United States v. Bray

1

UNITED STATES OF AMERICA v. TONEY SHELDON BRAY and ETHAN AARON BRAY, Defendants.

CRIMINAL ACTION No. 23-306 (RC)

United States District Court, District of Columbia

August 8, 2024

Re Document Nos.: 32, 37, 39, 40, 41

MEMORANDUM OPINION

DENYING DEFENDANTS' JOINT MOTION TO DISMISS COUNT ONE; GRANTING IN PART AND DENYING IN PART DEFENDANTS' JOINT MOTION IN LIMINE; GRANTING IN PART AND DENYING IN PART GOVERNMENT'S MOTIONS IN LIMINE

RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

Defendants Toney Sheldon Bray and Ethan Aaron Bray are charged in a multi-count felony indictment arising out of their alleged participation in the events at the Capitol on January 6, 2021. The Government charges both Defendants with (Count 1) civil disorder in violation of 18 U.S.C. § 231(a)(3); (Count 3) entering and remaining in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(1); (Count 4) disorderly and disruptive conduct in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(2); (Count 5) disorderly conduct in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(D); and (Count 6) parading, demonstrating, or picketing in a Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(G). See generally Indictment, ECF No. 16. The indictment also charges Defendant Toney Sheldon Bray with (Count 2) theft of government property in violation of 18 U.S.C. § 641. Id. at 2. Defendants move to dismiss Count 1 of the indictment on various constitutional grounds, see Defs.' Mot. Dismiss, ECF No. 32, which the Government opposes, see Gov't's Opp'n Defs.' Mot. Dismiss, ECF No. 36. Defendants also move in limine to cabin the Government's use of terms such as “rioters,” “insurrectionists,” “attackers,” and “part of a mob,” which they consider inflammatory. See Defs.' Mot. Limine, ECF No. 37. The Government also moves in limine to restrict presentation of evidence about the position of U.S. Capitol Police (“USCP”) surveillance cameras, ECF No. 39, to preclude admission of certain evidence and arguments related to actions of law enforcement, ECF No. 40, and to limit cross-examination of witnesses from the United States Secret Service (“USSS”), ECF No. 41. For the reasons stated below, the Court denies Defendants' motion to dismiss Count One. The Court additionally grants in part and denies in part Defendants' motion in limine and grants in part and denies in part the Government's motions in limine.

II. FACTUAL BACKGROUND

At approximately 1:00 p.m. on January 6, 2021, Congress convened to count the votes of the Electoral College and certify the results of the 2020 presidential election. Vice President Mike Pence was present to preside over the session in his role as President of the Senate. About an hour later, at approximately 2:00 p.m., the crowd that had gathered outside the Capitol building began to force its way inside and broke out into a riot. The Government alleges that Defendants, who reside in Mississippi, were arrested the night before the riot for curfew violations, during which police identified them and captured body-worn camera footage of their attire and belongings, including gas masks. Gov't's Statement of Facts ¶ 4-7, ECF No. 1-1. On the day of the riot, the Government alleges, Defendants wore the same attire when they toppled police barricades and entered restricted areas on the Capitol grounds. Id. at 8-11. Defendants “were among the first to confront law enforcement on the staircase under scaffolding leading from the West Plaza to the Lower West Terrace,” and they “entered the U.S. Capitol Building at approximately 2:22 p.m.,” according to the Government. Id. at 14. Capitol security cameras allegedly captured them in various locations throughout the building, and they allegedly exited the building at 2:54 p.m. Id. at 14-17. The Government additionally contends that photographic and video evidence shows Defendant Toney Sheldon Bray carrying a USCP riot shield, and that he retained the shield after exiting the Capitol building. Id. at 17-18. The Government filed a criminal complaint against Defendants on January 10, 2023, ECF No. 1, and a grand jury returned an indictment that was filed on September 6, 2023, see Indictment.

III. LEGAL STANDARD

A. Motions to Dismiss

Before trial, a criminal defendant may move to dismiss a count of the indictment based on a “defect in the indictment.” Fed. R. Crim. P. 12(b)(3)(B). Defects can include “lack of specificity” and “failure to state an offense.” Id. A “failure to state an offense” argument includes constitutional challenges to the statute creating the charged offenses. See United States v. Stone, 394 F.Supp.3d 1, 8 (D.D.C. 2019); United States v. Seuss, 474 F.2d 385, 387 n.2 (1st Cir. 1973). When considering a challenge to the indictment, “a district court is limited to reviewing the face of the indictment;” the court must “presume the allegations [in the] indictment to be true.” United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C. 2009) (internal quotation marks omitted). “The operative question is whether [those] allegations, if proven, would be sufficient to permit [the finder of fact] to find that the crimes charged were committed.” United States v. Sanford, Ltd., 859 F.Supp.2d 102, 107 (D.D.C. 2012).

B. Motions in Limine

“While neither the Federal Rules of Civil Procedure nor the Federal Rules of [E]vidence expressly provide for motions in limine, the Court may allow such motions pursuant to the district court's inherent authority to manage the course of trials.” Barnes v. Dist. of Columbia, 924 F.Supp.2d 74, 78 (D.D.C. 2013) (internal quotation marks omitted). “Consistent with the historical origins of the practice, motions in limine are designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.” Graves v. Dist. of Columbia, 850 F.Supp.2d 6, 10 (D.D.C. 2011) (internal quotation marks omitted). Advance rulings are generally unnecessary, however, in the context of a bench trial. See United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). In particular, “the Rule 403 balancing test ‘concerning unfair prejudice has a highly limited application, if any at all' in a bench trial.” United States v. Fitzsimons, 605 F.Supp.3d 92, 100 n.6 (D.D.C. 2022) (quoting Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V., No. 11-cv-1623, 2015 WL 13680822, at *1 (D.D.C. June 12, 2015)).

IV. ANALYSIS

The Court first examines Defendants' motion to dismiss Count One of the indictment on various grounds before considering the motions in limine.

A. Motion to Dismiss Count One

Count One of the indictment charges both Defendants with civil disorder in violation of 18 U.S.C. § 231(a)(3). Indictment at 1-2. That paragraph of the statute penalizes

Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function.

18 U.S.C. § 231(a)(3). Defendants challenge the statute's applicability on four separate axes, all of which courts in this district have addressed before, including that (1) the statute is void for vagueness in violation of the Fifth Amendment; (2) the statute exceeds Congress's legislative powers under the Interstate Commerce Clause; (3) that the statute is facially overbroad and represents a content-based prohibition in violation of the First Amendment; and (4) that the language in the indictment is insufficient in violation of the Fifth Amendment. See generally Defs.' Mot. Dismiss. The Court addresses each of these issues in turn and concludes that none of these challenges succeed.

1. Vagueness

Defendants argue that the language of § 231(a)(3) is too imprecise and encourages arbitrary and discriminatory enforcement. Mot. Dismiss at 4-8. According to Defendants, the phrases “any act,” “to obstruct, impede, or interfere,” “incident to and during the commission of a civil disorder,” and “in any way obstructs, delays, or adversely affects commerce” all “fail to provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Id. at 5 (quoting 18 U.S.C. § 231(a)(3)). In addition, Defendants argue, the statute lacks an express mens rea requirement and relies on the subjective reactions of others. Id. a 6-7. The Government responds that the statute is not unconstitutionally vague because a person of reasonable intelligence would understand the nature of the prohibited conduct, Defendants' alleged conduct falls within the ambit of the statute, and the statute requires an individual to act with intent. Gov't's Opp'n Mot. Dismiss at 5-11.

The “void for vagueness” doctrine prevents the enforcement of a criminal statute that is “so vague that it fails to give ordinary people fair notice of the conduct it punishes” or is “so standardless that it invites arbitrary enforcement.” Johnson v United States, 576 U.S. 591, 595 (2015). “[W]hen the vagueness doctrine assesses a legal term's meaning to ‘ordinary people,' it is assessing meaning with the elementary rule of statutory interpretation: Words receive their ‘plain, obvious and common sense' meaning, ‘unless context furnishes some ground to control, qualify, or enlarge it.'” United States v. Bronstein, 849 F.3d 1101, 1108 (D.C. Cir. 2017) (citation omitted). Criminal statutes do not provide fair notice when they tie culpability to “wholly subjective judgments without statutory definitions, narrowing context, or settled legal...