UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA Criminal Action No. 21-383 (BAH)
v. Judge Beryl A. Howell
PATRICK STEDMAN,
Defendant.
MEMORANDUM OPINION AND ORDER
Defendant Patrick Stedman, who is facing trial on June 5, 2023, on a five-count indictment
stemming from his alleged conduct at the U.S. Capitol on January 6, 2021, seeks (1) to exclude
evidence, under Federal Rules of Evidence 401, 402, and 403, regarding any events on January 6,
2021 for which defendant was not present and did not observe; and (2) expanded voir dire and
additional peremptory challenges during jury selection. Def.’s Not. of Motions at 1 (Parts III and
IV), ECF No. 46; Def.’s Br. in Supp. Pretrial Mot. (“Def.’s Mem.”) at 31–37, ECF No. 46-1. 1 Both
motions are denied for the reasons outlined below.
I. Admissibility of General Evidence of Events at the U.S. Capitol Building and Grounds on January 6, 2021.
Evidence is relevant if “it has any tendency to make a fact more or less probable than it
would be without the evidence” and “the fact is of consequence in determining the action.” FED.
R. EVID. 401. Generally, “[i]rrelevant evidence is not admissible,” FED. R. EVID. 402, but even if
relevant, the evidence may be excluded “if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury,
1 Defendant filed all pretrial motions in a single motion, with Parts I and II addressed in a separate Memorandum Opinion and Order, ECF No. 57.
1 undue delay, wasting time, or needlessly presenting cumulative evidence,” FED. R. EVID. 403.
According to Rule 403’s plain text, this exclusionary rule does not bar all potentially prejudicial
evidence. Instead, the term “unfair prejudice” “means an undue tendency to suggest decision on
an improper basis, commonly, though not necessarily, an emotional one.” United States v. Ring,
706 F.3d 460, 472 (D.C. Cir. 2013) (quoting Advisory Committee’s Note, Federal Rule of
Evidence 403). “Rule 403 ‘tilts . . . toward the admission of evidence in close cases.” Id. at 474
(quoting United States v. Moore, 732 F.2d 983, 989 (D.C. Cir. 1984)).
These evidentiary standards make untenable defendant’s instant motion to exclude “video
or other footage or testimony about the conduct of other persons present on the Capitol Building
grounds or in the Capitol Building, including physical assault on any other person, property
destruction, movement of barricades or other barriers, verbal threats to other persons, non-verbal
threats to other persons, or other such words or actions that were not observed by” defendant.
Def.’s Mem. at 31. In his view, “[a]ny action and words of which [he] was not personally aware
could not possibly have impacted his state of mind, and thus are irrelevant and inadmissible.” Id.
The glaring omission in defendant’s facile position is the obvious relevance of the general
context in which he allegedly engaged in the offense conduct with which he is charged. See
Gov’t’s Opp’n to Def.’s Mot. in Limine Regarding Preclusion of Evidence and Jury Selection
(“Gov’t’s Opp’n”) at 1–4, ECF No. 55. The sheer numbers of individuals making up the mob that
marched on the U.S. Capitol on January 6, 2021—without stopping at the fencing or the barricades
or the police lines or the chemical spray and other crowd control tools deployed by law
enforcement—had the effect of overwhelming law enforcement officers attempting to secure the
Capitol, with the direct consequence of creating a catastrophic security risk requiring the
evacuation of lawmakers, staff, and press representatives legitimately gathered inside the Capitol
2 building that day to conduct, facilitate, and observe the certification of the Electoral College vote
count and triggering a lengthy delay before this constitutionally-mandated proceeding could
resume. See id. at 2–3. The property damage and violence against law enforcement officers that
occurred on January 6, 2021, at the U.S. Capitol, resulted in the breach of restricted grounds and
the Capitol building itself, and thus is relevant to the threat that the mob of people posed to the
safety of both law enforcement and lawmakers, whether before, during, and after the latter’s
evacuation from the Capitol building. See id. at 2. Evidence of the magnitude of this mob that
descended on the Capitol is also relevant to contextualizing law enforcement’s threat mitigation
efforts that day and the challenge law enforcement had in dealing with any specific individual’s
criminal conduct. See id. All such general evidence about the events on January 6—even if
defendant did not personally observe all of the conduct engaged in by others in multiple parts of
the Capitol Building and restricted grounds—assists the jury in better understanding the parties’
actions that day and thus the alleged criminal conduct of defendant.
The specific charges defendant faces also require general evidence of events on January 6,
2021, to prove elements of those offenses. For example, defendant is charged in Count One with
Obstruction of an Official Proceeding, in violation of 18 U.S.C. § 1512(c)(2), see Indictment ¶ 1,
ECF No. 18, which requires the government to show that the Electoral College vote taking place
that day was an “official proceeding” and that defendant’s conduct “influence[d], delay[ed], or
prevent[ed]” that “proceeding.” Id. Additionally, Count One charges defendant with Aiding and
Abetting in violate of 18 U.S.C. § 2, which provides, in pertinent part, that anyone who “commits
an offense against the United States or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.” Id. § 2(a). As the Supreme Court has held in Rosemond
v. United States, 572 U.S. 65 (2014), “[t]o aid and abet a crime, a defendant must not just ‘in some
3 sort associate himself with the venture,’ but also ‘participate in it as in something that he wishes
to bring about’ and ‘seek by his action to make it succeed.’” Id. at 76 (quoting Nye & Nissen v.
United States, 336 U.S. 613, 619 (1949)). Plainly, others’ actions on January 6 at the Capitol, in
combination with defendant’s own actions, are relevant to whether a federally protected function—
i.e., the Electoral College vote certification—was obstructed, delayed, or adversely affected, and
defendant’s knowing joinder of a broader crowd is probative of his participation in a venture that
interfered with a congressional proceeding.
Defendant doubles down in arguing that “the unfair prejudicial impact of any evidence” of
illegal conduct by others “would substantially outweigh any minimal probative value to be
obtained from that evidence.” Def.’s Mem. at 32. This concern is overblown. To the extent that
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA Criminal Action No. 21-383 (BAH)
v. Judge Beryl A. Howell
PATRICK STEDMAN,
Defendant.
MEMORANDUM OPINION AND ORDER
Defendant Patrick Stedman, who is facing trial on June 5, 2023, on a five-count indictment
stemming from his alleged conduct at the U.S. Capitol on January 6, 2021, seeks (1) to exclude
evidence, under Federal Rules of Evidence 401, 402, and 403, regarding any events on January 6,
2021 for which defendant was not present and did not observe; and (2) expanded voir dire and
additional peremptory challenges during jury selection. Def.’s Not. of Motions at 1 (Parts III and
IV), ECF No. 46; Def.’s Br. in Supp. Pretrial Mot. (“Def.’s Mem.”) at 31–37, ECF No. 46-1. 1 Both
motions are denied for the reasons outlined below.
I. Admissibility of General Evidence of Events at the U.S. Capitol Building and Grounds on January 6, 2021.
Evidence is relevant if “it has any tendency to make a fact more or less probable than it
would be without the evidence” and “the fact is of consequence in determining the action.” FED.
R. EVID. 401. Generally, “[i]rrelevant evidence is not admissible,” FED. R. EVID. 402, but even if
relevant, the evidence may be excluded “if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury,
1 Defendant filed all pretrial motions in a single motion, with Parts I and II addressed in a separate Memorandum Opinion and Order, ECF No. 57.
1 undue delay, wasting time, or needlessly presenting cumulative evidence,” FED. R. EVID. 403.
According to Rule 403’s plain text, this exclusionary rule does not bar all potentially prejudicial
evidence. Instead, the term “unfair prejudice” “means an undue tendency to suggest decision on
an improper basis, commonly, though not necessarily, an emotional one.” United States v. Ring,
706 F.3d 460, 472 (D.C. Cir. 2013) (quoting Advisory Committee’s Note, Federal Rule of
Evidence 403). “Rule 403 ‘tilts . . . toward the admission of evidence in close cases.” Id. at 474
(quoting United States v. Moore, 732 F.2d 983, 989 (D.C. Cir. 1984)).
These evidentiary standards make untenable defendant’s instant motion to exclude “video
or other footage or testimony about the conduct of other persons present on the Capitol Building
grounds or in the Capitol Building, including physical assault on any other person, property
destruction, movement of barricades or other barriers, verbal threats to other persons, non-verbal
threats to other persons, or other such words or actions that were not observed by” defendant.
Def.’s Mem. at 31. In his view, “[a]ny action and words of which [he] was not personally aware
could not possibly have impacted his state of mind, and thus are irrelevant and inadmissible.” Id.
The glaring omission in defendant’s facile position is the obvious relevance of the general
context in which he allegedly engaged in the offense conduct with which he is charged. See
Gov’t’s Opp’n to Def.’s Mot. in Limine Regarding Preclusion of Evidence and Jury Selection
(“Gov’t’s Opp’n”) at 1–4, ECF No. 55. The sheer numbers of individuals making up the mob that
marched on the U.S. Capitol on January 6, 2021—without stopping at the fencing or the barricades
or the police lines or the chemical spray and other crowd control tools deployed by law
enforcement—had the effect of overwhelming law enforcement officers attempting to secure the
Capitol, with the direct consequence of creating a catastrophic security risk requiring the
evacuation of lawmakers, staff, and press representatives legitimately gathered inside the Capitol
2 building that day to conduct, facilitate, and observe the certification of the Electoral College vote
count and triggering a lengthy delay before this constitutionally-mandated proceeding could
resume. See id. at 2–3. The property damage and violence against law enforcement officers that
occurred on January 6, 2021, at the U.S. Capitol, resulted in the breach of restricted grounds and
the Capitol building itself, and thus is relevant to the threat that the mob of people posed to the
safety of both law enforcement and lawmakers, whether before, during, and after the latter’s
evacuation from the Capitol building. See id. at 2. Evidence of the magnitude of this mob that
descended on the Capitol is also relevant to contextualizing law enforcement’s threat mitigation
efforts that day and the challenge law enforcement had in dealing with any specific individual’s
criminal conduct. See id. All such general evidence about the events on January 6—even if
defendant did not personally observe all of the conduct engaged in by others in multiple parts of
the Capitol Building and restricted grounds—assists the jury in better understanding the parties’
actions that day and thus the alleged criminal conduct of defendant.
The specific charges defendant faces also require general evidence of events on January 6,
2021, to prove elements of those offenses. For example, defendant is charged in Count One with
Obstruction of an Official Proceeding, in violation of 18 U.S.C. § 1512(c)(2), see Indictment ¶ 1,
ECF No. 18, which requires the government to show that the Electoral College vote taking place
that day was an “official proceeding” and that defendant’s conduct “influence[d], delay[ed], or
prevent[ed]” that “proceeding.” Id. Additionally, Count One charges defendant with Aiding and
Abetting in violate of 18 U.S.C. § 2, which provides, in pertinent part, that anyone who “commits
an offense against the United States or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.” Id. § 2(a). As the Supreme Court has held in Rosemond
v. United States, 572 U.S. 65 (2014), “[t]o aid and abet a crime, a defendant must not just ‘in some
3 sort associate himself with the venture,’ but also ‘participate in it as in something that he wishes
to bring about’ and ‘seek by his action to make it succeed.’” Id. at 76 (quoting Nye & Nissen v.
United States, 336 U.S. 613, 619 (1949)). Plainly, others’ actions on January 6 at the Capitol, in
combination with defendant’s own actions, are relevant to whether a federally protected function—
i.e., the Electoral College vote certification—was obstructed, delayed, or adversely affected, and
defendant’s knowing joinder of a broader crowd is probative of his participation in a venture that
interfered with a congressional proceeding.
Defendant doubles down in arguing that “the unfair prejudicial impact of any evidence” of
illegal conduct by others “would substantially outweigh any minimal probative value to be
obtained from that evidence.” Def.’s Mem. at 32. This concern is overblown. To the extent that
other members of the mob, even in defendant’s vicinity, engaged in criminal conduct, defendant’s
conduct may be viewed more positively in comparison. Moreover, defendant has an effective tool
with cross-examination effectively to differentiate himself from other rioters. In short, the
contextual evidence of the conduct of others is so probative of the charges defendant faces that the
probative value “substantially outweighs” the risk of unfair prejudice. FED. R. EVID. 403.
Judges on this Court, including the undersigned, have denied similar motions in limine in
criminal cases stemming from the January 6, 2021 attack on the Capitol Building for the same or
substantially similar reasons. See, e.g., United States v. Gillespie, 22-CR-60 (BAH),
Memorandum & Order, ECF No. 43 (D.D.C. Nov. 30, 2022) (Howell, C.J.) (denying defendant’s
motion in limine seeking to exclude “‘general evidence’ of the events on January 6, 2021, including
testimony, videos, photos, or other exhibits from sites at and around the U.S. Capitol where
defendant was not located,” pursuant to Federal Rules of Evidence 401, 402, and 403, for the same
reasons outlined above); United States v. Griffith, No. CR 21-244-2 (CKK), 2023 WL 2043223,
4 at *2–*3 (D.D.C. Feb. 16, 2023) (denying defendant’s motion in limine seeking “to exclude ‘all
conduct by others other than defendant,’” pursuant to Rules 401, 402, and 403 because “the
collective nature of the mob likens these cases to those involving criminal conspiracies where
individuals work in concert to achieve a collective goal” and “this ‘general’ evidence is a far cry
from Defendant’s prior ‘bad acts’ that implicate any risk of prejudice”) (emphasis omitted); United
States v. MacAndrew, No. CR 21-730 (CKK), 2022 WL 17961247, at *3 (D.D.C. Dec. 27, 2022)
(similar); United States v. Carpenter, No. CR 21-305 (JEB), 2023 WL 1860978, at *3–4 (D.D.C.
Feb. 9, 2023) (similar). Given that defendant fails to address or show any deficiency in the
reasoning in any of these decisions, they remain persuasive here for the reasons outlined above.
Accordingly, defendant’s motion in limine to exclude any evidence of what occurred on
January 6, 2021 that he personally did not observe is denied.
II. Expanded Voir Dire And Additional Peremptory Challenges Are Unnecessary.
As part of his motion in limine, defendant adds requests that have nothing to do with any
limitations on evidence at trial but instead relate to “expanded voir dire and additional peremptory
challenges.” Def.’s Mem. at 32. Specifically, defendant asks the Court to: (1) send a questionnaire
to summoned prospective jurors, after review and approval by the Court, with the parties present
during any pre-screening questioning the Court conducts before formal voir dire, id. at 35; (2)
allow “individual questioning” during voir dire, which apparently means attorney-conducted voir
dire, id.; and (3) expand the number of peremptory challenges to be used by defendant from ten to
twenty, id. at 36–37. Each of these requests are denied as unnecessary.
With respect to defendant’s requests for a questionnaire and attorney-conducted voir dire,
the law is clear that “the trial court retains great latitude in deciding what questions should be asked
on voir dire,” Mu’Min v. Virginia, 500 U.S. 415, 424 (1991); accord United States v. Tsarnaev,
5 142 S. Ct. 1024, 1034 (2022), including in the “mode and manner of proceeding” and “the range
of questions put to the prospective jurors,” United States v. Littlejohn, 489 F.3d 1335, 1342 (D.C.
Cir. 2007) (quoting United States v. Robinson, 475 F.2d 376, 380 (D.C. Cir. 1973)). That
discretion will be exercised here by rejecting defendant’s request for a questionnaire and party-
conducted voir dire. To start, requiring prospective jurors in a venire to respond to a questionnaire
would consume time as well as judicial and party resources to prepare a written questionnaire and
additional court resources to mail, collect, and review responses. Such an undertaking for a
questionnaire is wholly unnecessary here. The parties are required to submit proposed voir dire
questions directly to the Court as part of their Joint Pretrial Statement, see Standing Order ¶ 10(c),
ECF No. 35, and, consequently, any concern about “[p]redetermined views” held by prospective
jurors, Def.’s Mem. 35, may be addressed through those proposed and the Court’s supplemental
questions during in person, oral voir dire rather than in a written questionnaire. At the time of jury
selection, prospective jurors will be able to respond to questions posed collectively and then to
follow-up questions on an individual basis outside the presence of the other prospective jurors.
Any questions that would be posed on a questionnaire may be posed orally during voir dire. This
is certainly not a case requiring a lengthy period of jury service, which is the more typical
circumstance deemed to warrant a special questionnaire to ensure an adequate venire of
prospective jurors able to serve.
With one exception, see United States v. Alford, No. CR 21-263 (TSC), ECF No. 46 at 14–
15 (D.D.C. Apr. 18, 2022) (“Alford Order”), no other Judge on this Court has adopted use of a
questionnaire for trials of single (or even multiple) defendants on charges arising from the attack
on the U.S. Capitol on January 6, 2021. See, e.g., United States v. Nassif, No. CR 21-421 (JDB),
2022 WL 4130841, at *11 (D.D.C. Sept. 12, 2022) (declining to adopt any special voir dire
6 procedures, including individual questioning and using questionnaires, explaining that most courts
“have empaneled juries in January 6 cases without resorting to enhanced protocols”); United States
v. Rhine, No. CR 21-0687 (RC), 2023 WL 372044, at *5 (D.D.C. Jan. 24, 2023) (rejecting
“[d]efendant’s request for a written juror questionnaire”); United States v. Chwiesiuk, No. CR 21-
536 (CKK), 2023 WL 2562517, at *7 (D.D.C. Mar. 17, 2023) (same). In sum, defendant’s
requested use of a written questionnaire to prospective jurors is superfluous and unnecessary here.
Defendant further requests attorney-conducted voir dire. The applicable procedural rule
gives the Court discretion to “examine prospective jurors or [] permit the attorneys for the parties
to do so.” FED. R. CRIM. P. 24(a). To be sure, some Judges on this Court allow counsel to ask
follow-up questions during voir dire. See, e.g., Alford Order at 14–15, Rhine, 2023 WL 372044,
at *5 (“The Court grants Defendant’s alternative request for individual questioning during voir
dire.”); Chwiesiuk, 2023 WL 2562517, at *7 (explaining that the Court’s “trial procedures order”
already allows counsel to “pose brief follow-up questions” to potential jurors during voir dire).
This is a matter of discretion, however. Allowing attorney-conducted voir dire may invariably, as
the government notes, “take more time and will increase the risk that improper or leading questions
are asked to prospective jurors.” Gov’t’s Opp’n at 5; see also C.J. Williams, To Tell You the Truth,
Fed. Rule of Criminal Procedure 24(A) Should Be Amended to Permit Attorneys to Conduct Voir
Dire of Prospective Jurors, 67 S. C. L. REV. 35, 62 (2015) (acknowledging, without rebutting, the
criticism “that attorneys abuse the opportunity to question prospective jurors by trying to
improperly influence them”); Reid Hastie, Is Attorney-Conducted Voir Dire an Effective
Procedure for the Selection of Impartial Juries?, 40 AM. U. L. REV. 703, 705 (1991) (“[A] negative
factor in jury selection relates to attorney use of voir dire to systematically indoctrinate jurors by
creating doubts about the credibility of opposition witnesses, or construing the evidence or the law
7 in a manner to favor their side of the case[.]”). With the Court in control of voir dire questioning,
the risk of potential jurors being prejudiced or influenced by counsel’s questioning is significantly
mitigated if not outright eliminated.
In the view of this Court, defendant’s request for attorney-conducted voir dire is both
unnecessary and counterproductive. During the jury selection process, the Court will pose
questions collectively to the venire panel as a whole, based upon input from the parties through
proposed voir dire questions submitted as part of the Joint Pretrial Statement. Then, follow-up
questions will be asked of prospective jurors individually, as necessary, after consultation with
counsel for defendant and the government. See FED. R. CRIM. P. 24(a)(2)(B) (“If the court
examines the jurors, it must permit the attorneys for the parties to: . . . submit further questions
that the court may ask if it considers them proper.”). Thus, counsel for both parties will have the
opportunity to propose to the Court follow-up questions to be posed to prospective jurors to ensure
a searching voir dire without unnecessarily delaying the jury-selection process and risking
prejudicing potential jurors.
Finally, defendant’s request for double the number of peremptory challenges allowed under
the governing procedural rules is denied. Federal Rule of Criminal Procedure 24(b)(2) provides
that a defendant in a non-capital, felony case is entitled to ten peremptory challenges, with
additional peremptory challenges only expressly allowed when the trial involves “multiple
defendants,” FED. R. CRIM. P. 24(b). Given that only a single criminal defendant is on trial in this
felony case, the circumstance contemplated under the applicable rule for an increased number of
peremptory challenges is plainly inapplicable. Defendant has identified no authority to exceed the
number of ten peremptory challenges provide in Rule 24, nor provided any persuasive reason why
the authorized number is insufficient “to ensure that he receives his right to a fair and impartial
8 jury.” Def.’s Mem. at 32. As defendant concedes, “peremptory challenge[s] ha[ve] never been
held to be constitutionally mandated by the Supreme Court,” id. at 37 (quoting Boone v. United
States, 483 A.2d 1135, 1138 (D.C. Cir. 1984)), and he has provided no persuasive reason why
additional ones should be granted here, even if permitted under Rule 24.
Defendant’s request for an expanded number of peremptory challenges is accordingly
denied.
III. ORDER
For the foregoing reasons, it is hereby
ORDERED that defendant’s Notice of Motions (Parts III and IV), ECF No. 46, are
SO ORDERED.
Date: May 8, 2023
__________________________ BERYL A. HOWELL District Judge