claim.

13

(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 sufficiency of the evidence to

support Robertson’s conviction. Musacchio, 577 U.S. at 243

(“On sufficiency review, a reviewing court makes a limited

inquiry tailored to ensure that a defendant receives the

minimum that due process requires . . . .”). We start by

determining the meaning of “corruptly” and then assess

whether the evidence presented at Robertson’s trial was

sufficient to prove that element.

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

2

Although Hillie is arguably distinguishable from the case at bar

because the instructional error in that case was preserved with a

specific objection, Hillie, 39 F.4th at 679–80, the government does

not make that distinction and does not request a different standard of

review from that applied in Hillie.

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behavior. See Arthur Andersen, 544 U.S. at 704–07 (analyzing

18 U.S.C. § 1512(b)(2)(A) and (B), which prohibits

“knowingly . . . corruptly persuad[ing] another” to withhold,

alter, or conceal evidence for use in an official proceeding);

United States v. North, 910 F.2d 843, 881 (D.C. Cir. 1990),

opinion withdrawn and superseded on other grounds on reh’g,

920 F.2d 940 (D.C. Cir. 1990) (analyzing 18 U.S.C. § 1505,

which prohibits “corruptly . . . influenc[ing], obstruct[ing], or

imped[ing] or endeavor[ing] to influence, obstruct, or impede”

a congressional inquiry). As in those cases, we must begin with

the statutory text. Because Congress has not defined

“corruptly” in § 1512(c)(2), we must look to the word’s

ordinary meaning. See Mohamad v. Palestinian Auth., 566

U.S. 449, 454 (2012); North, 910 F.2d at 881; Arthur Andersen,

544 U.S. at 705.

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

15

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 18 U.S.C.

§ 1512(b) for instructing its employees to destroy documents

of its client, the Enron Corporation, in advance of a

government investigation. Id. at 698–702. The Court

recognized that instructing employees to shred documents

pursuant to a corporate document-retention policy was not

necessarily criminal. Id. at 704. To determine whether Arthur

Andersen’s behavior was culpable, the Court looked to the

ordinary meaning of “corruptly”: “wrongful, immoral,

depraved, or evil.” Id. at 705. Then, because § 1512(b)

penalizes “knowingly . . . corruptly persuad[ing],” the Court

paired the ordinary meaning of “knowingly” with the ordinary

meaning of “corruptly” to hold that the statute required

“consciousness of wrongdoing.” Id. at 705–06. Importantly,

the Court noted that the “knowingly corruptly” element

ensured that “only those with the level of ‘culpability . . . we

usually require in order to impose criminal liability’” could be

convicted. Id. at 706 (quoting Aguilar, 515 U.S. at 602).

Like the Supreme Court, we have relied on the ordinary

meaning of “corruptly.” In North, we reviewed a conviction

under 18 U.S.C. § 1505 for aiding and abetting an endeavor to

obstruct the congressional investigation of the Iran/Contra

affair. 910 F.2d at 851–52. The defendant argued that his

obstructive actions were authorized by his superiors, and that

he therefore did not act “corruptly.” Id. at 878. Interpreting

“corruptly” as used in § 1505, we recognized that ordinary

meanings of the word include “depraved, evil: perverted into a

state of moral weakness or wickedness.” Id. at 881. We held

that the defendant was “entitled only . . . to a jury that applied

‘corruptly’ according to its usual definitions” or “common

meaning[].” Id. at 882, 884. We recognized, however, that

proof of “corrupt” intent or action may vary depending on

16

circumstances. We noted that several courts of appeal

reviewing convictions under § 1503 — which prohibits corrupt

obstruction of the “due administration of justice” — have said

that “the word ‘corruptly’ means nothing more than an intent

to obstruct the proceeding,” because there are “very few non-

corrupt ways to or reasons for intentionally obstructing a

judicial proceeding.” Id. at 882. In other words, knowingly

obstructing a judicial proceeding — such as by destroying

evidence or threatening jurors — may be viewed as inherently

corrupt. Id.; see also United States v. Fischer, 64 F.4th 329,

355 (D.C. Cir. 2023) (Walker, J., concurring in part and

concurring in the judgment); id. at 373 (Katsas, J., dissenting).

By contrast, “to assert that all endeavors to influence, obstruct

or impede the proceedings of congressional committees are, as

a matter of law, corrupt [] would undoubtedly criminalize some

innocent behavior.” North, 910 F.2d at 882. That is because

“congressional committees are part and parcel of a political

branch of government” that is engaged in making legislative

and policy choices. Id. It is thus commonplace for people —

such as lobbyists, protesters, and constituents — to lawfully

“attempt, in innumerable ways, to obstruct or impede

congressional committees.” Id.3

3

Our dissenting colleague errs in asserting that we “expressly

rejected” defining “corruptly” according to its ordinary meaning and

dictionary definition in United States v. Poindexter, 951 F.2d 369

(D.C. Cir. 1991). Dissenting Op. 28. We held in that case that the

term “corruptly” as used in 18 U.S.C. § 1505 was vague as applied

to Poindexter’s alleged conduct — lying to Congress. Poindexter,

951 F.2d at 379 (“As used in § 1505, . . . we find that the term

‘corruptly’ is too vague to provide constitutionally adequate notice

that it prohibits lying to the Congress.”). But we expressly declined

to conclude that “the ambiguity of the term ‘corruptly’ in § 1505

renders that term unconstitutionally vague as applied to all conduct.”

Id. at 385. Because Poindexter’s holding focused on whether § 1505

17

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 a congressional committee hearing, North,

910 F.2d at 882 — from being swept up by the statute’s broad

prohibition on “obstructing, influencing or impeding an official

proceeding.” Those cases confirm, moreover, that the

requirement that a defendant act “corruptly” is met by

establishing that the defendant acted with a corrupt purpose or

via independently corrupt means. Id.; see id. at 942–43

(Silberman, J., concurring in part and dissenting in part) (“[T]o

say that someone corruptly endeavors to obstruct an inquiry

might mean (1) that he does so with a corrupt purpose, or

(2) that he does so by independently corrupt means, or (3)

both.”).

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);

was unconstitutionally vague as applied to the specific conduct at

issue in that case, it is not helpful in interpreting whether Robertson’s

very different conduct in obstructing the Electoral College vote

certification was sufficient to establish “corrupt” intent or action

under § 1512(c)(2).

18

see also Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part

and dissenting in part) (citing with approval a jury instruction

for 18 U.S.C. § 1503 stating that “[a]n act is done corruptly if

it’s done voluntarily and intentionally to bring about either an

unlawful result or a lawful result by some unlawful method”

(emphasis added)). In concluding that reliance on corrupt

means is appropriate, Judge Silberman reasoned in his separate

opinion in North that the “adverbial words or phrases

‘corruptly,’ ‘by threats or force,’ and ‘by any threatening letter

or communication’ [in § 1505] are equated, suggesting that

Congress meant ‘corruptly’ to refer to the means by which the

defendant endeavored to influence or impede a congressional

inquiry.” 910 F.2d at 943 (Silberman, J., concurring in part and

dissenting in part). Thus, a defendant who seeks to influence a

congressional vote by “brib[ing] the chairman of a

congressional committee can be said to have acted ‘corruptly’

no matter how laudable his underlying motive.” Id. Where a

defendant uses “independently criminal” means, the jury

“would not necessarily need to probe the morality or propriety

of the defendant’s purpose.” Id.

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

19

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 or depraved.” See

North, 910 F.2d at 943 (Silberman, J., concurring in part and

dissenting in part). “The obstruction would not be corrupt if

his purpose were solely to protect his client from possible legal

difficulties.” Id. “But it might well be corrupt if the lawyer’s

purpose were to prevent the client from divulging information

that would implicate the lawyer.” Id. Thus, under

circumstances where a defendant’s conduct is not inherently

corrupt nor his means independently wrongful, “corruptly” can

be proved by examining the defendant’s purpose.

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

20

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 18 U.S.C. § 1505, “is an

outgrowth of Congressional recognition of [a] variety of

corrupt methods” (quoting Catrino v. United States, 176 F.2d

884, 887 (9th Cir. 1949))). Congress and the courts have,

accordingly, both recognized that “corruptly” in obstruction

statutes can be proved in a variety of ways.

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”

21

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 18 U.S.C.

§ 1512 and in similar obstruction statutes have often focused

on equating “corruption” with “wrongfulness.” See, e.g.,

Arthur Andersen, 544 U.S. at 705–06 (defining corruption as

“wrongdoing” under § 1512(b)(2)(A) and (B)).4 In this

context, “wrongful” can mean “[a]n act taken in violation of a

legal duty,” i.e., unlawful. Wrongful Conduct, Black’s Law

Dictionary (7th ed. 1999); see also Unlawful, Black’s Law

Dictionary (7th ed. 1999) (“Not authorized by law; illegal.”);

Matthews, 505 F.3d at 706 (explaining that “wrongfully”

means acting without “legal right,” such as the right to avoid

4

See also North, 910 F.2d at 942 (Silberman, J., concurring in

part and dissenting in part) (interpreting “corruptly” as “depraved,

evil, or wrongful” under 18 U.S.C. § 1505); United States v. Farrell,

921 F.3d 116, 141 (4th Cir. 2019) (“To act ‘corruptly’ [under

§ 1512(c)(2)] means to act wrongfully.”); United States v.

Volpendesto, 746 F.3d 273, 286 (7th Cir. 2014) (defining “corruptly”

under § 1512(c)(2) as acting “with a wrongful purpose”); United

States v. Mann, 701 F.3d 274, 307 (8th Cir. 2012) (upholding

convictions under § 1512(c)(1), (c)(2), and (k) where “the jury was

instructed that ‘corruptly’ means to act with ‘consciousness of

wrongdoing’”); United States v. Matthews, 505 F.3d 698, 705–07

(7th Cir. 2007) (approving jury instruction defining “corruptly”

under § 1512(c)(1) “as acting ‘with the purpose of wrongfully

impeding the due administration of justice’” (quoting Seventh

Circuit Pattern Criminal Federal Jury Instructions for 18 U.S.C.

§ 1503 (1999))).

22

self-incrimination); United States v. Davis, 183 F.3d 231, 250

(3d Cir. 1999) (determining that a defendant could be

convicted of corrupt persuasion in violation of § 1512(b)

because he persuaded another to “violate his legal duty”),

amended, 197 F.3d 662 (3d Cir. 1999); United States v. Ogle,

613 F.2d 233, 238 (10th Cir. 1979) (explaining that “corruptly”

as used in 18 U.S.C. § 1503 “really means unlawful”). There

is thus ample precedent for treating acting unlawfully as acting

“corruptly.”

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”

captures 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 [18 U.S.C. § 1505] may

constitutionally be applied”).

In sum, the ordinary meaning of the word “corruptly” in

18 U.S.C. § 1512(c)(2) encompasses acting through

23

independently unlawful means –– just as the district court

instructed the jury.5

4.

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

5

We note that the district court’s instruction required the jury to

find that Robertson acted with “consciousness of wrongdoing,” in

addition to finding that he acted with an unlawful purpose or through

independently unlawful means. S.A. 203. That “consciousness of

wrongdoing” standard originated with Arthur Andersen’s

interpretation of 18 U.S.C. § 1512(b), which makes it a crime for a

defendant to “knowingly . . . corruptly persuade[]” another to

obstruct an investigation. See Arthur Andersen, 544 U.S. at 704–06.

Because § 1512(c)(2) does not contain a “knowingly corrupt”

requirement, it is not apparent that “consciousness of wrongdoing”

must be proved in this context. Nevertheless, the jury necessarily

found that the evidence met that standard when it convicted

Robertson; and showing “consciousness of wrongdoing” may itself

suffice to prove corrupt intent. See id. at 706–07.

24

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

other words, a jury could easily find that Robertson acted

“corruptly” by using independently unlawful, felonious means

with the intent to obstruct, influence, or impede the electoral-

vote certification.6

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 18

U.S.C. § 1505). Using force to obstruct, influence, or impede

a congressional proceeding is plainly wrongful and therefore

corrupt. Thus, this case does not present a close question of

culpability. Robertson did not argue, for example, that he was

a mere protestor exercising his First Amendment right to

peacefully disagree with the outcome of the presidential

election. The evidence established that Robertson was part of

a mob that sought to overturn the result of the election by force,

and that he used a dangerous weapon to impede the Electoral

College vote certification. Where a defendant acts feloniously

to obstruct a proceeding before the Congress, with no evidence

or argument that he was merely engaged in peaceful

6

Robertson and our dissenting colleague argue that relying on

independently unlawful conduct to prove the “corruptly” element is

the equivalent of requiring proof of a predicate offense that is not

listed in the statute. But that is not so. We hold only that proof of

independently felonious means is a sufficient way to establish

corrupt intent or conduct.

25

expression, his culpability –– i.e., the “corruptness” of his

actions –– is not difficult to discern.

We emphasize that Robertson’s independently wrongful

conduct was felonious because his resort to felonious means

unquestionably suffices to establish his culpability. Whether

§ 1512(c)(2) applies to defendants who obstruct Congress by

means of only “minor advocacy, lobbying, and protest

offenses,” Fischer, 64 F.4th at 380 (Katsas, J., dissenting), or

by “non-criminal tortious activity,” Opening Br. 15, is beyond

the scope of our “limited” review and should be decided in a

case that requires resolution of that question. See Musacchio,

577 U.S. at 243. Here, we have no trouble rejecting

Robertson’s specific claim that the evidence was insufficient to

support a finding that he acted “corruptly” when he participated

in the Capitol riot. A jury could find that he used independently

felonious means to obstruct a congressional proceeding, which

falls within the core meaning of “corruptly.” See Poindexter,

951 F.2d at 385.7

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 18 U.S.C. § 1512(c) is to establish “an act

dishonestly done,” Opening Br. 21, “with a hope or expectation

of either financial gain or other benefit to oneself or a benefit

[to] another person,” id. (quoting Aguilar, 515 U.S. at 616–17

7

Robertson has not renewed on appeal his argument before the

district court that “corruptly” is unconstitutionally vague because it

has no definite meaning. He apparently recognizes the uphill battle

a vagueness challenge would face in light of his use of wrongful —

indeed, felonious — means with the intent to obstruct an official

proceeding.

26

(Scalia, J., concurring in part and dissenting in part)).

According to Robertson, a defendant must act in that particular

way and with that particular purpose in order to behave

“corruptly,” and such a limited definition is necessary to

appropriately constrain § 1512(c)(2)’s otherwise overly

expansive scope. Robertson’s attempt to limit “corruptly” to

his preferred, single meaning is wholly unconvincing: It finds

no support in the statute and is contrary to precedent.

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 18 U.S.C. § 1512(c)(2), or in

the dictionary definition of “corruptly.” See Arthur Andersen,

544 U.S. at 705–06; Corruptly, Black’s Law Dictionary (7th

ed. 1999). Likewise, the “hope or expectation of a benefit” is

absent from the statute’s text and not required by its plain

meaning. See 18 U.S.C. § 1512(c). Robertson’s proposed

definition cannot be the exclusive way to construe “corruptly,”

as he insists, when his definition does not even reflect the

ordinary meaning of the word. Indeed, Robertson’s reading of

“corruptly” conflicts with our decision in North. We held that

even if North could show that he lacked a corrupt motive

(because he was just following orders), a jury could find that

he acted “corruptly” because he chose illegal means over

available lawful ones to carry out the instructions of his

superiors. See 901 F.2d at 883–84. In other words, where

criminal means are employed, no proof of corrupt purpose is

necessary. That holding precludes Robertson’s position that a

particular purpose –– seeking a benefit for oneself or another

— is invariably required to prove “corruptly.”

27

The broader statutory context also undermines

Robertson’s position. As we have discussed, “corruptly”

encompasses multiple ways of acting with corrupt purpose or

corrupt means. See supra Section II.A.2. Robertson seems to

acknowledge as much in his supplemental brief, and he

requested a jury instruction stating that “[t]o act ‘corruptly,’ the

defendant must use unlawful means or have a wrongful or an

unlawful purpose, or both.” S.A. 35 (emphases added). Yet

his current definition of “corruptly” focuses only on a

particular type of corrupt means and purpose — acting

dishonestly with the hope or expectation of gaining a benefit

for oneself or another — while reading the statute to preclude

other common ways of behaving “corruptly.”

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 part

and concurring in the judgment) (quoting Marinello v. United

28

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 18 U.S.C. § 1503 as an act done

“with a hope or expectation of either financial gain or other

benefit to oneself or a benefit of another person.” Aguilar, 515

U.S. at 616–17 (Scalia, J., concurring in part and dissenting in

part); see Def.’s Suppl. Br. 9.

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 § 1512(c)

to incorporate that meaning because it is well-established.

Fischer, 64 F.4th at 352–53, 356–57 (Walker, J., concurring in

part and concurring in the judgment). But Judge Walker relied

primarily on a dissent in Marinello to support his claim of

“longstanding” authority, id. at 352; and Justice Scalia also was

in the minority in Aguilar — his opinion was joined by only

two other justices, Aguilar, 515 U.S. at 609 (Scalia, J.,

concurring in part and dissenting in part). No majority of the

Supreme Court has adopted the “expectation-of-benefit”

requirement when defining “corruptly” in an obstruction case.

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 bribery statutes); United States v. Floyd, 740 F.3d 22, 31 (1st

Cir. 2014) (“[T]here is a consensus among the courts of appeals

29

that ‘corruptly,’ as used in section 7212(a) [prohibiting

obstruction of the administration of the tax code], means acting

with an intent to procure an unlawful benefit either for the actor

or for some other person.”). Thus, the purportedly

“longstanding” definition of “corruptly” would come as a

surprise to every sister circuit to previously consider the

meaning of that term in § 1512(c)(2). See United States v.

Bedoy, 827 F.3d 495, 510 (5th Cir. 2016); United States v.

Delgado, 984 F.3d 435, 452 (5th Cir. 2021); Lonich, 23 F.4th

at 906; United States v. Ahrensfield, 698 F.3d 1310, 1324–25

(10th Cir. 2012); United States v. Gordon, 710 F.3d 1124,

1148–49 (10th Cir. 2013); United States v. Mintmire, 507 F.3d

1273, 1289 (11th Cir. 2007); United States v. Friske, 640 F.3d

1288, 1291 (11th Cir. 2011); see also Matthews, 505 F.3d at

705 (interpreting “corruptly” in § 1512(c)(1)). Even the Tenth

Circuit, which recognized the benefit-focused definition in a

case involving a different obstruction statute, Ogle, 613 F.2d at

238, has approved definitions of “corruptly” without the

benefit requirement in later cases See United States v.

Erickson, 561 F.3d 1150, 1159 (10th Cir. 2009) (interpreting

§ 1503); see also Ahrensfield, 698 F.3d at 1325 (interpreting

§ 1512(c)(2)); Gordon, 710 F.3d at 1148 (interpreting

§ 1512(c)(2)). We see no basis to create a split with those

circuits, particularly on sufficiency review when the culpability

of Robertson’s conduct is obvious.8

8

The dissent erroneously asserts that our interpretation is in

“outright conflict” with some of the cited authorities from other

jurisdictions. Dissenting Op. 19 n.10. The dissent notes that none

of those authorities adopts an “independently unlawful means”

requirement. Id. Nor do we impose such a requirement. Instead, we

recognize that proof of independently unlawful means can suffice to

establish “corrupt” intent or action. By the same token, in cases

charging that conduct was corrupt because it was dishonest, proof of

30

The Fischer concurrence argued that its narrow view of

“corruptly” must be exclusive to “ensure[] that [§ 1512(c)(2)]

does not have a breathtaking scope.” Fischer, 64 F.4th at 352,

360–61, 362 n.10 (Walker, J., concurring in part and

concurring in the judgment); see also Opening Br. 15–16;

Reply Br. 8–9. But, as discussed, the “corruptly” element

works to separate culpable conduct from innocent behavior,

even without the additional requirement advocated by the

Fischer concurrence. See supra Section II.A.2. The element

of “corrupt” intent or action, as we construe it, protects the right

of peaceful advocacy and protest –– i.e., the legitimate efforts

of lobbyists and protestors to influence policymaking or to

express political views do not fit the ordinary meaning of

“corruptly.” See North, 910 F.2d at 882. That is so even in the

case of protestors who passionately, but lawfully, voice

displeasure, suspicion, or outrage over election results. In any

event, the potential breadth of a statute is not alone a reason to

depart from its ordinary meaning. Even Justice Scalia’s partial

dissent in Aguilar, on which Robertson and the Fischer

concurrence both rely, opposed “importing extratextual

requirements in order to limit the reach of a federal criminal

statute.” Aguilar, 515 U.S at 612 (Scalia, J., concurring in part

and dissenting in part) (emphasis in original).

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 “political jousting,” see North, 910 F.2d at

882. Instead, it is a constitutionally scripted transition of

presidential power, with an outcome determined by the results

of a presidential election. Fischer, 64 F.4th at 342-43; 3 U.S.C.

dishonesty can also suffice. The cited authorities are consistent with

our view that there are many ways to prove “corruptly.” See supra

Section II.A.2.

31

§ 15 (2018), amended by 136 Stat. 4459, 5238 (2022). The

purpose of the proceeding is to present and count the

“certificates of the electoral votes” duly submitted by each

state. 3 U.S.C. § 15 (2018), amended by 136 Stat. 4459, 5238

(2022). After the votes are “ascertained and counted,” the Vice

President, as President of the Senate, “announce[s] the state of

the vote, which announcement shall be deemed a sufficient

declaration of the persons, if any, elected President and Vice

President of the United States.” Id. Although members of

Congress may object to a state’s certificates, see id., Robertson

does not argue that his conduct on January 6, 2021, was a

peaceful effort to convince members of Congress to raise

objections to the vote certification.

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 § 1512(c). See supra Section II.A.2

(explaining that corrupt intent may be proved in many ways).

Acting “dishonestly” would be consistent with the ordinary

meaning of acting “corruptly.” See United States v.

Richardson, 676 F.3d 491, 507–08 (5th Cir. 2012). Likewise,

a defendant’s obstructive conduct may often seek to secure an

unlawful benefit for himself or another, such as preventing

negative testimony at a trial. See United States v. Edlind, 887

F.3d 166, 172–76 (4th Cir. 2018). But Robertson has not

persuaded us that all the courts that have heretofore defined

“corruptly” without the “benefit” element — i.e., in virtually

all previous cases not involving bribery or tax offenses — were

wrong.

32

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 § 1512(c)(2), we also note that the Fischer concurrence

does not appear to help him. Although the Fischer concurrence

favored a definition of “corruptly” that required proof of the

defendant’s intent to procure a benefit for himself or another,

it applied that standard to support the prosecution of January 6

defendants who, like Robertson, “used illegal means (like

assaulting police officers) with the intent to procure a benefit

(the presidency) for another person (Donald Trump).” Fischer,

64 F.4th at 361 (Walker, J., concurring in part and concurring

in the judgment).

6.

We respectfully disagree with our dissenting colleague,

who asserts that the record evidence was insufficient to support

Robertson’s conviction under § 1512(c)(2) and that Judge

Walker’s concurrence in United States v. Fischer is binding on

us. See 64 F.4 351 (Walker, J., concurring in part and

concurring in the judgment).

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 holding.” Id. at

13. 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.

33

In Fischer, we reversed the district court’s decision to

dismiss the § 1512(c)(2) charges in the defendants’ indictments

and remanded the cases for further proceedings. 64 F.4th at

350. The district court’s dismissal order was narrow: It rested

solely on the conclusion that § 1512(c)(2) “requires that the

defendant have taken some action with respect to a document,

record, or other object.” United States v. Miller, 589 F. Supp.

3d 60, 78 (D.D.C. 2022). We disagreed, holding that

“otherwise . . . obstruct[ing], influenc[ing] or imped[ing]” an

official proceeding under § 1512(c)(2) covers “all forms of

corrupt obstruction of an official proceeding.” Fischer, 64

F.4th at 336. We also determined that the certification of the

Electoral College vote by Congress is an “official proceeding”

under the statute. Id. at 342–43. We did not resolve the

question at issue in this case: How to define and apply

“corruptly” within the meaning of the statute.

The district court in Fischer had expressly declined to

address the meaning of “corruptly” in § 1512(c)(2). United

States v. Miller, 605 F. Supp. 3d 63, 70 n.3 (D.D.C. 2022).

Thus, the briefing in the Fischer appeal considered the role of

“corruptly” only as context for interpreting the words

“otherwise . . . obstructs, influences, or impedes,” which was

the issue before us. In arguing for a broader interpretation of

“otherwise obstructs,” the government asserted that the

statute’s reach was constrained by the “corruptly” element,

which requires proof that the defendant “intended to obstruct”

an official proceeding, took actions “the natural and probable

effect of which” was to obstruct, and did so “with a corrupt

purpose or through independently corrupt means, or

both.” U.S. Br. 50–51, Fischer, 64 F.4th 329 (22-3038)

(cleaned up). The defendants responded that the term

“corruptly” is unconstitutionally vague, Appellee Br. 32–36,

Fischer, 64 F.4th 329 (22-3038), so would not cure “the

uncertainty surrounding which acts are criminal,” id. at

34

36. Thus, the parties only tangentially addressed the meaning

of “corruptly” in their briefs.

Our holding in Fischer was that the district court

erroneously dismissed the defendants’ § 1512(c)(2) counts

based on its interpretation of “otherwise obstructs”; we did not

decide whether the § 1512(c)(2) charge was otherwise properly

pled, including as to the “corruptly” element. A holding of

error as to a district court’s sole ground for dismissing an

indictment does not affirmatively establish the indictment’s

validity in all other respects. Cf. Dissenting Op. 13 n.8.

Rather, our conclusion that the district court erred in its

interpretation of “otherwise obstructs” left room for the

defendants to raise other challenges to the statute on remand —

including any claims regarding “corruptly.” Nothing in the

Fischer opinion prevented the district court from entertaining

such a claim on remand.

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 § 1512(c)(2) should be defined.

His discussion on that point was dicta.

Judge Walker agreed with Judge Pan that the district court

erred in dismissing the indictments for failure to sufficiently

allege that the defendants “otherwise . . . obstruct[ed],

influence[d] or impede[d]” an official proceeding. He noted

that, “[i]f proven at trial, the Defendants’ efforts to stop

Congress from certifying the results of the 2020 presidential

election are the kind of ‘obstructive conduct’ proscribed by

35

(c)(2).” 64 F.4th at 351 (Walker, J., concurring in the lead

opinion’s interpretation of “otherwise obstructs” in

§ 1512(c)(2) and concurring in the judgment) (cleaned up). He

went on to explain his view that the statutory requirement that

obstruction be undertaken “corruptly” requires proof that the

defendant acted “with an intent to procure an unlawful benefit

either for himself or for some other person.” Id. at 352

(quoting Marinello, 138 S. Ct. at 1114 (Thomas, J.,

dissenting)).

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

36

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.

Our dissenting colleague asserts that Judge Walker’s

reasoning was the narrowest holding of Fischer and therefore

is binding. Dissenting Op. 14 n.9. That characterization is

inapt because, as we have explained, there was no “holding”

about “corruptly” in Fischer. Moreover, the dissent’s logic is

drawn from the Supreme Court’s Marks rule, which this court

37

has never adopted for the purpose of determining its own

holdings. See Fischer, 64 F.4th at 341 n.5 (opinion of Pan, J.)

(discussing Marks v. United States, 430 U.S. 188 (1977)).

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

9

By contrast, if the lead opinion had said that options A, B, and

C are necessary to prove “corruptly,” and the concurrence had said

only that C is necessary, then the concurrence would be a logical

subset of the lead opinion. Under such circumstances, a defendant’s

claim that a jury instruction was inadequate for failing to require

proof of C would support reversal because two judges agreed that C

was necessary. By contrast, if a defendant objected to instructions

failing to require A, there would be no binding law because only the

lead opinion reached such a conclusion.

38

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 § 1512(c)(2) requires the defendant to

act with the intent of obtaining an unlawful benefit for himself

or another. See Dissenting Op. 8–15. But in applying that

standard, Judge Walker reasoned that the indictments at issue

in Fischer should be upheld, stating that “it might be enough

for the Government to prove that a defendant used illegal

means (like assaulting police officers) with the intent to

procure a benefit (the presidency) for another person (Donald

Trump).” Fischer, 64 F.4th at 361 (Walker, J., concurring in

part and concurring in the judgment). The dissent does not

explain why that reasoning, in an opinion that the dissent

believes is binding, does not dictate affirmance in this case.

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

10

The dissent posits that “[a]nother way of phrasing Judge

Walker’s conclusion that C is necessary is to say that only C is

sufficient,” and that phrasing “yields a logical subset.” Dissenting

Op. 14 n.9. The dissent’s formulation makes little sense because

“necessary” and “sufficient” mean different things. There is no way

to make Judge Walker’s opinion a subset of Judge Pan’s opinion

because Judge Pan did not agree with him that C is necessary.

39

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 § 1512(c)(2) could apply to a defendant

“trying to secure the presidency for Donald Trump”).

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 18 U.S.C. § 1503 where he

disclosed details of a grand jury investigation to its target in

order to get a date with the target’s daughter).

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

40

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 — e.g., a change of policy —

may be entirely lawful. Thus, requiring proof of a benefit

would not protect the innocent lobbying or advocacy that

concerns the dissent. We therefore see no apparent reason to

import the expectation-of-benefit requirement into the

obstruction context, and we discern no justification for making

such a requirement the exclusive way to prove corrupt intent.

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, 18 U.S.C. § 1505,

to an 1831 contempt statute that punished attempts to

“corruptly, or by threats or force, endeavour to influence,

41

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

42

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 “corruptly” 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

‘independently felonious means.’” Dissenting Op. 30

(emphasis in original). The dissent is again mistaken. In

holding that felonious means are sufficient to establish

“corrupt” behavior, we do not suggest that they are always

necessary to prove the “corruptly” element.

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 § 1512(c)(2) does not penalize

innocent efforts to obstruct an official proceeding, including by

engaging in constitutionally protected expression. See supra

Section II.A.2.

For all the foregoing reasons, we respectfully disagree

with our dissenting colleague.

43

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.

§ 2J1.2(b)(1)(B) and (b)(2). Section 2J1.2 sets forth the base

offense level and enhancements for obstruction-of-justice

crimes. Subsection (b)(1)(B) instructs that an eight-level

increase applies “[i]f the offense involved causing or

threatening to cause physical injury to a person, or property

damage, in order to obstruct the administration of justice,” id.

§ 2J1.2(b)(1)(B); and subsection (b)(2) provides that a three-

level increase is appropriate “[i]f the offense resulted in

substantial interference with the administration of justice,” id.

§ 2J1.2(b)(2).

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

11

Specifically, Robertson’s sentencing memorandum argued only

that the offense characteristics did not apply because “at no time did

[he] cause or threaten physical injury to a person or property,” and

because he “did nothing that increased the resources” expended by

44

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)

that 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 of the judicial proceedings.”

United States v. Gooch, 665 F.3d 1318, 1332 (D.C. Cir. 2012);

accord Greer v. United States, 141 S. Ct. 2090, 2096–97

(2021); United States v. Olano, 507 U.S. 725, 732–35 (1993).

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 3 U.S.C. § 15. The term “justice” is defined

as the “fair and proper administration of laws,” which may

pertain to the administration of laws by a legislative body.

Justice, Black’s Law Dictionary (7th ed. 1999); see also

Contempt, Black’s Law Dictionary (7th ed. 1999) (explaining

that contempt of a “legislature” impairs the “administration of

justice”). Moreover, Robertson cites no binding authority

limiting the administration of justice to judicial or quasi-

judicial proceedings. Thus, we cannot conclude that the district

court clearly or obviously erred when it found that Robertson’s

obstruction of the Electoral College vote also obstructed and

interfered with the “administration of justice.” In short,

Robertson fails to meet his burden to demonstrate that the

the government. S.A. 54–55. Likewise, at the sentencing hearing,

his counsel repeated that “the enhancement does not apply when the

government fails to identify any expenses in addition to the costs of

bringing the defendant to trial” and that “if we take the definition of

what ‘substantial interference’ means, that doesn’t apply here at all.”

Id. at 212, 214.

45

district court plainly erred when it determined that the specific

offense characteristics in U.S.S.G. § 2J1.2 (b)(1)(B) and (b)(2)

apply to his conduct. See Greer, 141 S. Ct. at 2097.

* * *

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 18 U.S.C.

§ 1512(c)(2) by engaging in independently felonious conduct

to obstruct the certification of the Electoral College vote.

Moreover, the district court did not plainly err when it

increased Robertson’s sentencing range under the Sentencing

Guidelines based on findings that he obstructed or interfered

with the administration of justice.

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*

It is not every day that a criminal appeal gives the court a

“multiple choice” of grounds on which to vacate a conviction.

I believe that Thomas Robertson’s appeal has done so. For me,

the simplest ground for vacatur can be described as “done and

dusted” because our court already decided the issue sub judice

in United States v. Fischer, 64 F.4th 329 (D.C. Cir. 2023). My

colleagues stray from that precedent and I cannot join them.

Even if Fischer did not bind us, the majority’s formulation of

the requisite mens rea—“corruptly” defined as having an

“unlawful” purpose or acting through “unlawful” means—

makes the commission of any crime “corrupt” because any

crime requires the use of unlawful means or an unlawful

purpose or both. Perhaps in attempting to define “corruptly,”

we are “faced with the task of trying to define what may be

indefinable,” as Supreme Court Justice Potter Stewart once

observed regarding a different criminal statute. Jacobellis v.

Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). But

as Mr. Justice Stewart also noted (regarding pornography), see

id., I know what “corruptly” does not mean. It does not mean

what the majority says it does. Accordingly, I respectfully

dissent.

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

*

Rhetoric, bk. I, ch. 1 (as reprinted in The Quotable

Lawyer 165 (David Shrager & Elizabeth Frost eds., 1986)).

2

United States. U.S. Const. art. II, § 1. After voting in their

respective states, the electors sign, seal and forward their votes

to the President of the Senate. The President of the Senate, “in

the presence of the Senate and House of Representatives,” then

counts the votes. Id. amend. XII. “The person having the

greatest number of votes for President, shall be the

President . . . .” Id. The certification proceeding occurs “on the

sixth day of January” following the presidential election. 3

U.S.C. § 15.

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

1

The following description of the facts is drawn from the trial

record.

3

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 spray or tear gas, Robertson and the other two

donned their gas masks.

Not long after, Metropolitan Police Department (MPD)

officers arrived to reinforce 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.

2

“Port arms” is a “tactical position” in which a baton or stick

may be used “both offensively and defensively.” Suppl. App. 85.

4

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 18 U.S.C. § 1512(c)(2). Section 1512(c) reads in

full:

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

5

(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)

unconstitutionally vague, both on its face and as applied to him.

The district court denied Robertson’s facial vagueness

challenge, concluding that, notwithstanding that there “may be

scenarios at the edges that present vagueness problems,” the

statute sufficiently specified the “‘core’ behavior to which it

constitutionally applies.” United States v. Robertson, 588 F.

Supp. 3d 114, 123 (D.D.C. 2022) (quotation omitted). The

court likewise rejected Robertson’s as-applied challenge,

concluding that the allegations in the indictment sufficed for a

jury to conclude Robertson acted “corruptly.” Id. at 123–24.

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

6

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

3

See Fed. R. Crim. P. 29(a) (“[T]he 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.”).

7

“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 “‘does not

rest on how the jury was instructed’ but rather on how a

properly instructed jury would assess the evidence.” United

States v. Hillie, 14 F.4th 677, 682 (D.C. Cir. 2021) (quoting

Musacchio v. United States, 577 U.S. 237, 243 (2016)); see

also United States v. Khatallah, 41 F.4th 608, 634 (D.C. Cir.

2022) (per curiam) (acquittal motion “tests sufficiency against

‘how a properly instructed jury would assess the evidence,’ not

on ‘how the jury was instructed’” (quoting Hillie, 14 F.4th at

682)). The reason for this standard is simple: “To allow a

conviction to stand where the defendant’s conduct ‘fails to

come within the statutory definition of the crime,’ or despite

insufficient evidence to support it, would violate the Due

Process Clause.” Hillie, 14 F.4th at 683 (quoting Griffin v.

United States, 502 U.S. 46, 59 (1991)). Even where, as here,

the defendant fails to object to the definition of the offense used

in the jury charge, his conviction must be set aside if the

8

prosecution failed to produce sufficient evidence of one or

more elements of the properly formulated offense. See id. (“A

defendant does not ‘waive’ his rights . . . by failing to present

the correct interpretation of the offense to the district court.”);

cf. Boyle v. United Techs. Corp., 487 U.S. 500, 513–14 (1988)

(“If the evidence presented in the . . . trial would not suffice, as

a matter of law, to support a jury verdict under the properly

formulated defense, judgment could properly be entered for the

[defendant] at once, without a new trial. And that is so even

though . . . [the defendant] failed to object to jury instructions

that expressed the defense differently, and in a fashion that

would support a verdict.”).

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.” 18 U.S.C. § 1512(c). As noted

supra, United States v. Fischer defined “corruptly” and we are

required to apply its definition. 64 F.4th 329.4

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

18 U.S.C. § 1512(c)(2). Fischer, 64 F.4th at 333. Each

subsequently moved to dismiss the section 1512(c)(2) count.

Id. at 333–34. The district court granted each defendant’s

4

Although Robertson concedes that Fischer does not bind us,

the precedential effect of an earlier decision is a matter for the court,

not the parties, to decide.

9

motion to dismiss. Id. at 334. The court first concluded that

section 1512(c) is ambiguous regarding subsection (c)(2)’s

relation to subsection (c)(1). The court explained that (c)(2)

could be read as prohibiting any act that obstructs an official

proceeding or as prohibiting only obstructive acts similar to

those covered by (c)(1).5 See United States v. Miller, 589 F.

Supp. 3d 60, 67–68, 70–71 (D.D.C. 2022). The court chose the

latter reading, in part because the former would render

superfluous both subsection (c)(1) as well as (c)(2)’s use of the

word “otherwise.” Id. at 68, 70. It concluded that (c)(2)

“requires that the defendant have taken some action with

respect to a document, record, or other object in order to

corruptly obstruct, impede or influence an official proceeding.”

Id. at 78. Because the indictments did not allege that the

defendants committed obstructive acts in conjunction with “a

document, record, or other object,” see 18 U.S.C. § 1512(c)(1),

the court dismissed the section 1512(c)(2) counts. Miller, 589

F. Supp. 3d at 78; see United States v. Fischer, No. 1:21-cr-

234, 2022 WL 782413, at *4 (D.D.C. Mar. 15, 2022) (relying

on Miller to dismiss section 1512(c)(2) count); Min. Order,

United States v. Lang, No. 1:21-cr-53 (D.D.C. June 7, 2022)

(same).

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 § 1512(c)(1).” 64 F.4th at 336. In so doing, the

majority explained that “otherwise” as used in (c)(2) does not

limit the reach of that subsection to obstructive acts similar to

5

As noted supra, subsection (c)(1) prohibits “alter[ing],

destroy[ing], mutilat[ing], or conceal[ing] 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.” 18

U.S.C. § 1512(c)(1).

10

those mentioned in subsection (c)(1) but instead means “in a

different manner.” Id. at 336–37. Regarding section

1512(c)(2)’s actus reus element, Judge Pan—who authored the

lead opinion—explained that, notwithstanding that section

1512(c)(2) “plainly extends to a wide range of conduct,” the

provision contains “important limitations”: The obstructive act

described in (c)(2) must be accompanied by “corrupt” intent

and must target an “official proceeding.” Id. at 339.

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.” Id.6 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

6

First, citing Arthur Andersen LLP v. United States, 544 U.S.

696, 705 (2005), Judge Pan stated that “corruptly” can mean

“wrongful, immoral, depraved, or evil.” Fischer, 64 F.4th at 339–40.

Second, she stated that a defendant has a “corrupt” state of mind if

he acts “with a corrupt purpose, through independently corrupt

means, or both.” Id. at 340 (internal quotations omitted) (citing

United States v. North, 910 F.3d 843, 942–43 (D.C. Cir. 1990)

(Silberman, J., concurring in part)). Third, Judge Pan suggested that

“[a]n act is done corruptly if it’s done voluntarily and intentionally

to bring about either an unlawful result or a lawful result by some

unlawful method, with a hope or expectation of either financial gain

or other benefit to oneself or a benefit of another person.” Id. at 340

(quoting United States v. Aguilar, 515 U.S. 593, 616–17 (1995)

(Scalia, J., concurring in part)).

11

‘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. at 352 (quoting

Marinello v. United States, 138 S. Ct. 1101, 1114 (2018)

(Thomas, J., dissenting)). Otherwise, he went on, if subsection

(c)(2) “has a broad act element and an even broader mental

state,” the statute would have “breathtaking scope.” Id. at 351–

52. Under his interpretation (Judge Pan’s third option), a

defendant “must not only know he was obtaining an ‘unlawful

benefit,’ it must also be his ‘objective’ or ‘purpose.’” Id.

(cleaned up) (quoting Marinello, 138 S. Ct. at 1114 (Thomas,

J., dissenting)). Critically, Judge Walker expressly conditioned

his vote on his reading of “corruptly.” He explained: “[M]y

reading of ‘corruptly’ is necessary to my vote to join the lead

opinion’s proposed holding on [the actus reus]. If I did not read

‘corruptly’ narrowly, I would join the dissenting opinion.” Id.

at 362 n.10. He also suggested his reading of “corruptly” may

be controlling. Id. (citing Marks v. United States, 430 U.S. 188,

193 (1977)).

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

12

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

7

Compare id. at 340 (opinion of Pan, J.) (“[A]n act is done

corruptly if it’s done voluntarily and intentionally to bring about

either an unlawful result or a lawful result by some unlawful method,

with a hope or expectation of either financial gain or other benefit to

oneself or a benefit of another person.” (quoting Aguilar, 515 U.S. at

616–17 (Scalia, J., concurring in part))), with id. at 352 (Walker, J.,

concurring in part) (“‘[C]orruptly’ . . . requires a defendant to act

‘with an intent to procure an unlawful benefit either for himself or

13

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 definition of “corruptly” endorsed by Judge Walker

binds us because that definition was necessary to create a

holding. See Fischer, 64 F.4th at 362 n.10 (Walker, J.,

concurring in part) (“[M]y reading of ‘corruptly’ is necessary

to my vote to join the lead opinion’s proposed holding on [the

actus reus]. If I did not read ‘corruptly’ narrowly, I would join

the dissenting opinion.”). We must follow “those portions of

the opinion necessary to that result by which we are bound.”

Util. Air Regul. Grp. v. EPA, 885 F.3d 714, 720 (D.C. Cir.

2018) (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44,

67 (1996)); see also Holding, Black’s Law Dictionary (11th ed.

2019) (defining “holding” as “[the] court’s determination of a

for some other person.’” (quoting Marinello, 138 S. Ct. at 1114

(Thomas, J., dissenting))).

8

Although Judge Pan declared that she took “no position on the

exact meaning of ‘corruptly,’” id. at 341 n.5 (opinion of Pan, J.), that

cannot be right. In reviewing a motion to dismiss an indictment, the

operative question is whether the allegations are sufficient for a

reasonable jury to conclude the defendant committed the charged

offense. See United States v. Sampson, 371 U.S. 75, 76 (1962). In

order to uphold the Fischer indictments, then, Judge Pan had to

conclude that the allegations were sufficient for a jury to find that the

defendants acted “corruptly.” And, to so conclude, she had to assign

a meaning to “corruptly” that at least one panel member agreed with.

See Fischer, 64 F.4th at 362 n.10 (Walker, J., concurring in part)

(“Without taking a position, the lead opinion could not conclude, as

it does, that the indictments should be upheld.”).

14

matter of law pivotal to its decision”). Accordingly, I believe

the improper-benefit reading of “corruptly” binds us.9

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’

9

Even assuming arguendo that Fischer cannot be explained by

a “single rationale,” the improper-benefit reading of “corruptly”

controls because Judge Walker’s reading represents the “position

taken” by the judge “who concurred in the judgments on the

narrowest grounds.” Marks, 430 U.S. at 193 (quoting Gregg v.

Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality opinion)). We

have explained that the “narrowest ground” is a “logical subset of

other, broader opinions.” King v. Palmer, 950 F.2d 771, 781 (D.C.

Cir. 1991) (en banc). Although Judge Pan would have upheld the

indictments under any of three definitions of “corruptly,” see

Fischer, 64 F.4th at 340, Judge Walker agreed to do so under only

one of those definitions, see id. at 362 (Walker, J., concurring in

part). Put differently, Judge Pan concluded that “corruptly” could

mean A or B or C and, regardless of the definition chosen, the

indictments should be upheld; Judge Walker, however, concluded

that “corruptly” must mean C. His concurrence, then, represents the

“position taken” by the judge “who concurred in the judgments on

the narrowest grounds.” Marks, 430 U.S. at 193 (quoting Gregg, 428

U.S. at 169 n.15).

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.

15

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

16

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

17

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 (1988)

(“[E]ven someone who is paying to influence official behavior

in his favor may not be acting corruptly if he is merely buying

back fair treatment from an official who threatens to inflict

unfair treatment.”).

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.

18

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 fact 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

someone else, inconsistent with official duty and the rights of

19

others.” Corruptly, Ballentine’s Law Dictionary 276 (3d ed.

1969).10

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

10

Interpreting a different criminal statute, the Supreme Court

has recently noted that “[w]hen Congress transplants a common-law

term, the ‘old soil’ comes with it.” United States v. Hansen, 143 S.

Ct. 1932, 1944 (2023) (citation and some internal quotation marks

omitted). Yet the majority here spends little time discussing the

history just recounted. See Maj. 39–40. In fact, the only

counterevidence it cites is a lone contempt statute from 1831, which

“does not include any mention of a required intent to procure a

benefit.” Id. at 40 (discussing Act of Mar. 2, 1831, ch. 98, § 2, 4 Stat.

487). But the statute need not spell out what is already inherent in the

mens rea of “corruptly,” as the common-law history of the word

demonstrates.

The majority also argues that the common-law meaning “would

come as a surprise” to our sister circuits that have not read the

unlawful-benefit requirement into section 1512(c)(2). Id. at 28–29

(collecting authorities). If so, the majority’s definition would come

equally as a surprise. None of the majority’s authorities adopts its

“independently unlawful means” definition and some outright

conflict with it. Cf. Maj. Op. 26–27 and 22 n.3 (rejecting the

argument that the defendant must act “dishonestly” and expressing

doubt that he must act “knowingly”), with United States v. Bedoy,

827 F.3d 495, 510 (5th Cir. 2016) (requiring the defendant to act

“knowingly and dishonestly”); United States v. Delgado, 984 F.3d

435, 452 (5th Cir. 2021) (same); United States v. Mintmire, 507 F.3d

1273, 1289 (11th Cir. 2007) (same); United States v. Gordon, 710

F.3d 1124, 1151 (10th Cir. 2013) (same). Further, not one of the

cases the majority cites even mentions the common-law history of

“corruptly.” They are, then, of little help in construing the common-

law history of “corruptly.”

20

benefit. For example, 18 U.S.C. § 201, titled “[b]ribery of

public officials and witnesses,” imposes penalties on an

individual who “corruptly gives, offers or promises anything

of value to any public official . . . with intent . . . to influence

any official act.” 18 U.S.C. § 201(b)(1)(A) (emphasis added).

Courts have interpreted “corruptly” in that statute to mean that

the defendant must intend that the bribe be part of a “quid pro

quo.” United States v. Tomblin, 46 F.3d 1369, 1379–80 (5th

Cir. 1995); United States v. Terry, 707 F.3d 607, 612 (6th Cir.

2013). That is, the bribe payer “must intend to secure a benefit

from the bribe taker and vice versa.” Fischer, 64 F.4th at

354 (Walker, J., concurring in part).

“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, 18 U.S.C. § 1503

criminalizes “corruptly” injuring or influencing a juror or

judicial officer; 18 U.S.C. § 1512(b)(2) makes it unlawful to

“corruptly persuade[]” someone to “withhold testimony,”

destroy evidence or “evade legal process”; and 18 U.S.C.

§ 1517 criminalizes “corruptly” obstructing “any examination

of a financial institution by an agency of the United States.”

With respect to these statutes, then, the improper-benefit

requirement need not be express because commission of the

actus reus necessarily results in an improper advantage—

21

influencing a juror, suppressing evidence or avoiding financial

investigation, respectively.11

If a criminal statute prohibits a broad range of conduct, as

section 1512(c)(2) does, however, “it is problematic to leave

implicit the long-established requirement that a defendant acts

‘corruptly’ only when he seeks to secure an unlawful benefit.”

Fischer, 64 F.4th at 355 (Walker, J., concurring in part). That

statutory silence is one reason courts give “corruptly” its

narrow meaning in 26 U.S.C. § 7212(a), a statute that imposes

penalties on any individual who “corruptly” “endeavors to

obstruct or impede[] the due administration of [the Internal

Revenue Code].” See, e.g., United States v. Floyd, 740 F.3d 22,

31 (1st Cir. 2014) (“[T]here is a consensus among the courts of

appeals that ‘corruptly,’ as used in section 7212(a), means

acting with an intent to procure an unlawful benefit either for

the actor or for some other person.”) (collecting cases); see also

Eric J. Tamashasky, The Lewis Carroll Offense: The Ever-

Changing Meaning of “Corruptly” Within the Federal

Criminal Law, 31 J. LEGIS. 129, 130 (2004) (“[T]he common

law meaning [of ‘corruptly’] already is used consistently across

the federal circuits in the context of prosecutions under 26

U.S.C. § 7212(a).”). Whereas suppressing evidence within the

meaning of section 1512(b)(2) or influencing a juror under

section 1503 “will almost necessarily result in an improper

advantage to one side in the case,” obstructing the

11

That the improper-benefit requirement is frequently implicit,

rather than express, has been recognized. See Aguilar, 515 U.S. at

616–17 (Scalia, J., concurring in part) (“Acts specifically intended to

‘influence, obstruct, or impede, the due administration of

justice . . . are necessarily corrupt.” (quoting 18 U.S.C. § 1503));

North, 910 F.2d at 939–46 (Silberman, J., concurring in part)

(reading “corruptly” in section 1505 as not including an unlawful-

benefit requirement “can be taken to express the view that any

endeavor to obstruct a judicial proceeding is inherently . . . corrupt”).

22

administration of the Internal Revenue Code under section

7212(a) could encompass conduct that does not result in a party

“gain[ing] an improper advantage.” United States v. Reeves,

752 F.2d 995, 999 (5th Cir. 1985). With respect to the latter

statute, then, courts have required that the improper-benefit

requirement be explicit. E.g., id. at 999–1002.

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

section 1512(c)(2). Fischer, 64 F.4th at 361 (Walker, J.,

concurring in part). But the lobbyist has not acted “corruptly.”

Thus, to ensure that such conduct does not trigger section

1512(c)(2), the improper-benefit requirement must be

rigorously enforced. See id. at 356 (“[T]he more conduct an

obstruction statute reaches, the more vigilantly we must apply

the long-established . . . meaning of ‘corruptly.’”).

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, including

“kill[ing] or attempt[ing] to kill another person” in order to

prevent the person from attending or testifying at an official

23

proceeding, 18 U.S.C. § 1512(a)(1)(A); “us[ing] physical force

or the threat of physical force” or “knowingly us[ing]

intimidation, threat[s], or corrupt[] persua[sion]” in order to

“influence, delay, or prevent the testimony of any person in an

official proceeding,” id. § 1512(a)(2)(A), (b)(1), or “caus[ing]

or induc[ing] any person to” “withhold [evidence] from an

official proceeding” or “impair [an] object’s integrity or

availability for use in an official proceeding,” id.

§ 1512(a)(2)(B)(i), (b)(2)(B); and “intentionally harass[ing]

another person” to prevent the person from attending or

testifying at an official proceeding, id. § 1512(d)(1).

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 18 U.S.C. § 1519,

which criminalizes altering or destroying “any record,

document, or tangible object” with the intent to impede or

influence a federal investigation. See Yates, 574 U.S. at 536

(plurality opinion).

24

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,

25

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 18

U.S.C. § 1512(b)); United States v. Edwards, 869 F.3d 490,

498 (7th Cir. 2017) (same); United States v. Quattrone, 441

F.3d 153, 170, 173–76 (2d Cir. 2006) (interpreting 18 U.S.C.

§§ 1503, 1505, 1512(b)). Those cases have found this

definition appealing because it gives “corruptly” its common

or colloquial meaning.12 And although, as a general matter,

“words in statutes should be given their common or popular

meanings[] in the absence of [a] congressional definition,”

North, 910 F.2d at 881, “[s]tatutory language need not be

colloquial,” Aguilar, 515 U.S. at 616 (Scalia, J., concurring in

part). Indeed, “where Congress borrows terms of art in which

are accumulated the legal tradition and meaning of centuries of

practice, it presumably knows and adopts the cluster of ideas

that were attached to each borrowed word.” Morissette v.

United States, 342 U.S. 246, 263 (1952). Thus, there are

compelling reasons that “corruptly” should not be given a

colloquial meaning in section 1512(c).

For starters, Arthur Andersen, the primary authority for the

colloquial definition, simply noted that “corruptly” is

12

Lay dictionaries define “corruptly” by using the adverbial

form of “corrupt.” Corruptly, Webster’s Third New International

Dictionary 512 (1976) (“[I]n a corrupt manner; by corruption.”);

Corruptly, Oxford English Dictionary (2d ed. 1989) (“In a corrupt

or depraved manner; pervertedly; by means of corruption or

bribery.”). “Corrupt,” in turn, is defined as “depraved, evil; perverted

into a state of moral weakness or wickedness.” Webster’s Third New

International Dictionary, supra, at 512; see Corrupt, Oxford English

Dictionary, supra (“Debased in character; infected with evil;

depraved; perverted; evil, wicked.”); Corrupt, American Heritage

College Dictionary 321 (4th ed. 2007) (“Marked by immorality and

perversion; depraved.”).

26

“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 18 U.S.C. § 1512(b)—a different

obstruction provision—meant “‘knowingly and dishonestly,

with the specific intent to subvert or undermine the integrity’

of a proceeding.” Id. (quotation omitted). Instructing the jury,

however, the district court declined to use “dishonestly” and

instead added “impede” to “subvert or undermine.” Id. The

instruction thus read: “The word ‘corruptly’ means having an

improper purpose. An improper purpose, for this case, is an

intent to subvert, undermine, or impede the fact-finding ability

of an official proceeding.” United States v. Arthur Andersen,

LLP, 374 F.2d 281, 293 (5th Cir. 2004). On review, the

Supreme Court found the two changes “significant” because

“dishonesty” was no longer “necessary to a finding of guilt”

and “impede” had “broader connotations” than “subvert or

undermine.” Arthur Andersen, 544 U.S. at 706–07 (alterations

accepted). Thus, the district court’s instruction “diluted the

meaning of ‘corruptly’ so that it covered innocent conduct.” Id.

at 706. The Court also implied that a narrowing construction of

“corruptly” was needed to counteract the statute’s broad actus

reus: “The dictionary defines ‘impede’ as ‘to interfere with or

27

get in the way of the progress of’ . . . . By definition, [that

applies to] anyone who innocently persuades another to

withhold information from the Government . . . . With regard

to such innocent conduct, the ‘corruptly’ instructions did no

limiting work whatsoever.” Id. at 707 (quotation omitted).

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

13

The majority also relies heavily on Judge Silberman’s

separate opinion in North, which suggests that a defendant’s use of

“independently criminal” means satisfies the mens rea of

28

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 18 U.S.C. § 1505 was vague “on its face”

and that the “various dictionary definitions of the adjective

‘corrupt’” did “nothing to alleviate the vagueness problem.” Id.

at 378. “Words like ‘depraved,’ ‘evil,’ ‘immoral,’ ‘wicked,’

and ‘improper,’” we explained, did not illuminate the meaning

of “corruptly” because they “are no more specific—indeed they

may be less specific—than ‘corrupt.’” Id. at 379; see also

Cartwright v. Maynard, 822 F.2d 1477, 1489 (10th Cir. 1987)

(en banc) (“Vague terms do not suddenly become clear when

they are defined by reference to other vague terms.”).

Consider an alternative 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

“corruptly.” See North, 910 F.2d at 943 (Silberman, J., concurring in

part) (interpreting 18 U.S.C. § 1505). But Judge Silberman was in

dissent in his discussion of the meaning of “corruptly.” See id. at 946

(noting that the majority “reaches the opposite result” and “renders

the word ‘corruptly’ meaningless”). Nor did he discuss the common-

law history of the word in reaching his conclusion—an oversight that

matters here, especially as we are plainly not bound by his view.

14

Note (although it hardly bears mentioning) that “corruptly”

requires something more than the specific intent to commit the actus

reus. If the specific intent to influence, obstruct or impede a

proceeding were enough, section 1512(c)(2) would be untenably

broad, capturing anyone who attempts to influence any official

proceeding for any reason. If we were to adopt that interpretation,

“we might as well convert all of Washington’s office buildings into

29

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 18 U.S.C. § 1507

(prohibiting picketing outside courthouse with intent to

influence judge, juror or witness); id. § 1913 (prohibiting

lobbying by agency employees); 40 U.S.C. § 5104(e)(2)(G)

(prohibiting demonstrating inside Capitol). As a result, each

would face up to twenty years in prison, rather than a maximum

prisons.” North, 910 F.2d at 942 (Silberman, J., concurring in part).

Moreover, reading “corruptly” to require only the specific intent to

influence, obstruct or impede a proceeding would be inconsistent

with even the colloquial meaning of corruptly, which implies some

degree of wrongfulness. See Arthur Andersen, 544 U.S. at 706

(“corruptly” requires “consciousness of wrongdoing”).

15

The majority’s equation of “corruptly” with “unlawfully”

belies its assertion that it is merely adopting the “ordinary meaning”

of the word. See Maj. Op. 14. According to the majority, the plain

meaning of “corruptly” (even in a criminal statute) is “depraved, evil:

perverted into a state of moral weakness or wickedness.” Id. at 15

(quoting North, 910 F.2d at 881). But “unlawfully” means something

else entirely. Acts may be evil or depraved and yet lawful. And acts

may not be evil or depraved and yet be unlawful.

30

of one year, a criminal fine and six months, respectively. See

Fischer, 64 F.4th at 380 (Katsas, J., dissenting).

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 18 U.S.C. § 1507, the statute prohibiting

protesting outside a courthouse with intent to influence a judge

or juror. The Congress specifically provided that conviction

under that provision warranted no more than one year in prison.

See 18 U.S.C. § 1507 (violators “shall be fined under this title

or imprisoned not more than one year, or both”). The

Congress’s policy choice would be nullified if the same person

could be imprisoned for up to twenty years under section

1512(c)(2) for engaging in precisely the same conduct. Yet that

result is possible under the majority’s reading. An individual

convicted under section 1507 could also be convicted under

section 1512(c)(2) because anyone who protests outside a

courthouse with the intent to influence a judge or juror

necessarily intends to influence, obstruct or impede an official

proceeding by unlawful means. Thus, although the majority’s

reading “create[s] an escape hatch for those who influence an

official proceeding without committing any other crime,” it

nevertheless “gives section 1512(c)(2) an improbably broad

reach.” Fischer, 64 F.4th, at 380 (Katsas, J., dissenting).

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

31

reading is difficult to reconcile with Chapter 73’s reticulated

scheme of penalties. For example, 18 U.S.C. § 1506 sets forth

a maximum penalty of five years’ imprisonment for feloniously

stealing a record or other process used in a court proceeding.

Under the majority’s interpretation of “corruptly,” it would be

impossible to violate section 1506 (aside from the separate

prohibition on posting false bail) without also violating section

1512(c)(2).

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

16

The majority denies that its definition requires proof of a

predicate offense because there are ways “to establish corrupt intent

or conduct” other than “proof of independently felonious means.”

Maj. Op. 23 n.4. But the majority has tethered the “core” meaning of

“corruptly” to the defendant’s independently unlawful purpose or use

of independently unlawful means, see id. at 21–22, requiring the jury

to look for offenses outside the four corners of section 1512(c)(2) to

assess what is independently unlawful.

32

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 benefit means section 1512(c)(2) will

neither cover “large swaths of advocacy, lobbying, and

protest,” Fischer, 64 F.4th at 380 (Katsas, J., dissenting), nor

“supercharge a range of minor advocacy, lobbying, and protest

offenses into 20-year felonies.” Id. Section 1512(c)(2) will

apply only where a defendant intends to secure an unlawful

benefit for himself or another and knows the benefit he seeks

is unlawful. See Marinello, 138 S. Ct. at 1114 (Thomas, J.,

dissenting).

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

17

2 Albert Bigelow Paine, Mark Twain, A Biography 724

(1912).

33

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

34

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 or another.18

I would vacate Robertson’s section 1512(c)(2) conviction

and remand for resentencing on the remaining counts.

Accordingly, I respectfully dissent.

18

The “unlawful benefit” the defendant seeks must be financial,

professional or exculpatory. See, e.g., Marinello, 138 S. Ct. at 1105

(avoiding taxes); Aguilar, 515 U.S. at 595 (concealing wrongdoing

through illegal disclosure of wiretap); North, 910 F.2d at 851

(fabricating false testimony and destroying documents); see also

Corruptly (def. 2), Black’s Law Dictionary (11th ed. 2019)

(“corruptly usu[ally] indicates a wrongful desire for pecuniary gain

or other advantage”). Acquittal is thus required if, as I view the

evidence, Robertson merely intended to protest the outcome of the

election or his (perceived) disenfranchisement or to make some other

political point.

The majority mistakenly insists that my view conflicts with

Judge Walker’s Fischer opinion. Maj. Op. 37–38. On the contrary,

Judge Walker did not decide how broadly to construe the “unlawful

benefit” requirement. He merely stated that he was “not so sure” that

the sought-after benefit must be “financial, professional, or

exculpatory.” Fischer, 15 64 F.4th at 356 n.5 (Walker, J., concurring

in part) (citation omitted). And even if this panel agreed with Judge

Walker’s suggestion that the office of the President “may” qualify as

“a professional benefit,” see id., we would remain free to conclude

that there was no evidence presented at trial to show that Robertson

intended—either alone or collectively—to procure that benefit.