before us check all the boxes for vagueness and delegation concerns that like to begin with vagueness and breath here the regulations provide little in the way of guidance and loads in the way of discretion such that neither provision comports with due process or fairness and its significance here for a number of reasons st of all we're not talking about rico conspiracies or hobbes acts robberies we're talking about a conviction that significant to miss mor board certified attorney respected by her peers who now is a criminal record for research where she was singled out for a conduct and criminally charged after she stood up for herself she's now a criminal despite the lack of an intent to create commit a criminal action or a clear violation of on her part she wasn't selling drugs she had no reason to think that a verbal argument was a private security guard make her a criminal the regulations here kess such a broad net that they can make you want to criminal and it's too much discretion for the executive branch this is particularly true where the regulations can criminalize otherwise benign conduct for example if a security guard out front of the courts and we were under normal operating procedures was instructing a crowd to wait in line to get in the building someone who tries to cut to the front line because of an emergency issue in their case or maybe a medical condition it's technically committed a crime if they disrupted the security guards or  for example a boisterous individual who might slow down a senator on the way to a vote within the capitol building to try and get a selfie and this concept doesn't jive with two process especially here where there was testimony that attorneys use phones in court all the time but it was in force against an attorney who the judge admittedly disliked not because she was sloppy or underhanded because she was too zealous and the constitutional failure here falls in line with this court's decision and little video while that's a case where protesters in virginia were threatened with arrest for violation of a loitering on a bridge statute that law cast so broad a sweep prosecute unpopular groups and this court found a void for vagueness similarly in two thousand and eighteen the supreme court noted the same objections with the statute that forbade corrupt obstructing the due administration of the internal revenue code in marin no adverse united states and that same principle spanned fact the city of chicago versus morality switch perhaps it delivering by gang members within the city so the question is what is vague about these regulations and what's impermissibly vague i would contend st term just rots that it borders on meaningless it's not a far cry from the term in the way which the supreme court found void for vagueness and codes the regulation doesn't say corruptly disrupt significantly disrupt or even disrupt the operations of governance and see it just disrupt a government employee if we allow any disruption of a government employee to constitute a criminal charge any one of us could become a criminal last year the th circuit noted similar reasoning in nowak it's the same term that justice course a chart on a baldwin and it's the same term that the district court nevada took issues with the regulation earlier this year contend that authorized employers also troublesome it's vague in a different sense and that no one knows who is and isn't authorized particular in the context of regulation that says it's a crime to fail to have a federal police and other authorized employees why would we mention federal police if we aren't suggesting that that term implies someone along the lines of federal police but i would say as applied the challenge also fails and if we want to kind of discuss the as applied angle i can i can go into that and recognize that my friends in the government have cited some precedents from this court as far as cas and y'all and she'll that are both cases i believe they were both from the seventy's i would contend that those cases are not are not binding on the court because they deal with the predecessor regulation that was had a lot of similarities but a few differences beyond that i would say that the intervening authority and little and marie  i would still say that this conduct provides too much discretion and i think if we if we look at cats and all the court the court said it doesn't require a high degree of intelligence to conclude that breaking through a lot of u s marshals guarding us she's a government building close to the public and then refusing to leave is a criminal offense so i think you know those folks they they probably wanted to be arrested they knew their conduct was conduct that would get them arrested whereas someone who disagrees with a bailiff especially where you've got a sign that says and then there is some back and forth about the side that you've got assigned seems to tell her she can use their phone and then you've got sort of an ad hoc decision by the bailiff for her not to use her phone and i don't think she realizes she's committed a crime and part of the reason for that is the regulations talk about failure to obey an authorized employee or a government and then there's a government official provision but when we talk about unauthorized employee if i see a u s marshal or homeland security officer and they tell me you need to do this i'm going to know that if i don't do it they're going to tell me i'm probably going to wind up in handcuffs  maybe there's a question a premise there but it least it's a rule that we understand but someone look at these regulations isn't going to understand that if an authorized individual is going to apply to a private contractor  even to an immigration judge and there's there's not any precedents that has been cited by either side that has recognized anyone but someone who is similar to a police officer as an authorized individual none of these in this country and they are private contractors so what we say is that they can maintain order and so on the corner no i believe they can maintain order and so i  would say sort of there's there's two issues there is st if if i if i'm in your courtroom and and i'm acting up and i'm playing on my cell phone and they're you can hold me in contempt if i'm doing that but but secondly as far as to see if those they can maintain order but if when the u s marshals come in and say you've got to stop and think those are clearly authorized individuals and so i think it's i  certainly understand and respect the c s o those and their work but if we're talking about holding someone to a criminal standard i don't think that we would necessarily recognize that a private security guard is an authorized individual at least i don't think it's clear enough to hold someone liable and then i certainly don't think that they should qualify as federal employees under the regulations  would say a reasonable person shouldn't be and should an anticipated name charge with a criminal offense for not obeying a federal employee when that person is not actually a federal employee that they're paid by a private company or in this case we don't know if that private company was maybe hired by another private company and so i think these distinctions are really critical we're talking about saddling criminal convictions and otherwise law abiding citizens  know especially in a case where we talked about a judge who didn't particularly care for this attorney and he discussed that he helped push the prosecution for he didn't ask for the citation but miss moriah was tried information and the judge talked about pushing this judge to proceed with the case so when we look at both the regulations there are a number of specific acts of conduct that it says are going to be illegal and when we look at the specifics like cursing shouting obstructing passageways throwing things out when there's an off bridges she didn't do that she she stood up for herself with this guard  and now she's become a criminal and maybe it's easy to kind of look at that and say maybe this isn't something that's that's a particularly significant case or a particularly significant punishment or maybe you know as they talked about she had her chances to get out of it but it's anything but that he does case this case doesn't just impact mr morial it but these regulations have started popping up more and more frequently in the law you pull up over the last two or three years as opposed to a handful of times over the decades before that and this is sort of my transition to non delegation but if we allow the executive branch to classify anything that it wants to it's a disturbance or anyone that this can be stretched to as an authorized employer a government employee then we're giving the executive branch more and more authority to flex its muscles and if there's one thing we've learned that if we give the exercise that authority it's going to exercise that authority in spades and that's why i would ask the court to rein in these regulations within non delegation the court has noted delegations raised particular concerns were criminal sanctions are involved and where you have regulations that are sort of couched in malice holes supreme court used in whitman and it's concerning here because congress didn't create duties today unspecified in the sort of government employees and maybe congress never would have done that it's potentially non popular idea especially where much of the population is concerned with infringements on their individual rights and being told what to do by government officials and these politically relevant and politically charged decisions should be made by the legislative branch and if there's any question regarding whether being told what to do can inflame political passions it's not hard to find examples in the midst of a pandemic all sides no matter which side they're on are fired up regarding authority to require mass to close businesses to keep kids home from schools news stories talk about fist fights breaking out in restaurants and airplanes and guns being pulled over these agree arguments but more broadly you've got a concern that people don't want to be told what to do by  that they have a duty to a day a federal employer an authorized individual every time they go to the post office to the so security building to the v a or any other federal building where they might have some business instead we've got a decision that was made by a branch that was not accountable to legislative constituents and it was buried in a code that no one knows when this st came up and people had to get on google and say what is this regulation or you know maybe in my case i had to start off by googling what is the g s a but then when we look to the cases that if talked about delegation to be is kind of got a lot of the bull running with talk intelligible principles and substantial guidance and does the statute do more than requests fact finding the delegating statute to set forth criteria to consider and by which to measure and to leave policy judgments the executive branch and i don't think we see any of that here and then if we process gandhi recognize that it's finding precedent for a fairly discrete set of all but it's still a plurality joint justice that concurred in the judgment but had serious reservations and you have a dissent that it's observed that congress can readily odes in the sea executive to fill in details and find facts and noted that those were sort  distinguishing features of cases that have upheld delegations but we can't just hand over the executive power to write its criminal code and that's what we've got here it's not a to be scenario or the executive engaged in fact finding  stake out dangerous drugs protect the public but it's sort of a secret back to our criminal catch all the executive can invoke when it when it wants to and how it can stand that there are many times that the executive could provisions the verdict would not be supported by a substantial evidence and the government's position is weakened where the magistrate judge didn't provide a verdict opinion and there are different alternate theories of guilt and we all agree with my friends in the government that harmless error would apply i disagree with the conclusion that the defense needs to show a constitutional error i think that relies on a specific language and carry on a that involved post conviction read i think it was court and this i think that and left the jury must have convicted her based on the correct interpretation the verdict can't stand so look at briefly at the two charges of st disrupting government employee if we set aside the district court conclusion that security guard is a government ploy and we have the one government employee who see immigration judge who's disturbance is limited to click and it's malice and be an annoyed and even if that sufficient for this court to find that it was a disruption it still leaves open its stansell possibility the magistrate judge convicted based on the alternative theory and i think that has some support in the record where the verdict discussion centered around the private security forces being disrupted on the nd count failing to comply with authorized individual i don't think there's a valid interpretation for someone in this moral issues would be required to recognize either good morning their owners may please the court anthony and write for the united states the district court properly convicted this moreno for her disruptive to petty offenses for disruptive conduct and charlotte immigration courtroom  i'll turn to the question of vagueness and nonviolent gauging which i think my friend spent the most amount of time on and i think the answer he's pretty straightforward in this case because we have the opinion which really resolves both questions it held a similar regulation and when i say similar it's really the predecessor to this one not vague and not an impermissible delegation under the under a pretty much identical delegation statute the statute at issue in cassiano all similar had a chain of specific conduct and then covered also any other unseemly or disorderly conduct on property much broader than the regulation for which mr mario was convicted which requires specifically  conduct that impedes or disrupt the performance of official duties and what this court held was that's not vague because we construe it in its context as for hitting conduct  on federal property which is intended to and does interfere with delay or impede the normal and orderly conduct of government business on such federal property so in other words the narrowing construction agonal applied is essentially what the statute is today and they held that is not vague that that's controlling your honor because it is essentially  that that case is a few years old i think it turns fifty this year but it applies with equal force if not greater force today where the statute is narrower also and i do believe the defense pursued this isn't as applied challenge if it's if it's a facial challenge you have to essentially show that it's begun all of its applications and there are plenty of examples provided by cases interpret ing the predecessor regulation the etc where that would be almost impossible but as applied certainly we're all familiar with the electronic device policies of pretty much every court i don't recall ever being in a court that didn't have an electronic the strong feelings about the use of electronic devices they can be disruptive and when a court tells you or communicate an hour through a bailiff don't use an electronic device that can be disruptive and then he was the title of some kind of uniform she was in a uniform she had patches she had a day and she sat in the bailiff seat in the courtroom and was one of the only people in the courtroom at the time because it was a closed asylum hearing so i don't think there's any dispute that she was on very clear notice this more yellows case and then the in the courtroom hearing that was an asylum proceeding which was a proceeding before the l o l or had been strong before the mines she had a bench trial before the magistrate judge who was a petty offense subject to i think offense case the district court doesn't really weigh the evidence they occupy the same role as this court ordinarily does and so there's basically two levels of appellate review so the district court essentially perform the same function that this court's being asked for and the court provided an opinion and it's in the joint appendix and i think both parties have cited it essentially i don't think the facts are large largely the facts are largely undisputed mis the factual the facts that we would rely on are the facts that are in the trial transcript that the evidence show taken in the light most favorable to us if this to the extent this court disagree i think the the district court's opinion is a fair summary of those facts to the extent this court disagrees with those facts i would think the trial transcript and the evidence actually in the record would control but i don't know that that's i think that's unlikely to be an issue in this case  but there was no dispute i think at any time that the judge said not all who testified he communicated a specific order i see miss morio texting on the phone i want you to tell communicate it to the bailiff i want you to tell her to turn it off the bailiff communicated that to ms morial and she refused for a period of at least five to ten minutes eventual e going out of the courtroom requiring more bailiffs to come in federal protective  department homeland security people to become involved judge but not a testified that it was visually disruptive and distracting for a period of minutes and by the way we're not talking about just texting we're talking about after receiving an order to stop texting continuing to put up a fight with the bailiff and move around the court room while refusing to put your foot to her phone away that disrupted the court while the court was actively  over an asylum proceeding and in that context the participants in the asylum proceeding demand and deserve the court's undivided attention so we've cited a number of cases where disruptive conduct it was sufficient for example in the green at case the supreme court decision about disruptive conduct near a school that taking this students away from their seats to look out the window was enough the similar regulation in the v hospital people walked away to look out the window see what was going on that was enough of the disruption judge but not it wasn't sitting in his office typing a memo he was on the bench attempting to focus on the parties to disrupt a judge in that context which might be the only asylum seekers only opportunity to make his or her case isn't is not a minor disruption that's a very substantial disruption in a core in the core function of don't know if i would consider rationale what she said was she believes that she could use her phone for business purposes that it was her right to do so and she did explain that she didn't believe the bailiff when the bailiff repeatedly told her that the judge asked her to stop now the district court was certainly under the standard of review the district court wasn't required to believe that both because it borders on the fanciful that when you are in a court room and a bailiff communicates to you especially a small courtroom where you're going to the only people there communicates to the judge is ask you to put away your cell phone that certain and sorry about that paul thank you your honor a correct me if i'm wrong i think i was still answering george monsters question about any rationale is more yellow might have provided in terms of for her conduct and i don't know if i considered rationale but she did say that both that she believed she had the right to continue to text and that and use her cell phone for business purposes and  testified that she didn't believe that the officer bridges when officer bridges told her that the judge had actually communicated the order to stop texting you keep her there testify that he did know that the judg going to stop she would she did not she testifies i don't believe so your honor i don't believe so but the judge was the the judge was certainly not compelled by the evidence assertion that she did not believe the bailiff when the bailiff told her that the judge had communicated the order this court where this took place it was about three or four benches i think multiple people testified i guess the equivalent would be something like the queen the tweed courtroom in in the richmond courthouse just but that's that's that's an inference i'm drawing just based on the description relatively small  i do think the difference is the door is toward the toward the bench but it was also it was also it's telling that it was it was almost empty it was a closed proceeding so there were the parties and then there was the only person in the gallery was miss more e l o until the bailiff went and interacted with her and you know in that context i think it will shed some light on why that might have been distracting to judge pet not but the district court or magistrate judges authority and i'm sorry not a magistrate judge an immigration judge is authority to control persons in their courtroom certainly when they are the presiding judge during a hearing is functionally comparable to of an article three judge and a reasonable person and i think the court could reasonably infer that mr morial in fact well understood that the judge had the authority to tell her to turn off her cell phone and when communicated by a bailiff she was required to do that and chose not to and ultimately i think that that covers the sufficiency of the evidence  i don't know that i have too much to say beyond that except that i'm more than happy to answer any questions the court has and i want to make sure i get the court an opportunity to ask anything before and so the question is under the standard of review whether the evidence is sufficient to support it just like there are under a when it's a jury trial and so the answer i think is yes the court made a finding because there has to  disruption for there to be disruptive for the there to have been conduct impeding or disrupting the performance of official duties by government employees and that standard is not that threshold is not very high  that that the statute is limited because it requires you be on g s a property and it's limited in the sense that they be official duties but the extent of the disruption does not have to be great the examples we've cited for example from the all one of the defendants did to by late the ordinance was to overstay a permit they had a permit to demonstrate at the pentagon it ended they communicated to the police communicated hey time to go they stayed over not a skewed disruption but in this case i think the disruption is much greater than taking someone away from their station because it was a disruption to a judge who was obligated to concentrate on the parties before it during the hearing over which it was presiding that's fundamentally different from distracting someone from office work that they can leave and come back to take a break without any significant problem challenge and my friend and the government brought up that we would have to show in all applications that the statute is not valid or this regulation and i think he is treading into it so they are no type standard which i would contend that this court hit has now jettisoned and i think that came as a result of in decision colby  v hogan i want to say it was twenty eight dollars team but it was it was fairly recently if i'm wrong about that involved copies of firearms but within that opinion the court noted did it specifically abandon salerno standard fall united states feed johnson and so i would contend that the correct standard no longer is that the correct standard is is to look at the regulation itself and determine whether or not  it is or isn't when you look at it and put it in normal application and so you know we've talked a lot about this the silent hearing and that sort of thing but the problem with the regulation is that it's not limited to asylum hearing see it says on any government property which could include you know if any sort of place where people need to go to folks might need to go to the post office to it is we could find a reason to say that that function is particularly important that the mail carriers need to get out the mail all all those sorts of things but i think if we focus too much on the asylum here we've lost track of the fact that a regulation that the executive that the executive branch can invoke when it chooses to for conduct that doesn't merit criminal sanctions so i'm happy to answer any questions the court might have