United States v. Price

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 21-719 (JEB)

CYNTHIA BALLENGER and CHRISTOPHER PRICE,

Defendants.

MEMORANDUM OPINION

Defendants Cynthia Ballenger and Christopher Price face charges for allegedly

participating in the insurrection at the United States Capitol on January 6, 2021. With trial

looming, they now move for a change of venue, claiming that they cannot receive a fair and

impartial trial in the District of Columbia. As Defendants advance no arguments that have not

already been considered and persuasively rejected in other cases in this district relating to

January 6 defendants, this Motion meets the same fate.

I. Background

Defendants are charged by Information with four misdemeanor counts: i) Entering and

Remaining in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1); ii)

Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C.

§ 1752(a)(2); iii) Disorderly Conduct in a Capitol Building or Grounds, in violation of 40 U.S.C.

§ 5104(e)(2)(D); and iv) Parading, Demonstrating, or Picketing in a Capitol Building, in

violation of 40 U.S.C. § 5104(e)(2)(G). See ECF No. 38 (Information). These charges relate to

their role in the January 6 insurrection. According to the Affidavit in Support of the Complaint

1 in this case, Defendants traveled from their home in Maryland to attend the so-called “Stop the

Steal” rally, ultimately joining others in breaching both the restricted grounds and the building of

the Capitol during the insurrection. See ECF No. 1–1.

They were arrested in Baltimore on August 9, 2021, see ECF Nos. 6, 7, and were

subsequently charged by Information with the foregoing counts. They now move to transfer

venue to the Northern District of West Virginia, arguing that a District of Columbia jury is

presumptively prejudiced against them. See ECF No. 57 (Def. Mot.).

II. Legal Standard

Criminal defendants have a constitutional right to trial by “an impartial jury of the State

and district wherein the crime [was allegedly] committed.” U.S. Const. amend. VI. Federal

Rule of Criminal Procedure 21(a) nonetheless requires a court to “transfer the proceeding against

[the] defendant to another district” when “so great a prejudice against [that] defendant exists in

the transferring district that the defendant cannot obtain a fair and impartial trial there.” Where

“extraordinary local prejudice will prevent a fair trial,” such transfer is a “basic requirement of

due process.” Skilling v. United States, 561 U.S. 358, 378 (2010) (quoting In re Murchison, 349

U.S. 133, 136 (1955)).

“[A]dequate voir dire to identify unqualified jurors” is the primary safeguard against jury

prejudice. Morgan v. Illinois, 504 U.S. 719, 729 (1992). “Except in the most extreme cases, . . .

a pre-voir dire conclusion must depend solely on the subjective reaction of the judge who

reaches it.” United States v. Haldeman, 559 F.2d 31, 62 (D.C. Cir. 1976). “[I]f an impartial jury

actually cannot be selected, that fact should become evident at the voir dire.” Id. at 63.

“A presumption of [jury] prejudice” prior to voir dire “attends only the extreme case.”

Skilling, 561 U.S., at 381. Presuming prejudice in advance of voir dire should occur only in

2 cases with “trial atmosphere[s] . . . utterly corrupted by press coverage,” and “juror exposure to

. . . news accounts of the crime” does not “alone presumptively deprive[] the defendant of due

process.” Id. at 380. “[P]retrial publicity, even if pervasive and concentrated, cannot be

regarded as leading automatically and in every kind of criminal case to an unfair trial.” Neb.

Press Ass’n v. Stuart, 427 U.S. 539, 565 (1976).

The Skilling court identified three principal factors to which courts should look in order

to determine whether prejudice should be presumed: the “size and characteristics of the

community,” the presence in news coverage of a “confession or other blatantly prejudicial

information of the type readers or viewers could not reasonably be expected to shut from sight,”

and the time between the alleged offense and jury selection and any attendant change in “the

decibel level of media attention.” 561 U.S. at 382–83.

III. Analysis

Defendants argue that the factors identified in Skilling weigh in favor of transfer because

i) “the amount of pre-trial publicity imputing collective guilt and providing prejudicial

characterization [here] is massive and unprecedented,” Def. Mot. at 2; ii) statements by “local

politicians” and others have contributed to this imputation and to these characterizations, as have

those by the Government and the judiciary, id. at 8, 17; and iii) “the circumstances involve

highly partisan bias.” Id. at 18. They further contend that survey evidence confirms that the

District of Columbia jury pool is prejudiced against January 6 defendants. Id. at 19. “A transfer

is [therefore] warranted because . . . the substantial local impact, the partisan divide, and negative

prejudgment in the District of Columbia is higher than [in] other states.” Id. at 22.

No court in this district has yet granted a January 6 defendant’s motion to transfer prior to

voir dire. See United States v. Williams, No. 21-618, ECF No. 63 (Order Denying motion to

3 Transfer) at 2 (D.D.C. Aug. 12, 2022) (collecting cases). While “each case must turn on its

special facts,” Marshall v. United States, 360 U.S. 310, 312 (1959), Defendants offer no

arguments to distinguish their case from those others in this district or to explain why those other

decisions are erroneous. The Court nevertheless discusses each of Defendants’ arguments under

the applicable Skilling factors to explain anew why the same outcome obtains here.

A. Community Size and Characteristics

Ballenger and Price first maintain that an impartial jury cannot be empaneled in the

District of Columbia because of the small size of the judicial district, the high number of

residents here who work for the federal government, the unique impact that the insurrection had

on many of the city’s citizens, and the partisan composition of D.C.’s voters.

While Defendants correctly point out that the District is smaller than Houston, where the

Skilling court found no presumption of prejudice was warranted, Washington is hardly a one-

stoplight village, and it is much larger than districts in the handful of cases in which prejudice

has been presumed. Skilling, 561 U.S. at 379 (describing small-town setting where presumption

warranted). Indeed, the District is larger than districts where no such prejudice was presumed.

Id. at 382 (citing Gentile v. State Bar of Nev., 501 U.S. 1030, 1044 (1991) (prejudice unlikely in

smaller district than District of Columbia)); Mu’Min v. Virginia, 500 U.S. 415, 429 (1991) (no

presumption of prejudice warranted in smaller district than District of Columbia). “Given [the

district’s] large, diverse pool of potential jurors, the suggestion that 12 impartial individuals

could not be empaneled is hard to sustain.” Skilling, 561 U.S. at 382.

Defendants rejoin that “the impact of the events of January 6 on the residents of the

District of Columbia” was “far more widespread . . . than the [impact of the] conduct at issue in

Skilling” on Houston. See Def. Mot. at 24. To support this assertion, they first point out that “a

4 huge proportion of District of Columbia residents either work for the federal government

themselves or have friends or family who do.” Id. Yet, as the Government rightly counters,

“Defendants do not explain how merely being employed by the Federal Government would

render a person incapable of serving as an impartial juror.” Gov. Opp. at 7. Indeed, “many

[federal employees] were neither directly nor indirectly affected” by the attack, which “was not

aimed at the Federal Government in general, but specifically at Congress’ certification of the

electoral vote.” Id. Vague insinuations that federal employees are biased by their employment

represent “exactly the kind of conjecture that is insufficient to warrant transfer prior to jury

selection.” United States v. Bochene, 579 F. Supp. 3d 177, 181 (D.D.C. 2022) (denying transfer

in January 6 case). Even if such bias could be assumed, twelve impartial jurors could still be

drawn from those hundreds of thousands of District residents who do not work for the federal

government.

Defendants further assert that this Court should presume that District residents are biased

because of their “significant and unique connections” to the events of January 6. See Def. Mot.

at 26. Many potential jurors, however, have no such connection to those events, living and

working in parts of the city that were unaffected by the attack or the efforts to respond to it. In

any case, a fair trial is possible even if an event had a significant impact on a community. See In

re Tsarnaev, 780 F.3d 14, 15 (1st Cir. 2015) (Boston Marathon bombing); Skilling, 561 U.S. at

384 (Enron collapse); United States v. Yousef, 327 F.3d 56, 155 (2d Cir. 2003) (1993 World

Trade Center bombing); United States v. Moussaoui, 43 F. App’x 612, 613 (4th Cir. 2002)

(September 11, 2001, attacks, including on Pentagon). “Although . . . widespread community

impact necessitate[s] careful identification and inspection of prospective jurors’ connections” to

the events of January 6, “voir dire [is] well suited to that task.” Skilling, 561 U.S. at 384.

5 Defendants last gesture at the partisan composition of the District as a putative source of

prejudice. The fact that “an overwhelming number of District of Columbia residents” voted for

the Democratic candidate, see Def. Mot. at 28, is not “at all pertinent to venue,” as the D.C.

Circuit explained in a case related to the Watergate scandal. Haldeman, 559 F.2d at 64 n.43.

“The law assumes that every citizen is equally interested in the enforcement of the statute

enacted to guard the integrity of national elections, and that his political opinions or affiliations

will not stand in the way of an honest discharge of his duty as a juror in cases arising under that

statute.” Connors v. United States, 158 U.S. 408, 414 (1895). Voir dire is sufficient to screen

out those jurors who cannot put their partisan allegiance aside and to ensure that Defendants are

tried by “an unbiased jury capable of basing its verdict solely on the evidence introduced at

trial.” Haldeman, 559 F.2d at 70. To hold otherwise would be to assume that no politically

charged case could be fairly tried here.

The polling submitted by Defendants does little to undermine this conclusion. They

insist that a telephonic poll conducted by Select Litigation proves that prejudgment is higher in

this district than elsewhere. See Def. Mot. at 19–22. As a preliminary matter, courts have

generally rejected the notion that such polling can serve as a substitute for voir dire. In rejecting

the position that a survey similar to the one here mandated transfer, the Haldeman court opined:

It is our judgment that in determining whether a fair and impartial jury could be empanelled the trial court did not err in relying less heavily on a poll taken in private by private pollsters and paid for by one side than on a recorded, comprehensive voir dire examination conducted by the judge in the presence of all parties and their counsel pursuant to procedures, practices and principles developed by the common law since the reign of Henry II.

559 F.2d at 64 n.43.

6 Even if polling could serve as a substitute safeguard for voir dire, the data presented by

Defendants would not counsel transfer. Defendants ask this Court to transfer their case to the

Northern District of West Virginia, but the survey they proffer compares this district to the

Atlanta Division of the Northern District of Georgia. See Def. Mot. at 20. The Court cannot

conclude, on the basis of such a survey, that transfer to Defendants’ preferred venue would make

selecting an impartial jury easier.

To the extent that the poll can be used for general comparisons of this district with others,

it still fails to establish pervasive prejudice here. For example, the difference in the percentage

of respondents in each district indicating the highest level of perceived media exposure was

within the margin of error, and only relatively modest differences exist between the percentage

of respondents indicating other levels of exposure across the districts. See Gov. Opp. at 19.

Defendants point out that 71% of those polled in the District of Columbia responded,

“Guilty” when asked for their “[o]pinion of whether people arrested for Jan 6 activities are guilty

or not guilty of the charges brought against them.” Def. Mot. at 20. They buttress their assertion

of widespread prejudgment with the poll’s findings on the high number of District residents who

gave unflattering characterizations of the participants in and purposes of the January 6

insurrection. Id. at 21. As the Government notes, however, the belief that most people arrested

for crimes are guilty is widespread; jurors who would nevertheless infer the guilt of a particular

defendant can be screened out with voir dire. See Gov. Opp. at 21. Indeed, the survey indicates

that nearly half of those surveyed responded, “Depends” or “Don’t know/Refused” when asked

specifically about the guilt or innocence of January 6 defendants in the context of a criminal trial.

Id. Because of the general presumption against supplanting voir dire with polling evidence and

because the poll submitted by Defendants fails to establish prejudice even if taken at face value,

7 the Court need not reach the various potential methodological problems with the survey that the

Government discusses. See Gov. Opp. at 22–24.

In sum, the size and characteristics of this district do not merit a presumption of prejudice

against Defendants. Despite their generalizations about the District of Columbia jury pool, the

feelings towards them by many of the District’s potential jurors are best captured by Don

Draper’s now-memetic retort: “I don’t think about you at all.” Mad Men: Dark Shadows (AMC

television broadcast May 13, 2012).

B. Pretrial Publicity

The second factor to weigh in deciding about prejudice looks at whether pretrial coverage

features a “confession or other blatantly prejudicial information of the type readers or viewers

could not reasonably be expected to shut from sight.” Skilling, 561 U.S. at 382. Defendants cite

a potpourri of such purportedly prejudicial coverage, including statements by politicians or other

figures linking the insurrection to white supremacy, characterizing it as domestic terrorism, and

so on. See Def. Mot. at 2–18. They contend that such pretrial publicity constitutes the

“imput[ation] of collective guilt and providing prejudicial characterizations.” Id. at 2.

None of the coverage about which Defendants complain is “as inherently prejudicial nor

as unforgettable as the spectacle of [a defendant’s] dramatically staged and broadcast

confession.” Haldeman, 559 F.2d at 61. For prejudice to be presumed, it is not enough that pre-

trial publicity is “not kind,” Skilling, 561 U.S. at 382, or that it is “hostile in tone and accusatory

in content.” Haldeman, 559 F.2d at 61. The Skilling and Haldeman courts held that the

unflattering pre-trial publicity attending the Enron and Watergate scandals, respectively, was not

of a nature meriting transfer. As in those cases, moreover, while some accounts of the

8 insurrection have been pointed, many have “consist[ed] of straightforward, unemotional factual

accounts of events and of the progress of official and unofficial investigations.” Id.

In addition, as there, much of the coverage of the events of January 6 has been national,

not local, in nature. In cases involving crimes of national interest featured in coverage that is

“national in reach,” “a change of venue [is] of only doubtful value.” Id. at 64 n.43. “The fact

that there has been ongoing media coverage of the breach of the Capitol and subsequent

prosecutions, both locally and nationally, means that the influence of that coverage would be

present wherever trial is held.” Bochene, 2022 WL 123893, at *3 (quotation marks omitted).

This district’s “size and diversity,” moreover, “dilute[] the media’s impact.” Skilling, 561 U.S.

at 384. Lastly, as far as the Court can tell, Defendants have not featured in local coverage this

calendar year. That is not surprising given that, based on the misdemeanors with which they are

charged, their roles were relatively minor.

C. Time

The final factor to consider is the amount of time elapsed between the underlying conduct

and the trial and any resultant attenuation in publicity. Nearly two years have passed since the

insurrection, which is not a substantial amount of time. While “there has recently been renewed

attention on the events of that day because of the widespread coverage of the congressional

hearings conducted by the Select Committee to Investigate the January 6th Attack on the United

States Capitol,” “coverage [has] related primarily to the events of January 6 in general and the

role that public officials and their advisors and campaigns may have played in bringing them

about, not the particular activities of any individual defendant.” Williams Order, No. 21-618, at

17–18. Relative to the media environment in the days after the attack, the “decibel level of

9 media attention [has] diminished somewhat,” Skilling, 561 U.S. at 383, but the focus remains

substantial. This factor therefore may be said to be in equipoise.

* * *

The Court finds no reason to presume prejudice on the part of this district’s venire prior

to voir dire, the appropriate tool here for rooting out prejudice. Like defendants in other scandals

or January 6 cases, Ballenger and Price can be tried fairly and impartially in the District of

Columbia.

IV. Conclusion

For the foregoing reasons, the Court will deny Defendants’ Motion to Transfer Venue. A

separate Order so stating will issue this day.

s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: October 28, 2022