United States v. Griffith

1

UNITED STATES OF AMERICA v. ANTHONY ALFRED GRIFFITH, SR., Defendant.

Criminal Action No. 21-244-2 (CKK)

United States District Court, District of Columbia

February 16, 2023

OMNIBUS MEMORANDUM OPINION AND ORDER

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

This criminal case is one of approximately one thousand arising from the insurrection at the United States Capitol on January 6, 2021. For his actions at the Capitol on January 6 Defendant Anthony Alfred Griffith (“Defendant” or “Griffith”) is charged by indictment with four misdemeanor counts. Before the Court are the Government's [108] Omnibus Motion in Limine, Defendant's [92] Motion in Limine as to Certain Subjects, [93] Motion in Limine, and [95] Motion in Limine to Exclude Evidence Concerning Conduct by Others than Defendant. Upon consideration of the briefing,^[1]the relevant legal authorities, and the entire record, the Court shall GRANT IN PART, DENY IN PART, AND HOLD IN ABEYANCE IN PART the Government's [108] Omnibus Motion in Limine, DENY IN PART, DENY AS MOOT IN PART, AND HOLD IN ABEYANCE IN PART Defendant's [92] Motion in Limine as to Certain Subjects, DENY IN PART AND HOLD IN ABEYANCE IN PART Defendant's [93] Motion in Limine, and DENY Defendant's [95] Motion in Limine to Exclude Evidence Concerning Conduct by Others than Defendant each Motion.

I. BACKGROUND

Briefly, the Court restates some of the background discussed in the Court's last memorandum opinion in this case, United States v. Griffith, 2023 WL 1178192 (D.D.C. Feb. 6, 2023). Defendant is charged by indictment with: (1) Entering and Remaining in a Restricted Building, in violation of 18 U.S.C. § 1752(a)(1); (2) Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation 18 U.S.C. § 1752(a)(2); (3) Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D); and (4) Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G). Indictment, ECF No. 12. These charges arise from Defendant's alleged conduct during the insurrection of January 6, 2021. The Government alleges that Defendant traveled from Oklahoma to the District of Columbia for then-President Donald J. Trump's “Stop the Steal” rally. See Aff. at 4. After the rally, Griffith, with co-Defendant Jerry Ryals, allegedly made his way to the Capitol and entered the building with the crowd. Id. at 4-5. Griffith also purportedly took photos of armored police battling with insurrectionists on the West Front of the Capitol. Id. at 5 (figure 4).^[2]This case is set for a bench trial on March 13, 2023.

II. DISCUSSION

A. Defendant's Motions in Limine

Defendant raises a substantial number of challenges to a variety of hypothetical exhibits and testimony. For the vast majority of these challenges, Defendant argues that admission would unduly prejudice him pursuant to Federal Rule of Evidence 403. Although the United States Court of Appeals for the District of Columbia Circuit has never precisely held as much, the various Courts of Appeals are in relative unanimity that prejudice objections “have no logical application in bench trials[;] . . . excluding relevant evidence on the basis of unfair prejudice [in a bench trial] is a useless procedure.” E.g., Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. 1981).^[3]Commentators agree. E.g., Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 403.02[13] (12th ed. 2019) (Because “we presume that trial judges are unlikely to rule emotionally, or to misuse evidence, in the way that juries might,” “[w]here a case is tried to a judge, the risk of prejudice is not a proper ground for excluding evidence under Rule 403.”); Muller & Kirkpatrick, Federal Evidence § 413 (4th ed. 2013). The Court effectively adopted this rule in a recent insurrection-related prosecution and more explicitly adopts it here, joining at least one other judge of this jurisdiction. See United States v. MacAndrew, Crim. A. No. 21-730 (CKK), 2022 WL 17961247, at *3 (D.D.C. Dec. 27, 2022).^[4] Because each of Defendant's Rule 403 objections are based exclusively on the risk of unfair prejudice, they are OVERRULED.

Turning to Defendant's objections in more detail, in his first motion in limine, he raises six challenges. First, he moves to exclude “[a]ny news reports during and after January 6, 2021 that mention police personnel that died” on Rule 403 grounds. Because the Government has represented that it does not intend to introduce any such news reports, this request is DENIED AS MOOT on the present record.

Second, Defendant moves to exclude reference to former President Trump's challenges to the outcome of the 2020 Presidential Election in his scores of lawsuits during 2020 and 2021 on Rule 403 grounds. Because the Government has represented that it does not intend to introduce any such material, this request is also DENIED AS MOOT on the present record.

Third, Defendant moves to exclude “[a]ny reference to the proud boys, patriot boys, three percenters[,] or oath keepers” on Rule 403 grounds. Because the Government has represented that it does not intend to introduce any such material, this request is also DENIED AS MOOT on the present record.

Fourth, Defendant moves to exclude “[a]ny photos taken from Mr. Griffith's phone that are irrelevant to this case” on relevancy and prejudice grounds. Because the Court has not reviewed any such photos, and it may be the case that some photos are, in fact, relevant/irrelevant, this request is HELD IN ABEYANCE pending trial.

Fifth, Defendant moves to exclude his mug shot on Rule 403 grounds. Because the Government has represented that it does not intend to introduce Defendant's mug shot, this request is also DENIED AS MOOT on the present record.

Sixth, Defendant moves to exclude “[r]eferences to violence at the West Terrace Tunnel, the breach of the Capitol on the East side at the Rotunda doors, the initial breach at the Senate Wing Doors[,] and any other breach at the Capitol other than the doors” through which Defendant entered. This request appears quite similar to Defendant's third motion in limine to exclude all “conduct by others other than defendant,” relying on Rules 401, 402, and 403. The Court shall take this set of objections together.

As the Court explained in MacAndrew, “the size of the crowd, political leaders, and false allegations of voter fraud and election interference all go to intent, motive, and preparation.” 2022 WL 17961247, at *3. For example, to prevail on all charges, the Government must identify a cause for which Defendant demonstrated, United States v. Rivera, __ F.Supp.3d __ 2022 WL 2187851, at *7 (D.D.C. June 17, 2022), and must show that Defendant specifically intended to impede or disrupt Congressional proceedings, United States v. Grider, __ F.Supp.3d __ 2022 WL 17829149, at *10-11 (D.D.C. Dec. 21, 2022). Statements by political leaders and the conduct and statements made by the mob surrounding Defendant both bear on Defendant's mental state at the time of the charged offenses. See id. at *11-12.

Although the Government has not charged conspiracy in most January 6th cases, the collective nature of the mob likens these cases to those involving criminal conspiracies where individuals work in concert to achieve a collective goal-here, the disruption of Congressional proceedings. See 2022 WL 17829149, at *10-12. For such offenses, “the [G]overnment is usually allowed considerable leeway in offering evidence of other offenses to inform the jury of the background of the conspiracy charged, to complete the story of the crimes charged, and to help explain to the jury how the illegal relationship between the participants in the crime developed.” See United States v. Mathis, 216 F.3d 18, 26 (D.C. Cir. 2000). Indeed, prejudice only arises in these circumstances where there is a substantial risk that the factfinder will convict a defendant based on character evidence. See United States v. McGill, 815 F.3d 846, 887 (D.C. Cir. 2016). This “general” evidence is a far cry from Defendant's prior “bad acts” that implicate any risk of prejudice. Moreover, the Government does not seek to convict Defendant here because he engaged in purported “bad” conduct in the past. Rather, the Government understandably seeks to admit evidence of, for example, Defendant's political beliefs only to show Defendant's state of mind and intent on January 6, 2021. Because the conduct of others and Defendant's political beliefs are not “bad act” evidence under Rule 404(b) and are otherwise relevant, such evidence is admissible.

Moreover, what Defendant saw and heard around him goes precisely to his knowledge and intent. What he was able to observe around him at the Capitol informs his actions and “mental state at the time of the charged offenses.” MacAndrew, 2022 WL 17961247, at *3. As such, any objection to the introduction of evidence regarding those around him fails.

Altogether, Defendant's sixth objection in [92] Motion in Limine as to Certain Subjects is OVERRULED and his [95] Motion in Limine to Exclude Evidence Concerning Conduct by Others than Defendant is DENIED.

That leaves Defendant's [93] Motion in Limine, in which Defendant moves to exclude: (1) any reference to the terms “rioters,” “breach,” “confrontation,” “police line,” “anti-government extremism,” “insurrectionists,” and “mob;” and (2) any efforts by the Government to “introduce evidence, make prejudicial statements, or ask prejudicial questions about” about Defendant's purportedly negative “views about the government.”

As to the first request, it appears Defendant fears that these terms will appear in certain Government exhibits and therefore constitute inadmissible hearsay or lay...