United States v. Larry Brock

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 23-3045 September Term, 2022
1:21-cr-00140-JDB-1
Filed On: May 25, 2023
United States of America,
Appellee
v.
Larry Rendall Brock,
Appellant
BEFORE: Millett*, Pillard, and Rao, Circuit Judges
ORDER
Upon consideration of the motion for release pending appeal, the opposition
thereto, and the reply, it is
ORDERED that the motion be denied without prejudice. It is undisputed that
appellant is not likely to flee or pose a danger if released, and that he is not pursuing
this appeal for the purpose of delay. See 18 U.S.C. § 3143(b)(1)(A)-(B). In light of the
opinions in United States v. Fischer, 64 F.4th 329 (D.C. Cir. 2023), and the pendency of
United States v. Robertson, No. 22-3062 (argued May 11, 2023), we assume without
deciding that this appeal raises a substantial question of law regarding the scope of
18 U.S.C. § 1512(c). Appellant, however, has not shown that “resolution of that
question in [his] favor [is] likely to lead to” reversal “of all counts on which imprisonment
is imposed.” United States v. Perholtz, 836 F.2d 554, 556-57 (D.C. Cir. 1987) (per
curiam) (emphasis added); see 18 U.S.C. § 3143(b)(1)(B)(i). Nor has he shown that it
is likely to lead to a new trial or to a sentence without imprisonment. See 18 U.S.C.
§ 3143(b)(1)(B)(ii), (iii).
Appellant and the government dispute whether resolution of the § 1512(c)
question in appellant’s favor is likely to result in “a reduced sentence to a term of
imprisonment less than the total of the time already served plus the expected duration
of the appeal process.” 18 U.S.C. § 3143(b)(1)(B)(iv). When § 3143(b)(1)(B)(iv) is met,
the court “shall order the detention terminated at the expiration of the likely reduced
* A statement by Circuit Judge Millett, concurring in this order, is attached.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 23-3045 September Term, 2022
sentence.” Id. § 3143(b)(1). Although this is not addressed by either party, it means
that even if appellant received relief under § 3143(b)(1)(B)(iv), he would begin serving
his term of imprisonment and the court would order only that he be released after
serving the duration of the “likely reduced sentence.” The district court noted that, after
appellant’s 24-month prison sentence under 18 U.S.C. § 1512(c), his next-highest
concurrent sentences are for 12 months, which may be reduced upon resentencing if
the § 1512(c) conviction is vacated, and his lowest concurrent sentences are for six
months. However, the district court did not specifically address what appellant’s “likely
reduced sentence” would be if his conviction under 18 U.S.C. § 1512(c) is reversed.
Nor has appellant made that showing. More importantly, appellant has not shown a
statutory basis for the relief requested in his motion, which is to remain on release now.
It is
FURTHER ORDERED that the following expedited briefing schedule will apply in
this case:
Appellant’s Brief July 10, 2023
Appendix July 10, 2023
Appellee’s Brief August 9, 2023
Appellant’s Reply Brief August 23, 2023
The Clerk is directed to calendar this case for oral argument in September. The
parties will be informed later of the date of oral argument and the composition of the
merits panel.
Appellant should raise all issues and arguments in the opening brief. The court
ordinarily will not consider issues and arguments raised for the first time in the reply
brief.
To enhance the clarity of their briefs, the parties are urged to limit the use of
abbreviations, including acronyms. While acronyms may be used for entities and
statutes with widely recognized initials, briefs should not contain acronyms that are not
widely known. See D.C. Circuit Handbook of Practice and Internal Procedures 43
(2021); Notice Regarding Use of Acronyms (D.C. Cir. Jan. 26, 2010).
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 23-3045 September Term, 2022
Parties are strongly encouraged to hand deliver the paper copies of their briefs to
the Clerk’s office on the date due. Filing by mail may delay the processing of the brief.
Additionally, counsel are reminded that if filing by mail, they must use a class of mail
that is at least as expeditious as first-class mail. See Fed. R. App. P. 25(a). All briefs
and appendices must contain the date that the case is scheduled for oral argument at
the top of the cover. See D.C. Cir. Rule 28(a)(8).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Lynda M. Flippin
Deputy Clerk
Page 3
MILLETT, Circuit Judge, concurring: I join in full the order denying
Brock’s motion for release pending appeal and setting an expedited
briefing schedule for his appeal.
On January 6, 2021, Brock participated in the riot at the United
States Capitol. After entering the Capitol, he proceeded to the Senate
floor and spent more than half an hour there and outside the office of
then-Speaker Nancy Pelosi. See Tr. Bench Trial at 336:15–25, 405:2–14,
United States v. Brock, No. 21-cr-140 (D.D.C. Dec. 6, 2022), Dkt. 80–81.
He carried zip ties with him. Id. 405:2–14. Brock subsequently was
charged and convicted of one felony count of obstructing an official
proceeding and aiding and abetting, in violation of 18 U.S.C. § 1512(c)(2),
and five misdemeanor counts. See id. 413:14–18.
Section 1512(c) provides, as relevant here:
Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record,
document, or other object, or attempts to do so, with the intent
to impair the object’s integrity or availability for use in an
official proceeding; or
(2) otherwise obstructs, influences, or impedes any
official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20
years, or both.
This court in United States v. Fischer held that Section 1512(c)(2)’s
“otherwise” clause “applies to all forms of corrupt obstruction of an official
proceeding,” whether or not that obstruction pertains to the availability
of evidence. See 64 F.4th 329, 336 (D.C. Cir. 2023). Judge Katsas’s
dissenting opinion reads the statute’s “otherwise” clause to apply only to
actions that “impair[] the integrity or availability of evidence—
testimonial, documentary, or physical,” in a manner akin to the ban on
obstructing evidence contained in Section 1512(c)(1). See id. at 369–370
(Katsas, J., dissenting) (quoting Memorandum from Bill Barr to Deputy
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Att’y Gen. Rod Rosenstein & Ass’t Att’y Gen. Steve Engel 1 (June 8, 2018)
(“Barr Memorandum”)).
On appeal, Brock raises a number of questions about the
appropriate reading of this court’s divided opinion in Fischer. One of
those arguments is that if this court sitting en banc were to adopt the
Fischer dissenting opinion’s reading of 18 U.S.C. § 1512(c)(2)’s
“otherwise” clause, then Brock’s conviction for obstructing an official
proceeding would have to be vacated.
While I do not prejudge that argument at this preliminary phase, I
write separately to note that, on the record before us, Brock’s conclusion
does not necessarily follow from his premise. More specifically, the
charge of obstructing Congress’s electoral vote count and Brock’s proven
conduct seem, on my initial view, to satisfy both the court’s and the
dissenting opinion’s reading of the statute. That is because the
congressional proceeding that Brock was convicted of obstructing was the
counting of electoral college votes that is statutorily required for
Congress to certify the election of the President of the United States.
Central to that process is the receipt, processing, and verification of
evidence—the States’ certificates of the votes cast for President by their
respective electors. Under the then-governing Electoral Count Act of
1887, the President of the Senate was to receive and announce the
physical “certificates and papers purporting to be the certificates of the
electoral votes[.]” See Pub. L. No. 49-90 § 4, 24 Stat. 373, 373–374. Any
member of Congress could inquire whether those certificates or papers
reflected electoral votes given by “lawfully certified” electors. Id. In the
event that more than one set of certificates or papers purported to reflect
a state’s regularly given electoral votes, Congress was to determine which
of them “were cast by lawful electors appointed in accordance with the
laws of the State[.]” Id.Brock’s participation in the riot on January 6th, 2021, “caused
Congress to adjourn” that statutorily mandated process of receiving,
verifying, and counting the certificates of electoral votes. See Tr. Bench
Trial at 392:18, Brock v. United States, No. 21-cr-140 (D.D.C. Dec. 6,
2022), Dkt. 81. Indeed, Brock appeared “on the floor of the Senate where
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the proceedings [w]ould have been occurring” if Brock and the others who
invaded the Capitol had not forced lawmakers and staff to halt the
electoral vote count and flee for safety. Id. at 393:5–7. In so doing,
Brock’s conduct necessarily obstructed the handling, submission,
processing, and congressional consideration of the evidence of each
State’s electoral votes. It did so just as much as if Brock had grabbed a
pile of state certificates and run away with them. Cf. 18 U.S.C.
§ 1512(c)(1) (prohibiting efforts to “conceal[] a record, document or other
object” to prevent “its availability for use in an official proceeding[]”). In
that way, Brock’s actions “impair[ed] the * * * availability” of the physical
evidence of electoral votes “for use in an official [congressional]
proceeding[,]” 18 U.S.C. § 1512(c)(1), and temporarily blocked the
exercise of Congress’s “truth-finding function” in certifying and counting
electoral votes, cf. Fischer, 64 F.4th at 370 (Katsas, J., dissenting)
(quoting Barr Memorandum at 1). Given that, even the Fischer
dissenting opinion’s narrow reading of Section 1512(c)(2)’s “otherwise”
clause would seem to reach Brock’s efforts to prevent Congress from
receiving, processing, and considering the evidence of each State’s
electoral votes.
So while I join our order, it is not at all clear to me that Brock has
identified a reading of Section 1512(c)(2)’s actus reus under either the
Fischer majority or dissenting opinion under which his conviction would
be vacated.
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