United States v. Robertson

103 F.4th 1

UNITED STATES of America, Appellee v. Thomas ROBERTSON, Appellant

No. 22-3062

United States Court of Appeals, District of Columbia Circuit

Argued May 11, 2023

Reissued May 28, 2024

Decided October 20, 2023

Appeal from the United States District Court for the District of Columbia (No. 1:21-cr-00034-1)

Timothy Cone, appointed by the court, argued the cause and filed the briefs for appellant.

James I. Pearce, Special Assistant U.S. Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief was Chrisellen R. Kolb, Assistant U.S. Attorney.

Before: Henderson, Pillard and Pan, Circuit Judges.

Dissenting opinion filed by Circuit Judge Henderson.

Pan, Circuit Judge:

Defendant-appellant Thomas Robertson participated in the riot that took place on January 6, 2021, at the United States Capitol. The riot interrupted and delayed Congress's certification of the Electoral College vote that determined the outcome of the 2020 presidential election. A jury convicted Robertson of obstructing the vote certification, in violation of 18 U.S.C. § 1512(c)(2). In this appeal, Robertson contends that the evidence was insufficient to show that he acted "corruptly," as § 1512(c)(2) requires. He also challenges his 87-month sentence, making new arguments on appeal that the district court erred in applying two specific offense characteristics for obstruction of the "administration of justice." Because the evidence was sufficient to establish that Robertson acted "corruptly," we affirm his conviction. But the district court's application of the offense characteristics for obstructing the "administration of justice" is plainly erroneous. We therefore vacate the district court's sentence and remand for resentencing.

I. BACKGROUND

A.

January 6, 2021, was a significant day. It was the day on which the United States Congress convened to declare the winner of the 2020 presidential election, after certifying the Electoral College vote. The vote certification must take place on January 6 following an election, after electors have met in their respective states, cast their votes for President and Vice President, and transmitted their certified and sealed ballots to the President of the Senate. U.S. Const. amend. XII; 3 U.S.C § 15 (2018), amended by Consolidated Appropriations Act, 136 Stat. 4459, 5238 (2022). To certify the vote, the Vice President of the United States, acting as President of the Senate, "shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." U.S. Const. amend. XII. "The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed." Id. "Such joint session shall not be dissolved until the count of electoral votes shall be completed and the result declared." 3 U.S.C. § 16 (2018), amended by 136 Stat. 4459, 5240 (2022). The vote certification is thus a pivotal moment in the peaceful transition of presidential power in the United States.

Thomas Robertson is an Army veteran, who was employed as a police sergeant in Rocky Mount, Virginia. He believed that the results of the 2020 presidential election were "rigged." Gov't's Suppl. App. ("S.A.") 110. In the aftermath of the election, he repeatedly shared his views on social media. He posted messages like the following: "I won't be disenfranchised. I'll follow the path our founders gave us. Redress of grievances (already done) civil disobedience (here now) and then open armed rebellion. I've spent the last 10 years fighting an insurgency in Iraq and then Afghanistan. [I'm] prepared to start one here . . . ." Id. at 190. Because he was "tired of always taking the high road and being beat by those who cheat, lie, and [steal] to win," id., Robertson made plans to travel to Washington, D.C., on January 6, 2021, when Congress would be in session to certify the results of the election.

Robertson invited two companions to travel with him to the District of Columbia on January 6: a work colleague, Jacob Fracker, and a neighbor. Robertson packed ready-to-eat meals, water, gas masks, and a large stick into his car. He drove Fracker and the neighbor to a metro station outside of the District; they then took a train into the city. The three men attended a rally near the Washington Monument, where they listened to speeches by Rudolph Giuliani and former President Donald Trump. They then joined a crowd that was headed to the Capitol. When they arrived at a lower plaza on the west side of the Capitol building, "[a] huge crowd [was] getting pretty out of hand." S.A. 121. The crowd was "yelling" and "screaming." Id. "[P]eople were throwing things," like "flash bangs" and "smoke grenades," so Robertson and his companions donned their gas masks. Id. at 121, 124-25. When Metropolitan Police Department officers tried to move through the crowd, Robertson blocked their way by standing in front of them with his stick in a "tactical" grip that allowed offensive and defensive movement. Trial Tr. 521:17-523:23, ECF No. 108; S.A. 85. Robertson used the stick to hit one officer and "swipe[ ]" at another. S.A. 103.

Robertson and Fracker followed a group that had broken through scaffolding on the west side of the Capitol, heading up a set of stairs and into a courtyard just outside the building. They crossed barricades and passed outnumbered officers who were trying to keep rioters out of the area. As Robertson and Fracker went up the stairs, another rioter threw a "stick-like object" at officers. S.A. 132-33.

Although they were briefly separated, both Robertson and Fracker entered the Capitol building at around 2:16 p.m., minutes after other members of the mob first breached the building at 2:13 p.m. Fracker observed rioters climbing through windows to gain access to the Capitol. He also saw broken glass and overturned furniture, and heard an alarm blaring. Robertson and Fracker made their way to the Capitol Crypt, where they took "selfie[s]" and other photos of the chaos. The Crypt was filled with rioters who began chanting, and Robertson pounded his stick on the floor to their beat.

When Robertson entered the Capitol building, the House and the Senate "were meeting in both the House and Senate chambers of the Capitol to certify the vote count of the electoral college of the 2020 presidential election which had taken place on Tuesday, November 3, 2020." Trial Tr. 641:13-18, ECF No. 109. The Vice President was in the building and presiding over the joint session. Id. at 641:23-25. Robertson was part of the mob that forced members of Congress to flee from the Senate chamber at 2:12 p.m. and from the House chamber at 2:30 p.m. See id. at 642:3-18. Even after the rioters had been cleared, the chaos and disruption caused by the mob prevented the Senate and the House from resuming their work until "8:06 p.m. and 9:02 p.m., respectively." Id. at 642:14-15.

After January 6, Robertson celebrated his participation in the riot on social media. He posted one message stating, "We were stomping on the roof of their safe room chanting WHOS[E] HOUSE? OUR HOUSE," S.A. 186; and another stating, "[I've] seen for the first time in my life . . . [a] government scared of its people. The pictures of them huddled in the floor crying is the most American thing I have ever seen." Id. at 192-93. Commenting on a photo of himself with Fracker in the Crypt, Robertson proclaimed: "I am fucking PROUD of it. It shows 2 men willing to actually put skin in the game and stand up for their rights. . . . Enjoy your feel good protests and fame. I'll simply accept a 'Thank you' for the very blanket of freedom that you live and sleep under." Id. at 180-81. He also said that "CNN and the Left are just mad because we actually attacked the government who is the problem . . . . The Right IN ONE DAY . . . took the fucking U.S. Capitol. Keep poking us." Id. at 184-85. He described his actions as "storm[ing]" the Capitol, id. at 193, and as being "part of the next American revolution," id. at 187.

Law-enforcement authorities informed Robertson and Fracker that warrants had been issued for their arrest, and gave them an opportunity to turn themselves in. Before they surrendered, Robertson took his and Fracker's phones and hid them. When officers later searched Robertson's home, they found a cell phone that had been activated the day after his arrest. They also discovered that Robertson had texted a friend that "[a]nything that may have been problematic is destroyed," "[i]ncluding [his] old phone" that "[t]ook a lake swim" and "had a tragic boating accident." S.A. 196, 198-200.

B.

Robertson was charged with "corruptly" obstructing Congress's certification of the Electoral College vote, in violation of 18 U.S.C. § 1512(c)(2). He also was charged with five additional offenses, including four 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); altering, destroying, mutilating, or concealing cell phones with intent to impair their use in an ensuing investigation (here, the grand jury investigation of the January 6 riot and Robertson's criminal prosecution), in violation of 18 U.S.C. § 1512(c)(1); and interfering with law 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. See 18 U.S.C. § 1752(b)(1)(A) (providing that a violation of § 1752(a) shall be a felony if "during and in relation to the offense, [a person] uses or carries a deadly or dangerous weapon or firearm"). The remaining charge was a misdemeanor: engaging in disorderly and disruptive conduct in a Capitol building with...