# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 2023 Decided October 20, 2023

No. 22-3062

U

NITED S TATES OF A MERICA

, A PPELLEE

v.

T HOMAS R OBERTSON

, A PPELLANT

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 th e cause for appellee. With him

on the brief was Chrisellen R. Kolb , Assistant U.S. Attorney.2

Before: H ENDERSON , P ILLARD and P AN

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge P AN

.

Dissenting opinion filed by Circuit Judge H ENDERSON

.

P AN

, Circuit Judge : Defendant-appellant Thomas Robertson participated in the ri ot 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 “corruptl y,” as § 1512(c)(2) requires. He also challenges his 87-month sentence, making new arguments on appeal that the district cour t erred in applying two specific

offense characteristics for obstruc tion of the “administration of justice.” Because the evidence was sufficient to establish that Robertson acted “corruptly,” a nd the district court did not plainly err in applying the specif ic offense characteristics, we

affirm.

I. B ACKGROUND

A.

January 6, 2021, was a significant day. It was the day on which the United States Congr ess convened to declare the winner of the 2020 presidential election, after certifying the Electoral College vote. The vot e certification must take place on January 6 following an electi on, 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,3

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 ce rtificates 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 th e 2020 presidential election were “rigged.” Gov’t’s Suppl. App. (“ S.A.”) 110. In the aftermath of the election, he repeatedly shar ed 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 rebell ion. I’ve spen t 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 companio ns to travel with him to the District of Columbia on January 6: a work colleague, Jacob Fracker, and a neighbor. Roberts on packed ready-to-eat meals, water, gas masks, and a large s tick into his car. He drove4

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 Was hington Monument, where they listened to speeches by Rudolph Gi uliani and former President Donald Trump. They then joined a crowd that was headed to the Capitol. When they arrive d 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 th e 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 in to a courtyard just outside the building. They crossed barricades and pa ssed 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 se parated, 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 furn iture, and heard an alarm blaring. Robertson and Fracker made their way to the Capitol Crypt, where they took “selfie[s]” and other photos of the5

chaos. The Crypt was filled wi th 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 Capito l 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 member s of Congress to flee from the Senate chamber at 2:12 p.m. a nd 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 disrupti on caused by the mob prevented

the Senate and the H ouse from resuming their work until “8:06 p.m. and 9:02 p.m., respectively.” Id. at 642:14–15.

After January 6, Robertson celeb rated 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 fi rst 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 w illing to actually put skin in the game and stand up for their ri ghts. . . . 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 governme nt 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 as6

“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 i ssued 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 se arched Robertson’s home, they found a cell phone that had been activated the day after his arrest. They also discovered th at Robertson had texted a friend that “[a]nything that may have been problem atic 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, incl uding 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, de stroying, 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 rela tion to the offense, [a person] uses or carries a deadly or dange rous weapon or firearm”). The remaining charges were misdemeanors: interfering with law7

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 di sruptive 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 dismi ss the § 1512(c)(2) charge, which alleged that he “corruptly” obstructed, influenced, or impeded the vote certi fication. 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, expl aining 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 tr ial. 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 Pr ocedure. He argued that the government had failed to prove th at he had acted “corruptly.” The district court reserved ruling on his motions until after the jury’s verdict.

Robertson revisited the defini tion of “corruptly” in his proposed jury instructions. He requested that the jury be

instructed as follows:

To act “corruptly,” th e defendant must use unlawful means or have a wrongful or an unlawful purpose, or both. An act is done “corruptly” if the defe ndant acted knowingly and dishonestly, with the specific intent to8

subvert or undermine th e due administration of justice. The defendant must also act with “consciousness of wrongdoing.” “Consciousness of wrongdoi ng” 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 reque sted. The final instruction on “corruptly” provided:

To act corruptly the defendant must use unlawful means, or act with an unlawful purpose, or both. The de fendant 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 proceeding9

involve acting corruptl y. 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 contra st, 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, R obertson renewed his motion for judgment of acquittal on the § 1512(c)(2) coun t. He again asserted that “corruptly” is unconstitutionally va gue. 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 consciousne ss 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 fi nding that Robertson acted “corruptly.”

Id. at 236. The district court reli ed on evidence that Robertson “engaged in other independently unlawful conduct, by entering and remaining in a restricted ar ea without lawful authority and by engaging in disruptive and disorderly conduct in a restricted area,” and determined that such evidence demonstrated “using10

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). Th e district co urt sentenced

Robertson to a total of 87 mont hs’ 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 Cate gory I criminal history. To determine the offense level, the di strict 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 “cau sing 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 in crease 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 twolevel enhancement for obstruc tion of justice based on destroying his and Fracker’s cell phones, id. § 3C1.1.

II. A NALYSIS

A.

Robertson challenges his c onviction under 18 U.S.C. § 1512(c)(2), which prohibits “c orruptly . . . obstruct[ing], influenc[ing], or imped[ing] any official proceeding, or attempt[ing] to do so.” The jury was instructed that, in order11

to convict Robertson of viola ting § 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) “a cted with the intent to obstruct or impede the official proceedi ng”; (3) “acted knowingly with awareness that th e natural and probable effect

of his conduct would be to obs truct 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 th at they were met.

Robertson contends that the ev idence presented at his trial was insufficient to prove that he acted “corruptly.” The district

court held that “corr uptly” 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 prev iously 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 e ither 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 dissenti ng 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 whethe r a defendant’s conduct is culpable; and that there are a range of ways to prove a12

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 th e 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 suppor t Robertson’s conviction of violating § 1512(c)(2). Robe rtson’s contention that his preferred definition of “corrupt ly” is the sole and exclusive meaning of that term finds no suppo rt 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 R obertson’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” c ould 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

.14

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 persua d[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 in fluence, 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 “corrupt ly” is “clear”: The word is “normally associated with wrongful, immoral, depraved, or

evil.” Arthur Andersen , 544 U.S. at 705. S imilarly, 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 meani ng 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 unders tood 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 or15

criminal obstruction: docume nt shredding. 544 U.S. at 703– 08. In that case, the Court reversed the conviction of accounting firm Arthur Ande rsen LLP under 18 U.S.C. § 1512(b) for instructing its em ployees to destroy documents of its client, the Enron Corporation, in advance of a government investigation. Id. at 698–702. The Court recognized that inst ructing employees to shred documents pursuant to a corporate docum ent-retention policy was not necessarily criminal. Id. at 704. To determine whether Arthur Andersen’s behavior was culp able, the Court looked to the ordinary meaning of “corrupt ly”: “wrongful, immoral, depraved, or evil.” Id. at 705. Then, because § 1512(b) penalizes “knowingly . . . corrupt ly 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 impos e 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 inve stigation of the Iran/Contra

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

obstructive actions were authoriz ed 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 “d epraved, evil: pe rverted 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 rec ognized, however, that proof of “corrupt” intent or action may vary depending on16

circumstances. We noted that several courts of appeal reviewing convictions under § 1503 — which prohibits corrupt

obstruction of the “due administra tion of justice” — have said that “the word ‘corruptly’ means nothing more than an intentto obstruct the proceeding,” because there are “very few noncorrupt ways to or reasons fo r 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 c ongressional 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 wa ys, 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 provi de 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 § 150517

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-c ulpable conduct — such as a corporation following a document retention policy for routine

reasons, id. at 704, or lobbyists and prot estors exercising their rights to influence a congr essional committee hearing, North

, 910 F.2d at 882 — from being swep t up by the statute’s broad prohibition on “obstructing, influenc ing 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 ende avors 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 mean s was available, no further showing of “corrupt motive” is re quired beyond his intent to commit the illegal, obstructive act. North , 910 F.2d at 883–84 (rejecting defendant’s argument th at he did not act “corruptly” if his supervisors authorized his conduct where evidence showed that he employed unlawfu l 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 w ith 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 concl uding that reliance on corrupt means is appropriate, Judge Silb erman 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] ar e equated, suggesting that Congress meant ‘corrup tly’ to refer to th e means by which the

defendant endeavored to influe nce or impede a congressional inquiry.” 910 F.2d at 943 (Silberma n, J., concurring in part and dissenting in part). Thus, a de fendant who seeks to influence a congressional vote by “brib[ ing] the chairman of a congressional committee can be sa id 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 pr obe the morality or propriety of the defendant’s purpose.” Id

.

Where neither the obstruction itself nor the defendant’s

means of obstruction are “i nherently malig n,” however,

consideration of a defendant’s act ions 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 dissent ing in part) (“Whenever the means used are not independently criminal, the jury cannot avoid considering the defenda nt’s purpose if it is to meaningfully determine whether the endeavor was corrupt or evil or depraved.”). As th e Supreme Court explained in Arthur

Andersen , a manager’s instruction to employees to shred documents in compliance with an established document19

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 th e culpability of a lawyer who “advise[d] his client not to te stify before a congressional committee conducting an inquiry” mu st 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 protec t his client from possible legal

difficulties.” Id . “But it might well be corrupt if the lawyer’s purpose were to prevent the clie nt from divulging information that would implicate the lawyer.” Id. Thus, under

circumstances where a defendant ’s conduct is not inherently corrupt nor his means independe ntly 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 corr upt intent or action may be

established and demonstrate th at “corruptly” need not be proved in the same way in every case. See North , 910 F.2d at 883 (declining to adopt a rule th at 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 impedi ng or obstructing Congress that do not proceed from corrupt moti ves”). 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, the20

defendant “attempt[s] to secure some advantage fo r himself . . . that was . . . not in accordance with [his] legal rights.” Id. at 944 (Silberman, J., concurring in pa rt and dissenting in part). Or one might establish a defenda nt’s corrupt in tent 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 rela ted context, “the variety of corrupt methods by which the pr oper 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) (no ting that the “obstruction of justice statute,” i.e. , what became 18 U.S.C. § 1505, “is an outgrowth of Congressional re cognition 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 cha llenges 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 th at a defendant acted “corruptly”21

is to demonstrate that he “obs truct[ed] or impede[d] . . . by engaging in other independently unlawful conduct.” S.A. 203.

That part of the district cour t’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 author ized by law; illegal.”);

Matthews , 505 F.3d at 706 (explaini ng 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’ mean s 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 persuasi on 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 “r eally means unla wful”). There is thus ample precedent for treat ing acting unlawfully as acting “corruptly.”

Accordingly, the district cour t 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 certifi cation. 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 defini ng “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 through23

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 decl ared his intention to join a “counterinsurgency” and to pa rticipate 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 jo ined 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 ri oters 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 . . . co rruptly persuade[]” another to obstruct an investigation. See Arthur Andersen

, 544 U.S. at 704–06. Because § 1512(c)(2) does not c ontain 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 “consci ousness of wrongdoing” may itself suffice to prove corrupt intent. See id. at 706–07.24

Robertson enthusiastically jo ined, forced both houses of Congress to suspend the Electoral College vote certification for

six to seven hours. That evid ence amply supported the jury’s finding that Robertson committe d two felony offenses to

obstruct the vote certification: i.e. , remaining in a restricted building or grounds without lawf ul authority, and disorderly conduct at the Capitol, both w ith a deadly or dangerous

weapon. See 18 U.S.C. § 1752(a)(1), (a)(2), (b)(1)(A). In other words, a jury could eas ily find that Robertson acted “corruptly” by using independently unlawful, felonious meanswith the intent to obstruct, influence, or impede the electoralvote certification. 6

Applying the “corruptly” element of the statute in this case is “rather simple” because R obertson took action to obstruct Congress by force. Cf. North , 910 F.2d at 940 (Silberman, J., concurring in part and dissenti ng 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 ar gue, for example, that he was a mere protestor exercising hi s 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. Wher e a defendant ac ts 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 co lleague 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 diff icult to discern.

We emphasize that Robertson’s independently wrongful

conduct was felonious because his resort to felonious means unquestionably suffices to estab lish his culpability. Whether § 1512(c)(2) applies to defenda nts who obstruct Congress by means of only “minor advoc acy, lobbying, and protest offenses,” Fischer , 64 F.4th at 380 (Katsas, J., dissenting), or by “non-criminal tortious activ ity,” Opening Br. 15, is beyond the scope of our “limited” revi ew and should be decided in a case that requires resolu tion 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 “co rruptly” when he participated in the Capitol riot. A jury coul d 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 defin ition of “corruptly” that he

claims is the sole and exclusiv e 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 othe r 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 at tempt 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 vi ew 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 defi nition 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 stati ng 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 “c orruptly” focuses only on a particular type of corrupt means and purpose — acting dishonestly with the hope or e xpectation of gaining a benefit

for oneself or another — while re ading the statute to preclude other common ways of behaving “corruptly.”

Nor do precedents support Robertson’s limited and exclusive interpretation of “corru ptly.” 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 prop osed 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 “dish onesty” 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 “w ith an intent to procure an unlawful benefit either for [one]s elf 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. United28

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 ei ther financial gain or other

benefit to oneself or a be nefit of another person.” Aguilar

, 515 U.S. at 616–17 (Scalia, J., concurri ng in part and dissenting in part); see Def.’s Suppl. Br. 9.

Both Judge Walker and Justice Scalia characterized the expectation-of-benefit formul ation of “corruptly” as “longstanding,” and Judge Walker reasoned in Fischer that Congress must have intended “co rruptly” as used in § 1512(c) to incorporate that meaning because it is well-established.

Fischer

, 64 F.4th at 352–53, 356–57 (Walke r, J., concurring in part and concurring in the judgm ent). 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 60 9 (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 cont ext 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 us ed so far only in tax law.” (emphasis in original)); see also United States v. Lonich , 23 F.4th 881, 902–03 (9th Cir. 2022) (no ting similar interpretation in bribery statutes); United States v. Floyd , 740 F.3d 22, 31 (1st Cir. 2014) (“[T]here is a consensus am ong the courts of appeals29

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 unl awful 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 circu it 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 sufficien cy 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 of30

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, pr otects 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 passi onately, 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) (e mphasis in original).

We note, too, that concerns about constraining lobbying and advocacy are not implicated in January 6 cases because the

electoral-vote certifi cation 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, w ith an outcome determined by the results of a presiden tial 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 inte nt, 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” w ould 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 o ffenses — were

wrong.32

For all the foregoing reasons , we decline to adopt the limited constructions of “corrup tly” 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 se eks 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 suppor t 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., conc urring in part and concurring in the judgment).

6.

We respectfully disagree with our dissenting colleague,

who asserts that the record evid ence 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 defi nition 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 distri ct 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) “req uires that the

defendant have taken some acti on 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], in fluenc[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 “co rruptly” 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, infl uences, or impedes,” which was the issue before us. In arguing for a broader interpretation of “otherwise obstructs,” the gove rnment assert ed that the statute’s reach was constrained by the “corruptly” element, which requires proof that the de fendant “intended to obstruct” an official proceeding, took actio ns “the natural and probable

effect of which” was to obstruc t, and did so “with a corrupt purpose or through independe ntly 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 . at34

36. Thus, the parties only tange ntially addressed the meaning of “corruptly” in their briefs.

Our holding in Fischer was that the district court erroneously dismissed the de fendants’ § 1512(c)(2) counts based on its interpretation of “o therwise obstructs”; we did not decide whether the § 1512(c)(2) charge was otherwise properly pled, including as to the “corr uptly” element. A holding of

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

indictment does not affirmativel y establish the indictment’s validity in all other respects. Cf. Dissenting Op. 13 n.8. Rather, our conclusion that th e district court erred in its interpretation of “otherwise obstructs” left room for the

defendants to raise other challe nges to the statute on remand — including any claims regarding “corruptly.” Nothing in the

Fischer opinion prevented the distri ct court from entertaining

such a claim on remand.

Robertson and the governme nt 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 concurri ng in the judg ment, 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 “o therwise . . . 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 re sults of the 2020 presidential

election are the kind of ‘obstr uctive conduct’ proscribed by35

(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 “corrupt ly” 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 Ju dge Walker was free to forecast in his concurrence how he would interp ret “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 “corrupt ly,” any such holding was limited to a conclusion that the “corruptly” element was adequately alleged. Two member s 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 altern ative avenues by which the plaintiffs might press their claim.

. . . I would leave it up to a36

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 st ate 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 ‘cor ruptly.’”). By contrast, Judge Walker opined in his c oncurrence 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, bot h Judge Pan and Judge Walker agreed that the “corruptly” element — as well as the “otherwise obstructs” element — was adequate ly alleged. Contrary to the dissent’s analysis, it was not n ecessary for Judge Pan and Judge Walker to adopt the same reas oning about the definition of “corruptly” to conclude that th e 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,’” Di ssenting Op. 12, Judge Walker’s statement did not, and could not, change Judge Pan’s view of the “corruptly” requirement, whic h was plainly different from

his.

Our dissenting colleague a sserts 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 court37

has never adopted for the purpo se 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 deno minator, 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 ch aracterized as a “holding.” Cf. King v. Palmer , 950 F.2d 771, 781 (D.C. Ci r. 1991) (en banc) (Silberman, J., concurring) (“ Marks is workable — one opinion can be meaningfully re garded 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 conc urrence stated that option C is

necessary to prove “corruptly,” id. at 352, 361–362 (Walker, J., concurring in part and c oncurring 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 inva riably 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 re flects 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) require s the defendant to act with the intent of obtaining an unlawful benefit for himself

or another. See Dissenting Op. 8–15. Bu t 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 th at a defendant used illegal means (like assaulting police officers) with the intent to procure a benefit (the presiden cy) for another person (Donald Trump).” Fischer , 64 F.4th at 361 (Walker, J., concurring in part and concurring in the judgment). Th e dissent does not explain why that reasoning, in an opinion that the dissent believes is binding, does not dict ate 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 Robertso n 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 “yield s 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 Robert son intended to secure the

unlawful benefit of in stalling 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 benef it need not be the defendant or his friends” and § 1512(c)(2) could apply to a defendant “trying to secure the presiden cy 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 su ch 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 re quisite “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 th e 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 foundations40

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 mi sdemeanors) without intending someone to obtain an unlawful advantage.” Marinello , 138 S. Ct. at 1108. Thus, in bribery a nd 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 ta x 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 influenc e 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 innocen t lobbying or advocacy that

concerns the dissent. We ther efore see no apparent reason to import the expectation-of-benefit requirement into the obstruction context, and we discer n no justification for making such a requirement the exclusiv e way to prove corrupt intent.

We also reject the assertion by the dissent and the Fischer

concurrence that the commo n-law history of bribery determines the meaning of “corruptly” in this obstruction statute. Our court has previously traced the historical provenance of a related obstructi on statute, 18 U.S.C. § 1505, to an 1831 contempt statute that punished attempts to “corruptly, or by threats or for ce, endeavour to influence,41

intimidate, or impede any juror, witness, or officer” or to “corruptly, or by threats or for ce, obstruct, or impede, or endeavour to obstruct or imped e, 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

C OLUM

. L. R EV . 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 H ARV

. L. R EV . 1010, 1026–27 n.75 (1924) (recounting legislative hi story 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 vers ion of that provision, which incorporated similar statutory language, have held that the word “corruptly” is “capable of different meanings in different connections,” and that requ iring that obstruction be accompanied by a promise of payment would “quite unreasonably restrict the obvious pu rpose 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 illumina ting 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 a dditional objections to our holding that a defendant obstructs “corruptly” when he does so by independently felonious means. First, the dissent reiterates42

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 th at 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, pros ecutions seeking to demonstrate that a defendant “corruptly” obs tructed a proceeding by relying on proof that the defendant’s means were misdemeanors or

otherwise unlawful are not befo re us and should be addressed when they arise. See supra Section II.A.4.

Second, the dissent complains th at 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 di ssent 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 co ntends 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 mean s 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 sent ence, arguing that the district court erroneously app lied an 11-point increa se to his offense level based on the specific offens e characteristics in U.S.S.G. § 2J1.2(b)(1)(B) and (b)(2). Section 2J1.2 sets forth the base

offense level and enhancemen ts for obstruc tion-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 in jury 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 threelevel increase is appropriate “[i]f the offense resulted in

substantial interference with th e administration of justice,” id

. § 2J1.2(b)(2).

In Robertson’s view, his conduc t 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 judici al or quasi-judicial proceedings and related investigations, relyi ng 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 certificati on of the election was not an “administration of justice.” 11 We therefore review Robertson’s

11 Specifically, Robertson’s sen tencing 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 by44

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). Unde r 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 “admin istration 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 admini stration of laws,” which may pertain to the administration of laws by a legislative body.

Justice , Black’s Law Dictiona ry (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, Robert son cites no binding authoritylimiting the administration of justice to judicial or quasijudicial proceedings. Thus, we ca nnot conclude that the district court clearly or obvi ously erred when it found that Robertson’s

obstruction of the Electoral Colle ge vote also obstructed and interfered with the “administration of justice.” In short,

Robertson fails to me et his burden to de monstrate that the

the government. S.A. 54–55. Likewise, at the sentencing hearing, his counsel repeated that “the e nhancement 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 inde pendently felonious conduct

to obstruct the certification of the Electoral College vote. Moreover, the district court did not plainly err when it

increased Robertson’s sentenci ng range under the Sentencing Guidelines based on findings th at he obstructed or interfered with the administration of justice.

So ordered.K AREN L E C RAFT H ENDERSON

, 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” b ecause our court already decided the issue sub judice

in United States v. Fischer

, 64 F.4th 329 (D.C. Cir. 2023)

. M y colleagues stray from that precedent and I cannot join them.

E ven 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 a ny crime requires the use of unlawful means o r 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 B allot” 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 respecti ve states, the electors sign, seal and forward their votes to the President of the Senate. The President of the Senate, “ in

the p resence of the Senate and House of Representatives, ” then

counts the votes. Id. amend. XII . “The p erson having the
greatest n um ber of v otes 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, a s 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

off ic ers and damaged property, halting the certification proceeding for nearly six hours.

Thomas Robertson was among the protest e rs 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. A pp . 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. T hey carried with them water, food, three gas masks and a large wooden stick. Both Robertson and Fracker brough t their department

- issued handguns but, at Robertson’s suggestion, left them in
Robertson’s car at a n orthern 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. S uppl

. A pp . 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

fil e lines toward the Capitol building, passing through
protest e rs who were holding “large sticks” and “[t]hrowing

cement.” S uppl

. A pp . 93

– 95. When the MPD officers approached his position, Robertson stood in their path

, holding his wooden stick in the “[p]or t 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 p ictures 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. Fo llowing January 6 th

, Robertson made a number of social media posts , including one

with a photograph of him and Fracker in the C apitol 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.” S uppl. A pp

. 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

. ” S uppl

. A pp . 169

– 70. When Robertson was arrested on January 13, 2021, he did not have a cell phone on his person

. A n 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, 202 2

, Robertson was charged in a second superseding indictment with six counts based on his January

6 th

- related conduct . Five of the counts charged : (1) civil

disorder ; (2) entering and remaining in a restricted building while carrying a dangerous weapon ; (3) d isorderly 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 t he 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; or5

(2) otherwise obstructs, influences, or impedes any o fficial 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 sub section (c)(2) count . Robertson argued inter alia that the mens rea adverb “corruptly” rendered sub section (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 v agueness problems,” the statute sufficiently specifie d 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 ch allenge, 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

u nlawful 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 constitutional6

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 uppl

. A pp . 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.” A pp . 38. Robertson argued that the Government

failed to meet that burden, rel ying 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 Robe rtson 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

, ”

i d. at 235

.

Robertson was sentence d 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 G overnment ’s evidence was

insufficient to show that he acted “corruptly

. ”

R eviewing a sufficiency

- of

- the

- evidence challenge

, the

court ask s “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 omitte d). O ur s ufficiency 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. 23 7, 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 Hil lie , 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)). E ven 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 the8

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 Tech s . 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. U NITED S TATES V

. F ISCHER

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

T he 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 preceden tial effect of a n 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

rel ation 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). T he 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 committ ed obstructiv e 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).

T his C ourt reversed . The Fischer majority held that und er “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 majori ty 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) prohibi ts “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 opinio n

— explained that , notwithstanding that section 1512(c)(2) “plainly extends to a wide range of conduct

, ” the provision contains “important limitations” : T he 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 beg an 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 th at 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 “wrongf ul, 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) (cit ing

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 law ful 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., concur ring 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 “co rruptly” 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., d issenting)). 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 v ote 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, h e 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 relie d on “normal linguistic

u sage” and interpretive canons to find that subsection (c)(2), a12

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 render s 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 Katsa s 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.

T he determinative question for us is w hether Fischer

constitutes a holding regarding the meaning of “corruptly.” It

does

. Judge s Pan and Walker agreed that a defendant act s “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 i d. 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 a nother 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 ben efit either for himself or13

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. Se e Fischer , 64 F.4th at 362 n.10 (Walke r, 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.”). W e must follow “ those portions of the opinion necessary to that result by which we are bound.” Util. Air Reg ul . 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 (1 1th 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 th e defendants acted “corruptly.” And, t o 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 cou ld 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 resu lt 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, 78 1 (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 co ncluded 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

. H is 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

Ju dge 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.” Ma

j. 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 opi nion) (“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 “otherwi se 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. M EANING OF “C ORRUPTLY ”

Even assuming arguendo that Fischer did not de cide 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 ”

A s 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 c riminal16

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 a n Essential Element for Hobbs Act Extortion U nder 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 sh eriff 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 la w or

custom. See Gayed, supra , at 1737

– 38; 10 Holdsworth, supra , at 153. B ecause 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 e xtortion 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 kno wingly

do so , he did not act “corruptly.” See Gay ed, 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 was17

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 t o early American courts. T he 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)

. T hree 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 recognizance s 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. I n Runnells v.

Fletcher , the Supreme Judicial Court of Massachusetts assessed whether the defendant, a deputy sheriff collecti ng 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

corru ptly” 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 know ing 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.

T he long history of the “corrupt” mental state, then, has impo sed two requisites : t o 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, r eaffirm these principles. S ee 2 Francis Wharton, A Treatise on the Criminal Law of the United States § 251 8 (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 No w 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, m odern legal dictionaries confirm the unlawful

- benefit element of “corruptly.” B lack’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 of19

others.” Corruptly

, Ballentine’s Law Dictionary 276 (3d ed. 1969). 10

2. “Corruptly” Used i n 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 quotati on 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 arg ues 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 s urprise. 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 h e 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

12 73 , 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 c ommon

law history of “corruptly.”20

benefit. For example , 18 U.S.C. § 201

, titled “ [ b ] ribe ry 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

3 54 (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 reflect s 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 result s 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 nee d not be express because commission of the

actus reus necessarily result s in an improper advantage

—21

influencing a juror, suppressi ng evidence or avoid ing 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.”

Fische r , 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. L EGIS . 129, 1 30 (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 C ode 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, 99 9 (5th Cir. 1985). With respect to the latter

statute

, then

, courts have required that the improper

- benefit requirement be explicit. E.g.

, i d. at 999

– 100 2

.

Like in section 7212(a), section 1512(c)(2) ’s actus reus

can capture conduct that does not produce an improper benefit

. N ot 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 t he 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 statut e 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 official23

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 [s ion]” 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] objec t’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

, ” s ee 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 a n individual from inducing someone else to destroy evidence

, none impose d liability on an individual who destroyed evidence himself. Id.

at 557

– 58 (Kagan, J., dissenting)

. In 2002, t he Congres s 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 leg islative 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 pa rt ) (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 prosecut ing trespassing
protest e rs. 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 b uilding “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 othe r 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)). Th o se 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 definit ion,”

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

pr actice, 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, t here are compelling reasons that “corruptly” should not be given a colloquial meaning in se ction 1512(c).

For starters, Arthur Andersen , the primary authority for the colloquial definition

, simply noted that “corruptly” is

12 Lay d ictionaries define “corruptly” by using the adverbial form of “corrupt.” Corr uptly , 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; s ee 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 “sugges ted 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 t hose 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). I nstructing 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, t he 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

acce pted) . 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 or27

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, b ecause 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
wit hhold 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, t he defendant’s mental state is ordinarily a question of fact f or 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) (quot ing Smith v. Goguen , 415 U.S. 566, 575 (1974))). 13

13 The major ity 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 of28

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). T hat cas e involved the prosecution of Admiral John

Poindexter for his role in the Iran

- Contra Affair . W e 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 ‘co rrupt.’” 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 a n alternative definition of “corruptly”

— th e one the majority adopt s

. “Corruptly,” it contend s
, encompasses

“ act [ ing ] with a corrupt purpose or via independently corrupt

means.” Maj. Op. 1 7

. 14 To avoid circularity, the majority then

“corruptly.” See North , 910 F.2d at 94 3 (Silberman, J., concurring in
part ) (interpret ing 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 ( al though 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, ca pturing 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 into29

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 ] protest o r 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

a n 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. ; s ee 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 t o twenty years in prison, rather than a maximum

prisons.” North , 910 F.2d at 942 (Silberman, J., concurring in par t). 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 “ unlawful ly”

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

of the word

. See Maj. Op. 14. According to the majority, the p lain 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 a nd 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 t hat 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”). T he Congress’s policy choice would be nullified if the same per son 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 1 512(c)(2) because anyone who protests outside a courthouse with the intent to influence a judge or juror necessarily intends to influence, obstruc t 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 r esponds 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

– 2 5

. But as far as I can tell, no decision of any court ha s even suggested, much less held, that “corruptly” can bear such a meaning. And i n 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’s31

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

U nder 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 sect ion 1512(c)(2).

Moreover, defining “corruptly” to mean “acting through independently unlawful means” require s the jury to find beyond a reasonable doubt that the defendant committed some other offens e, aside from section 1512(c)

, in order to find him guil ty of violating section 1512(c)

. T he majority’s definition effectively requires proof of a predicate offense that is not

listed in the statute , an atextual and baffling result. T he majority fails to point to a single statute in which the Congress

uses a me ns 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 fel onious means.” Maj. Op. 2 3 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 enacti ng 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 a nd 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 tip s 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 (20 19). 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 i s 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 70 3

– 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. D ID R OBERTSON A CT “C ORRUPTLY ” ?

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 n o. There is no evidence in the record suggesting Robertson

obstructed the election certificat ion 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 ev idence to support the jury’s finding that Robertson acted “corruptly”: (1) communications Robertson made before and after the January 6 th 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 b uilding; (4) Robertson’s admission that he enter ed 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 Ro bertson arrived at the Capitol b uilding, MPD officers

were “ in trouble ” and the crowd was “out of hand”; (6) Robertson impeded MPD officers as the officers marched34

through the protest e rs and (7) Robertson banged his wooden

stick while the protest e rs chante d 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

benef it” 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.