Argued November 12, 2024 Decided January 17, 2025

No. 23-3074

UNITED STATES OF AMERICA, APPELLEE

v.

JEFFREY SCOTT BROWN, 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. 2

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: MILLETT and GARCIA, Circuit Judges, and ROGERS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, 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 3 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 f