United States v. Bennett

• Court: District Court, District of Columbia
• Decided: September 25, 2023
• Docket: Criminal No. 2021-0312
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 21-312 (JEB)

BRADLEY STUART BENNETT,

Defendant.

MEMORANDUM OPINION

Defendant Bradley Stuart Bennett was a member of the crowd that stormed the U.S.

Capitol on January 6, 2021. He is charged with multiple criminal counts related to that conduct.

With trial now approaching, the Government has filed four Motions in Limine to preclude certain

evidence, three of which are nearly identical to motions the Court has ruled on in other January 6

cases. It will largely grant these Motions.

I. Background and Legal Standard

Bennett has been indicted on six counts: Obstruction of an Official Proceeding, in

violation of 18 U.S.C. § 1512(c)(2) (Count I); Entering and Remaining in a Restricted Building

or Grounds, in violation of 18 U.S.C. § 1752(a)(1) (Count II); Disorderly and Disruptive

Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2) (Count III);

Entering and Remaining in the Gallery of Congress, in violation of 40 U.S.C. § 5104(e)(2)(B)

(Count IV); Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D)

(Count V); and Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40

U.S.C. § 5104(e)(2)(G) (Count VI). See ECF No. 122 (Superseding Indictment). The

Government has now filed Motions in Limine.

1 “[M]otions in limine are a means for arguing why ‘evidence should or should not, for

evidentiary reasons, be introduced at trial.’” Graves v. District of Columbia, 850 F. Supp. 2d 6,

11 (D.D.C. 2011) (emphasis omitted) (quoting Williams v. Johnson, 747 F. Supp. 2d 10, 18

(D.D.C. 2010)). They “are ‘designed to narrow the evidentiary issues for trial and to eliminate

unnecessary trial interruptions.’” Id. at 10 (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d

1064, 1069 (3d Cir. 1990)). The court has “broad discretion in rendering evidentiary rulings, . . .

which extends . . . to the threshold question of whether a motion in limine presents an evidentiary

issue that is appropriate for ruling in advance of trial.” Barnes v. District of Columbia, 924 F.

Supp. 2d 74, 79 (D.D.C. 2013).

Although state and federal rulemakers have the prerogative to fashion standards for the

inclusion of evidence at trial, the Constitution guarantees to criminal defendants the right to a

“meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S.

319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). This limits courts’

ability to impose “arbitrary” rules of evidence, including those that exclude “important defense

evidence” without serving “any legitimate interests,” or are otherwise “disproportionate to the

purposes they are designed to serve.” Id. at 324–25 (internal quotation marks omitted). At the

same time, it falls within a court’s discretion to exclude evidence that is not relevant or whose

probative value is outweighed by prejudicial factors. Id. at 326; see also id. at 330 (noting that

evidentiary rules seek to “focus the trial on the central issues by excluding evidence that has only

a very weak logical connection to the central issues”); Fed. R. Evid. 401, 403.

II. Analysis

The Government has filed four Motions in Limine. They respectively request that this

Court restrict: (1) arguments and evidence regarding Capitol Police behavior on January 6, 2021,

2 see ECF No. 104 (Entrapment-by-Estoppel Motion); (2) cross-examination regarding the Secret

Service’s protocols for protecting high-ranking executive officials, see ECF No. 105 (Secret-

Service Motion); (3) evidence regarding the precise locations of U.S. Capitol Police surveillance

cameras, see ECF No. 106 (Camera Motion); and (4) arguments and evidence concerning the

Government’s treatment of Bennett’s co-defendant and its purported selective prosecution of

Bennett. See ECF No. 107 (Selective-Prosecution Motion). The Court addresses each in turn.

A. Entrapment-by-Estoppel Motion

The Government first seeks to preclude Bennett from (1) raising a defense of entrapment

by law-enforcement officials, and (2) offering any evidence or argument that such officials’

failure to act made Defendant’s entry into the restricted area lawful. In the alternative, it asks the

Court to preclude Bennett from offering any evidence or argument concerning alleged inaction

by such officials “unless the defendant specifically observed or was otherwise aware of such

conduct.” Entrapment-by-Estoppel Mot. at 1. In response, Defendant contends that although he

does not intend to make an entrapment argument, the Court should permit “evidence of inaction

by law enforcement to the extent it relates to his state of mind and to the extent Mr. Bennett

observed, was aware of, or could have reasonably perceived such inaction.” ECF No. 114 (Def.

Resp.) at 1–2. This Court has previously agreed that precluding all evidence of potential law-

enforcement inaction on January 6 before trial “would be premature and should await the

presentation of evidence at trial.” United States v. Mock, 2023 WL 3844604, at *3 (D.D.C. June

6, 2023) (quoting United States v. Carpenter, 2023 WL 1860978, at *3 (D.D.C. Feb. 9, 2023)).

Following this well-trodden path, the Court will not at this time “categorically preclude”

evidence relevant to “an entrapment-by-estoppel defense.” Id. It will, however, grant the

Government’s alternative request. As in Mock, Defendant here largely does not — indeed,

3 cannot — argue that evidence of police inaction is admissible if he did not observe it. Id. (stating

that “unobserved behavior” would be “irrelevant under Federal Rule of Evidence 401”). To the

extent Defendant contends that evidence of events he conceivably “could have” perceived are

relevant, he is mistaken, as such evidence would not bear on his state of mind. See Def. Resp. at

2 (emphasis added). Since Defendant will still be able to introduce evidence of what he actually

observed, the Court will grant the Government’s Motion in part.

B. Secret-Service Motion

The Government next moves to limit cross-examination of U.S. Secret Service witnesses,

seeking to exclude testimony about agency protocols for protecting high-ranking executive-

branch officials at the U.S. Capitol. See Secret-Service Mot. at 2. Out of a concern for national

security, the Government requests that the questioning of such witnesses be limited to whether

the Capitol and its grounds were “restricted” on January 6. Id. at 3–4. Although Bennett “does

not intend to cross-examine the potential Secret Service witness” on the sensitive topics the

Government identifies, he seeks to ensure that he may still “ask questions about the location of

then-Vice President Pence during the relevant period.” ECF No. 115 (Def. Resp.) at 1.

The Court perceives no actual dispute between the parties. The Government’s direct

examination will purportedly reveal that “at the time of the Capitol breach, Secret Service agents

were on duty to protect Vice President Mike Pence and his two immediate family members, all

of whom were present at the Capitol.” Secret-Service Mot. at 2. Defendant may therefore cross-

examine the witness on that topic. Because the Government represents that the security

protocols it wishes to exclude will be beyond the scope of direct examination, the Court will

exclude such testimony — with the caveat that Defendant may cross-examine within the scope of

4 direct testimony should the Government elicit these details there. See United States v. Bru, 2023

WL 4174293, at *2 (D.D.C. June 26, 2023) (granting identical motion).

C. Camera Motion

The Government also moves to exclude information about the precise locations of

Capitol Police cameras, citing national-security concerns. See Camera Mot. at 2–4. It

additionally requests that, should the defense believe during the course of trial that such locations

have become relevant, the Court conduct an in camera hearing to resolve the issue. Id. at 5. The

Court recently granted a virtually identical motion with the same proviso in another January 6

trial. See Mock, 2023 WL 3844604, at *2. It again finds that balance appropriate here,

particularly because Defendant agrees that any such questions are best addressed at trial and

“outside the presence of the jury.” ECF No. 113 (Def. Resp.) at 1–2.

Defendant is unlikely to need to probe the precise placement and scope of individual

security cameras; general descriptions of each camera’s location, along with the video footage

each shows, should suffice. The Government, moreover, raises significant national-security

concerns with identifying camera locations, which would reveal areas not under video

surveillance and could thus result in security breaches. See Camera Mot. at 4. The Court will

accordingly preclude the defense from questioning witnesses about the precise location of

Capitol Police cameras but will allow in camera proceedings should Bennett establish during

trial that presentation of such locations is necessary.

The Court will not address Defendant’s attempt to trojan-horse a discovery request for

maps of the Capitol without the camera locations into his response to this Motion, see Def. Resp.

5 at 2, as the Government represents that the request has already been fulfilled, see ECF No. 126

(Gov’t Reply) at 2, and Bennett can file an appropriate motion if that is not the case.

D. Selective-Prosecution Motion

The Government last requests limitations on any argument that it unfairly singled out

Defendant for prosecution and any evidence of his co-defendant’s plea agreement offered to

further such argument. See Selective-Prosecution Mot. at 1–2. The Government acknowledges,

however, that if Bennett’s co-defendant were to testify, her plea agreement might have some

relevance to her credibility as a witness. Id. at 3 & n.1; see also United States v. Jackson, 849

F.3d 540, 555–56 (3d Cir. 2017) (introducing evidence of co-conspirator’s guilty plea “allow[s]

the jury accurately to assess the credibility of the [co-conspirator] witness”). Otherwise, it

maintains, evidence of the plea would be irrelevant and introduced merely to “encourage[] jury

nullification.” Selective-Prosecution Mot. at 1. Defendant denies any plans to “argue or

introduce evidence of [his co-defendant’s] plea for the purpose of jury nullification.” ECF No.

119 (Def. Resp.) at 2. He nevertheless “reserves the ability to . . . introduce evidence of [the]

plea for purposes other than jury nullification,” id., and seemingly does not rule out offering such

evidence for purposes of addressing selective prosecution. See id. at 1 (citing Jackson’s

statement that a co-conspirator’s plea may be admitted to “eliminate any concern that the jury

may harbor concerning whether the government has selectively prosecuted the defendant”).

The Court will grant the Government’s Motion because “the issue of selective

prosecution is one to be determined by the court, as it relates to an issue of law entirely

independent of the ultimate issue of whether the defendant actually committed the crimes for

which she was charged.” United States v. Washington, 705 F.2d 489, 495 (D.C. Cir. 1983)

(internal citations omitted); see also United States v. Sutton, 636 F. Supp. 3d 179, 209–10

6 (D.D.C. 2022) (granting motion in limine and describing selective-prosecution argument as

“irrelevant, inappropriate for consideration by the jury,” and prone to “invit[ing] jury

nullification”). Indeed, Bennett has filed a Motion to Dismiss Count I on the basis of selective

prosecution, which the Court will dispose of separately. See ECF No. 97 (Motion to Dismiss).

To the extent he relies on Jackson to contend that — nullification arguments aside — he may

offer his co-defendant’s plea to plant the seed of a selective-prosecution argument, he misreads

that case. See Def. Resp. at 1. Jackson holds that a co-conspirator’s plea agreement may be

relevant to witness credibility for its ability to assuage a jury’s worries about selective

prosecution, not to provoke such concerns. See 849 F.3d at 555–56 (noting that when co-

conspirator testifies, “[q]uestions will arise in the minds of the jurors whether the co-conspirator

is being prosecuted, why he is testifying, and what he may be getting in return”). Simply put, a

selective-prosecution defense has no place before a jury. The Court will therefore grant the

Government’s Motion to disallow argument or evidence on that subject.

III. Conclusion

The Court, accordingly, will grant the Government’s Motions in Limine regarding Secret

Service testimony, Capitol camera locations, and selective-prosecution arguments in full and will

grant its Motion regarding entrapment by estoppel in part. A separate Order so stating will issue

this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: September 25, 2023