United States of America v. Jeffrey Scott Brown

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2024 Decided January 17, 2025
No. 23-3074
UNITED S TATES OF A MERICA,
APPELLEE
v.
J EFFREY S COTT B ROWN,
APPELLANT
Consolidated with 23-3075, 23-3104
Appeals from the United States District Court
for the District of Columbia
(No. 1:21-cr-00178-1)
(No. 1:21-cr-00178-2)
(No. 1:21-cr-00178-3)
Jerome A. Madden, appointed by the court, argued the
cause and filed the briefs for appellant Jeffrey S. Brown.
Dennis E. Boyle argued the cause and filed the briefs for
appellant Peter J. Schwartz.

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Benjamin Schiffelbein, Assistant Federal Public Defender,
argued the cause and filed the brief for appellant Markus Maly.
Peter F. Andrews, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Matthew M.
Graves, U.S. Attorney, and Chrisellen R. Kolb and Nicholas P.
Coleman, Assistant U.S. Attorneys.
Before: M ILLETT and GARCIA, Circuit Judges, and
R OGERS , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge M ILLETT.
M ILLETT, Circuit Judge: Jeffrey Brown, Markus Maly,
and Peter Schwartz were tried and convicted by a jury for
assaulting police officers on the Capitol grounds on January 6,
2021. All three now challenge their convictions, and Brown
also challenges his sentence. We affirm Brown’s and Maly’s
convictions and Brown’s sentence. Per the parties’ stipulation,
we vacate Schwartz’s conviction on the 18 U.S.C. § 1512(c)(2)
charge. Lastly, we hold that, in compelling Schwartz to unlock
his cellphone, law enforcement violated the Fifth Amendment,
and so we remand Schwartz’s judgment to the district court to
determine which, if any, of his counts of conviction must be
vacated in light of that error.
I
A
Jeffrey Brown, Markus Maly, and Peter Schwartz did not
know each other prior to January 6, 2021. They travelled to
Washington, D.C. separately from their homes in California
(Brown), Virginia (Maly), and Pennsylvania (Schwartz) to

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attend then-President Trump’s “Stop the Steal” rally at the
Ellipse. After former President Trump’s speech, they each
made their own way to the Capitol grounds.
Trial evidence showed that Maly and Schwartz assaulted
law enforcement officers at two locations on the Capitol
grounds. The first was the Lower West Terrace. By around
2:00 that afternoon, police had formed a line on the terrace to
try and halt the rioters and were using bike racks as a make-
shift barrier. Over the next half hour, the rioters became “more
and more aggressive” and began removing the bike racks. J.A.
1435.
Around 2:30, the line of officers began to “collaps[e]” and,
at that moment, a rioter located in the same area where
Schwartz was standing threw a folding chair at the officers,
striking one of them on the head. J.A. 1439. That officer
testified that he did not see who threw the chair, J.A. 1485–
1488, but Schwartz wrote in a text message on January 7, 2021:
“I threw the first chair at the cops after they maced us.” J.A.
2020.
Shortly after that, Schwartz twice fired pepper spray at
police officers on the Lower West Terrace. The evidence also
showed Maly firing pepper spray at officers on the Terrace.
The violence then moved to the inauguration stage on the
West Front of the Capitol Building. Behind the center of the
stage, the Lower West Terrace door led to the lower Crypt of
the Capitol. The door was set back eight to ten feet from the
building’s façade, creating a “portico area” that, after January
6th, was commonly referred to as the “[T]unnel.” J.A. 970.
After rioters overcame officers’ defenses in other parts of the
Capitol exterior, police retreated to the Tunnel and formed a
line to protect the Lower West Terrace door. Over the course
of several hours, rioters repeatedly tried to push through the

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door, at times “rush[ing] the door” and forming a “crush”
against the line of police. J.A. 1011–1012, 1201. At some
point, the confrontation “broke out into full fighting”—“hand-
to-hand combat”—and rioters were attacking officers with
baseball bats, flagpoles, sticks, chairs, “pretty much anything
that you can think of[.]” J.A. 1585. Officers later testified that
their time in the Tunnel was “pretty terrifying[,]” J.A. 1205,
and described it as “hell[,]” J.A. 1585. One recounted that the
“tunnel was by far [his] worst experience” on January 6th. J.A.
1380.
By shortly after 3:00, Schwartz, Maly, and Brown had
each entered the Tunnel. Standing a few feet from the line of
police officers, Schwartz handed a canister of chemical spray
to Maly, who then passed it to Brown. After Brown appeared
to have trouble releasing the spray, he handed the canister back
to Schwartz, who adjusted something on the canister. Schwartz
passed the canister back to Brown, who then sprayed the line
of officers from close range.
Maly soon left the Tunnel. After Brown sprayed the
officers, Brown, Schwartz, and other rioters attempted to use
their weight to push through the officers, chanting “[h]eave-
ho.” J.A. 1845–1846, 2048.
B
A grand jury subsequently indicted Brown, Maly, and
Schwartz as follows:
(1) Assaulting, Resisting, or Impeding Certain Officers
Using a Dangerous Weapon, 18 U.S.C. § 111(a)(1),
(b) against Schwartz for throwing a chair at officers;

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(2) Civil Disorder, 18 U.S.C. § 231(a)(3), against
Brown, Maly, and Schwartz;
(3) Assaulting, Resisting, or Impeding Certain Officers
Using a Dangerous Weapon, 18 U.S.C. § 111(a)(1),
(b) against Schwartz for his first use of pepper spray;
(4) Assaulting, Resisting, or Impeding Certain Officers
Using a Dangerous Weapon, 18 U.S.C. § 111(a)(1),
(b) against Schwartz for his second use of pepper
spray;
(5) Assaulting, Resisting, or Impeding Certain Officers
Using a Dangerous Weapon, 18 U.S.C. § 111(a)(1),
(b) against Maly for his use of pepper spray;
(6) Assaulting, Resisting, or Impeding Certain Officers
Using a Dangerous Weapon and Aiding and
Abetting, 18 U.S.C. §§ 111(a)(1), (b) & 2 against
Brown, Maly, and Schwartz for their use of pepper
spray in the Tunnel;
(7) Obstruction of an Official Proceeding and Aiding and
Abetting, 18 U.S.C. §§ 1512(c)(2) & 2, against
Schwartz;
(8) Entering and Remaining in a Restricted Building or
Grounds with a Deadly or Dangerous Weapon, 18
U.S.C. § 1752(a)(1), (b)(1)(A), against Brown, Maly,
and Schwartz;
(9) Disorderly and Disruptive Conduct in a Restricted
Building or Grounds with a Deadly or Dangerous
Weapon, 18 U.S.C. § 1752(a)(2), (b)(1)(A), against
Brown, Maly, and Schwartz;

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(10) Engaging in Physical Violence in a Restricted
Building or Grounds with a Deadly or Dangerous
Weapon, 18 U.S.C. § 1752(a)(4), (b)(1)(A), against
Brown, Maly, and Schwartz;
(11) Disorderly Conduct in the Capitol Grounds or
Buildings, 40 U.S.C. § 5104(e)(2)(D), against
Brown, Maly, and Schwartz; and
(12) Act of Physical Violence in the Capitol Grounds or
Buildings, 40 U.S.C. § 5104(e)(2)(F), against Brown,
Maly, and Schwartz.
J.A. 2–7.
Brown, Maly, and Schwartz exercised their right to a trial.
Before trial, Schwartz filed motions, as relevant here: (1) to
suppress evidence obtained from his cellphone because FBI
agents forced him to unlock it with his thumbprint in violation
of the Fourth and Fifth Amendments; and (2) to sever the trials
under Federal Rule of Criminal Procedure 8(b).
The district court denied both motions. As for the Fifth
Amendment claim, the court found that the FBI had compelled
Schwartz to unlock his cellphone, but determined that act was
not testimonial and therefore did not give rise to a Fifth
Amendment violation. The court also found that the good faith
exception made suppression inappropriate in any event.
With respect to the motion to sever, the district court held
that the defendants were properly joined because of their
alleged coordinated conduct in the Tunnel—namely, passing a
canister of pepper spray among themselves. The court
reasoned that Schwartz, Brown, and Maly were “alleged to

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have participated in ‘the same act or transaction, or in the same
series of acts or transactions, constituting an offense or
offenses.’” J.A. 281 (quoting FED. R. C RIM. P. 8(b)).
The defendants were tried before a jury in November
2022. At the close of the government’s case, each appellant
moved for acquittal under Federal Rule of Criminal Procedure
29. Schwartz and Maly moved generally for acquittal, and
Brown moved specifically for acquittal based on the “deadly or
dangerous [weapon] enhancement” applied to him under 18
U.S.C. §§ 111(b) and 1752(b)(1)(A) in four counts.
The district court denied those motions, reasoning that the
government had presented evidence that each defendant fired
pepper spray on January 6th and that, based on the evidence in
this case, a reasonable jury could find their use of pepper spray
constituted use of a deadly or dangerous weapon.
Maly also requested a specific unanimity instruction for
the 18 U.S.C. § 111 counts, which the district court denied.
The court held that a specific unanimity instruction is not
required when, as with Section 111, a statute lists alternative
means of committing a single offense.
The jury convicted Schwartz, Brown, and Maly on all
counts. The district court then sentenced Schwartz to 170
months of imprisonment, Maly to 72 months, and Brown to 54
months.
II
The district court had jurisdiction under 18 U.S.C. § 3231,
and we have jurisdiction under 28 U.S.C. § 1291.

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III
Schwartz, Brown, and Maly all argue that there was
insufficient evidence to convict them under 18 U.S.C.
§§ 111(b) and 1752(b)(1)(a) for using pepper spray on the
ground that it is not a deadly or dangerous weapon. Schwartz
claims the same is true for the chair he threw at officers.
Schwartz separately argues that the compelled opening of his
cellphone violated the Fifth Amendment, and so evidence
obtained from the phone should have been suppressed.
Schwartz also argues that the defendants’ cases should have
been severed. Maly, for his part, maintains that he was entitled
to a special unanimity jury instruction on the Section 111
counts. And Brown contends the district court abused its
discretion in sentencing him to a prison term of 54 months.
Lastly, Schwartz argues that his conviction under 18 U.S.C.
§ 1512(c)(2) should be vacated, and the government agrees in
light of Fischer v. United States, 603 U.S. 480 (2024). Gov’t
Br. 15 n.4.
We vacate Schwartz’s Section 1512(c) conviction and
remand for resentencing because, with that conviction vacated,
Schwartz’s sentence was based on an incorrect Guidelines
range. See Molina-Martinez v. United States, 578 U.S. 189,
198 (2016).
We also agree with Schwartz that the government violated
the Fifth Amendment when it compelled him to open his
cellphone, and so we remand for the district court to determine
whether that error was harmless or whether it infected some or
all of Schwartz’s offenses of conviction. We deny the rest of
the claims raised on appeal.

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A
We turn first to Schwartz, Brown, and Maly’s joint
argument that there was insufficient evidence to convict them
of using a dangerous weapon—pepper spray and, for Schwartz,
a chair—while attacking police officers, in violation of 18
U.S.C. §§ 111(b) and 1752(a).
As relevant here, 18 U.S.C. § 111(a)(1) makes it a crime
to “forcibly assault[], resist[], oppose[], impede[], intimidate[],
or interfere[] with” a designated federal officer while that
officer is “engaged in or on account of the performance of
official duties[.]” Section 111(b) of that same provision
increases the maximum penalty to twenty years if, during
commission of the offense, the person “uses a deadly or
dangerous weapon * * * or inflicts bodily injury[.]” 18 U.S.C.
§ 111(b). In this case, the indictment relied on the “deadly or
dangerous weapon” component of that enhancement, and not
the “bodily injury” component. See J.A. 2–5.
Section 1752(a) of Title 18 separately punishes various
conduct in a “restricted building or grounds[,]” including, as
relevant to the charges here, knowingly “enter[ing] or
remain[ing]” in a restricted area, “engag[ing] in disorderly or
disruptive conduct[,]” or “engag[ing] in any act of physical
violence[.]” 18 U.S.C. § 1752(a)(1)-(2), (4). The statute then
increases the available penalty to ten years of imprisonment if,
“during and in relation to” commission of the Section 1752(a)
offense, the person “uses or carries a deadly or dangerous
weapon or firearm[.]” 18 U.S.C. § 1752(b)(1)(a).
Under Federal Rule of Criminal Procedure 29(a), “the
court on the defendant’s motion must enter a judgment of
acquittal of any offense for which the evidence is insufficient
to sustain a conviction.” FED. R. C RIM. P. 29(a). Where, as

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here, defendants preserved their sufficiency challenges by
raising them before the district court, we review de novo
whether the evidence was sufficient, United States v. Stoddard,
892 F.3d 1203, 1213 (D.C. Cir. 2018), but “[o]ur review is
highly deferential to the jury’s decision[,]” United States v.
Reynoso, 38 F.4th 1083, 1089 (D.C. Cir. 2022); see also United
States v. Spinner, 152 F.3d 950, 955 (D.C. Cir. 1998). “We
consider the evidence taken as a whole, and with reasonable
inferences drawn in the light most favorable to the verdict.”
United States v. Griffin, 119 F.4th 1001, 1009 (D.C. Cir. 2024);
see also United States v. Kegler, 724 F.2d 190, 196 (D.C. Cir.
1983) (“In weighing the evidentiary support for [a] verdict, it
is elementary that we are required to view the evidence in the
light most favorable to the jury’s verdict.”). “We will affirm a
guilty verdict if ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
Griffin, 119 F.4th at 1009 (quoting Musacchio v. United States,
577 U.S. 237, 243 (2016)). “We draw no distinctions between
direct and circumstantial evidence, and we give ‘full play to the
right of the jury to determine credibility, weigh the evidence
and draw justifiable inferences of fact.’” Reynoso, 38 F.4th at
1089 (quoting United States v. Clark, 184 F.3d 858, 863 (D.C.
Cir. 1999)).
Schwartz, Brown, and Maly argue that they did not use
pepper spray or a chair as deadly or dangerous weapons within
the meaning of 18 U.S.C. § 111(b) or 18 U.S.C.
§ 1752(b)(1)(a). More specifically, Maly disputes that there
was sufficient evidence to show he fired pepper spray at all, see
Maly Opening Br. 10–11, as does Schwartz with respect to the
thrown chair, see Schwartz Opening Br. 18. And all three
claim that the pepper spray and chair were not used as deadly
or dangerous weapons within the meaning of the two statutes.

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Sometimes a weapon is inherently deadly or dangerous,
like a gun. Other objects are not inherently deadly or
dangerous, but they can become so if used in certain ways. All
parties agree that the pepper spray and chair used here fall
within the latter category, and so we assume the same for
purposes of this opinion. See Brown Opening Br. 21, 25; Maly
Opening Br. 12; Schwartz Opening Br. 16–17; Gov’t Br. 19–
21, 23, 31. As a result, the “deadly or dangerous”
enhancements apply if the government proves beyond a
reasonable doubt that: (1) “the object [is] capable of causing
serious bodily injury or death to another person[,]” and (2) “the
defendant * * * use[d] it in that manner[.]” United States v.
Arrington, 309 F.3d 40, 45 (D.C. Cir. 2002) (analyzing Section
111(b)).
Neither Section 111(b) nor Section 1752(b) defines
“serious bodily injury,” but other parts of Title 18 define that
phrase as involving “(A) a substantial risk of death; (B)
extreme physical pain; (C) protracted and obvious
disfigurement; or (D) protracted loss or impairment of the
function of a bodily member, organ, or mental faculty[.]” 18
U.S.C. §§ 831(g)(4), 1864(d)(1), & 1365(h)(3). Schwartz,
Brown, and Maly, as well as the government, assume that
definition applies to Sections 111(b) and 1752(b), and so we
assume so as well for purposes of this case. See Brown
Opening Br. 21; Maly Opening Br. 3; Gov’t Br. 20; Schwartz
Opening Br. 15 (citing a substantively similar definition in the
Sentencing Guidelines).
Given the record in this case, sufficient evidence supported
the jury’s finding that Schwartz, Brown, and Maly each used
pepper spray as a deadly or dangerous weapon, and that
Schwartz also used a chair as a deadly or dangerous weapon.

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1
Pepper spray—also known as oleoresin capsicum spray or
OC spray, and sometimes referred to as mace—is a “mixture
of water and a chemical irritant” containing a small percentage
of pepper. J.A. 1089–1090, 1421, 1654.
The evidence in this case showed that pepper spray can
cause protracted vision loss. While the usual purpose of pepper
spray is to “incapacitate” another party “without leaving
serious injury,” J.A. 1089–1090, the record showed that misuse
of the spray can cause “permanent injury,” J.A. 1092. In
particular, if the spray is fired too close to the eyes, “hydraulic
needling” can occur, which happens when the spray “get[s] into
the [person’s] eye fluid” and “penetrate[s] [the] eyeball[,]”
causing “permanent” damage. J.A. 1092, 1661. For this
reason, the Metropolitan Police Department (“MPD”)
prescribes minimum safe distances for officers’ use of pepper
spray. Those distances vary based on the size of the pepper
spray canister. On January 6th, MPD officers carried three
different sizes of canisters: MK-4 canisters, which are roughly
the size of shaving cream bottles; MK-9 canisters, which are
medium-sized and come in various concentrations; and MK-46
canisters, which look like “large black fire extinguisher[s.]”
J.A. 1089, 1328, 1654, 1657–1659. Under MPD’s use-of-force
protocol, the minimum safe distance is three feet for use of
MK-4, six feet for MK-9, and twelve feet for MK-46. J.A.
1092, 1661. One officer testified specifically that the use of
MK-4 within three feet would constitute an “unauthorized level
of force” that could inflict “serious injury on someone[.]” J.A.
1092.
The evidence also showed that pepper spray can cause
extreme pain. During training, MPD officers are sprayed with
pepper spray to understand its effects. J.A. 1093. From more

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than three feet away, an officer sprays each trainee in the face
with two one-second bursts. J.A. 1093, 1253. Officers
described the training experience as “blinding and painful but
not debilitating,” J.A. 1253; as causing “intense burning for a
long, long time[,]” J.A. 1566; and as amounting to a “9 or 10
out of 10” on a pain scale, J.A. 1377.
Officers testified that they felt such intense pain when
sprayed on January 6th. For example, Officer Christopher
Boyle stated that he felt a “9 or 10 out of 10” level of pain when
he was pepper sprayed on the Lower West Terrace. J.A. 1377.
Sergeant Jason Mastony testified that chemical irritants
absorbed through his uniform so his “legs and [his] arms [we]re
on fire.” J.A. 1204. The effects of the chemical irritants,
including “burning” “skin irritation[,]” lingered for about a
week, and he felt particular pain when he showered or tried to
change his contact lenses. J.A. 1247–1248. That is because
pepper spray is water-based and “reactivates with water.” J.A.
1093, 1253. Officer David Pitt testified that he had “severe
burning for the following three days in [his] hands” and “in
various places” from “when [he] was sprayed with various
sprays in the tunnel.” J.A. 1503. Finally, Sergeant Phuson
Nguyen described that, when he showered the night of the 6th,
“the chemical[s] [from the spray] soak[ed] through [his]
pore[s] and it start[ed] burning, and basically [his] whole body
was burning.” J.A. 1587.
That evidence provided a sufficient basis for a rational jury
to find that the pepper spray Schwartz, Brown, and Maly used
was capable of causing extreme pain, especially given the
officers’ testimony that they felt a “9 or 10 out of 10” on a pain
scale and that their limbs were “on fire” and “burning.”
Considering the intensely factual nature of an inquiry into the
extent of pain caused by violent conduct, the evidence in this
case, and the credibility judgments involved, there is no basis

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for this court to overturn the jury’s verdict by finding as a
matter of law that the evidence came up short. See also United
States v. Mejia-Luna, 562 F.3d 1215, 1222 (9th Cir. 2009)
(“[T]he existence and definition of serious bodily injury in a
given case is primarily a jury question dependent upon an
evaluation of all the circumstances of the injury or injuries.”)
(quotation marks omitted); see also United States v. Peneaux,
432 F.3d 882, 891 (8th Cir. 2005) (“Determining whether an
injury is serious is an issue for the jury to decide based on its
‘common understanding’ of the term[.]”) (citation omitted).
Schwartz, Brown, and Maly object that the officers’ pain
did not constitute “serious bodily injury” because the pain was
temporary. Not so. Officers testified that the sensation of
“burning” skin lasted for several days after January 6th and
even up to “about a week[.]” J.A. 1247–1248, 1503. In any
event, nothing in law or logic supports the notion that intense
suffering and torture qualify as serious injury only if they are
clocked as crossing some unspecified time threshold.
The record evidence also supported the jury’s conclusion
that each defendant used pepper spray in a manner capable of
causing such serious bodily injury.
Starting with Schwartz, the record contained both video
evidence and witness testimony showing that, while on the
Lower West Terrace, Schwartz sprayed a large MK-46 canister
of pepper spray at police. Officer Boyle’s testimony and body-
worn camera footage showed Schwartz firing a fire-
extinguisher-sized canister of OC spray in the direction of
police officers. J.A. 1340–1344, 1666. The government also
presented video evidence and witness testimony that Schwartz
sprayed officers a second time around 2:35 PM—this time with
an MK-9 canister. J.A. 1574–1584, 1666; Exhs. 105A.1,
117.1. Video footage shows Schwartz firing the powerful

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spray directly into one officer’s face. Exhs. 105A.1, 117.1. For
both incidents, a rational jury could find that Schwartz fired the
sprays in ways capable of causing either extreme physical pain
or hydraulic needling.
Schwartz objects that the government did not prove the
exact distance from which he fired the sprays, identify whether
any officers were actually hurt, or prove that Schwartz intended
to injure the officers. See Schwartz Opening Br. 16–17;
Schwartz Reply Br. 4. But none of that is necessary for a jury
to convict Schwartz of using pepper spray as a deadly or
dangerous weapon. The video evidence allowed the jury to
gauge whether the sprays came from unsafe distances and
supported a finding that they were used at too-close ranges.
Exhs. 105A.1, 117.1. Whether actual injury resulted is beside
the point. The enhancement applies whenever a weapon is
used in a manner that could have caused serious bodily injury.
Arrington, 309 F.3d at 45; see also United States v. Anchrum,
590 F.3d 795, 802 (9th Cir. 2009).
As for Schwartz’s intent argument, under Section 111(b),
a defendant must “intend to use the object[,]” but need not
“intentionally use the object as a weapon.” Arrington, 309
F.3d at 45–46. That same reasoning applies to Section
1752(b)(1)(a), which requires only that the defendant intend to
“use[] or carr[y]” the object. 18 U.S.C. § 1752(b)(1)(a). Here,
the evidence was more than sufficient to show that Schwartz
intended to carry and use the pepper sprays. The video footage
demonstrates beyond a reasonable doubt that he intentionally
fired the spray, as opposed to, for example, accidentally
bumping into the canisters and inadvertently compressing their
triggers.
As for Maly, the evidence showed that he fired pepper
spray at officers, including Officer Boyle, on the Lower West

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Terrace. J.A. 1352–1365; Exh. 120.2. Officer Boyle testified,
consistent with his body-worn-camera footage, that Maly was
holding “what appear[ed] to be a chemical OC spray.” J.A.
1365. He further testified that when he was sprayed, “it hurt
immediately” and he felt “burning, pain[,]” that was
“[c]onsistent” with the feeling of his prior experiences with OC
spray. J.A. 1368. And Maly admitted upon his arrest that, on
January 6th, he “picked up a canister or two of [] pepper spray
and then sprayed them at police officers.” J.A. 1896. Viewed
in the light most favorable to the jury’s verdict, this evidence
establishes beyond a reasonable doubt that Maly deployed OC
or chemical spray in a manner capable of causing extreme pain
to one or more officers. See also Reynoso, 38 F.4th at 1089
(“[W]e give full play to the right of the jury to determine
credibility, weigh the evidence and draw justifiable inferences
of fact.”) (citation omitted).
Finally, the video evidence against Brown showed that he
shot pepper spray from close range at the line of officers
guarding the Tunnel. Exh. 103.9. Two officers who had been
stationed in the Tunnel testified that they heard a “hiss”
“consistent with a chemical irritant spray” or “aerosol spray”
at the time video evidence showed Brown discharging a
canister. J.A. 1210–1211; J.A. 1497–1498. Body-worn
camera videos corroborated that testimony. Reviewing a still
image taken from other footage, a third officer testified that
Brown fired a “civilian OC spray[]” that released “amber
spray” “consistent” with OC spray. J.A. 1214, 1218, 1693–
1695.
To be sure, officers did not testify that Brown fired spray
directly into their eyes, and the video evidence suggests that
officers in the Tunnel had protective gear, including helmets
and shields. Exh. 103.9. But officers told the jury that they
suffered pain from sprays in the Tunnel even though they wore

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gear and even though some sprays were not fired into their
eyes. Sergeant Mastony explained that chemical irritants
absorbed through his uniform so that his legs and arms were
“on fire.” J.A. 1204. His “body [wa]s pretty much on fire.”
J.A. 1204. Sergeant Nguyen testified that Brown’s particular
spray affected him in “one way or another” because the officers
were “in such a confined space” and the wind that day blew
sprays back into the officers in the Tunnel. J.A. 1590. Officer
Boyle stated that shields were ineffective at preventing police
from being sprayed because “when you get sprayed it
splashes[.]” J.A. 1376. Spray “can go anywhere.” J.A. 1376.
In sum, sufficient evidence supported the jury’s findings
that Schwartz, Brown, and Maly each used pepper spray as a
weapon and did so in a deadly or dangerous manner.
2
The evidence likewise supported the jury’s verdict that
Schwartz threw a chair at officers and, in so doing, used it as a
deadly or dangerous weapon. The evidence showed that,
around 2:30, the line of officers on the Lower West Terrace
began to collapse. J.A. 1439. A Capitol police officer who was
“trying to keep [rioters] back from breaking the line” then “got
overextended into the crowd” and fell. J.A. 1439. Officer
David Pitt “moved up” to “grab[]” his colleague’s vest and try
to “pull him back behind [the] police line to stop him from
being assaulted.” J.A. 1439. As Officer Pitt was doing so, he
was hit in the head by a folding chair that a rioter had thrown.
J.A. 1439; see also Exh. 116.12. Officer Pitt did not see who
threw the chair, J.A. 1485–1488, but Schwartz wrote in a text
message on January 7, 2021: “I threw the first chair at the cops
after they maced us.” J.A. 2020. An FBI case agent also
testified at trial that, based on video evidence, Schwartz was
standing in the part of the crowd from which the folding chair

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18
was thrown. J.A. 2039. The video evidence also shows that
the chair was thrown with force and at high speed directly at
the police officers and that it actually struck Officer Pitt in the
head. Exh. 116.12.
Given the content of the video and Schwartz’s text
message about throwing a chair, the jury reasonably found both
that Schwartz was the one who threw the chair that struck the
officer and that his action posed a risk of serious injury to the
officers as they were attempting to hold back the mob.
Schwartz counters that there was no risk of serious injury
because the officers were outfitted with “helmet[s], pads, and
other protective gear.” Schwartz Opening Br. 18. That is
incorrect. A chair is used in a dangerous manner when, even
though “[f]ortuitously[] the wound inflicted was not serious,”
circumstances could have made it so. United States v. Johnson,
324 F.2d 264, 266 (4th Cir. 1963) (A chair “brought down” on
a victim’s head was used as a dangerous weapon even though
it caused no “serious” injury because “had the blow fallen an
inch lower it could have endangered [the victim’s] eye, or if
slightly higher, a dangerous head wound was likely.”).
Although Officer Pitt and the colleague he assisted both wore
helmets and pads, that gear did not cover their entire bodies.
And the video evidence shows that, right after the chair hit
Officer Pitt, his colleague fell back and his eye visor lifted.
Exh. 116.12. Video evidence from around that same time
reveals that other officers on the Lower West Terrace had lifted
their visors. Exhs. 106A.4; 105A.1. One officer had no
helmet, visor, or apparent padding at all. Exh. 105A.1.
All of this to say, the fortuity that neither Officer Pitt nor
his colleague were seriously injured does nothing to detract
from the jury’s conclusion that Schwartz’s hurling of the
chair—indiscriminately at a line of officers with varying levels

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19
of protective gear—could have caused serious injury. For that
reason, sufficient evidence supported the jury’s finding that
Schwartz used the chair as a deadly or dangerous weapon.
B
Schwartz separately argues that the district court should
have suppressed evidence obtained from his cellphone because
the compelled unlocking of his phone violated the Fourth and
Fifth Amendments. Because we agree with Schwartz that the
compelled opening violated the Fifth Amendment, we need not
address his Fourth Amendment claim.
1
Before trial, Schwartz moved to suppress evidence
obtained from his cellphone, which was seized at the time of
his arrest. J.A. 95–102. The district court held a hearing and
made numerous relevant factual findings. The district court
then denied suppression, finding that no constitutional
violation occurred.
In so holding, the court found that FBI Agent Michael
Nealon was part of the team that executed a search warrant at
Schwartz’s residence on February 4, 2021. J.A. 406; see also
J.A. 380. By the time Agent Nealon arrived, Schwartz had
already been taken into custody pursuant to an arrest warrant
and placed in an FBI vehicle. J.A. 376–377, 406. During the
search, Agent Nealon found a black cellphone on the bedroom
dresser in Schwartz’s one-bedroom apartment. J.A. 406.
Agent Nealon then approached Schwartz and asked for the
password to the phone. J.A. 406. Schwartz offered three
options, which Agent Nealon tried, but none unlocked the
device. J.A. 406.

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20
Agent Nealon returned to the vehicle and was “able to
obtain Mr. Schwartz’s thumbprint to open the phone.” J.A.
406–407. Agent Nealon, however, did not “recall precisely
how that was done” and did not “remember the conversation”
he had with Schwartz. J.A. 407. The agent testified that his
“ordinary practice” was to ask whether the person in custody
“wishe[d] to have any numbers accessed so that they c[ould]
be provided” for use at the jail. J.A. 407. The district court
found that Agent Nealon “presumably” thought he followed
that practice and that “Mr. Schwartz, in response to that
request, did put his thumb on the telephone, thereby opening
it.” J.A. 407.
Agent Nealon brought the unlocked phone inside, and
another FBI agent photographed information on it, including
text messages. J.A. 407; see also J.A. 460. The agents did not
conduct a forensic search of the phone at that time.
Seven months later, the FBI obtained a second warrant to
conduct a forensic search of the cellphone. J.A. 393–394, 407.
The affidavit accompanying the search warrant application
included photographs taken during the February 4th search and
stated that FBI agents had “used Schwartz’s fingerprint to
unlock” the device during the search. Gov’t Rule 28(j) Letter
(Nov. 14, 2024), Exh. 2 at 16–20.
In its initial briefing before the district court, the
government argued that Schwartz’s thumbprint was not
testimonial and that he had consented to use of his thumb to
open the phone. Gov’t Opp. to Schwartz’s Mot. to Suppress at
8–11. But after the suppression hearing, the government
conceded that Schwartz had been “compelled” to produce his
fingerprint. Gov’t Resp. to Schwartz’s Suppl. to Mot. to
Suppress at 6. In other words, the government admitted that

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21
Schwartz’s opening of the cellphone with his thumbprint was
involuntary.
The government did not explain the reason for this
concession, but the record suggests that the change may have
had to do with the timing of Schwartz’s request for an attorney
while in custody. According to the government, when
Schwartz was initially questioned by police, he was advised of
his Miranda rights and agreed to speak to agents without an
attorney present. Id. at 1–2.1 At some point, and agents “could
not recall” whether that point fell before or after Schwartz
opened the phone, Schwartz requested an attorney. Id. at 3 n.3.
Given this concession, the district court found that the FBI
“compelled” Schwartz to “open and inspect his mobile
phone[.]” J.A. 477. The court nevertheless concluded that the
compelled disclosure was not a testimonial act, reasoning that
the Fifth Amendment privilege does not apply when “‘the
[g]overnment merely compels some physical act, i.e., where
the individual is not called upon to make use of the contents of
his mind.’” J.A. 477 (quoting In re Search of [Redacted]
Washington, D.C., 317 F. Supp. 3d 523, 537 (D.D.C. 2018)).
The court also found that the good faith exception, though
typically relevant in the Fourth Amendment context, applied to
Schwartz’s Fifth Amendment claim. J.A. 478.
In reviewing the district court’s denial of a suppression
motion, we review legal conclusions de novo and factual
findings for clear error. United States v. Guertin, 67 F.4th 445,
449 (D.C. Cir. 2023). “We will affirm the judgment of the
district court if ‘any reasonable view of the record supports its
denial of the motion to suppress.’” United States v. Hutchings,
1 As noted below, Schwartz disputes this account.

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22
99 F.4th 604, 607 (D.C. Cir. 2024) (quoting United States v.
Miller, 799 F.3d 1097, 1101 (D.C. Cir. 2015)).
2
The district court erred in denying Schwartz’s suppression
motion because the compelled opening of the cellphone was
testimonial under the Fifth Amendment.
a
The Fifth Amendment provides that “[n]o person shall be
* * * compelled in any criminal case to be a witness against
himself[.]” U.S. Const. Amend. V. To fall within the Fifth
Amendment’s protection, “a communication must be
testimonial, incriminating, and compelled.” Hiibel v. Sixth
Jud. Dist. Ct. of Nevada, Humboldt County, 542 U.S. 177, 189
(2004). The district court found, and the government agrees,
that the police “compelled” Schwartz to open the phone. J.A.
477; Gov’t Br. 38.
The parties also do not dispute that the compelled opening
of the cellphone was incriminating as it identified Schwartz as
the likely owner of, and a person with access to and control
over, the phone and its inculpatory messages. See Kastigar v.
United States, 406 U.S. 441, 445 (1972) (The Fifth
Amendment “protects against any disclosures which the
witness reasonably believes could be used in a criminal
prosecution or could lead to other evidence that might be so
used.”).
That leaves only the first prong of the Fifth Amendment
claim at issue in this case—whether disclosing to police
Schwartz’s way of opening the cellphone and his ability to do
so was testimonial. Testimonial communications are those
that, “explicitly or implicitly, relate a factual assertion or

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23
disclose information.” Doe v. United States, 487 U.S. 201, 210
(1988). Communications need not be verbal or written to
qualify, Schmerber v. California, 384 U.S. 757, 763–765
(1966), and the question of whether a communication is
testimonial often “depend[s] on the facts and circumstances of
[a] particular case[,]” Fisher v. United States, 425 U.S. 391,
410 (1976).
Because Agent Nealon could not recall his conversation
with Schwartz, the district court found only that Agent Nealon
followed his “ordinary practice” of asking Schwartz if he
wanted to access information on the phone for use later at the
police station, and that the agent then “compelled” Schwartz to
open the phone. J.A. 407, 477. In other words, the record
reveals that an FBI agent ordered Schwartz to open the
cellphone, and Schwartz complied by placing his thumb on the
cellphone.
That compelled biometric unlock of a cellphone arises at
the intersection of the Fifth Amendment’s physical-trait and
act-of-production precedents. See United States v. Payne, 99
F.4th 495, 508 (9th Cir. 2024).
Generally, the use of an individual’s physical traits by
police is not considered testimonial. For example, the Fifth
Amendment does not protect against the involuntary furnishing
of a blood sample, Schmerber, 384 U.S. at 765; submitting to
fingerprinting, see United States v. Wade, 388 U.S. 218, 223
(1967); providing a handwriting exemplar, Gilbert v.
California, 388 U.S. 263, 266–267 (1967); providing a voice
exemplar, United States v. Dionisio, 410 U.S. 1, 7 (1973);
standing in a police lineup, Wade, 388 U.S. at 221–222; or
donning particular clothing, Holt v. United States, 218 U.S.
245, 252–253 (1910). “[T]he privilege was not implicated in
each of those cases, because the suspect was not required ‘to

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24
disclose any knowledge he might have,’ or ‘to speak his
guilt[.]’” Doe, 487 U.S. at 210–211 (citations omitted).
But the inquiry is contextual. Some displays of physical
traits can be testimonial. For example, lie detector tests “may
actually be directed to eliciting responses which are essentially
testimonial.” Schmerber, 384 U.S. at 764. Compelling a
person to submit to a test “in which an effort will be made to
determine his guilt or innocence on the basis of physiological
responses, whether willed or not, is to evoke the spirit and
history of the Fifth Amendment.” Id.
The physiological changes observed during a lie detector
test—e.g., an uptick in heart rate or an increase in respiration—
are testimonial because they are manifestations of testimonial
thoughts in the defendant’s mind. A racing heartbeat is a
physical representation of the thought “what I said is false” or
“I am scared to say this,” which—if the subject had been
compelled to say—would be testimonial. Put differently, the
physical response “disclose[d]” the subject’s “knowledge” and
the thoughts of his mind. Doe, 487 U.S. at 211 (quoting Wade,
388 U.S. at 222). By contrast, standing in a police lineup or
providing a blood sample or handwriting exemplar—when
instructed to do so—communicates only that the subject knows
how to comply with orders. But those acts are not
manifestations of any testimonial thoughts.
Though placing a thumb on a phone may seem akin to
submitting to fingerprinting or providing a handwriting
exemplar, the act, as performed here, is much closer to
responding to a lie detector test or complying with a command
to say a password. When Schwartz was ordered to open the
cellphone, his act of unlocking the phone represented the
thoughts “I know how to open the phone,” “I have control over
and access to this phone,” and “the print of this specific finger

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25
is the password to this phone.” If Schwartz had instead been
compelled to disclose whether he could open the phone, and
made to say yes or to verbally disclose the password, those
answers unquestionably would be testimonial
communications. The compelled opening of the cellphone that
occurred here is no different.
Another way of understanding the Supreme Court’s
physical trait cases is that testimonial acts are those physical
actions that require no additional information to communicate
an incriminatory message. A blood draw reveals the blood-
alcohol content of an individual only when chemically
analyzed. See Schmerber, 384 U.S. at 765. A handwriting
exemplar reveals the identity of its author only when compared
to another handwriting sample. See Gilbert, 388 U.S. at 266–
267. But the compelled opening of a cellphone itself directly
announces the owner’s access to and control over the phone, as
well as his mental knowledge of how to unlock the device.
There is no additional information that is needed to understand
the messages communicated by the act of opening a phone. In
that way too, forcing Schwartz to open the phone was
testimonial.
The act-of-production line of cases confirms that
compelling Schwartz to open the phone was testimonial. The
act-of-production doctrine recognizes that physical acts can be
“communicative” “wholly aside from the contents” of anything
produced, Fisher, 425 U.S. at 410, when the action “impl[ies]
assertions of fact,” Doe, 487 U.S. at 209; see also Payne, 99
F.4th at 509 (“Although act of production cases have dealt
exclusively with responses to document subpoenas, their
reasoning applies to other situations.”). Take Doe and United
States v. Hubbell, 530 U.S. 27 (2000)—the two cases that,
according to Payne, show the “act of production doctrine’s
triggering point[.]” Payne, 99 F.4th at 509.

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26
In Doe, the government forced Doe to sign a form
consenting to disclosure of “any and all [foreign bank]
accounts over which Doe had a right of withdrawal, without
acknowledging the existence of any such account.” 487 U.S.
at 204. The Court held that neither the consent directive nor
Doe’s signature on it were testimonial. The Court reasoned
that the form was “carefully drafted not to make reference to a
specific account,” and therefore did “not acknowledge that an
account in a foreign financial institution [wa]s in existence or
that it [wa]s controlled” by Doe. Id. at 215. Likewise Doe’s
signing of the form “ma[de] no statement, explicit or implicit,
regarding the existence of a foreign bank account or his control
over any such account. Nor would his execution of the form
admit the authenticity of any records produced by the bank.”
Id. at 215–216.
The Supreme Court was careful not to hold that any kind
of compelled consent would be non-testimonial. The Court
held only that the specific consent form at issue in that case,
which was “carefully drafted” to avoid reference to or the
identification of any specific bank accounts, was not
testimonial. Doe, 487 U.S. at 215. Because of that drafting,
the Court explained, Doe’s signature on the form did not
confirm the existence of or his control over any account, nor
did he authenticate the records from the bank.
This case is the opposite. Because the FBI directed
Schwartz to open the phone, the government compelled
Schwartz to disclose his knowledge of how the phone could be
opened, and specifically his understanding that his thumb
would unlock the device, and those disclosures revealed his
ownership or control over the phone and the messages it
contained.

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27
Similarly, in Hubbell, the government issued a subpoena
duces tecum for the production of eleven categories of
documents. 530 U.S. at 31. After receiving an assurance of
immunity, the respondent produced 13,120 pages of documents
and “responded to a series of questions that established that
those were all of the documents in his custody or control that
were responsive to the commands in the subpoena[.]” Id.
The Supreme Court found that this act of production
communicated two testimonial messages. First, the subpoena
response established “the existence, authenticity, and custody
of the items” produced. Hubbell, 530 U.S. at 41. Second, the
identification and assembly of those hundreds of documents
required the respondent to make “extensive use of ‘the contents
of his own mind’” and were “tantamount to answering a series
of interrogatories asking a witness to disclose the existence and
location of particular documents fitting certain broad
descriptions.” Id. at 41, 43 (citation omitted).
So too here. When, in response to the command to unlock
the phone, Schwartz opened it, that act disclosed his control
over the phone, his knowledge of how to access it, and the
existence, authenticity, and ownership of documents within it.
In addition, opening the phone was tantamount to answering a
series of questions about ownership or control over the phone,
including how it could be opened and by whom.
In short, under both the physical-trait and act-of-
production caselaw, Schwartz’s compelled unlocking of the
phone was testimonial.2
2 This holding is consistent with the Ninth Circuit’s decision in
Payne, 99 F.4th at 509–513. In that case, instead of instructing the
defendant to open his phone, as the FBI instructed Schwartz to do,

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b
Because the compelled opening of the cellphone was
testimonial, both the message communicated by that action and
any evidence obtained from that communication must be
suppressed. See Kastigar, 406 U.S. at 445 (The Fifth
Amendment “protects against any disclosures which the
witness reasonably believes could be used in a criminal
prosecution or could lead to other evidence that might be so
used.”); Harrison v. United States, 392 U.S. 219, 222 (1968)
(“[T]he same principle that prohibits the use of confessions
[wrongfully obtained] also prohibits the use of any testimony
impelled thereby—the fruit of the poisonous tree, to invoke a
time-worn metaphor.”). In unlocking the phone, Schwartz
disclosed that he had access to the phone and therefore also the
ability to use it, and the government then used those testimonial
acts in prosecutorial actions against Schwartz.
First, as a consequence of Schwartz unlocking the phone,
the FBI agents gained access to the phone and photographed
text messages “related to Schwartz’s presence at the U.S.
Capitol on January 6.” J.A. 407, 460.
Second, the government relied on those text messages, as
well as the fact that “Schwartz’s fingerprint [] unlock[ed]” the
phone, to establish probable cause to obtain a second warrant
the police “forcibly grabbed Payne’s thumb and used it to unlock the
phone.” Id. at 500. The Ninth Circuit found that act was not
testimonial, id. at 509–512, but the court emphasized that its
“opinion should not be read to extend to all instances where a
biometric is used to unlock an electronic device[,]” id. at 513.
“Indeed, the outcome on the testimonial prong may have been
different[,]” the Ninth Circuit recognized, “had [the] [o]fficer []
required Payne to independently select the finger that he placed on
the phone.” Id. That is this case.

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29
for a forensic analysis of the phone. Gov’t Rule 28(j) Letter,
Exh. 2 at 16–20. With that warrant in-hand, an FBI computer
analyst “extracted the data from the phone” and produced a
“usable report” of the phone’s contents. J.A. 2014.
Third, the government introduced that report into evidence
at trial, relied on the report to prove Schwartz was the “owner
and user of the telephone[,]” and then introduced incriminating
text messages reflected in the report. J.A. 2014–2036.
Because the evidence on Schwartz’s phone was the
product of a Fifth Amendment violation, the district court erred
in denying Schwartz’s motion to suppress use of that evidence
and its fruits in his prosecution.
The government maintains, however, that even if the
evidence was obtained in violation of the Fifth Amendment,
suppression is unnecessary both because the phone’s contents
and linkage to Schwartz inevitably would have been
discovered, and because the officers acted in good faith.
Neither argument succeeds.
(i)
The inevitable-discovery doctrine “allows for the
admission of evidence that would have been discovered even
without the unconstitutional source.” Utah v. Strieff, 579 U.S.
232, 238 (2016); see also Nix v. Williams, 467 U.S. 431, 448
(1984) (When “the evidence in question would inevitably have
been discovered without reference to the police error or
misconduct, there is no nexus sufficient to provide a taint and
the evidence is admissible.”); McKathan v. United States, 969
F.3d 1213, 1232 (11th Cir. 2020) (“The inevitable-discovery
doctrine can apply when a Fifth Amendment violation
occurs.”); United States v. Griffin, 48 F.3d 1147, 1150 (10th
Cir. 1995) (“The inevitable discovery doctrine allows the

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30
introduction of evidence acquired in violation of a defendant’s
Fourth, Fifth, or Sixth Amendment rights[.]”); United States v.
Fisher, 700 F.2d 780, 784 (2d Cir. 1983); United States v.
Schmidt, 573 F.2d 1057, 1065–1066 n.9 (9th Cir. 1978); Nix,
467 U.S. at 440–441 n.2.
The government bears the burden of proving by a
preponderance of the evidence that the evidence would have
been discovered independently of the Fifth Amendment
violation. Nix, 467 U.S. at 444–445 n.5.
Here, the government argues that it would have inevitably
confirmed Schwartz’s ownership of his phone and discovered
its contents because FBI agents obtained a second warrant
seven months later to search the phone. Gov’t Br. 45. The
affidavit in support of that warrant, however, relied on the Fifth
Amendment violation—that Schwartz’s thumbprint unlocked
the phone—and the inculpatory text messages the phone
contained to establish probable cause for that later warrant. See
Gov’t Rule 28(j) Letter, Exh. 2 at 16–20. Reliance on tainted
evidence generally indicates that the later discovery was not so
inevitable after all. See Nix, 467 U.S. at 448 (“[T]he evidence
in question” must “have been discovered without reference to
the police error or misconduct[.]”) (emphasis added).
The government insists, though, that probable cause to
search the contents of the phone existed even without reference
to the tainted evidence. See Gov’t Rule 28(j) Letter. Maybe.
But even if it did, the government has not shown that it could
have unlocked the cellphone without relying on a testimonial
communication.
As it turns out, the government later was able to unlock
Schwartz’s cellphone by using a variation of one of the
passwords Schwartz had supplied during the custodial
interview following his arrest. Gov’t Resp. to Schwartz’s

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31
Suppl. to Mot. to Suppress at 10. Yet the government concedes
that Schwartz’s disclosure of his passwords was testimonial.
Gov’t Opp. to Schwartz’s Mot. to Suppress at 8–9
(“[C]ompelling a defendant to communicate a password * * *
would be ‘testimonial’ under the Fifth Amendment[.]”). The
government tries to surmount that hurdle by arguing that
Schwartz voluntarily supplied those passwords. Gov’t Resp.
to Schwartz’s Suppl. to Mot. to Suppress at 2 (“Schwartz
voluntarily provided three passwords[.]”). In other words, it
claims the passwords were not compelled. See Hiibel, 542 U.S.
at 189 (To receive Fifth Amendment protection, “a
communication must be testimonial, incriminating, and
compelled.”) (emphasis added).
The government, however, has failed to carry its burden of
proving the voluntariness of the password disclosures.
According to the government, an FBI agent had begun
questioning Schwartz and had advised him of his Miranda
rights before Agent Nealon approached to ask for the cellphone
passwords. Gov’t Resp. to Schwartz’s Suppl. to Mot. to
Suppress at 2 n.2. But Schwartz disputes that account, see
Schwartz Reply Br. 12, and the district court made no factual
findings about the timing or adequacy of any Miranda
warnings or the voluntariness of those password disclosures,
see J.A. 405–409. Given this bare record and conflicting views
of what occurred based on unresolved factual disputes, the
government has failed to establish by a preponderance of the
evidence that Schwartz voluntarily supplied the passwords to
his phone.
All of this is a long way of saying that, on this record, the
government has not met its burden of showing that it would
have gained access to the phone’s contents by some
independent, lawful means.

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(ii)
The government’s second tack is to argue, as the district
court found, that the Fourth Amendment’s good faith exception
to the exclusionary rule should be extended to Fifth
Amendment violations as well. Gov’t Br. 45 n.14.
That argument fails for multiple reasons.
To start, the government cannot show good faith here
because the officer could not remember the relevant facts of
how he compelled Schwartz to open the phone. In particular,
at no point did the officer claim to have relied upon the warrant
or any other relevant legal authority as empowering him to
compel Schwartz to open his phone.
Nor could the agent have. The warrant expressly withheld
authority to “demand” that Schwartz provide the password or
“identify the specific biometric characteristics (including the
unique finger(s) or other physical features) that may be used to
unlock or access the Device(s)[,]” unless the agents “ma[d]e
clear that providing any such information is voluntary and that
[Schwartz] [wa]s free to refuse the request.” Suppl. App. 10.
The good faith exception does not apply when officers fail to
comply with express limitations in the warrant. See United
States v. Leon, 468 U.S. 897, 920 (1984) (The good faith
exception is appropriate “when an officer acting with objective
good faith has obtained a search warrant from a judge or
magistrate and acted within its scope[.]”) (emphasis added).
Finally, the government fails to provide any developed
argument in support of extending the good faith exception to
the Fifth Amendment, offering only a cursory footnote. So the
argument is forfeited, and we need not decide whether the good
faith exception applies to Fifth Amendment violations. CTS
Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (“A footnote is

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33
no place to make a substantive legal argument on appeal;
hiding an argument there and then articulating it in only a
conclusory fashion results in forfeiture.”).
Accordingly, the district court erred in denying Schwartz’s
motion to suppress the evidence obtained from the compelled
opening of the cellphone. We remand to the district court to
decide whether that error was harmless beyond a reasonable
doubt as to any counts. See Chapman v. California, 386 U.S.
18, 19, 24 (1967) (applying harmless beyond a reasonable
doubt standard when prosecution commented on defendants’
failure to testify); Milton v. Wainwright, 407 U.S. 371, 372
(1972) (applying harmless beyond a reasonable doubt standard
when defendant’s incriminating statements were admitted at
trial in a federal habeas case predating Brecht v. Abrahamson,
507 U.S. 619 (1993)).
3
Schwartz also claims the government violated the Fourth
Amendment because the use of his thumbprint did not comply
with the procedures in the February 2021 search warrant.
Because Schwartz seeks to suppress the same records under the
Fourth and Fifth Amendments, and the harmless error analysis
is the same under both, we need not decide his Fourth
Amendment claim. See Bumper v. North Carolina, 391 U.S.
543, 550 (1968) (applying the harmless beyond a reasonable
doubt standard to admission of evidence seized in violation of
the Fourth Amendment); Chambers v. Maroney, 399 U.S. 42,
53 (1970) (same).
C
As his final argument on appeal, Schwartz claims the
district court violated Federal Rule of Criminal Procedure 8

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34
when it permitted joinder of the three co-defendants’ cases.
Even assuming the joinder was error given their very limited
interactions, Schwartz has not shown, or even argued, that he
suffered any prejudice from the district court’s decision to join
the cases. “[A]n error involving misjoinder ‘affects substantial
rights’ and requires reversal only if the misjoinder results in
actual prejudice because it ‘had substantial and injurious effect
or influence in determining the jury’s verdict.’” United States
v. Lane, 474 U.S. 438, 449 (1986) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)).
D
Next, we turn to Maly’s challenge to the district court’s
jury instructions. He claims the district court erred by refusing
to give the jury a special unanimity instruction for Counts Five
and Seven—the two Section 111 charges against him. Maly
Opening Br. 19–24; J.A. 3–5. By way of reminder, Section
111(a)(1) provides that whoever “forcibly assaults, resists,
opposes, impedes, intimidates, or interferes with [an officer]
while engaged in or on account of the performance of official
duties” is subject to criminal penalties. 18 U.S.C. § 111(a)(1).
According to Maly, the court should have directed the jury
that, to convict, it had to unanimously agree on which verb—
that is, assault, resist, oppose, impede, intimidate, or
interfere—applied to his conduct. The district court denied the
request on the ground that unanimity is “required as to an
element of an offense[,]” but not “the means by which an
element is satisfied.” J.A. 2554.
We review de novo the district court’s refusal to provide a
requested jury instruction. United States v. Wilson, 605 F.3d
985, 1018 (D.C. Cir. 2010). “The pertinent question is
‘whether, taken as a whole, [the instructions] accurately state

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35
the governing law and provide the jury with sufficient
understanding of the issues and applicable standards.’” Id.
(quoting United States v. Washington, 106 F.3d 983, 1002
(D.C. Cir. 1997)).
No special unanimity instruction was required here.
Though federal juries must reach unanimity on each element of
an offense, they “need not always decide unanimously which
of several possible sets of underlying brute facts make up a
particular element, say, which of several possible means the
defendant used to commit an element of the crime.”
Richardson v. United States, 526 U.S. 813, 817 (1999).
The critical question, then, is whether the verbs in Section
111(a) constitute distinct “elements” or “means” of committing
the offense. In Section 111(a)(1), the listed ways in which the
offense could be committed are means, not elements.
To start, that is what the language of the statute says. See
Richardson, 526 U.S. at 818. The statute lists all of the acts of
violation in one sentence, and imposes a single, identical
penalty for all of them. That construction “‘indicates that
Congress did not mean to create more than one offense.’”
United States v. Street, 66 F.3d 969, 974 (8th Cir. 1995)
(quoting United States v. Mal, 942 F.2d 682, 688 (9th Cir.
1991)); see United States v. McIntosh, 753 F.3d 388, 393 (2d
Cir. 2014); see also U.S.S.G. § 2A2.4 (not distinguishing
among the verbs in imposing a sentence for Section 111
offenses). In so holding, we agree with the decisions of the
Second and Eighth Circuits that the statutory text sets out
alternative means of committing a single offense, rather than
different offenses. See Street, 66 F.3d at 974; McIntosh, 753
F.3d at 393.
That reading of Section 111(a) accords with Congress’s
purpose to protect “the safety of federal officers insofar as it

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was tied to the efficacy of law enforcement activities.” United
States v. Feola, 420 U.S. 671, 681 (1975). For that reason, “the
statute must be read as prohibiting any acts or threats of bodily
harm that might reasonably deter a federal official from the
performance of his or her duties.” United States v. Walker, 835
F.2d 983, 987 (2d Cir. 1987). That purpose does not admit of
gradations among different kinds of interfering conduct or
different types of threats. Instead, it makes a “single crime of
harming or threatening a federal official” during the
performance of her duties, and “specifie[s] six ways by which
the crime c[an] be committed.” Street, 66 F.3d at 975; see
McIntosh, 753 F.3d at 393.
Of course, the statutory meaning must also comport with
the Constitution, which “limits [Congress’s] power to define
crimes in ways that would permit juries to convict while
disagreeing about means, at least where that definition risks
serious unfairness and lacks support in history or tradition.”
Richardson, 526 U.S. at 820. In Schad v. Arizona, 501 U.S.
624 (1991), abrogated on other grounds by Ramos v.
Louisiana, 590 U.S 83 (2020), the Supreme Court ruled that the
need for specificity turns on the Due Process Clause’s demands
for fundamental fairness, “and for the rationality that is an
essential component of that fairness,” id. at 637 (plurality
opinion); see also id. at 650, 652 (Scalia, J., concurring in part
and concurring in the judgment) (“It is precisely the historical
practices that define what is ‘due.’ * * * Th[e] requirement of
[due process] is met if the trial is had according to the settled
course of judicial proceedings.”) (citation omitted).
Schad found no constitutional problem where the two
means of committing the offense (there, murder) “reasonably
reflect notions of equivalent blameworthiness or culpability[.]”
Schad, 501 U.S. at 643 (plurality opinion).

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So too for Section 111(a)(1). Each of the qualifying
actions—“assaults, resists, opposes, impedes, intimidates, or
interferes with” an officer—must be committed “forcibly.” 18
U.S.C. § 111(a)(1). In that way, the statute assigns equivalent
blameworthiness to conduct that forcibly obstructs law
enforcement officers in the performance of their duties. While
only “assault” requires actual injury or threat of injury, the
other actions listed necessarily carry a risk of injury because
they must be undertaken “forcibly.” Id.; see also WEBSTER ’S
THIRD NEW INTERNATIONAL D ICTIONARY 887 (1993) (def. 1c)
(defining “force” as “power to affect in physical relations or
conditions”); B LACK’S LAW DICTIONARY 718 (9th ed. 2009)
(defining “force” as “[t]o compel by physical means or by legal
requirement”). Shoving someone risks that the person will fall
and hurt herself. Kicking someone risks that the person will
bruise or bones will be broken. And, as relevant here, spraying
someone with pepper spray at an unsafe range risks causing
injuries to the eye and the intense pain of burning skin. Moral
equivalence between assault and the other means of violating
Section 111(a)(1) can thus “reasonably be found[.]” See
Schad, 501 U.S. at 644 (plurality opinion).
Maly relies on United States v. North, 910 F.2d 843 (D.C.
Cir. 1990) (“North I”), withdrawn and superseded in part by
United States v. North, 920 F.2d 940 (D.C. Cir. 1990). To start,
the part of that opinion that Maly relies on was vacated and so
lacks precedential force.
Anyhow, in North I, the defendant could have been found
guilty for “destroying, altering, or removing” documents.
North I, 910 F.2d at 876. The critical difference is that the
defendant had testified to doing each of those kinds of conduct
at distinct points in time. He destroyed certain documents,
altered some, and removed still others. Id. at 876–878. As a
result, the panel was concerned that different jurors could have

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found that the government had proven different criminal acts
at different times, without ever agreeing that one single
criminal act was committed. Id. at 878.
Here, by contrast, the relevant counts did not sweep in
multiple acts at different times or locations. Count Five
charged Maly only with a Section 111 offense “at
approximately 2:35 PM with pepper spray” on the Lower West
Terrace. Count Seven separately charged him with a Section
111 offense “between approximately 3:07 pm and 3:10 pm
with pepper spray[]” in the Tunnel. J.A. 2273. Each count
charged a distinct incident and, at most, jurors disagreed about
which verb best fit Maly’s conduct on each of those two
occasions.
Maly nonetheless argues that jurors might have convicted
him on Count Five for two “separate act[s].” Maly Opening
Br. 23. Specifically, Maly disputed at trial whether the
cannister he pointed at Officer Boyle contained any OC or
pepper spray. He thus claims “some jurors could have
concluded that [he] opposed officers” when he pointed a “less-
than-lethal” spray bottle at them, while other jurors “might
have concluded that he engaged in a separate act by actually
deploying the spray in their direction.” Id. But these two
different versions of events still refer to the same action and
moment in time: Maly pointing a spray canister at Officer
Boyle at 2:35 PM on the Lower West Terrace. Jurors may have
disagreed about what exactly happened at that moment. But
because Section 111 criminalizes forcibly “oppos[ing]” an
officer with an empty canister, threatening to assault him, or
actually assaulting him, jurors reached unanimity that the same
incident violated the statute.
For those reasons, the district court properly declined to
give a special unanimity instruction.

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E
Lastly, Brown claims the district court abused its
discretion by not granting a downward variance to a sentence
of no more than 40 months. Brown Opening Br. 25. He argues,
in particular, that the 54-month sentence he received was
disproportionate to that imposed on comparably culpable
defendants.
Brown does not claim that there was any procedural error
in the district court’s sentencing. He just disputes its bottom-
line appropriateness. We review the substantive
reasonableness of criminal sentences for an abuse of discretion.
Gall v. United States, 552 U.S. 38, 51 (2007). “Our review is
‘quite deferential,’ meaning that it is an ‘unusual case’ in which
the district court abuses its discretion.” United States v. Alford,
89 F.4th 943, 948 (D.C. Cir. 2024) (citation omitted). This is
not an unusual case.
Most relevantly, the district court did grant Brown a
downward variance from the Sentencing Guidelines range.
Brown’s suggested Guidelines range was 63 to 78 months of
imprisonment, but the district court sentenced him to only 54
months. J.A. 2679, 2689. So Brown got a variance as
requested. It just was not as large as he desired.
That was in no way an abuse of discretion. Sentences
within the Guidelines range receive a “presumption of
reasonableness,” Alford, 89 F.4th at 953 (quoting United States
v. Gardellini, 545 F.3d 1089, 1092 (D.C. Cir. 2008)), and are
presumed to be “not excessive[,]” United States v. Otunyo, 63
F.4th 948, 960 (D.C. Cir. 2023). That presumptive
reasonableness has particular force when a defendant alleges
an unwarranted disparity, as Brown does here, because the
“avoidance of unwarranted disparities was clearly considered

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by the Sentencing Commission when setting the Guidelines
ranges.” Id. (quoting Gall, 552 U.S. at 54). So when a district
court is afforded a presumption of reasonableness, its decision
“will almost never be reversed on appeal as substantively
unreasonable.” Alford, 89 F.4th at 953 (citation omitted).
Because sentences within the Guidelines range receive this
strong presumption, it is “hard to imagine” how a below-
Guidelines sentence could be unreasonably high or
disproportionate. United States v. Jones, 744 F.3d 1362, 1368
(D.C. Cir. 2014) (citation omitted). And Brown’s arguments
do nothing to fuel our imagination.
First, Brown argues that the presumption of
reasonableness should not apply to a January 6th defendant.
Brown Reply Br. 1–2. This court has already held otherwise.
See Alford, 89 F.4th at 953. Plus, any considerations unique to
Brown’s circumstances were already factored into the
downward variance the court gave. J.A. 2682.
Second, Brown fails to demonstrate any unreasonableness
when his sentence is compared to those of other January 6th
rioters. See 18 U.S.C. § 3553(a)(6) (Judges should avoid
“unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar
conduct[.]”). Brown points to eight other January 6th
defendants whose sentences he believes show that his sentence
was too long. Brown Opening Br. 26–34. But the comparisons
do not hold up to scrutiny.
Four received shorter sentences than Brown did, but each
pled guilty. See Judgment at 2, United States v. Richardson,
No. 21-cr-721-CKK (46 months); Judgment at 2, United States
v. Languerand, No. 21-cr-353-JDB (44 months); Judgment as
to Jerod Wade Hughes at 2, Order Reducing Sentence as to
Joshua Calvin Hughes at 1, United States v. Hughes, No. 21-

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cr-106-TJK (46 months and 33 months for co-defendant
brothers). “Defendants who go to trial are not ‘similarly
situated’ to those who plead guilty, and therefore ‘the disparity
in their treatment’ is generally permissible.” United States v.
Webster, 102 F.4th 471, 490 (D.C. Cir. 2024) (quoting Otunyo,
63 F.4th at 960); see also United States v. Lopesierra-
Gutierrez, 708 F.3d 193, 208 (D.C. Cir. 2013) (“That some
defendants pled guilty while others did not provides a perfectly
valid basis for a sentencing disparity, and such disparity
impose[s] no impermissible burden on [a defendant’s] jury-
trial right[.]”) (citations omitted).
In addition, each of those defendants pled guilty to only
one felony, unlike Brown who was convicted of two felonies.
See Plea Agreement at 1, United States v. Richardson, No. 21-
cr-721-CKK (defendant pled guilty to 18 U.S.C. § 111(a)(1));
Plea Agreement at 1, United States v. Languerand, No. 21-cr-
353-JDB (defendant pled guilty to 18 U.S.C. § 111(a)(1) and
(b)); Plea Agreement as to Jerod Wade Hughes at 1, Plea
Agreement as to Joshua Calvin Hughes at 1, United States v.
Hughes, No. 21-cr-106-TJK (both defendants pled guilty to 18
U.S.C. §§ 1512(c)(2) and 2).
The other four defendants Brown points to received longer
sentences than he did. See Judgment at 3, United States v.
Gardner II, No. 21-cr-622-APM (55 months); Judgment at 2,
United States v. Mazza, No. 21-cr-736-JEB (60 months);
Judgment at 2, United States v. Palmer, No. 21-cr-328-TSC (63
months); Judgment at 2, United States v. Caldwell, No. 21-cr-
181-CKK (68 months). So even assuming they were more
culpable than Brown, as he insists, see Brown Opening Br. 30–
33, their sentences already reflect that difference. Plus each of
these defendants also pled guilty. See Plea Agreement at 1,
United States v. Gardner II, No. 21-cr-622-APM; Plea
Agreement at 1, United States v. Mazza, No. 21-cr-736-JEB;

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Plea Agreement at 1, United States v. Palmer, No. 21-cr-328-
TSC; Plea Agreement at 1, United States v. Caldwell, No. 21-
cr-181-CKK. So they are not similarly situated to Brown to
begin with. See Webster, 102 F.4th at 490.
In short, “there are material differences between
[Brown’s] situation and the January 6th [defendants] who
received lesser sentences.” Alford, 89 F.4th at 954.
Third, even if some disparity existed, the district court’s
sentencing determination would still be substantively
reasonable so long as the district court properly accounted for
and balanced the Section 3553(a) factors. A sentencing
disparity “is only one factor among many that district courts
must balance when sentencing.” Alford, 89 F.4th at 954.
Courts must also “consider, for example, the circumstances of
the offense, the characteristics of the defendant, the seriousness
of the offense, the need for deterrence and the protection of the
public.” Id. (citing 18 U.S.C. § 3553(a)).
In this case, the district court fairly considered and
balanced the Section 3553 factors. To start, the court “weighed
several in [Brown’s] favor,” Alford, 89 F.4th at 955, crediting
positive accounts of his character, his lack of criminal history,
and his conduct while detained pre-trial, and noting that it was
“laudable” that he “worked and served others” during that time,
J.A. 2679–2680, 2691. The court also acknowledged that
Brown did not have “any kind of gear that would suggest he
was readying himself for potential aggression” on January 6th
and did not “go on social media after the fact to crow about his
actions * * * or suggest that they were justified in some way.”
J.A. 2682.
On the other side of the scale, the district court found that
Brown fired pepper spray at officers in the Tunnel, engaged in

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a “heave-ho” that “resulted in injuries to officers, and a great
deal of stress [and] anxiety,” and more broadly participated “in
disrupting the peaceful transfer of power in a way that brought
about violence and injuries and, frankly, shame.” J.A. 2681–
2682, 2685. The record thus reflects that the district court
carefully balanced the relevant factors and did not abuse its
discretion.
IV
For the foregoing reasons, we affirm Brown and Maly’s
convictions and Brown’s sentence. We vacate Schwartz’s
conviction on Count Eight, and we hold that the district court
erred in denying his suppression motion. We remand to the
district court to decide whether that error was harmless as to
any counts.
So ordered.

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