United States v. Gunby

1

UNITED STATES OF AMERICA v. DEREK COOPER GUNBY, Defendant.

CRIMINAL No. 21-0626 (PLF)

United States District Court, District of Columbia

August 4, 2023

OPINION AND ORDER

PAUL L. FRIEDMAN UNITED STATES DISTRICT JUDGE

Defendant Derek Cooper Gunby is charged in a four-count information (“Information”) based on conduct related to the events at the United States Capitol on January 6, 2021. See Information [Dkt. No. 14]. A bench trial in this case is scheduled to begin on October 2, 2023. See Second Amended Scheduling Order [Dkt. No. 53]. Mr. Gunby has filed a motion in limine to preclude the government from arguing the “raindrop theory” of criminal liability during trial. See Defendant Gunby's Motion In Limine to Preclude the Government's “Raindrop Theory” (“Raindrop Mot.”) [Dkt. No. 56].^[1] The Court has carefully considered Mr Gunby's written submission and the applicable authorities. For the following reasons, the Court will deny Mr. Gunby's motion.

I. BACKGROUND

The events of January 6, 2021 are summarized in the Court's opinion in United States v. Puma. See United States v. Puma, 596 F.Supp.3d 90, 93-94 (D.D.C. 2022). The United States alleges that Mr. Gunby was a member of the crowd that entered the Capitol building on January 6, 2021 and engaged in certain activities while there. See Information. The Statement of Facts accompanying the criminal complaint describes video footage that depicts Mr. Gunby inside the Capitol building on January 6. See Statement of Facts ¶ 6-8. The video footage shows Mr Gunby walking inside of the Capitol, holding a cell phone and taking photos on his cell phone. See Id. On February 1, 2021, an FBI agent interviewed Mr. Gunby, and Mr. Gunby admitted during the interview that he entered the Capitol building on January 6. See Id. at 8. He explained during the interview that no law enforcement or security personnel tried to stop him from going into the Capitol building, and he showed the FBI agent video he had taken that day with his phone. Id. at 8-9. The Statement of Facts also describes a livestream video that Mr. Gunby posted to his Facebook account on January 6, 2021. Id. at 4. The video appears to depict Mr. Gunby on the Metro after leaving the Capitol. Id. In the video, Mr. Gunby stated:

[W]e surrounded the Capitol today. Eventually tear gas started flying. They started shooting tear gas. . .. my lips are still burning from it. . .. They detonated, it was like a flash bang .... Came a little closer to some nightsticks and rubber bullets than we wanted to. But, this was ultimately peaceful.... If the American patriot wanted to storm this Capitol, take over this building, and take care of all of Congress in there, they could do it.

Statement of Facts 5-6.

On August 10, 2021, Mr. Gunby was arrested in South Carolina. See Executed Arrest Warrant [Dkt. No. 9]. On October 12, 2021, the government charged Mr. Gunby by information with four misdemeanor offenses: Entering and Remaining in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1); Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2); Violent Entry and Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D); and Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G). See Information. Mr. Gunby filed the instant motion in limine on July 27, 2023. See Raindrop Mot.

II. LEGAL FRAMEWORK

Courts evaluate the admissibility of evidence on a pretrial motion in limine according to the framework established by Rules 401 and 402 of the Federal Rules of Evidence. See Daniels v. District of Columbia, 15 F.Supp.3d 62, 66-67 (D.D.C. 2014); see also Democracy Partners, LLC v. Project Veritas Action Fund, Civ. Action No. 17-1047, 2022 WL 3334689, at *3 (D.D.C. Aug. 12, 2022); United States v. Sutton, Crim. No. 21-0598, 2023 WL 13940371, at *3 (D.D.C. Oct. 23, 2022). First, “the Court must assess whether the evidence is relevant.” Daniels v. District of Columbia, 15 F.Supp.3d at 66. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” FED. R. EVID. 401. “Relevant evidence is admissible” unless an applicable authority provides otherwise, whereas “[i]rrelevant evidence is not admissible.” FED. R. EVID. 402. The proponent of admitting an item of evidence has the initial burden of establishing relevance. See United States v. Oseguera Gonzalez, 507 F.Supp.3d 137, 147 (D.D.C. 2020).

Even if the proponent of an item of evidence can demonstrate its relevance, however, a court may still conclude that it is inadmissible if “the United States Constitution; a federal statute; [the Federal Rules of Evidence]; or other rules prescribed by the Supreme Court” provide for its exclusion. FED. R. EVID. 402. Furthermore, Rule 403 of the Federal Rules of Evidence provides that a court may “exclude relevant evidence if its probative value is substantially outweighed by a danger of. .. unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” FED. R. EVID. 403. Although arguments of counsel are not evidence, the Court may allow motions in limine about counsels' argument “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 omitted).

III. DISCUSSION

Mr. Gunby moves the Court to preclude the government from presenting at trial its “raindrop theory” of criminal liability - which, he contends, provides “that any person or citizen who dares to participate in a First-Amendment protest or demonstration is acting as an illegal ‘raindrop' and can therefore by convicted of crimes based upon the ‘flood' of others who commit crimes during a riot.” Raindrop Mot. at 5. He asserts: “Individuals do things. Crowds do not.” Id. at 2.

A. Mr. Gunby's Bases for Objecting to the “Raindrop Theory ”

In support of his motion, Mr. Gunby appears to rely on jury instructions of ambiguous origin that caution against “imput[ing] or transfer[ing] guilt to another Defendant” solely because the government has introduced evidence that someone else has committed a crime. Raindrop Mot. at 1-2. He provides no citation to any written or oral judicial decision -state or federal - or trial transcript from which this purported jury instruction comes.

Mr. Gunby also points to the litigation in Dream Defenders v. Governor of the State of Florida, 57 F.4th 879 (11th Cir. 2023). See Raindrop Mot. at 3. Plaintiffs in that case challenged a Florida criminal law that prohibited individuals from committing “riots.” Dream Defenders v. Governor of the State of Florida, 57 F.4th at 889; Dream Defenders v. DeSantis, 559 F.Supp.3d 1238, (N.D. Fla. 2021). The statute at issue there, Section 870.01, prohibits the commission of a “riot” and provides that:

A person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct, resulting in:

(a) Injury to another person;

(b) Damage to property; or

(c) Imminent danger of injury to another person or damage to property.

Fla. Stat. § 870.01(2); see Dream Defenders v. Governor of the State of Florida, 57 F.4th at-891.

Chief Judge Mark E. Walker, of the U.S. District Court for the Northern District of Florida, concluded that the statute is both vague and overbroad, holding in part that the statute's definition of “riot” fails to provide “notice of what acts it criminalizes and encourages arbitrary and discriminatory enforcement, making this provision vague to the point of unconstitutionality.” Dream Defenders v. DeSantis, 559 F.Supp.3d at 1282. Chief Judge Walker further concluded that the statute was overbroad because “in its ambiguity, it also consumes vast swaths of core First Amendment speech” in addition to prohibiting unprotected, violent conduct. Id. at 1283.^[2] According to Mr. Gunby, the Dream Defenders litigation demonstrates that “individual-liability-for-a-mob's-behavior” is an inappropriate theory of criminal liability. Raindrop Mot. at 4-5. He asks this Court to preclude the government from inviting the factfinder here to determine guilt based on this theory at trial. Id.

The Dream Defenders case does not inform this Court's analysis of Mr. Gunby's motion in limine. That case is frankly irrelevant. As explained by Chief Judge Walker, that litigation concerned Due Process and First Amendment challenges to an entirely different criminal statute - a statute that Mr. Gunby is not charged with violating and bears little resemblance to the statutes under which he is charged. Compare Dream Defenders v. DeSantis, 559 F.Supp.3d at 1282 and Information. Dream Defenders does not give this Court any reason to restrict the government's ability to employ certain analogies during the presentation of its evidence at trial or during opening and closing arguments.

B. Mr. Gunby's Enumerated Requests

Mr. Gunby specifically asks this Court to prohibit and preclude:

(1) the government from telling or arguing to the jury that a person can be criminally liable for the crimes of a mob, for merely standing or peacefully assembling or walking in a location . ..

(2) the government from telling or arguing to the jury that a person can be convicted of the crimes alleged in this case by merely witnessing acts of others, or standing or walking in a given place . . .[and]

(3) the government from arguing that an individual who is merely present can be

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