[00:00:02] Speaker 01:
Thank you, Your Honor.

[00:00:03] Speaker 01:
Good morning.

[00:00:04] Speaker 01:
May it please the Court.

[00:00:05] Speaker 01:
Alexander Robbins on behalf of the United States.

[00:00:08] Speaker 01:
I would like to reserve five minutes of my time for rebuttal, but that's aspirational, I realize, and I will watch my clock.

[00:00:15] Speaker 01:
Okay.

[00:00:15] Speaker 01:
Very well.

[00:00:16] Speaker 01:
Your Honors, the selective prosecution standard is very hard to meet.

[00:00:21] Speaker 01:
It's a rigorous standard, it's a demanding standard, and it's one that's been met only once in the history of this circuit.

[00:00:27] Speaker 01:
And that was more than 50 years ago in 1972 in the Steele case.

[00:00:32] Speaker 01:
And this case, Your Honors, is nothing like the Steele case.

[00:00:35] Speaker 01:
In this case, the district court made fundamental errors with respect to both of the two selective prosecution requirements.

[00:00:42] Speaker 01:
On discriminatory effects, the district court used as a comparison group three individuals who were not similarly situated to the two defendants in this case.

[00:00:51] Speaker 01:
and certainly not similarly situated in all relevant respects, which the parties agree is the standard.

[00:00:57] Speaker 01:
And with respect to discriminatory intent, the district court really turned the separation of powers analysis from Armstrong on his head by starting from the proposition that the government was acting unlawfully and then rejecting government's explanations for its charging decisions because the district judge strongly disagreed with those explanations as a matter of policy.

[00:01:19] Speaker 03:
Counsel, before we get to that, which is a big case, a big part of this case, the comparators, as you know, our circuit has, at least as Culleton relates it, said that either we review De Novo or we review based on clear error.

[00:01:40] Speaker 03:
What's the position of the government on the appropriate standard of review in this case?

[00:01:45] Speaker 01:
The position, and we set it out probably in more detail in our brief, but I'll be happy to sort of jump into it.

[00:01:51] Speaker 01:
This is reviewed de novo, and Culleton identifies sort of the overall question as an open issue, which comes after the Wilson case that the defense relies on.

[00:02:00] Speaker 01:
I don't think it matters, and I have an example of why it doesn't matter.

[00:02:07] Speaker 01:
Again, from the backdrop that the historical on-the-ground facts are reviewed for clear error, ultimate legal conclusions on elements or prongs are reviewed de novo.

[00:02:17] Speaker 01:
If you start with the example of similarly situated, you could say, well, the district court's decision that these defendants were similarly situated to the three named individuals, that's reviewed de novo.

[00:02:31] Speaker 01:
If you want to say that's reviewed for clear error, even though it's not really a factual finding, then the fact that they, based on the historical on-the-ground facts, were not similarly situated because they had different criminal histories, for example, they did different things, that would make it illogical.

[00:02:45] Speaker 02:
Let me ask you something.

[00:02:48] Speaker 02:
When you said historical facts, it's traditional, at least as I think about these kinds of issues, that when there's historical facts,

[00:02:58] Speaker 02:
We always review historical factual determinations for clear error.

[00:03:04] Speaker 02:
Right?

[00:03:04] Speaker 02:
Correct.

[00:03:05] Speaker 02:
And that's generally what we do.

[00:03:06] Speaker 02:
Yes, Your Honor.

[00:03:07] Speaker 02:
And then the ultimate conclusion is reviewed de novo.

[00:03:11] Speaker 02:
In other words, do those historical facts support the ultimate determination, which were reviewed de novo?

[00:03:17] Speaker 01:
Yes, Your Honor.

[00:03:18] Speaker 02:
Isn't that really kind of the way we should approach this?

[00:03:20] Speaker 02:
And if we made it clear, wouldn't it be beneficial to the district courts to understand that if they're going to make factual findings, they're going to have to be based on good evidence?

[00:03:31] Speaker 01:
I think, Your Honor, yes, I mean, we set that forth in our brief.

[00:03:36] Speaker 01:
I don't think, in my answer to Judge Smith's question, I'm not sure it matters how you dice it, because it becomes something of a language game, depending on what level you're looking at.

[00:03:44] Speaker 01:
But Judge Paez, that's the position we set forth in our brief, historical facts versus ultimate legal conclusions.

[00:03:50] Speaker 01:
That's the background rule.

[00:03:51] Speaker 01:
We don't think there's any reason to depart from that here.

[00:03:53] Speaker 02:
What do you think Judge Carney was up to here?

[00:03:55] Speaker 01:
I can only tell you, Your Honor, what was based in the record, but from the record, it was very clear that Judge Carney strongly disagreed with the government's policy-based charging decision.

[00:04:06] Speaker 02:
Well, no, I guess I should only be clear.

[00:04:07] Speaker 02:
Was he making factual findings, or was he just sort of ruminating about, you know, what happened and from his perspective?

[00:04:14] Speaker 01:
He did both.

[00:04:15] Speaker 01:
He did both, Judge Baez.

[00:04:15] Speaker 02:
What was he doing?

[00:04:17] Speaker 02:
There was no evidentiary hearing, right?

[00:04:19] Speaker 01:
There was, you know, the, well, I may be mixing my bail hearing with my merits hearing.

[00:04:25] Speaker 01:
There wasn't on the dismissal prong, I don't think, but there was an evidentiary hearing on the bail issue.

[00:04:30] Speaker 01:
I'm only concerned about... I know.

[00:04:31] Speaker 01:
I briefed... We've had so many briefs in this case, I might be getting them mixed up, but I... Correct.

[00:04:34] Speaker 01:
I'm only concerned about the merits of the dismissal.

[00:04:37] Speaker 02:
But, Judge Paia, is the case... There was no evidentiary hearing for that, was there?

[00:04:41] Speaker 02:
Correct.

[00:04:42] Speaker 02:
He looked at all the submissions and wrote his order and said this adds up to selective proper selective prosecution.

[00:04:54] Speaker 01:
Under the clear air standard, you don't need an evidentiary hearing.

[00:04:56] Speaker 01:
And this comes up in other cases, obviously, where the government is appellate.

[00:05:00] Speaker 01:
The district court can make factual findings on a paper record.

[00:05:03] Speaker 01:
And so, for example, the three individuals, JMA, JA, and JF, the district court thought they were members of ANTIFA.

[00:05:11] Speaker 01:
It's actually not clear whether they were, but we're not contesting that because that sounds in a factual finding.

[00:05:17] Speaker 01:
That's a historical fact issue, a basic fact.

[00:05:20] Speaker 01:
So we're not challenging that.

[00:05:21] Speaker 03:
Is it the position of the government that only those three individuals are anywhere in the ballpark of an appropriate comparator?

[00:05:31] Speaker 03:
Correct.

[00:05:31] Speaker 03:
In other words, the three other people mentioned are different time, different place, different events.

[00:05:35] Speaker 03:
Some of them predated the events here.

[00:05:38] Speaker 03:
the reference to the groups doesn't comply with our case law, right?

[00:05:43] Speaker 01:
Yes, Your Honor, that's correct.

[00:05:44] Speaker 01:
It doesn't.

[00:05:45] Speaker 03:
JM, JT, and one other one that are theoretically in the universe that fits in our case law.

[00:05:52] Speaker 03:
Is that the government's position?

[00:05:53] Speaker 01:
Yes, Your Honor.

[00:05:54] Speaker 01:
The defense came up with 13 individual comparators.

[00:05:57] Speaker 01:
The government pointed out in the district court that only three of those people were actually

[00:06:03] Speaker 01:
committed any riotous acts in this district and so the district court then went to those three and that was the basis for its comparison group which was wrong because we set this out in a brief but it's worth noting here that those three individuals were first of all it's not even clear whether they violated the Anti-Riot Act because there's no evidence of a

[00:06:22] Speaker 01:
electronic interstate communication that was not just that happened before the riot, but that was tethered to in furtherance of the riot, which this court requires and required in its last decision in this case.

[00:06:34] Speaker 01:
Even if there were, though, the strength of the evidence is completely different, the organization and effectiveness, the multiple rallies they went to with escalating violence, the connection to co-conspirators who engaged in other riots, such as Benjamin Daley, and their criminal histories.

[00:06:49] Speaker 01:
So just off the bat, six significant differences

[00:06:52] Speaker 01:
And the standard is similarly situated in all relevant respects.

[00:06:56] Speaker 04:
And mention is made in the briefs of a Ms.

[00:06:58] Speaker 04:
Villarca, but I gather that was not a basis of the district court's decision, and so we can just put that to one side, correct?

[00:07:04] Speaker 01:
I apologize, Judge Tiger.

[00:07:05] Speaker 01:
I missed the first part of your question.

[00:07:06] Speaker 01:
I couldn't quite hear it.

[00:07:06] Speaker 04:
Mention is made in the briefs of a Ms.

[00:07:08] Speaker 04:
Villarca.

[00:07:09] Speaker 04:
I'm saying that from memory.

[00:07:10] Speaker 04:
I might not have it exactly right.

[00:07:11] Speaker 04:
But my question is, she doesn't appear in the record before the district court, so we can put that to one side.

[00:07:17] Speaker 04:
Isn't that right?

[00:07:18] Speaker 01:
I think there might have been some stray references to her in the record, Yvette Floraca, the teacher activist from Berkeley.

[00:07:26] Speaker 01:
The references in the record, and we put this in our reply brief, were actually her as a potential victim.

[00:07:32] Speaker 01:
And she might have been someone that the defendants were referring to after the fact from the Berkeley rally.

[00:07:39] Speaker 01:
The news articles that the defense submitted discussed her a lot.

[00:07:43] Speaker 01:
And so to the extent that she's in the record, she's in the record primarily

[00:07:46] Speaker 01:
as a potential victim and also as a rioting activist from news articles.

[00:07:52] Speaker 03:
But the judge didn't name her... Correct.

[00:07:54] Speaker 01:
The judge did not name her as one of the comparators.

[00:07:56] Speaker 01:
And she's also just obviously not... She didn't commit any riot acts that we know of, at least at the rallies that defendants are present at in this case.

[00:08:06] Speaker 02:
I was just going to say, so with respect to the charge here, the federal charge, there was a...

[00:08:16] Speaker 02:
In part of Judge Carney's order, he talks about there being some communication between these individuals.

[00:08:25] Speaker 02:
And then he says, well, from that we can infer that they used interstate wires.

[00:08:35] Speaker 02:
Is that correct?

[00:08:36] Speaker 02:
Is that a proper inference?

[00:08:38] Speaker 01:
No, and that's the one instance, and I think we say this in our reply brief too, that's the one instance where I think we are targeting a potential historical real factual finding of the district court as clearly erroneous because the district court literally says

[00:08:54] Speaker 01:
I'm going to assume that they use the internet to communicate, to show up at this rally ahead of time.

[00:08:59] Speaker 01:
That is literally, it's a non-second order, it's literally illogical under the Hinckson standard.

[00:09:04] Speaker 01:
But it also, even that wouldn't get you there, because remember the Anti-Riot Act communicate, use of interstate facilities, including text, email, has to be in furtherance of

[00:09:16] Speaker 01:
the riotous act.

[00:09:17] Speaker 01:
So if we all agree to go to a rally, that by itself is not a violation of the Anti-Riot Act.

[00:09:23] Speaker 01:
If we agree to go to a rally so that we can riot, then you do have that necessary interstate communication.

[00:09:29] Speaker 02:
What if you add in the, I think, I forget which one, one of the three that it was, who had, you know, he had goggles, he had a mask, he had a headband, I think,

[00:09:44] Speaker 01:
Yes, Your Honor, dressed in all black.

[00:09:45] Speaker 02:
Couldn't you, you know, I mean, one doesn't think of going to a rally dressed like that unless, you know, got some other ideas, you know, they're motivating you.

[00:10:01] Speaker 02:
I mean, so couldn't Judge Carney say, take that and then take this communication and say, well, you know, we could reasonably infer that they went there for the purposes of engaging in

[00:10:13] Speaker 01:
We are not we are not disputing that these were bad actors who showed up as you your honor suggested with weapons and apparently ready to riot were pointing out that there is zero evidence that the first of all there's zero evidence of an actual

[00:10:29] Speaker 01:
interstate communication, electronic communication, period, just to mention the police report that they coordinated to go to the rally together.

[00:10:35] Speaker 01:
And there's certainly no evidence that that communication was in furtherance of the riot.

[00:10:43] Speaker 01:
Again, these individuals were arrested for rioting at these riots.

[00:10:46] Speaker 01:
That's not the issue.

[00:10:47] Speaker 01:
But no, if we came to Judge Carney with a complaint and said there's probable cause to charge these people when we don't have evidence of one of the elements,

[00:10:55] Speaker 01:
we'd get laughed out of court or rule 29 after a trial.

[00:11:00] Speaker 03:
It seems to me that that part of what we need to look at here is even though you have these three individuals and the teacher who showed up at these things dressed as my colleague has pointed out, the reality is

[00:11:15] Speaker 03:
you've got to prove beyond a reasonable doubt that each element of the riot act has been violated, and you don't come close to that.

[00:11:21] Speaker 03:
Whereas in the case of the defendants here, arguably, they actually put all their evidence, their own evidence up on the internet, bragging about what they did, the preparation and the like.

[00:11:33] Speaker 03:
I take it that the government also views the fact that the evidence

[00:11:39] Speaker 03:
in this case produced by the defendants themselves, really changes what we look at as a comparator.

[00:11:46] Speaker 03:
Is that correct?

[00:11:47] Speaker 01:
Absolutely.

[00:11:48] Speaker 01:
And because the strength of the evidence is a very important, as Your Honors are aware, a very important prosecutorial consideration.

[00:11:54] Speaker 01:
We can't prosecute all the federal crimes that occur.

[00:11:57] Speaker 01:
Strength of the evidence is a major factor in our charging decisions.

[00:12:02] Speaker 01:
It's a factor that the Supreme Court discusses in the Waite case at some length.

[00:12:07] Speaker 01:
And if you actually read sort of the Waite case with the Steele case, Waite makes clear that sort of strength of the evidence, the low-hanging fruit sort of logic, that is a completely legitimate basis for bringing a prosecution against person A but not person B because we have better evidence on them.

[00:12:23] Speaker 01:
And here, as Your Honor pointed out, Judge Smith, it's not even close.

[00:12:27] Speaker 03:
Let me ask you this, you're down to two minutes and 35 seconds.

[00:12:29] Speaker 03:
Oh, thank you.

[00:12:30] Speaker 01:
Did you want to save any of that time?

[00:12:31] Speaker 01:
I would love to save that amount of time.

[00:12:33] Speaker 03:
Yes, please.

[00:12:33] Speaker 03:
Obviously, my colleagues can ask as many questions as they want, whatever the time says.

[00:12:37] Speaker 03:
But if you want to save that for now... I appreciate the heads-up judgment.

[00:12:40] Speaker 03:
Thank you.

[00:12:40] Speaker 03:
So let's then hear Ms.

[00:12:43] Speaker 03:
Platt, please.

[00:12:48] Speaker 03:
Good morning.

[00:12:48] Speaker 00:
Good morning.

[00:12:49] Speaker 00:
Thank you very much, Your Honors.

[00:12:50] Speaker 00:
My name is Caroline Platt from the Office of the Federal Public Defender with my colleague, Aaron Murphy, on behalf of Robert Rundow.

[00:12:55] Speaker 00:
And this morning, I'm arguing for both at police.

[00:12:59] Speaker 00:
Just to address the standard of review question briefly, I think Judge Paez and Judge Smith and Judge Hager, you addressed it, have nailed it because it's de novo for legal conclusions and clear error for facts.

[00:13:09] Speaker ?:
Why?

[00:13:09] Speaker 03:
We have a variety of cases.

[00:13:13] Speaker 03:
One says that we've kind of conflicted on it, and yet as you go back and look at it, it seems like they favor clear error.

[00:13:22] Speaker 03:
What's your best argument as to what we should do in this case?

[00:13:26] Speaker 00:
Sure.

[00:13:27] Speaker 00:
So, and I think the best case for that, Your Honor, is Wilson, and there are further future cases that note that the- That's a really, really, really old case, right?

[00:13:35] Speaker 00:
Right.

[00:13:36] Speaker 00:
And the later cases note that the circuit split that other cases have discussed is illusory because it has to do with the standard for review of discovery order selective prosecution cases versus this, a merits case.

[00:13:48] Speaker 00:
And we think that also there are other circuits that also have agreed that it's clear error.

[00:13:53] Speaker 00:
The sixth and the eighth, most notably, there is a circuit split on this issue between all three standards of review, Your Honors.

[00:13:57] Speaker 00:
But multiple courts have agreed that it's clear error on the basis that Judge Pai has identified, which is that whether there is discriminatory effect on the appellees is a factual finding.

[00:14:07] Speaker 00:
And whether there was discriminatory intent by the United States government is also a factual finding.

[00:14:12] Speaker 03:
Let me ask you this, since it all deals with evidence, if we go with clear error.

[00:14:16] Speaker 03:
There's, of course, selective enforcement, which Judge Wynn dealt with in a recent case in terms of what discovery could be done versus selective prosecution.

[00:14:27] Speaker 03:
You selected selective prosecution.

[00:14:30] Speaker 03:
What evidentiary demands did you make of the government that the district court denied, if any?

[00:14:38] Speaker 00:
The hearing on the discovery request and the merits request was the same hearing.

[00:14:42] Speaker 00:
So we asked for both things at the same time, and the court granted the motion on the merits and therefore didn't address the discovery request.

[00:14:49] Speaker 00:
And it was an argument hearing, not an evidentiary hearing, as my colleague from the Department of Justice said, on the motion to dismiss on February 21st of this year.

[00:14:57] Speaker 03:
But did you ask the government for any evidence based on whatever hearing or argument that you did not get?

[00:15:06] Speaker 00:
Yes, prior to the hearing my district court colleagues sent a letter requesting a selective prosecution discovery to the government and that got wrapped up in the motion to dismiss which in the alternative requested discovery.

[00:15:17] Speaker 03:
And you sent the letter and that asked for

[00:15:19] Speaker 03:
Obviously, there may be a lot into it, but basically, what did you ask for?

[00:15:23] Speaker 00:
Evidence of, I believe, of, the letter, by the way, is in the record.

[00:15:27] Speaker 00:
I can't remember.

[00:15:27] Speaker 00:
I think it's in the SERs rather than the ERs, but it is in the excerpts of records at this court, not just the district court record.

[00:15:34] Speaker 00:
So we asked for, it's sort of what our office tends to ask for in any case where we think there may be selective prosecution issues to be discovered.

[00:15:41] Speaker 03:
And what, if anything, did you receive in return?

[00:15:44] Speaker 00:
I believe the answer is nothing.

[00:15:45] Speaker 03:
What?

[00:15:46] Speaker 00:
Nothing.

[00:15:47] Speaker 03:
Nothing.

[00:15:47] Speaker 00:
Okay.

[00:15:48] Speaker 00:
Yeah.

[00:15:48] Speaker 02:
So, Your Honor, to the factual... But you were able to put together some sort of showing to the district court.

[00:15:54] Speaker 02:
Yes.

[00:15:55] Speaker 02:
So this is... Because he addresses it in the order.

[00:15:57] Speaker 02:
When we did the first... When Judge Tiger and I were on the first panel, we only dealt with the

[00:16:04] Speaker 02:
with the constitutional challenge to the first amendment.

[00:16:07] Speaker 00:
That's right.

[00:16:07] Speaker 00:
And so this all happened after the remand from this court at the first panel.

[00:16:10] Speaker 00:
And so what we did as is collect information from news articles and the government did produce the police reports that we reference in discovery, which Judge Carney relied on as evidence that the U.S.

[00:16:21] Speaker 00:
Attorney's Office knew about specifically these three people.

[00:16:24] Speaker 00:
Ms.

[00:16:24] Speaker 00:
Flark, your honor, is the head of By Any Means Necessary, which is in the district court order.

[00:16:27] Speaker 00:
But because she's not in this district, we chose to focus, after the government made that point, on JF, JA, and JMA.

[00:16:34] Speaker 04:
I have a discriminatory effect question with regard to JA, JF, and JMA.

[00:16:39] Speaker 04:
Yes, sir.

[00:16:39] Speaker 04:
I don't know that the Appellee's brief confronts seriously the difference in criminal history.

[00:16:49] Speaker 04:
Between your clients and these three persons so and so my question really is a two-part question and the first is

[00:17:01] Speaker 04:
Do you acknowledge that there is a substantial difference in the criminal history of those persons?

[00:17:07] Speaker 04:
And the second is, if there is a substantial difference, why isn't that by itself enough for us to conclude that the district court order should be reversed because it defeats a finding of substantial similarity?

[00:17:19] Speaker 04:
And I know you're not going to agree with me on that point, so then the follow-up to that would be, is there a case you think I should read that would help me come out your way?

[00:17:28] Speaker 00:
So, Your Honor, I'm not disputing that criminal history is a relevant consideration for charging determinations writ large.

[00:17:35] Speaker 00:
In this case, I will first start on a factual ground that one of the three, I believe it's JF, does have a prior conviction for something related to rioting.

[00:17:44] Speaker 00:
So my client, Mr. Rondo, has one prior conviction.

[00:17:46] Speaker 00:
I understand it's not for rioting.

[00:17:47] Speaker 00:
It's also from when he was a teenager.

[00:17:49] Speaker 00:
He was never arrested until the Berkeley protest between his original conviction and this case, and then all of his other arrests have to do with these indictments, right?

[00:17:59] Speaker 00:
So, JF, I think it was JF, it's one of the three Js, has a prior conviction that's in the police report.

[00:18:04] Speaker 04:
He was an adult when he committed the stabbing we're talking about, wasn't he?

[00:18:06] Speaker 00:
He was, he was a teenage adult, Your Honor.

[00:18:08] Speaker 04:
Yes, well, you keep saying teenage, and I just wanted to make it clear.

[00:18:11] Speaker 00:
Yeah, I think the behavior of a 19-year-old is different than the behavior of a 30-year-old.

[00:18:14] Speaker 00:
And there's all the social science that we all know that speaks to that.

[00:18:19] Speaker 00:
But I would argue, and if I could ask the Court just to review three factual things before rendering your decision,

[00:18:24] Speaker 00:
It would be the three police reports of JA, JMA, and JF, which are the first three exhibits in volume five of the government's ERs.

[00:18:31] Speaker 00:
Because if you read them carefully, these people all were armed.

[00:18:35] Speaker 00:
They were all armed with pepper spray.

[00:18:36] Speaker 00:
They all used pepper spray, and they all used their fists.

[00:18:40] Speaker 03:
One of them had a knife as well.

[00:18:42] Speaker 00:
No, none of them had guns, but one of them had a knife, Your Honor, that they found when they arrested him.

[00:18:46] Speaker 00:
And so these three people are doing the same things.

[00:18:49] Speaker 00:
They're using their fists and using pepper spray, which is arguably worse as our clients.

[00:18:54] Speaker 03:
Do the police reports say that they use their fists?

[00:18:55] Speaker 00:
Yes, all three of them.

[00:18:57] Speaker 00:
And all three of them were cited not only for inciting a riot, but for battery and also illegal use of tear gas.

[00:19:03] Speaker 00:
Battery might only be two of them, but it's certainly illegal.

[00:19:04] Speaker 00:
These three comparators, in terms of... Were they arrested for inciting a riot?

[00:19:10] Speaker 00:
I don't recall that.

[00:19:10] Speaker 00:
Yes, all three of them were arrested.

[00:19:11] Speaker 02:
Under California law.

[00:19:12] Speaker 00:
Correct.

[00:19:13] Speaker 02:
Not under the anti-riot.

[00:19:14] Speaker 00:
That's exactly our point, Your Honor.

[00:19:15] Speaker 00:
They were all arrested for inciting a riot.

[00:19:17] Speaker 00:
And this case is the only case, along with its companion case in Virginia, where anyone was charged federally with the anti-riot act based on political protests in 2017 or 2018.

[00:19:28] Speaker 00:
And this is what I really want to say, Your Honors, if I may.

[00:19:30] Speaker 00:
This case is about viewpoint discrimination.

[00:19:32] Speaker 00:
It's about two groups who have differing viewpoints.

[00:19:35] Speaker 00:
By the way, the fact that these three people are anti-Trump and anti-fascism is in the police reports, contrary to my colleague's suggestion.

[00:19:41] Speaker 03:
Forgive me.

[00:19:42] Speaker 03:
I know that's your argument.

[00:19:43] Speaker 03:
I respect that.

[00:19:45] Speaker 03:
But in this case, the government points to evidence that, from a layperson's perspective, would say, wow, this one is a highly organized, almost mafia-like organization.

[00:20:01] Speaker 03:
They recruit people.

[00:20:02] Speaker 03:
They train people.

[00:20:04] Speaker 03:
They go with the intention of hurting people.

[00:20:07] Speaker 03:
Indeed, Mr. Rondo was interviewed

[00:20:10] Speaker 03:
by a reporter and he suggested that he should be quoted as saying that they went with the intention to hurt people and then they put it online the other folks that you talk about okay they were arrested but

[00:20:26] Speaker 00:
If I may, Your Honor, the police report says that they found that, I believe it's JF, but it's one of the three Js, intended to commit violence at the rally before they went.

[00:20:36] Speaker 00:
It's exactly the same.

[00:20:37] Speaker 01:
Based on what?

[00:20:38] Speaker 00:
Based on their interview of the person when they got... Of that interview?

[00:20:41] Speaker 00:
Yes, all this information comes from the three police reports, Your Honor, so it's all just there.

[00:20:46] Speaker 00:
And the other thing is, JF,

[00:20:48] Speaker 00:
in his police report also says he organized a group of people to attend this event and he didn't just say they communicated about it, he contacted them.

[00:20:57] Speaker 00:
Contact in this day and age is sufficient to show the use of a wire or the internet.

[00:21:00] Speaker 00:
There is no way to contact someone.

[00:21:02] Speaker 00:
It's a super reasonable influence, I'm sorry, inference to say that if you contact someone in this day and age, you have used your commerce.

[00:21:09] Speaker 03:
Can we infer that?

[00:21:10] Speaker 03:
I think my colleague had just asked that before.

[00:21:12] Speaker 03:
Can we infer that a medium of interstate commerce

[00:21:17] Speaker 00:
was used well you don't have to infer it your honor because judge carney judge carney found it so all you have to do is review his well it's it's based on the police report that says where jf says i contacted several people before we came okay they may have met at a rotary club that's not a contact is it i mean contacting but but the bottom line is

[00:21:36] Speaker 03:
One of the things that our panel wrestles with is the evidence.

[00:21:40] Speaker 03:
Judge Carney cited hundreds of news articles.

[00:21:44] Speaker 03:
There's no foundation for them at all.

[00:21:46] Speaker 00:
Well, that's the evidence we provided to Judge Carney, Your Honor.

[00:21:49] Speaker 03:
I understand it.

[00:21:50] Speaker 03:
The bottom line is he based his orders on that kind of evidence.

[00:21:53] Speaker 03:
That's what we're struggling with.

[00:21:55] Speaker 00:
He also based it on the three police reports that the government provided to us in discovery that we are relying on for the three J's who are the similar situated people they intended to commit violence they were armed with pepper spray they use the pepper spray they use their fists in terms of the organization of RAM I would also like to add these by your perspective

[00:22:15] Speaker 03:
Do the police report show that the pepper spray was used as a defensive mechanism to basically back up people who were attacking them?

[00:22:22] Speaker 03:
Because that's what I read.

[00:22:23] Speaker 00:
It actually finds the opposite, that it was not used in self-defense.

[00:22:26] Speaker 00:
And that's a quote.

[00:22:28] Speaker 00:
Not in self-defense is in the police report.

[00:22:30] Speaker 00:
That's what the law enforcement officers who were there concluded.

[00:22:33] Speaker 00:
And that's probable cause.

[00:22:34] Speaker 00:
So we would really, really ask you to review the police reports because they very much support

[00:22:39] Speaker 00:
of the

[00:22:57] Speaker 00:
Antony Best's declaration to the district court at paragraph three.

[00:23:01] Speaker 00:
Those are found on Daley's computer.

[00:23:03] Speaker 00:
They were not published.

[00:23:04] Speaker 00:
There was no website.

[00:23:05] Speaker 00:
There's no evidence that anyone else except Ben Daley, he's a Virginia defendant, ever saw it.

[00:23:09] Speaker 03:
Can I ask you this, counsel?

[00:23:10] Speaker 03:
Does the defense agree

[00:23:12] Speaker 03:
that the comparators that judge carney used other than j a j f on j m a are not don't don't make it under our case law do you agree with the three individual humans are the only individual human compared to basically you agree the three days that's what we have to look at is these the conduct of these three individuals you refer to the police report with respect to them but with respect to the woman

[00:23:35] Speaker 03:
that was also charged by the Sacramento DA and so on.

[00:23:39] Speaker 00:
By any means necessary.

[00:23:40] Speaker 03:
Big groups and all the other things.

[00:23:41] Speaker 03:
We ignore that, right, for purposes of this analysis?

[00:23:44] Speaker 00:
I think because of the venue issue, we chose to focus further on the three individuals where the government agreed that there was a venue here, which is the three J's.

[00:23:51] Speaker 03:
That's the strength of your case, right?

[00:23:53] Speaker 03:
Yes.

[00:23:53] Speaker 03:
Those three individuals, not the other things that Judge Kearney referred to.

[00:23:56] Speaker 00:
That and the discriminatory intent of the government, Your Honor.

[00:23:58] Speaker 00:
This all goes to effect.

[00:24:00] Speaker 02:
What is the evidence of discriminatory intent that you presented to Judge Kearney?

[00:24:03] Speaker 00:
The evidence of discriminatory intent that we presented to Judge Carney had to do with, I want to say this again, I said it earlier, this is a case about viewpoint discrimination, not content discrimination under the First Amendment.

[00:24:14] Speaker 00:
This is the only case of any of the cases cited that has presented a claim of viewpoint discrimination, where you have two opposing viewpoint

[00:24:22] Speaker 00:
holding people who have done the same thing at the same time and place under this court's decision in bourgeois.

[00:24:28] Speaker 00:
That is an appropriate time frame and under this court's decision in Aguilar, as we've talked about at length, it's the right definition for similarly situated.

[00:24:34] Speaker 00:
So we would ask you to look at Aguilar and Bourgeois.

[00:24:36] Speaker 00:
The evidence of intent is that there are two viewpoints that law enforcement knew about because we have the law enforcement bulletins that say

[00:24:43] Speaker 04:
Aren't these two offices fighting with each other on appeal with regard to a selective prosecution discovery case in which the government is alleged to have selectively prosecuted left-wing protesters?

[00:24:58] Speaker 00:
Under Bourgeois, that case is not relevant, Your Honor.

[00:25:00] Speaker 00:
That's from 2020.

[00:25:01] Speaker 00:
And the George Floyd protests were all people with one viewpoint.

[00:25:05] Speaker 00:
So like the Chicago 7 or like January 6, those are a homogenous group of protesters protesting one thing, whether police violence or the election or the Democratic National Convention in 1968.

[00:25:15] Speaker 00:
All of the protesters have one viewpoint.

[00:25:17] Speaker 00:
Here, we have two viewpoints.

[00:25:19] Speaker 00:
That is why this is a case about viewpoint discrimination and that is the evidence of intent along with the statistics, Your Honor.

[00:25:24] Speaker 03:
Since it's your burden, as you know, there's a presumption in favor of the government on this.

[00:25:29] Speaker 03:
Is it your view that if you were the government prosecutor, that you could have successfully

[00:25:37] Speaker 03:
indicted and convicted JA, JF, and JMA of violation of the Riot Act based on the evidence that was presented to Judge Carney?

[00:25:46] Speaker 00:
Yes.

[00:25:47] Speaker 03:
Really?

[00:25:48] Speaker 00:
I think they could have indicted them.

[00:25:49] Speaker 00:
I mean, this is the other problem that the case has noticed, that we don't have access to criminal history databases and law enforcement and the FBI.

[00:25:56] Speaker 03:
Based on the evidence that was presented to the district court, it's your view that you, if you were the government, that you could have successfully convicted those three individuals of violations of the Riot Act.

[00:26:07] Speaker 00:
As I said, Your Honor, our position is they could have indicted them.

[00:26:10] Speaker 00:
They hadn't yet investigated them, so the federal government doesn't yet have the evidence that we need, just like they didn't have the evidence against Mr. Rondo here.

[00:26:17] Speaker 03:
Why did you go for selective enforcement instead of selective prosecution?

[00:26:24] Speaker 00:
I can't speak to our litigation determinations.

[00:26:27] Speaker 03:
It's a whole different deal, but it seems like you're arguing for selective enforcement.

[00:26:31] Speaker 00:
I'm not, Your Honor, I'm arguing for selective prosecution.

[00:26:33] Speaker 00:
These three individuals could have been indicted under the Anti-Riot Act by the United States Attorney's Office for the Central District of California.

[00:26:39] Speaker 00:
Yes, if they had done the kind of investigation into them that they did into my client, they could have gotten a prosecution.

[00:26:44] Speaker 00:
They did the exact same thing, and they coordinated in advance.

[00:26:47] Speaker 00:
They intended to commit violence.

[00:26:48] Speaker 00:
That's what the police found.

[00:26:50] Speaker 00:
So it's not about the police not enforcing it.

[00:26:52] Speaker 00:
It's about this United States Attorney's Office only charging one Anti-Riot Act case.

[00:26:57] Speaker 00:
up until 2018 in 50 years.

[00:27:00] Speaker 00:
That is evidence of discriminatory intent.

[00:27:02] Speaker 00:
Specifically because this is a viewpoint discrimination case, Your Honor, none of the others have to do with opposing viewpoints doing the same thing at the same place and time, which under Aguilar and Bourgeois is how we show discriminatory effect, and the viewpoint discrimination is discriminatory intent on behalf of the government.

[00:27:19] Speaker 00:
I think, Your Honor, it would be a lot harder for us to make this claim if they had left all the allegations of white nationalism out of

[00:27:25] Speaker 00:
The indictment, the press release, the first sentence of the blue brief in this court.

[00:27:29] Speaker 04:
Isn't that just evidence of motive?

[00:27:31] Speaker 00:
motive is not an element, Your Honor.

[00:27:33] Speaker 04:
No, but it's a reason to prosecute people, is that you can go to court, I beg your pardon, that you can go to court and you can show the jury that the person had a motive to do it.

[00:27:40] Speaker 04:
It makes it more likely you can get a conviction.

[00:27:42] Speaker 00:
So this is another point I wanted to make, Judge Shiger.

[00:27:44] Speaker 00:
It may be that all of my clients' protected speech, like the after the fact tweets and whatnot, were evidence.

[00:27:50] Speaker 00:
Protected speech can be admissible evidence.

[00:27:52] Speaker 00:
It cannot be the basis for the government to select to prosecute you.

[00:27:55] Speaker 00:
That's why it's protected speech.

[00:27:57] Speaker 00:
So we're not saying we would have moved to exclude it, but if they hadn't,

[00:28:00] Speaker 00:
highlighted their viewpoint discrimination against imputed white nationalists, we wouldn't have the evidence of intent.

[00:28:07] Speaker 00:
But it's everywhere in this case, both statistically and in the government's conduct and wording choices throughout this litigation from 2018 to the blue brief to this court.

[00:28:17] Speaker 03:
Viewpoint discrimination is different.

[00:28:21] Speaker 04:
I know.

[00:28:21] Speaker 04:
Thank you, Judge Smith.

[00:28:22] Speaker 03:
All right.

[00:28:23] Speaker 03:
We know we could talk about this for a long time, but thank you for your argument.

[00:28:25] Speaker 00:
Thank you very much, Your Honor.

[00:28:26] Speaker 00:
We appreciate it.

[00:28:26] Speaker 00:
You respectfully ask the Court to affirm Judge Carney.

[00:28:28] Speaker 03:
Thank you very much.

[00:28:29] Speaker 03:
Thank you.

[00:28:29] Speaker 03:
Mr. Robbins, you have some rebuttal time.

[00:28:32] Speaker 01:
Thank you, Your Honor.

[00:28:34] Speaker 01:
I want to pick up where Judge Smith left off, which is that this is a selective prosecution case, not a selective enforcement case.

[00:28:39] Speaker 01:
The question is, based on what the government had in front of it at the time it was making its charging decision.

[00:28:46] Speaker 01:
And we can have a lively discussion all day about charging decisions,

[00:28:50] Speaker 01:
and which factors matter, pepper spray versus organization, MMA training, multiple riots.

[00:28:56] Speaker 01:
But those are discretionary prosecutorial considerations.

[00:28:59] Speaker 01:
That's what AUSAs and that's what the U.S.

[00:29:01] Speaker 01:
Attorney's Office takes into account and tries to figure out before indicting someone.

[00:29:05] Speaker 01:
That's not a constitutional violation.

[00:29:07] Speaker 01:
If we had come out the other way and indicted the three potentially Antifa members instead of these two defendants because they used pepper spray, we'd be right back here having the same conversation, or at least in front of a different district judge if that judge did the same thing Judge Carney did.

[00:29:23] Speaker 01:
we'd have the same problem.

[00:29:24] Speaker 01:
The government simply cannot prosecute politically motivated violence with really both left and right hands tied behind our backs, where the only option, apparently according to the defense, is that we impose some sort of ideological quota on a given statute, on a given riot, on a given indictment.

[00:29:41] Speaker 01:
because then we would be picking people we wouldn't otherwise prosecute based on their viewpoint, which actually would violate the Constitution.

[00:29:49] Speaker 01:
This is not a functional system that the defense is proposing here.

[00:29:53] Speaker 01:
And the Wilson case really is relevant because I argued it in courtroom one, courtroom two, I guess, a month ago.

[00:30:01] Speaker 01:
It's the same binder.

[00:30:02] Speaker 01:
I used the same Redwell because all the cases were the same, because all the law was the same and the issues were the same.

[00:30:08] Speaker 01:
It does matter.

[00:30:09] Speaker 01:
And it is, first of all, not true that our office is selectively prosecuting anyone.

[00:30:14] Speaker 01:
And second of all, it is somewhat absurd that we are having to defend sort of two different political directions, our attempt to keep the public safe from politically motivated violence.

[00:30:23] Speaker 03:
Counsel, as you know, your able opponent tries to frame this as a viewpoint discrimination case.

[00:30:31] Speaker 03:
Would you share with the court your view about what role, if any, the presumption that the government's case has under our case law and Supreme Court case law has in responding to that, if any?

[00:30:46] Speaker 01:
I think it's very important.

[00:30:47] Speaker 01:
I would point this court to Armstrong and Sellers discussing Armstrong and making that distinction between the selective prosecution and enforcement.

[00:30:56] Speaker 01:
the strong presumption because of separation of powers concerns, because it is the U.S.

[00:31:01] Speaker 01:
Attorney's Office's job to weigh all these considerations to figure out who to charge, there's a strong presumption that the government is acting

[00:31:08] Speaker 01:
lawfully and legitimately, and that presumption hasn't come close to being overturned here.

[00:31:13] Speaker 01:
And just to connect it to the standard review point really quick, I see my time's expired.

[00:31:16] Speaker 01:
The Cullething case not only addresses a sort of clear error issue, but also says that the facts are construed in favor of the government.

[00:31:24] Speaker 01:
And it says, in the case of invidious discrimination, it's not based on who won or lost below, because that is what's consistent with the Armstrong standard, with that strong presumption that the government is acting legitimately.

[00:31:34] Speaker 03:
I wanted to get your view on that, because

[00:31:37] Speaker 03:
your able colleague raising the viewpoint discrimination it seems to me

[00:31:41] Speaker 03:
it's almost impossible to cabin that because if you have any kind of political dispute, unfortunately we live in an age when that's very common, that it would be almost impossible to prosecute anybody because someone could say, well, they're doing it because of viewpoint discrimination, and where do you go from there?

[00:32:00] Speaker 01:
That's absolutely correct.

[00:32:01] Speaker 01:
I mean, I think that the logic of the district court here, the district judge here, if followed nationwide, would make it effectively impossible for us to prosecute politically motivated violence.

[00:32:10] Speaker 02:
Let me ask one last question.

[00:32:12] Speaker 02:
So counsel just argued that you could have prosecuted these other individuals, the J persons, for violations of the Anti-Riot Act.

[00:32:23] Speaker 02:
What's your response to that?

[00:32:25] Speaker 04:
Could I join in Judge Pais' question and also ask you to respond briefly to the point that if we just read the three police reports more closely, it comes out the appellee's way.

[00:32:34] Speaker 01:
So I think, again, looking at what information the government had, no, I don't think we could have, I don't think we met the probable cause standard to bring charges against the three, JF, JA, and JMA.

[00:32:46] Speaker 01:
But even if that's in some dispute, right, maybe even if it's debatable, we could have brought a complaint knowing that we would not meet the reasonable doubt standard.

[00:32:55] Speaker 01:
Obviously, the potential for success at trial under common sense as well as ethics and the department's guidelines and the weight case in terms of the strength of the evidence is a major consideration when it comes to what cases the government's going to bring.

[00:33:09] Speaker 01:
So the probable cause argument that the defense makes that we should just be indicting people probable cause when we can't convict them is wrong.

[00:33:17] Speaker 03:
So from your perspective, your opposing counsel's comment and argument that the three individuals

[00:33:25] Speaker 03:
should have been charged, could have been convicted, is just wrong?

[00:33:30] Speaker 03:
Is that your perspective?

[00:33:31] Speaker 01:
That is wrong, and I think that is wrong.

[00:33:36] Speaker 02:
Can I take that question just a little bit further?

[00:33:38] Speaker 01:
Of course.

[00:33:38] Speaker 02:
What is the essential element

[00:33:42] Speaker 02:
or factual predicate that would be missing from any anti-riot act charges against the Jays?

[00:33:50] Speaker 01:
The first of the two elements, the use of interstate facilities slash communication in furtherance of the riot, the planned riotous act.

[00:33:58] Speaker 01:
Now, it's again, this is the selective enforcement versus selective prosecution issue.

[00:34:02] Speaker 01:
If the defense wants to say, you should investigate this more, that's a separate claim.

[00:34:07] Speaker 01:
The claim here is based on what we knew, we should have charged this case.

[00:34:10] Speaker 01:
And that's simple enforcement issue.

[00:34:11] Speaker 01:
Correct.

[00:34:12] Speaker 01:
That's simply wrong.

[00:34:13] Speaker 01:
We should not have charged this case.

[00:34:14] Speaker 01:
I don't think anyone seriously thinks that we should have charged this case based on the evidence we had.

[00:34:19] Speaker 01:
And that alone, as Judge Tiger pointed out, just one difference, much less such an important difference as that, is enough to take this out of the discriminatory effects bucket.

[00:34:30] Speaker 01:
I gave the court six, I think, when I was up here.

[00:34:32] Speaker 01:
But this is not an analysis where we look at all different considerations and sort of net out and decide which one's more important than the others.

[00:34:39] Speaker 01:
if they have to be similarly situated in all relevant respects.

[00:34:44] Speaker 01:
If even one of those is different, then that just goes to the government's discretionary charging decisions as to whether pepper spray or MMA combat is more important of a consideration.

[00:34:57] Speaker 03:
All right.

[00:34:58] Speaker 03:
Any other questions about my colleague?

[00:35:00] Speaker 01:
With that, Your Honor, we'd ask the court to reverse the judgment below and send this case back so that these defendants can be tried before a jury.

[00:35:05] Speaker 01:
Thank you.

[00:35:06] Speaker 01:
Thank you.

[00:35:06] Speaker 03:
With thanks to all counsel, we appreciate it.

[00:35:08] Speaker 03:
It's very helpful to the court to have such able counsel helping us in our deliberation.

[00:35:12] Speaker 03:
The court stands adjourned for the day.

[00:35:16] Speaker 03:
By the way, the case is submitted.

[00:35:18] Speaker 01:
All rise.

[00:35:20] Speaker 01:
This court for this session stands adjourned.