[00:00:00] Speaker 00:
Case number 23, Dutch 30, 57.

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United States of America versus Michael Angelo Riley, a balance.

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may please the court.

[00:00:18] Speaker 03:
Christopher Mattaroli on behalf of the appellant, Michael Riley.

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On behalf of the appellant, we ask that you vacate the sole conviction in this case on count two of the indictment and remand this back to the district court.

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For the two and a half years that this case had been investigated and prosecuted, the government's theory, its investigation, its proof at trial was all about obstruction of an FBI investigation, not a grand jury proceeding.

[00:00:46] Speaker 03:
And even though the district court gave the government the benefit of the doubt at the motion to dismiss stage that the government was going to proceed a trial on obstruction of an official proceeding, because as the district court said at the pretrial conference, this is what you charged, correct?

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The government said yes.

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The government had its opening statement where it discussed yet again its belief that Michael Riley obstructed an FBI investigation.

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I objected.

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At the end of the government's opening, the district court agreed that it would give a curative instruction to the jury that Officer Riley had not been charged with obstruction of an FBI investigation.

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But that did not stop.

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It proceeded throughout the entire case with its witnesses, even in advance of sentencing.

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Would you say that the fact that Riley saw House Post

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and then didn't even assist in the investigation with respect to turning that in, that that could have been obstruction itself too?

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Not of a grand jury proceeding, especially when this is a public Facebook post.

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But is the obstruction just the grand jury proceeding or obstruction with respect to the investigation as well?

[00:02:00] Speaker 03:
Well, on the day that it occurred, January 7, there was no grand jury proceeding at that time.

[00:02:05] Speaker 01:
It did not even... I know, but I'm asking about the investigation, not just a grand jury proceeding.

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Assuming a grand jury had been opened up.

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But why do you have to have a grand jury to obstruct?

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Well, in this particular case, it would have to be foreseeable to Officer Riley on that date that there would be a grand jury inquiring as the specific item and that his actions actually obstructed that.

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That didn't occur and the jury didn't find that.

[00:02:31] Speaker 01:
Okay, but he's a Capitol Police officer.

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You have a riot, allegedly, occurring on the 6th.

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Is it not foreseeable that there is going to be some potential criminal and prosecution or investigation arising out of those alleged events on that day?

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Absolutely.

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That is reasonable that it's going to be an investigation.

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But what did Officer Riley know at that time?

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Well, there's a Facebook post where an individual claims to have fallen in, been pushed, immediately complied with law enforcement.

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At a minimum, that would be misdemeanor trespassing, as every Capitol police officer who testified for the defense said.

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never dealt with a grand jury, never dealt with a grand jury proceeding relevant to that.

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How about rally posting himself?

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I believe on January 7th that there would be everybody might be federally charged.

[00:03:22] Speaker 03:
Yes, that everybody could be charged and he very similar to an officer saying, you know, don't speak anymore or hey, it's time for you to leave here.

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You're going to be arrested if you don't leave or telling someone don't drink and drive.

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They're going to be posting of, uh,

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you know, law enforcement officers at the end of the turnpike.

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All of that was indicating to Riley, I should say to Hiles, who provided a statement to the defense that he didn't think that he was being obstructed.

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He just thought that he was trying to, you know, make don't make it worse for yourself.

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And at this time, Officer Riley knows that there are numerous cameras

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inside of the Capitol and outside.

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That if anything, if Mr. Hiles had entered and that there was video, that more or less he would be brought to justice.

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And Officer Riley knew that two separate individuals, two separate individuals that he personally knew had reported Hiles to law enforcement.

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Separate and apart from a Facebook post that was at the time Officer Riley contacted

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Mr. Hiles had been viewed by 700 people, had been reposted, and we learned mid-trial from a witness that the government didn't even want the defense to be able to call in its case in chief, Special Agent Nielsen, that the FBI had this Facebook post in its possession and a screenshot had actually occurred before Officer Riley even made contact with Mr. Hiles.

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So is your point in this regard that

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the existence of other avenues by which Hiles' conduct on January 6th.

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might have become known to the government and the investigation of the grand jury undermines any possible intent or knowledge on Mr. Riley's part?

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Absolutely, Your Honor.

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That's the point there.

[00:05:18] Speaker 03:
That's the point.

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This is not a single document or a piece of evidence that's thrown in a river.

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This is a social media post that's everywhere.

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It's spreading like wildfire.

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By the time Riley, on the 7th,

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even makes contact, it has been reposted 700 times.

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But that seems like that's a factual question.

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Is that not a jury, an issue that you've argued or that, you know, counsel argued to the jury and the jury made a finding?

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Well, the district court actually prevented the defense from presenting all the evidence regarding this being socially available, how many times that people have been prosecuted for felonies, all this additional evidence that would undermine the ability of the defense to argue.

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This was not throwing the gun into the river or making evidence unavailable.

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This was completely public information.

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Multiple people have reported this to Officer Riley himself, direct knowledge.

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As to count two, the only conviction, I'm sorry.

[00:06:15] Speaker 02:
Well, that's what I was going to ask you about.

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Wasn't the most relevant evidence for the actual count of conviction that he deleted his private messages with Hiles on January 20th?

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more curious in your arguments about that evidence.

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Absolutely.

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And thank you for directing me to that issue.

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First and foremost, it is not clear even still today what grand jury the

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government was proceeding on a trial.

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The defense always thought this was obstruction of the grand jury charged in the indictment, which I have a copy of relating to the breach of the Capitol on January 6th.

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At the motion to dismiss, I should say the motion for acquittal stage, mid-trial, the district court says to the government, is this really what you're arguing?

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Where's the effect?

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I always thought this was to protect Officer Riley, not to obstruct the investigation as to Mr. Hiles.

[00:07:09] Speaker 03:
The government needed a break, just went back to the council table and said, well, we're going to argue both, that it was obstruction of a grand jury relating to January 6th and Jacob Hiles, and simply a grand jury that would potentially be investigating Officer Riley.

[00:07:25] Speaker 02:
So if the grand jury just needs to be reasonably foreseeable, why does it matter?

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which grand jury ultimately indicted him.

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In other words, isn't the only question whether a jury could find that when he deleted all these posts, it was reasonably foreseeable to him that a grand jury would be investigating a grand jury and grand jury would be investigating the January 6th events?

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Two points to that, Judge Garcia.

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Number one is the Supreme Court said particular.

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So they've used that phrase, particular grand jury.

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That's not a defense argument.

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And two, the language of the Supreme Court president is have an effect.

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Officer Riley's conduct would have had to have an effect on that grand jury.

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At the time he deleted.

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his Facebook direct messages.

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Mr. Hiles had indicated to Officer Riley, in writing, I had been charged with misdemeanors for trespassing.

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I had already spoken to the FBI.

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They have, they've downloaded my phone.

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They have everything.

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What does Officer Riley do, supposedly wanting to remove this from the purview of the grand jury, some grand jury?

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He goes and tells another Capitol Police officer, Vincent Longombe, on the exact same day

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that he'd not only talked to Mr. Hiles, but direct quote, I told him to take that shit down.

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That's what he said on the day he's alleged to be removing from the purview of a grand jury investigating him relating to obstruction.

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But I think the government's response on the fact that Hiles's phone had already been captured is that there's no evidence one way or the other about whether Riley knew

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whether Hiles had kept all these direct messages on his phone.

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In other words, Riley still could have thought he was accomplishing something by taking the material off his own phone.

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What's your response to that?

[00:09:22] Speaker 03:
Well, again, the government's arguments shifted throughout the case.

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In the indictment, they alleged that the obstructive act was the initial Facebook post, take down their portion, right?

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At that point, Hiles had been completely arrested, the information

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Officer Raleigh knew that multiple people had reported hiles, that it was publicly available.

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So there was nothing to indicate that Officer Raleigh believed that he obstructed anything at that time, especially a grand jury.

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And that's exactly what he said to law enforcement when they came to his house.

[00:10:00] Speaker 03:
obstruction they asked him obstruction and what did the agents say in the interview which again the district court did not want to have anything presented to the jury on this issue said um oh i don't know 1505 1512 you know maybe you should you should have why didn't you tell us about this

[00:10:19] Speaker 03:
1505 is obstruction of an agency investigation.

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It's exactly what they put in their search warrants.

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It's exactly what they argued throughout the entire case, only when they realized that there was no official proceeding on the 7th, they switched gears to a 1512 obstruction

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of an official proceeding.

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But their arguments, their search warrants, their evidence was all towards obstruction of an investigation.

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And it does matter, Judge Garcia, that the defense know what is, in order to adequately defend itself, what is the official proceeding that the jury is going to be instructed upon.

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They were instructed upon an official proceeding relating to the breach of the United States Capitol mid-trial.

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Mid-trial, the district court is telling the government, basically, I think this is the better argument.

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Is this really what you're arguing?

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And the government says, oh yes, absolutely, this is what we're arguing.

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And we now pivot towards a trial as to protecting Officer Riley from misdemeanor conduct with a law enforcement officer who has been there for 25 years.

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and has dealt with multiple protests and arresting individuals, never appeared for a grand jury.

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The entire record of this case of other law enforcement officers who testified for the defense, which the government omits completely from its brief, is that they never appeared for a grand jury proceeding relating to these misdemeanor offenses.

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Your Honor, I believe I'm out of time, but I would ask for a little brief rebuttal.

[00:11:56] Speaker 00:
We'll give you some rebuttal time.

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Thank you.

[00:11:58] Speaker 00:
Thank you, Mr. Macchiorelli.

[00:12:08] Speaker 04:
May it please the court?

[00:12:09] Speaker 04:
Mark Hobel for the United States.

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I'd like to focus on count two, the count of conviction and the sufficiency of the evidence supporting the nexus between the obstructive act in this case, which was deleting hundreds of private direct messages with a January 6th rioter, and the official proceeding, which was the January 6th grand jury investigation.

[00:12:33] Speaker 04:
A reasonable jury,

[00:12:36] Speaker 01:
And you labeled it as grand jury investigation, not grand jury proceeding.

[00:12:40] Speaker 01:
Is there a reason you're framing it that way?

[00:12:43] Speaker 04:
No, we used grand jury proceeding in the book to mesh with the statute, but I'll be using it interchangeably, but thank you.

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With respect to the nexus here, well, there's two components to the nexus.

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The first is that the official proceeding be at least reasonably foreseeable.

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to the defendant at the time of the obstructive acts.

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And the second component is that the obstructive acts have the natural and probable consequence of interfering with that proceeding.

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So in terms of reasonable foreseeability, Riley's own direct messages easily satisfy any sufficiency requirement.

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A reasonable juror could surely infer at the very least that January 6th grand jury investigation was reasonably foreseeable to him.

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As early as January 7th,

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He was posting publicly on Facebook.

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Every protester that assaulted an officer yesterday committed property damage and broke into the Capitol building should be charged federally in district court.

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But then he later told Hiles in a direct private direct message, take down the part about being in the building.

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They are currently investigating and everyone who is in the building is going to be charged.

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On January 16th, he told Hiles, they're arresting dozens of people a day.

[00:14:05] Speaker 04:
Everyone that was in the building engaged in violent acts for destruction of property, and they're all being charged federally with felonies.

[00:14:13] Speaker 04:
January 20th, after Hiles had told him he'd been arrested, Riley said to another person, Ben Sheppard, I thought everyone was getting charged with

[00:14:21] Speaker 04:
felonies, and Riley admitted in his grand jury testimony that he knew that grand jury had to charge felonies.

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So the grand jury proceeding was clearly reasonably foreseeable to him at the very least.

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In terms of the nexus and the natural and probable consequence,

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At the time he deleted the messages, he knew that Hiles had just been arrested.

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He knew that the FBI was very interested in him, Riley.

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And he knew also, because he told Hiles, that the FBI was going through everything to help determine who was going to get charged.

[00:14:59] Speaker 04:
And one thing I want to really emphasize here that perhaps we didn't emphasize in our brief, five days after he deleted the messages, at the very first sign of trouble, an OPR complaint, this is on January 25th, he told his union representative, he speculated to his union representative, and this is at, I am sorry, page 531 of the appendix.

[00:15:26] Speaker 04:
If I had to guess what the OPR complaint is,

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It's for telling that person I know to take down his stuff, and I'm paraphrasing some of the words there, from the capital breach.

[00:15:34] Speaker 04:
But I did it on private message, so it should be like a private conversation, but who knows?

[00:15:38] Speaker 04:
So he has that guilty conscience with respect to the obstructive act that was the subject of count one.

[00:15:45] Speaker 04:
And our principal theory here is that he deleted his messages in order to impede its availability to the grand jury investigation.

[00:15:55] Speaker 02:
Can I ask you about the first aspect of this?

[00:16:01] Speaker 02:
The element is intent to impair availability in an official proceeding.

[00:16:09] Speaker 02:
Courts have said that in this case, a grand jury proceeding just needed to be reasonably foreseeable.

[00:16:15] Speaker 02:
In the government's view, does it matter that a grand jury was actually ever empaneled at all?

[00:16:23] Speaker 02:
Or does it just need to be reasonably foreseeable to him that a grand jury could have been impaneled?

[00:16:29] Speaker 04:
The latter.

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As a matter of sufficiency, we don't need to establish that a grand jury was actually impaneled.

[00:16:36] Speaker 04:
I mean, we did present that evidence at trial, so that's present here.

[00:16:40] Speaker 04:
But for sufficiency purposes, no, it just has to be reasonably foreseeable.

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And we've listed a number of cases in our brief from other circuits in which a pending

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law enforcement investigation does make a grand jury proceeding reasonably foreseeable, including this court's precedent in the United States v. Kelly.

[00:17:03] Speaker 00:
But that's just for the state of mind.

[00:17:05] Speaker 00:
I mean, you wouldn't be obstructing or interfering if there weren't eventually an actual grand jury?

[00:17:15] Speaker 04:
No, although I don't know that I can think of a case off the top of my head in which there wasn't an actual proceeding.

[00:17:23] Speaker 04:
No, an endeavor is sufficient.

[00:17:28] Speaker 04:
In fact, the statute says in section 1512, I believe it's F, that no grand jury proceeding need be pending at the time.

[00:17:37] Speaker 04:
Again, a reasonable foreseeability, which does go to the state of mind.

[00:17:41] Speaker 04:
So unless there are any further questions, we would ask this court to affirm Riley's conviction.

[00:17:52] Speaker 04:
Thank you.

[00:17:52] Speaker 04:
Thank you.

[00:18:00] Speaker 03:
Your honors, there is absolutely nothing in the record to support count two of the indictment conviction that officer Riley affected a grand jury by deleting his direct Facebook messages.

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All but one pertain to fishing politics, you know, life story, things of that the one dealing to with taking down a portion

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of the Facebook post.

[00:18:26] Speaker 03:
At that time, January 20th, Hiles had been arrested.

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Hiles had spoken to law enforcement.

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There was video of Hiles floating around on the Internet.

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Officer Riley knew two people had already reported Hiles.

[00:18:41] Speaker 03:
And even though the district court did not rule on the motion for judgment acquittal,

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in the during trial, reserved it, two months later, provided an extremely lengthy synopsis of why the motion for judgmental acquittal should be denied.

[00:18:58] Speaker 03:
I looked that over tonight.

[00:18:59] Speaker 03:
I could not find any facts supporting the concept

[00:19:04] Speaker 03:
Does that mean that you just believe that they could come from another source, that you just don't tie it to him?

[00:19:18] Speaker 03:
But by that time, it would not have made a difference.

[00:19:22] Speaker 03:
And moreover, Judge Chiles, we don't know what the grand jury was investigating, and we still don't know that even to today.

[00:19:29] Speaker 00:
Are you making a materiality argument?

[00:19:33] Speaker 00:
That it wasn't material, and so then even assuming that he had the purpose of hiding his communications with Chiles from a potential grand jury that was reasonably foreseeable,

[00:19:46] Speaker 00:
that it doesn't matter because it wouldn't have been material to the investigation.

[00:19:49] Speaker 00:
It would have had no effect.

[00:19:50] Speaker 00:
Is that your argument that it's a materiality defense?

[00:19:53] Speaker 03:
I think I'm in the language of effect.

[00:19:57] Speaker 03:
Make a difference.

[00:19:58] Speaker 03:
That's how I interpret the term effect.

[00:20:01] Speaker 03:
The grand jury is not looking for Facebook messages between Officer Riley

[00:20:06] Speaker 03:
and Hiles, assuming that they even had an investigation for misdemeanor offenses, as Hiles and 200 other January 6th offenses at that time were charged by information, not subject to a grand jury proceeding whatsoever.

[00:20:20] Speaker 03:
And the evidence in this case was Officer Raleigh was concerned about disciplinary

[00:20:25] Speaker 03:
action for talking to somebody relating to January 6th.

[00:20:29] Speaker 03:
Not that he would be charged with obstruction of a grand jury proceeding by telling somebody who had a public Facebook post, take down a portion of your Facebook post about going into the Capitol.

[00:20:44] Speaker 03:
Leave everything else, that you were there, that the crowd pushed, everything, but just a portion of falling in.

[00:20:50] Speaker 03:
take that out.

[00:20:51] Speaker 03:
There was no evidence that that would be an intent to obstruct that grand jury.

[00:20:55] Speaker 03:
And as to the issue, once again, of felony versus misdemeanor, the government in its own indictment at A-19

[00:21:03] Speaker 03:
Paragraph 13e alleges at the beginning of this investigation that Mr. Hiles was talking about learning from having spoken to the Capitol Police on the 16th, four days before the alleged obstruction, that his charges were likely to involve only trespassing.

[00:21:22] Speaker 03:
There was no belief amongst anybody, Hiles, Riley, that he was going to be charged for a felony

[00:21:29] Speaker 03:
for going in and trespassing consistent with what all the Capitol Police officers had testified and what Officer Riley had testified to as well.

[00:21:38] Speaker 03:
And if I, just in the brief moments I have.

[00:21:41] Speaker 00:
Can I, we'll give you a little bit more time since I'm asking you a question, but you make a claim that there was Jenks material that wasn't provided.

[00:21:50] Speaker 00:
And I just wonder, what is your basis for believing that the government did not provide all Jenks material?

[00:21:57] Speaker 03:
Well, I can give you a perfect example.

[00:22:01] Speaker 03:
Special Agent Nielsen, the one who actually interviewed Hiles, the one who actually had the Facebook post at issue in count one, the government moved to prevent the defense from calling that witness.

[00:22:13] Speaker 03:
When we learned during the trial, amongst many things like the government's theory, what was going to be the instruction to the jury, we learned that the Facebook post was received by the FBI arguably before Riley even

[00:22:27] Speaker 03:
even made contact with Hiles.

[00:22:30] Speaker 03:
There was a report done by Officer Nielsen as to when he received this because he couldn't remember.

[00:22:37] Speaker 03:
I've never received that report.

[00:22:39] Speaker 03:
I've also not received any communications relating to any text messages between, or instant messages between the case agent and everyone else involved in the case.

[00:22:51] Speaker 03:
We moved, we had to move to compel to get Hiles' case file

[00:22:57] Speaker 03:
from the government, which was denied.

[00:22:59] Speaker 00:
Why would that make a difference?

[00:23:00] Speaker 00:
The offense focuses on the state of mind of someone in Officer Riley's position.

[00:23:10] Speaker 00:
So whether his judgments were overly concerned or not, or whether he would have done himself a service just to leave everything be,

[00:23:24] Speaker 00:
isn't really the question, is it?

[00:23:27] Speaker 03:
I think it absolutely is.

[00:23:29] Speaker 03:
Did Officer Riley believe he was obstructing a grand jury proceeding by telling somebody on Facebook who was publicly posting videos and it's reposted 700 times by the time he reaches contact

[00:23:43] Speaker 03:
that he could potentially be removing evidence from the purview of a grand jury?

[00:23:48] Speaker 03:
Absolutely.

[00:23:49] Speaker 03:
We should have every right as a defense to say, no, this was posted all over.

[00:23:53] Speaker 03:
There was preservation requests issued by the FBI, you know, that there are cameras everywhere.

[00:23:58] Speaker 03:
All of that would show that that wasn't his intent to undermine a grand jury or remove evidence.

[00:24:03] Speaker 00:
So the argument is on this record that it's so abundantly clear that

[00:24:10] Speaker 00:
Officer Riley could not have been motivated by an intent to deprive the grand jury of additional evidence, in your view, highly cumulative evidence, that it's unsupported by the evidence, that no reasonable jury could find that he had a motive to keep his own name out of the grand jury.

[00:24:39] Speaker 03:
Yes, I would completely agree with that statement 100%.

[00:24:43] Speaker 03:
And Your Honor, in the very brief moments, and I appreciate the time that you've given me on behalf of Officer Riley, is that the evidence as to the grand jury proceeding.

[00:24:53] Speaker 03:
The case agent who testified, and the government relies upon this in their appellate brief, that individual had no personal knowledge whatsoever.

[00:25:02] Speaker 03:
Testified as to, he was the chief law enforcement officer for January 6 cases, a cross-examination, and this isn't great cross-examination by me, this is kind of basic questions.

[00:25:13] Speaker 03:
When did you go into the grand jury?

[00:25:15] Speaker 03:
And I was thinking, oh, I went in January 10th or something, October.

[00:25:20] Speaker 03:
Well, how do you know about this, Granger, if you weren't in October?

[00:25:23] Speaker 03:
Well, I never went in.

[00:25:24] Speaker 03:
I never heard anything.

[00:25:26] Speaker 03:
And even the district court said to the government, stop.

[00:25:29] Speaker 03:
This witness has no personal knowledge whatsoever.

[00:25:32] Speaker 03:
No more questions on this topic.

[00:25:33] Speaker 03:
And you have to get me something so I could take judicial notice.

[00:25:37] Speaker 03:
Well, judicial notice at the end of the government's order of proof is highly prejudicial to defense, especially when it's relying upon you.

[00:25:45] Speaker 02:
On appeal, you haven't challenged the judicial notice directly, have you?

[00:25:49] Speaker 03:
Oh, absolutely.

[00:25:51] Speaker 03:
Absolutely.

[00:25:52] Speaker 03:
I think it's completely preserved that it was error for, and I make an argument at the end of our opening brief, in 20 plus years of practicing as a lawyer, I've never asked for disqualification of a judge.

[00:26:04] Speaker 03:
And even when I was in the Department of Justice for 10 years, I made that request to this court because I believe taking judicial notice to arguably save the government's case when it has a witness with no possible, no personal knowledge,

[00:26:18] Speaker 03:
Steps over what is appropriate conduct, and I only do that with strong hesitation.

[00:26:23] Speaker 03:
So I absolutely believe that that has been preserved, that taking of judicial notice.

[00:26:28] Speaker 03:
And moreover, your honors, based on a document, based on a document as to what the initial grand jury was convened for, that defense has still not seen.

[00:26:37] Speaker 03:
That we requested a motion to compel as to what this document was that set up this grand jury.

[00:26:44] Speaker 03:
And I would speculate, pure speculation, that there's nothing in that document about the scope of the grand jury.

[00:26:50] Speaker 03:
It was about getting jurors to this building so that the government could start presenting cases and have them available.

[00:26:58] Speaker 03:
We don't know what the scope of the grand jury January 6th was.

[00:27:02] Speaker 03:
If it was investigating people, assaulting officers, rioting, or was it also so broad on January 20th to encompass anybody who said anybody to anyone on the internet, hey, maybe you shouldn't put that up there about January 6th.

[00:27:17] Speaker 03:
Maybe you should take that down.

[00:27:18] Speaker 01:
And I've had clients... But he qualifies it with saying you should take it down because people who are in the building may be charged with felonies.

[00:27:28] Speaker 03:
Absolutely, he's trying to, well, he says initially you're gonna be charged.

[00:27:32] Speaker 03:
That's January 7th.

[00:27:34] Speaker 03:
He does use the word felonies on occasion.

[00:27:36] Speaker 03:
He talks about what we would normally think of felonies, assaulting people, destroying property, defacing property, threatening law enforcement.

[00:27:45] Speaker 03:
Mr. Hiles did none of that, and that was very clear, and that's why he was charged with misdemeanors, given a probationary sentence in this case, while Officer Riley, who was a veteran, saved two lives,

[00:27:56] Speaker 03:
was a training officer, can no longer carry a firearm and is a convicted felon.

[00:28:01] Speaker 00:
Thank you.

[00:28:02] Speaker 00:
We'll take the case under submission.

[00:28:04] Speaker 03:
Thank you, Your Honor.