Amicus Curiae Brief — Joseph W. Fischer, Petitioner v. United States

No. 23-5572

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------JOSEPH W. FISCHER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE

CHRISTOPHER WARNAGIRIS,

CHRISTOPHER CARNELL, AND ROBERT

NORWOOD IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------MARINA MEDVIN

MEDVIN LAW PLC

916 Prince Street

Alexandria, VA 22314

(888) 886-4127

contact@medvinlaw.com

THEODORE M. COOPERSTEIN

Counsel of Record

CLOUTHIER COOPERSTEIN PLLC

1020 Highland Colony Parkway

Suite 803

Ridgeland, MS 39157

(601) 397-2471

ted@msappellatelawyers.com

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Did the D.C. Circuit err in construing 18 U.S.C.

§ 1512(c) (“Witness, Victim, or Informant Tampering”),

which prohibits obstruction of congressional inquiries

and investigations, to include acts unrelated to investigations and evidence?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

TABLE OF CONTENTS ......................................

ii

TABLE OF AUTHORITIES .................................

iv

INTEREST OF THE AMICI CURIAE .................

1

STATUTORY PROVISION INVOLVED ..............

2

SUMMARY OF THE ARGUMENT .....................

3

ARGUMENT ........................................................

5

The Government’s interpretation of the

statute violates Due Process and the Rule

of Lenity .....................................................

5

A. The Rule of Lenity furthers dual

Constitutional values ..........................

5

1. Due Process and fair notice ............

5

2. Separation of Powers ......................

9

I.

B. The Government’s expanded definition

of § 1512(c)(2) exceeds Constitutional

limits .................................................... 12

1. No fair warning preceded the broad

expansion of the scope of this law .... 12

2. The prosecution’s stretch of

§ 1512(c)(2) to engulf all manner of

conduct transgresses the separation

of powers ......................................... 13

II.

The Court should reverse the D.C. Circuit

judgment .................................................... 15

iii

TABLE OF CONTENTS – Continued

Page

A. The D.C. Circuit’s ruling invites

profligate abuse of the statute ............ 15

B. The three divergent opinions below do

not reconcile, and they provide no clear

guidance for application of 18 U.S.C.

§ 1512(c)(2)............................................. 17

1. The D.C. Circuit opinions make

everything and nothing culpable

conduct ................................................ 19

2. Mens Rea eludes definition in the

panel opinions ................................. 22

3. Section 1512(c) has become unmoored

and ill-defined ..................................... 24

CONCLUSION..................................................... 27

iv

TABLE OF AUTHORITIES

Page

CASES

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

696 (2005) .......................................................... 13, 16

Bittner v. United States, 598 U.S. 85 (2023) .................5

Blockburger v. United States, 284 U.S. 299

(1932) ...................................................................26

Bouie v. City of Columbia, 378 U.S. 347 (1964)...... 6, 12

Burrage v. United States, 571 U.S. 204 (2014) ...........10

Cargill v. Garland, 57 F.4th 447 (5th Cir. 2023),

cert. granted, ___ U.S. ___, 144 S. Ct. 374 (Nov.

3, 2023) ....................................................................10

Carmell v. Texas, 529 U.S. 513 (2000) ..........................8

Cleveland v. United States, 531 U.S. 12 (2000) ............5

Connally v. Gen. Constr. Co., 269 U.S. 385 (1926) .........8

Dubin v. United States, 599 U.S. 110 (2023) .... 5, 11, 14

Elonis v. United States, 575 U.S. 723 (2015) ..............18

Harrison v. Vose, 50 U.S. (9 How.) 372 (1850) ..............6

Huddleston v. United States, 415 U.S. 814 (1974) .... 6, 11

Johnson v. United States, 576 U.S. 591 (2015).............6

Lankford v. Idaho, 500 U.S. 110 (1991) ........................7

Liporata v. United States, 471 U.S. 419 (1985) .... 15, 16

Marinello v. United States, 584 U.S. ___, 138

S. Ct. 1101 (2018) .............................................. 13, 14

McBoyle v. United States, 283 U.S. 25 (1931) ............. 6

v

TABLE OF AUTHORITIES – Continued

Page

McDonnell v. United States, 579 U.S. 550 (2016).......14

Miller v. Florida, 482 U.S. 423 (1987) ..........................7

Morisette v. United States, 342 U.S. 246 (1952) .........16

Moskal v. United States, 498 U.S. 103 (1990) ............11

Percoco v. United States, 598 U.S. 319 (2023) ..............6

Peugh v. United States, 369 U.S. 530 (2013) ................8

Powell v. Texas, 392 U.S. 514 (1968) ...........................18

Ratzlaf v. United States, 510 U.S. 135 (1994) ...... 14, 15

Simpson v. United States, 435 U.S. 6 (1978) ................7

United States v. Aguilar, 55 U.S. 593 (1995) ..............13

United States v. Bass, 404 U.S. 336 (1971)............. 9, 10

United States v. Batchelder, 442 U.S. 114 (1979) .........7

United States v. Cardiff, 344 U.S. 174 (1952) .......... 6, 7

United States v. Davis, 588 U.S. ___, 139 S. Ct.

2319 (2019) .......................................................... 8, 14

United States v. Fischer, 64 F.4th 329 (D.C. Cir.

2023) .................................................................... 2, 19

United States v. Gradwell, 243 U.S. 476 (1917) ...........6

United States v. Granderson, 511 U.S. 39 (1994) .......11

United States v. Harriss, 347 U.S. 612 (1954) ............13

United States v. Hudson, 11 U.S. (7 Cranch) 32

(1812) .......................................................................10

vi

TABLE OF AUTHORITIES – Continued

Page

United States v. Miller, 589 F. Supp. 3d 60

(D.D.C. 2022), rev’d sub nom. United States

v. Fischer, 64 F.4th 329 (D.C. Cir. 2023) ........... 19-25

United States v. Open Boat, 27 F. Cas. 364

(C.C.D. Me. 1829).....................................................11

United States v. Stevens, 559 U.S. 460 (2010) ............14

United States v. Wilson, 28 F. Cas. 699 (C.C.E.D.

Pa. 1830) ....................................................................9

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76

(1870) ................................................................... 9, 10

Western Fuels – Utah, Inc. v. Federal Mine Safety

& Health Rev. Comm’n, 870 F.2d 711 (D.C. Cir.

1989) ..................................................................... 18

Whalen v. United States, 445 U.S. 684 (1980) ............26

Wooden v. United States, 595 U.S. 360 (2022) .... 5, 10, 25

Yates v. United States, 574 U.S. 528 (2015) ..................5

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. V ...................................................5

U.S. CONST. amend. XIV, § 1 .........................................5

U.S. CONST. art. I, § 1 ....................................................9

U.S. CONST. art. II, § 3 ................................................14

vii

TABLE OF AUTHORITIES – Continued

Page

STATUTES

18 U.S.C. § 111 ........................................................ 2, 15

18 U.S.C. § 111(a) ...................................................... 1, 2

18 U.S.C. § 1512 .......................................... 3, 16, 20, 21

18 U.S.C. § 1512(c) .................................. 2, 3, 22, 24, 25

18 U.S.C. § 1512(c)(1) ........................................ 3, 20, 21

18 U.S.C. § 1512(c)(2) ................... 1-4, 7, 8, 12-17, 19-26

OTHER AUTHORITIES

WM. BLACKSTONE, COMMENTARIES ON THE LAWS

OF ENGLAND (1765) ............................................ 12, 18

Brief for Christopher Warnagiris et al. as Amici

Curiae Supporting Petitioners, Lang v. United

States (No. 23-32) and Miller v. United States

(No. 23-94) (U.S. Aug. 30, 2023) ..............................16

THE FEDERALIST No. 51 (James Madison) ....................9

THE FEDERALIST No. 81 (Alexander Hamilton) ..........12

THE FEDERALIST No. 84 (Alexander Hamilton) ............5

OLIVER WENDELL HOLMES, JR., THE COMMON LAW

(1881) .......................................................................10

W. LAFAVE, SUBSTANTIVE CRIMINAL LAW (2003) ..........18

Multiplicity, BLACK’S LAW DICTIONARY (9th ed.

2009) ..................................................................... 26

Press Release, United States Attorney’s Office for

the District of Columbia, Three Years Since the

Jan. 6 Attack on the Capitol (Jan. 6, 2024)...............17

viii

TABLE OF AUTHORITIES – Continued

Page

JOSEPH STORY, A FAMILIAR EXPOSITION OF THE

CONSTITUTION OF THE UNITED STATES (1840) ..........11

United States Sentencing Commission, GUIDELINES MANUAL (Nov. 2021) ..................................... 7, 8

1

INTEREST OF THE AMICI CURIAE1

Amici Christopher Warnagiris, Christopher Carnell,

and William Robert Norwood, III are defendants in

three criminal prosecutions pending in the United

States District Court for the District of Columbia. Each

amicus’s indictment charges the defendant with violation of Title 18, United States Code, § 1512(c)(2), the

statutory provision at issue in the present case. Each

amicus attended the election protest on January 6,

2021, and entered the United States Capitol Building.

The Petitioner challenges a D.C. Circuit ruling that affects these amici’s pending criminal cases. The Court’s

ruling will control the proceedings and affect outcomes

in the trials of amici curiae Warnagiris, Carnell and

Norwood.

Christopher Warnagiris is the defendant in Case

No. 1:21-CR-382-PLF (D.D.C.). The Second Superseding Indictment in that case charges Warnagiris

with nine counts, including violations of 18 U.S.C.

§ 1512(c)(2) and 18 U.S.C. § 111(a). Warnagiris has

moved to dismiss the § 1512(c)(2) charge, and that motion was denied in the district court. The District Court

has set the Warnagiris trial for April 1, 2024.

Christopher Carnell is the defendant in Case No.

1:23-CR-139-BAH (D.D.C.). The Indictment charges

Carnell with six counts, including violation of 18 U.S.C.

§ 1512(c)(2). Carnell’s indictment does not charge

1

Rule 37 Statement: No part of this brief was authored by

any party’s counsel, and no person or entity other than amici

funded its preparation or submission.

2

felony assault under 18 U.S.C. § 111(a). Carnell has

moved to dismiss the charge under § 1512(c), and that

motion was denied in the district court. The District

Court has set the Carnell trial for February 12, 2024.

Robert Norwood is the defendant in Case No. 1:21CR-233-CJN (D.D.C.). The Superseding Indictment

charges Norwood with seven counts, including violation of 18 U.S.C. § 1512(c)(2). Norwood’s indictment

does not charge felony assault under 18 U.S.C. § 111(a).

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

and the district court has deferred ruling on that motion pending the Court’s ruling in this case. The district court has set trial of Robert Norwood for August

26, 2024.

Amici Carnell and Norwood have not been charged

with assault. Both have argued to the district court

that, based on the lack of a clear majority opinion in

United States v. Fischer, a narrow reading of the panel

opinions requires the Government to charge both § 111

and § 1512(c)(2) in the same indictment, when there is

no allegation of witness tampering, or evidence impairment, in order to sustain the § 1512(c)(2) charge.

---------------------------------♦---------------------------------

STATUTORY PROVISION INVOLVED

Subsection (c) of § 1512, Title 18, United States

Code, provides:

3

§ 1512. Tampering with a Witness, Victim, or Informant

....

(c)

Whoever corruptly –

(1) Alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with intent

to impair the object’s integrity or

availability for use in an official proceeding; or

(2) Otherwise obstructs, influences or

impedes any official proceeding, or

attempts to do so,

Shall be fined under this title or imprisoned

not more than 20 years, or both.

18 U.S.C. § 1512(c).

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

With its ruling below, the D.C. Circuit expands the

statute at 18 U.S.C. § 1512(c)(2) beyond the text and

intended limits that Congress wrote. Conflicting panel

opinions do not reconcile, leaving Joseph Fischer again

indicted under § 1512(c)(2), and the three present

amici with no clear guidance to their own fates. Other

defendants, not only those presently indicted in the

District of Columbia, but those charged in the future

and across all the United States District Courts, face

4

equally dark uncertainty as they confront and defend

unclear criminal charges.

Left uncorrected, the lower court ruling threatens

prosecution of supposed judicial administration crimes

across the United States, for ostensibly any reason or

conduct extending beyond the courtroom and judicial

process, yet somehow near any official event. Stretching the statute beyond its previously known contours,

the Government indictments can aim at all manner of

conduct to criminalize acts that unsuspecting defendants without fair notice believed to be not criminal,

and to amplify misdemeanors into felonies, all with ex

post facto effect.

The Government’s policy and the D.C. Circuit’s

adoption of that interpretation of the law violate principles of due process. Both the Executive and the Judiciary branches in so doing are rewriting the law at 18

U.S.C. § 1512(c)(2), in violation of the constitutional

separation of powers.

The Court should reverse the judgment of the D.C.

Circuit.

---------------------------------♦---------------------------------

5

ARGUMENT

I.

The Government’s interpretation of the

statute violates Due Process and the Rule

of Lenity.

A. The Rule of Lenity furthers dual Constitutional values.

“Since the founding, lenity has sought to ensure

that the government may not inflict punishment on

individuals without fair notice and the assent of the

people’s representatives.” Wooden v. United States, 595

U.S. at 392 (Gorsuch, J., concurring). It “is appropriate,

before we choose the harsher alternative, to require

that Congress should have spoken in language that is

clear and definite.” Yates v. United States, 574 U.S. 528,

548 (2015); Cleveland v. United States, 531 U.S. 12, 25

(2000) (“ambiguity concerning the ambit of criminal

statutes should be resolved in favor of lenity.”).

1. Due Process and fair notice

Due Process principles in the Fifth and Fourteenth Amendments to the Constitution call for clear

and fair notice to all persons of what actions or behaviors will constitute crimes. U.S. CONST. amend. V; id.

amend. XIV, § 1. Individuals “can suffer penalties only

for violating standing rules announced in advance.”

Wooden, 595 U.S. at 390-91 (Gorsuch, J., concurring);

see THE FEDERALIST No. 84 (Alexander Hamilton); see

also Bittner v. United States, 598 U.S. 85, 102 (2023);

Dubin v. United States, 599 U.S. 110, 135-36 (2023)

(“due process means that criminal statutes must

6

provide rules ‘knowable in advance.’ ”) (citing Percoco

v. United States, 598 U.S. 319, 337 (2023) (Gorsuch, J.,

concurring)); Johnson v. United States, 576 U.S. 591,

595 (2015) (“the constitutional minimum of due process . . . provide[s] ordinary people with fair notice of

the conduct [the laws] punish”) (cleaned up).

When a law does not clearly identify what it prohibits, the defendant always merits the benefit of the

doubt and Lenity excuses the conduct. Bouie v. City of

Columbia, 378 U.S. 347, 349 (1964) (reversing trespass

convictions for failure “to afford fair warning that the

conduct for which they have now been convicted had

been made a crime”); see McBoyle v. United States, 283

U.S. 25, 27 (1931) (Holmes, J.) (“fair warning should

be given to the world in language that the common

world will understand, of what the law intends to do if

a certain line is passed.”); United States v. Gradwell,

243 U.S. 476, 485 (1917) (“before a man can be punished as a criminal under the Federal law his case

must be ‘plainly and unmistakably’ within the provisions of some statute”); Harrison v. Vose, 50 U.S. (9

How.) 372, 378 (1850) (“In the construction of a penal

statute, it is well settled, also, that all reasonable

doubts concerning its meaning ought to operate in favor of the respondent.”). See also Huddleston v. United

States, 415 U.S. 814, 834 n.* (1974) (Douglas, J., dissenting) (failure to apply the rule of lenity “is only another device as lacking in due process as Caligula’s

practice of printing the laws in small print and placing

them so high on a wall that the ordinary man did not

receive fair warning.”); United States v. Cardiff, 344

7

U.S. 174, 176 (1952) (“The vice of vagueness in criminal

statutes is the treachery they conceal either in determining what persons are included or what acts are prohibited.”).

The Rule of Lenity applies equally to sentencing

as to substantive provisions. United States v. Batchelder, 442 U.S. 114, 121 (1979); Simpson v. United States,

435 U.S. 6, 14-15 (1978). When the D.C. Circuit enlarged the application of § 1512(c)(2) to make a felon of

a trespass misdemeanant, it “foreclosed his ability to

challenge the imposition of a sentence longer than his

presumptive sentence under the old” interpretation of

the law. Miller v. Florida, 482 U.S. 423, 433 (1987) (retrospective increase in sentencing violates the prohibition of ex post facto laws); see also Lankford v. Idaho,

500 U.S. 110, 121 (1991) (noting “the importance we attach to the concept of fair notice as the bedrock of any

constitutionally fair procedure”).

Appendix A to the Guidelines Manual of the

United States Sentencing Commission directs sentence calculation for the offense of conviction under 18

U.S.C. § 1512(c)(2) to Guideline 2J1.2 in Chapter 2 of

the Guidelines. United States Sentencing Commission,

GUIDELINES MANUAL (“U.S.S.G.”), app. A, at p. 566 (Nov.

2021). That Guidelines section focuses exclusively on

crimes and conduct directed toward judicial proceedings, witnesses and evidence. See, e.g., U.S.S.G. § 2J1.1

(Contempt of Court); id. § 2J.12 (Obstruction of Justice); id. § 2J1.3 (Perjury or Subornation of Perjury;

Bribery of Witness); id. § 2J.1.4 (Impersonation); id.

§ 2J1.5 (Failure to Appear by Material Witness); id.

8

§ 2J1.6 (Failure to Appear by Defendant); id. § 2J1.9

(Payment to Witness). This constrained focus corroborates the longtime presumption born of precedent and

experience, that § 1512(c)(2) is properly applied to

crimes of judicial administration. Pet. App. 17; 64 F.4th

at 339 (“there is no precedent for using § 1512(c)(2) to

prosecute the type of conduct at issue in this case.”)

(Pan, Cir. J.).

Redirecting those portions of the Guidelines to encompass the breadth of conduct the Government now

seeks to charge, is no less a denial of fair warning or

an ex post facto change in the established penalties.

See Peugh v. United States, 369 U.S. 530 (2013) (application of higher Guidelines at sentencing than existed

at the time of crime’s commission violates the ex post

facto clause); Carmell v. Texas, 529 U.S. 513, 533 (2000)

(“There is plainly a fundamental fairness interest,

even apart from any claim of reliance or notice, in having the government abide by the rules of law it establishes to govern the circumstances under which it can

deprive a person of his or her liberty or life.”).

Without proper notice to the defendant that

specified conduct is prohibited, an ambiguous law violates Due Process. The “first essential of due process

of law is that statutes must give people of common intelligence fair notice of what the law demands of

them.” United States v. Davis, 588 U.S. ___, ___, 139

S. Ct. 2319, 2325 (2019) (cleaned up); Connally v.

Gen. Constr. Co., 269 U.S. 385, 391 (1926). The plain

ambiguity of § 1512(c)(2) denies any defendant notice

9

of prohibited conduct, and of the severe punishment

that follows.

2. Separation of Powers

The Rule of Lenity upholds separation of powers

principles in the Constitution. All legislative power lies

with the Congress, and the Rule safeguards the lawmaking monopoly granted to Congress in Article I by

not permitting the courts or executive agencies to enact criminal law or rules with criminal sanctions. U.S.

CONST. art. I, § 1 (“All legislative Powers herein

granted shall be vested in a Congress of the United

States”); THE FEDERALIST No. 51, at 321 (James Madison) (new national laws restricting liberty require

assent of the nation’s “many parts, interests and classes”); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76,

95 (1870) (Marshall, C.J.) (the Rule of Lenity keeps the

power of punishment fairly “in the legislative, not in

the judicial department. It is the legislature, not the

Court, which is to define a crime, and ordain its punishment.”); United States v. Wilson, 28 F. Cas. 699, 709

(C.C.E.D. Pa. 1830) (No. 16,730) (noting “the plain and

universal principle that the power of punishment is

vested in the legislature and not in the judicial department”).

Only the legislative body explicitly granted power

as the elected representatives of the people may make

laws. U.S. CONST. art. I, § 1; United States v. Bass, 404

U.S. 336, 348 (1971) (“because of the seriousness of

criminal penalties, and because criminal punishment

10

usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity”); cf. OLIVER WENDELL HOLMES, JR., THE

COMMON LAW 41 (1881) (“The first requirement of a

sound body of law is, that it should correspond with the

actual feelings and demands of the community.”).

“The role of this Court is to apply the statute as

written – even if we think some other approach might

accord with good policy.” Burrage v. United States, 571

U.S. 204, 218 (2014) (cleaned up); see also United States

v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812) (federal

courts have no criminal jurisdiction, except what is

given by statute).

“[I]t is Congress’s responsibility to unambiguously

define the scope of criminal conduct.” Cargill v. Garland, 57 F.4th 447, 472 n.13 (5th Cir. 2023) (per curiam) (“Congress having failed to do so, we deploy

lenity to retain the proper allocation of legislative

power, not unsettle it.”), cert. granted, ___ U.S. ___, 144

S. Ct. 374 (Nov. 3, 2023). No person should be held at

risk in liberty or property unless such a law clearly and

specifically sets out the elements of the crime. Wooden,

595 U.S. at 392 (Gorsuch, J., concurring) (the Rule of

Lenity “seeks to ensure people are never punished for

violating just-so rules concocted after the fact, or rules

with no more claim to democratic provenance than a

judge’s surmise about legislative intentions.”); Bass,

404 U.S. at 347 (“it is appropriate, before we choose the

harsher alternative, to require that Congress should

have spoken in language that is clear and definite.”);

Wiltberger, 18 U.S. (5 Wheat.) at 96 (to “determine that

11

a case is within the intentions of a statute, its language

must authorize us to say so.”).

In like manner, the clear distinction between legislative and judicial conduct prevents blurring of the

boundaries between the Congress and the courts and

permits the judiciary to retain its singular focus on interpreting the laws as they are written. The “Constitution prohibits the Judiciary from resolving reasonable

doubts about a criminal statute’s meaning by rounding

up to the most punitive interpretation its text and context can tolerate.” Dubin, 599 U.S. at 134 (Gorsuch, J.,

concurring); United States v. Granderson, 511 U.S. 39,

68 (1994) (Kennedy, J., concurring) (“It is beyond our

province to rescue Congress from its drafting errors,

and to provide for what we might think, perhaps along

with some Members of Congress, is the preferred result”); Moskal v. United States, 498 U.S. 103, 132 (1990)

(Scalia, J., dissenting) (“The temptation to stretch the

law to fit the evil is an ancient one, and it must be resisted”); Huddleston, 415 U.S. at 831 (“The rule is also

the product of an awareness that legislators and not

the courts should define criminal activity”); United

States v. Open Boat, 27 F. Cas. 364, 357 (C.C.D. Me.

1829) (No. 15, 968) (Story, J.) (“Even where cases lie

within the same mischief, if they are not provided for

in the text of the act, courts of justice do not adventure

on the usurpation of legislative authority to meet

them.”). See also JOSEPH STORY, A FAMILIAR EXPOSITION

OF THE CONSTITUTION OF THE UNITED STATES § 297 *180

(1840) (“No remark is better founded in human experience than that of Montesquieu, that ‘there is no liberty,

12

if the judiciary be not separated from the legislative

and executive powers.’ ”).

A further argument against judicial overreach to

fill a legislative gap with the Court’s own supposition,

is that such drafting error can easily be corrected by

Congress, while Congress cannot correct a case-specific

court ruling. “A legislature, without exceeding its province, cannot reverse a determination once made in a

particular case; though it may prescribe a new rule for

future cases.” THE FEDERALIST No. 81, supra, at 483

(Alexander Hamilton).

B. The Government’s expanded definition

of § 1512(c)(2) exceeds Constitutional

limits.

1. No fair warning preceded the broad

expansion of the scope of this law.

“[H]ere it is impossible that the party could foresee that an action, innocent when it was done, should

afterwards be connected to guilt by a subsequent law;

he had therefore no cause to abstain from it; and all

punishment for not abstaining must of consequence be

cruel and unjust.” 1 WM. BLACKSTONE, COMMENTARIES

ON THE LAWS OF ENGLAND *46 (1765).

“Deprivation of the right of fair warning can result

not only from vague statutory language, but also from

an unforeseeable and retroactive judicial expansion of

narrow and precise statutory language.” Bouie, 378

U.S. at 352. The lead opinion admits forthrightly that

“there is no precedent for using § 1512(c)(2) to

13

prosecute the type of conduct at issue in this case.” Pet.

App. 17; 64 F.4th at 339 (Pan, Cir. J.).

The Constitutional requirement of definiteness is violated by a criminal statute that fails

to give a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden by the statute. The underlying principle

is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.

United States v. Harriss, 347 U.S. 612, 617 (1954). No

protestor on January 6, 2021, had warning that a political protest that ran out of control equated to a 20year felony for destruction of evidence or threatening

witnesses.

“If the defendant lacks knowledge that his actions

are likely to affect the . . . proceeding, he lacks the

requisite intent to obstruct.” Arthur Andersen LLP v.

United States, 544 U.S. 696, 708 (2005) (citing United

States v. Aguilar, 55 U.S. 593, 599 (1995)). “A broad interpretation would also risk the lack of fair warning

and related kinds of unfairness.” Marinello v. United

States, 584 U.S. ___, 138 S. Ct. 1101, 1108 (2018).

2. The

prosecution’s

stretch

of

§ 1512(c)(2) to engulf all manner of

conduct transgresses the separation

of powers.

The Court has made it clear, it “cannot construe

a criminal statute on the assumption that the

14

Government will use it responsibly.” Dubin, 599 U.S. at

131 (cleaned up); Marinello, 584 U.S. at ___, 138 S. Ct.

at 1109; McDonnell v. United States, 579 U.S. 550, 576

(2016); United States v. Stevens, 559 U.S. 460, 480

(2010) (“We would not uphold an unconstitutional statute merely because the Government promised to use it

responsibly.”).

“This prosecution is itself evidence of the danger

in putting faith in government representations of prosecutorial restraint.” Stevens, 559 U.S. at 480. By expanding § 1512(c)(2) through mere implication of

unlawful activity, of any kind, the prosecutor fails to

“take Care that the Laws are faithfully executed.” U.S.

CONST. art. II, § 3. Instead, by so doing, the prosecutor

takes upon himself the full license to rewrite the laws

and wield them on the unsuspecting and unintending

citizen whom the prosecutor disfavors for any reason.

See Ratzlaf v. United States, 510 U.S. 135, 143 (1994)

(rejecting argument of “[t]he United States [that] violators, by their very conduct, exhibit a purpose to do

wrong, which suffices” as mens rea.).

“Respect for due process and the separation of

powers suggests a court may not, in order to save Congress the trouble of having to write a new law, construe

a criminal statute to penalize conduct it does not

clearly prescribe.” United States v. Davis, 588 U.S. ___,

___, 139 S. Ct. 2319, 2333 (2019); Stevens, 599 U.S. at

481 (rewriting the law through interpretation “would

constitute a serious invasion of the legislative domain.”) (cleaned up).

15

II.

The Court should reverse the D.C. Circuit

judgment.

A. The D.C. Circuit’s ruling invites profligate abuse of the statute.

Left undisturbed, the D.C. Circuit judgment reverses the district court and restores the indictment

against Fischer. But all other present and future defendants facing § 1512(c)(2) charges suffer greater uncertainty than before the decision.

Amici Carnell and Norwood, for instance, have

not been charged with assault. The disharmony of the

three panel opinions would require the Government

to charge in the same indictment an assault under 18

U.S.C. § 111 as a predicate for § 1512(c)(2), when there

is no allegation of witness tampering or evidence impairment.

The question remains whether the Government

may prosecute amici via § 1512(c)(2) for attendance at

the protest, or other conduct not directed to evidence

impairment; nor can these amici yet know what level

of mens rea the Government must prove beyond a

reasonable doubt to convict amici. “Criminal offenses

requiring no mens rea have a generally disfavored status.” Liporata v. United States, 471 U.S. 419, 426 (1985)

(cleaned up); see Ratzlaf, 510 U.S. at 148 (“were we to

find [a mens rea] requirement ambiguous, as applied

. . . we would resolve any doubt in favor of the defendant.”). And whatever the standard now may be, amici

could not have known it on or before January 6, 2021.

16

“The contention that an injury can amount to a

crime only when inflicted by intention is no provincial

or transient notion. It is as universal and persistent

in mature systems of law as belief in freedom of the

human will and a consequent ability and duty of the

normal individual to choose between good and evil.”

Morisette v. United States, 342 U.S. 246, 250 (1952); see

also Liporata, 471 U.S. at 425.

This indeterminacy has already taken effect in

the district court as trial judges in the District of

Columbia consider proposed jury instructions for

§ 1512(c)(2). See Brief for Christopher Warnagiris et

al. as Amici Curiae Supporting Petitioners at App. 1,

Lang v. United States (No. 23-32) and Miller v. United

States (No. 23-94) (U.S. Aug. 30, 2023). The instruction

does not define “obstruct” or “Obstruction.” Cf. Arthur

Andersen LLP v. United States, 544 U.S. 696, 706

(2005) (reversing conviction under 18 U.S.C. § 1512

where “the jury instructions at issue simply failed to

convey the requisite consciousness of wrongdoing. . . .

The instructions also diluted the meaning of ‘corruptly’

so that it covered innocent conduct.”).

Problems grow exponentially with the volume of

January 6 related prosecutions by the Government in

the District of Columbia. A search of the clerk of

court’s online docket for indictments charging

§ 1512(c)(2) since January 7, 2021, revealed 255 cases.2

2

The online portal for the U.S. District Court for the District

of Columbia Clerk’s Office Case Management/Electronic Case Filing system (CM/ECF) permits query of the dockets for all filed

cases. A search was made on Jan. 30, 2024, for all charged felony

17

See also Press Release, United States Attorney’s Office

for the District of Columbia, Three Years Since the

Jan. 6 Attack on the Capitol (Jan. 6, 2024) (“More

than 332 [January 6] defendants have been charged

with corruptly obstructing, influencing, or impeding

an official proceeding, or attempting to do so.”),

https://www.justice.gov/usao-dc/36-months-jan-6-attackcpitol-0.

The Court should consider that continued prosecution under the expanded § 1512(c)(2) will have farreaching impact in the traditional administration of

justice crimes of witness tampering and intimidation,

evidence impairment, and other yet unknown new conceptions of obstruction, arising in routine federal judicial proceedings.

The Court should reverse the D.C. Circuit to

forestall inconsistent outcomes and unintended consequences in both traditional and innovative prosecutions under the witness tampering and obstruction of

justice statutes.

B. The three divergent opinions below do

not reconcile, and they provide no clear

guidance for application of 18 U.S.C.

§ 1512(c)(2).

Basic principles of criminal law establish two elements to any crime: culpable conduct (actus reus); and

counts of 18 U.S.C. § 1512(c)(2), in both disposed and pending

cases, which identified 255 cases.

18

the necessary state of mind (mens rea). See, e.g., 1 W.

LAFAVE, SUBSTANTIVE CRIMINAL LAW § 5.5, at 381

(2003) (“For several centuries (at least since 1600) the

different common law crimes have been so defined as

to require for guilt, that the defendant’s acts or omissions be accompanied by one or more of the various

types of fault (intention, knowledge, recklessness or –

more rarely – negligence.”); see also 4 BLACKSTONE,

supra, *21 (“Indeed, to make a complete crime, cognizable by human laws, there must be both a will and

an act. . . . So that, to constitute a crime against human laws, there must be, first a vitious will; and, secondly, an unlawful act consequent upon such vitious

will.”). See Elonis v. United States, 575 U.S. 723, 734

(2015) (“wrongdoing must be conscious to be criminal. . . . [T]he general rule is that a guilty mind is a

necessary element in the indictment and proof of every

crime.”) (cleaned up); Western Fuels – Utah, Inc. v. Federal Mine Safety & Health Rev. Comm’n, 870 F.2d 711,

713 (D.C. Cir. 1989) (“The general rule of both civil

and criminal responsibility is that a person is not liable for a harm done unless he caused it by his action

(actus reus), and did so with a certain intent (mens

rea).”); see generally Powell v. Texas, 392 U.S. 514, 53536 (1968) (“We cannot cast aside the centuries-long

evolution of the collection of interlocking and overlapping concepts which the common law has utilized to

assess the moral accountability of an individual for his

antisocial deeds.”). The lower court opinions present

contradictory approaches to this offense’s elements.

19

The district court, in a detailed and thorough

analysis, examined 18 U.S.C. § 1512(c)(2), then applied

its analysis to the Petitioners’ indictments. Judge

Nichols discerned limiting factors that placed the

crime within a subset category of conduct, and, on

those criteria, rejected the application of § 1512(c)(2) to

Fischer and similarly charged defendants, without

considering mens rea. Pet. App. 110, 116. United States

v. Miller, 589 F. Supp. 3d 60 (D.D.C. 2022), rev’d sub

nom. United States v. Fischer, 64 F.4th 329 (D.C. Cir.

2023).

On review by the Court of Appeals, the panel issued three opinions. Pet. App. 1; United States v.

Fischer, 64 F.4th 329 (D.C. Cir. 2023). Close reading of

the opinions finds no consensus or majority as to either

the conduct prohibited, nor the minimal level of intent

to commit the crime, in the statute.

1. The D.C. Circuit opinions make everything and nothing culpable conduct.

No two of the three opinions agree on enough to

instruct a prosecutor or defense attorney, what conduct

can be charged or how to defend the charge.

The dissent alone narrowly limits the relevant

conduct to witness tampering, forgery, evidence spoliation and the like. The other two opinions both accept

any independently unlawful conduct as actus reus –

thereby importing anything and everything as conduct

that violates any other law. Nothing unique or distinctive qualifies the resultant § 1512(c)(2); that language

20

now calls for nothing distinctive or additional to criminalize conduct. Yet the 20-year maximum penalty will

apply to anything otherwise unlawful.

The present three amici highlight this problem

with their cases. In each instance, the stretching of

§ 1512(c)(2) results in a defendant who commits a

misdemeanor trespass, with a maximum six-month

penalty, transformed into a judicial administration

felon, facing a twenty-year prison sentence. Such was

not the intent of Congress, nor could any defendant

have foreseen it.

The district court interpreted § 1512 to conform

subsections 1512(c)(1) and (c)(2) to each other. Pet.

App. 116; 589 F. Supp. 3d at 67. With subsection (1)

proscribing acts to “alter, destroy, mutilate or conceal

a record, document or other object,” both parties

agreed with the district court that the crux was the

meaning of “otherwise” in subsection (2) to determine

what additional conduct (2) covers. Id. Judge Nichols

concluded “that § 1512(c)(2) must be interpreted as

limited by subsection (c)(1), and thus 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.

In rejecting the Government’s broader view, Judge

Nichols noted the danger that subsection (c)(2), if read

too broadly, essentially swallows up subsection (c)(1) –

and thereby challenges why Congress would have

21

bothered to specify the subset of conduct in (c)(1) at all.

Reading (c)(2) to include (c)(1)

would also create substantial superfluity

problems. After all, if subsection (c)(2) is not

limited by subsection (c)(1), then the majority

of § 1512 would be unnecessary. . . . But here,

such substantial overlap within the same

section suggests that Congress did not mean

§ 1512(c)(2) to have so broad a scope.

589 F. Supp. 3d at 73-74 (emphasis added).

No two of the three circuit judges agreed what

conduct violates the statute. Judge Pan read § 1512(c)(2)

directly contrary to the district court’s reading, to prohibit “all forms of obstructive conduct that are not covered by subsection (c)(1).” Pet. App. 14; 64 F.4th at 33637. This broad scope includes the assaultive conduct

charged against Fischer (and amicus Warnagiris). In

this view, the statute “plainly extends to a wide range

of conduct.” Pet. App. 17; 64 F.4th at 339. The limits to

any acts prosecuted would lie only in the statute’s requirements that the defendant act “corruptly” (see below) and “the behavior must target an official

proceeding.” Pet. App. 17; 64 F.4th at 339.

The “concurring” opinion also viewed the culpable

conduct as broad. Judge Walker agreed, without considering other conduct, that Fischer’s alleged assaults

“are the kind of obstructive conduct proscribed by

(c)(2).” Pet. App. 42; 64 F.4th at 351. So long as the

charged act “meets the test of independently unlawful

conduct,” Pet. App. 19; 64 F.4th at 340, the next and

22

decisive criterion would be whether the act was done

“corruptly.” Pet. App. 42; 64 F.4th at 351-52 (“(c)(2) has

a broad act element”). By accepting the charged assaults as presumptively sufficient to § 1512(c)(2), but

going no further, this opinion sustained the indictment

of Fischer, but it leaves other defendants bereft of guidance – especially those who did not commit assault.

The dissenting opinion read § 1512(c) as constrained to an evidence-focused interpretation, “applying section 1512(c) only to acts that affect the integrity

or availability of evidence.” Pet. App. 65-66; 64 F.4th at

363. Agreeing with the district court’s analysis, the

dissent identified conduct impairing relevant evidence

or testimony, without concern to define or explore the

necessary mens rea. Pet. App. 102; 64 F.4th at 382 (“Rather than try to extract meaningful limits out of that

broad and vague adverb [‘corruptly’], we should have

acknowledged that Congress limited the actus reus to

conduct that impairs the integrity or availability of

evidence.”).

2. Mens Rea eludes definition in the

panel opinions.

As with the problem of defining culpable conduct,

so too, the three opinions do not define the mental state

providing criminal mens rea.

Judge Pan interpreted § 1512(c)(2) to have a mens

rea level as capacious or flexible as the corresponding

actus reus criteria – importing the mental state of the

already otherwise unlawful act. Pet. App. 18; 64 F.4th

23

at 340 (corrupt intent exists “when an obstructive action is independently unlawful”). This follows from the

opinion’s allowance for any unlawful act to double as

act of obstruction under the statute: Section 1512(c)(2)

thereby adopts the mens rea of that imported crime.

The mental state for § 1512(c)(2) would therefore be

as high or as low a bar as would match the criminal

conduct any prosecutor chose to indict, and otherwise

unpredictable, or unforeseeable by any potential defendant.

The lead opinion did not define a more precise

criminal intent, satisfied merely to find Fischer culpable. Pet. App. 18-19; 64 F.4th at 340 (“The sufficiency of

the indictments in this case does not turn on the precise definition of ‘corruptly.’ Because the task of defining ‘corruptly’ is not before us and I am satisfied that

the government has alleged conduct by appellees sufficient to meet that element, I leave the exact contours

of ‘corrupt’ intent for another day.”).

Judge Walker found a limiting principle in the

word “corruptly.” Pet. App. 42; 64 F.4th at 351 (“I believe we must define that mental state to make sense

of (c)(2)’s act element.”) (emphasis original). Whatever

the offending act, it must be done “with an intent to

procure an unlawful benefit either for himself or for

some other person.” Pet. App. 42; 64 F.4th at 352. “The

defendant must not only know he was obtaining an unlawful benefit, it must also be his objective or purpose.”

Pet. App. 42; 64 F.4th at 352 (cleaned up).

24

The dissent rejected that definition of “corruptly,”

considering specific criminal intent applicable only in

tax prosecutions. Pet. App. 100; 64 F.4th at 381 (“The

concurrence’s approach thus requires transplanting

into § 1512(c)(2) an interpretation of corruptly that appears to have been used so far only in tax law.”). Instead, the dissent took the route of the district court to

narrow the subject conduct, limiting the scope and

reach of the statute. Pet. App. 102; 64 F.4th at 382 (“Rather than try to extract meaningful limits out of that

broad and vague adverb, we should have acknowledged

that Congress limited the actus reus to conduct that

impairs the integrity or availability of evidence.”).

The net effect of these three opinions is to leave

§ 1512(c)(2) bereft of any clear mens rea element. At

one end of the spectrum, Judge Pan dismisses concern

over mens rea, so long as the conduct is obstructive,

otherwise unlawful, and directed toward an official

proceeding. At the other end, Judge Walker requires a

specific intent to seek an improper benefit for oneself or another. The dissent requires only a knowing

mental state, but strictly limits chargeable acts to

conduct that impedes a witness or otherwise impairs

evidence.

3. Section 1512(c) has become unmoored

and ill-defined.

The supposed majority opinions both read the

statute broadly, but they agree only to reverse the

district court judgment. Pet. App. 40; 64 F.4th at 351

25

(“Appellees’ alleged conduct falls comfortably within

the plain meaning of ” § 1512(c)); Pet. App. 61; 64 F.4th

at 361 (“Even under the proper, narrow reading of

‘corruptly,’ the indictments should be upheld.”). Outside the narrow context of Fischer’s case, the two opinions do not converge. Compare Pet. App. 21; 64 F.4th at

340-41 (“It is more prudent to delay addressing the

meaning of corrupt intent” to a later case) with Pet.

App. 63 n.10; 64 F.4th at 363 & n.10 (“my reading of

‘corruptly’ is necessary to my vote to join the lead opinion’s proposed holding.”).

Beyond those specific assaults charged, the opinions implacably disagree: Judge Walker’s concurrence

expressly conditions a holding upon the definition of

“corruptly” to qualify charged conduct. Pet. App. 63

n.10; 64 F.4th at 362 & n.10 (“If I did not read ‘corruptly’ narrowly, I would join the dissenting opinion.”).

But Judge Pan explicitly rejects such a condition. Pet.

App. 22 & n.5; 64 F.4th at 341 & n.5 (“a majority of the

panel has expressly declined to endorse the concurrence’s definition of ‘corruptly’.”). There are three disparate views of mens rea. Cf. Wooden v. United States,

595 U.S. 360, 378 (2022) (Kavanaugh, J., concurring)

(“The deeply rooted presumption of mens rea generally

requires the government to prove the defendant’s

mens rea with respect to each element of a federal offense.”).

With every unlawful act now chargeable under

§ 1512(c)(2), so long as there is nexus to an official proceeding, no specific standard informs the statute. Pet.

App. 96; 64 F.4th at 379 (“the actus reus posited here

26

would sweep in any conduct that influences or affects

an official proceeding.”) (Katsas, Cir. J., dissenting).

Without distinct, characteristic elements, the

§ 1512(c)(2) offense when charged becomes multiplicitous. See Whalen v. United States, 445 U.S. 684, 69192 (1980) (“multiple punishments cannot be imposed

for two offenses arising out of the same criminal transaction unless each offense requires proof of a fact

which the other does not. . . . The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different

statutes.”) (cleaned up); Blockburger v. United States,

284 U.S. 299 (1932) (unless each offense requires

proof of different facts, charges are multiplicitous). See

also Multiplicity, BLACK’S LAW DICTIONARY (9th ed.

2009) (“The improper charging of the same offense in

more than one count of a single indictment or information.”).

In other words, § 1512(c)(2) now adds no distinct

and separate offense to an indictment; rather, it doubles another charged offense in a second, repetitive

count, in any indictment that would charge § 1512(c)(2)

together with the “independently unlawful act” comprising the predicate offense conduct – while it also enlarges the penalty.

---------------------------------♦---------------------------------

27

CONCLUSION

The Court should reverse the judgment of the

Court of Appeals.

Respectfully submitted,

THEODORE M. COOPERSTEIN

Counsel of Record

CLOUTHIER COOPERSTEIN PLLC

1020 Highland Colony Parkway

Suite 803

Ridgeland, MS 39157

(601) 397-2471

ted@msappellatelawyers.com

MARINA MEDVIN

MEDVIN LAW PLC

916 Prince Street

Alexandria, VA 22314

(888) 886-4127

contact@medvinlaw.com