United States v. Webster

102 F.4th 471

UNITED STATES of America, Appellee v. Thomas WEBSTER, Appellant

No. 22-3064

United States Court of Appeals, District of Columbia Circuit

Argued February 6, 2024

Decided May 28, 2024

Appeal from the United States District Court for the District of Columbia (No. 1:21-cr-00208-1)

Elizabeth A. Brandenburg argued the cause for appellant. With her on the briefs was Marcia G. Shein.

David B. Goodhand, Assistant U.S. Attorney, was on the brief for appellee. With him on the brief were Chrisellen R. Kolb, Nicholas P. Coleman, and Brian P. Kelly, Assistant U.S. Attorneys.

Before: Millett, Katsas, and Rao, Circuit Judges.

Millett, Circuit Judge:

Thomas Webster attended former-President Trump's rally on January 6, 2021, and then went to the Capitol. Upon arriving, Webster confronted a line of police officers and violently assaulted Officer Rathbun of the Metropolitan Police Department. A jury convicted Webster of five felonies and one misdemeanor offense. The district court imposed a ten-year prison sentence. Webster appeals, raising challenges both to his convictions and his sentence. We have considered each of Webster's challenges and, because none of them succeed, we affirm his convictions and sentence.

I

A

Thomas Webster is a retired police officer and resident of New York. In the days and months following the 2020 presidential election, Webster became convinced that the election had been stolen. He planned to attend the January 6th rally convened by the former President, and he spoke with others about how they should prepare for the event. For example, he texted two contacts: "Guide to your Jan 6 trip includes D.C. gun laws, self-defense options, citizen's arrest policy, drone policy, common sense gear list, bonus prep info, and the Constitution for obvious reasons. Don't be a liability, be prepared for it to get wild. The Donald. America first[.]" J.A. 982.

Two days before the rally, Webster drove from his home in New York to Washington, D.C. He brought an assortment of gear with him, including body armor and a United States Marine Corps flag on a metal flagpole. J.A. 1120-1122.

Webster attended former-President Trump's speech on January 6th, wearing his body armor and carrying his Marine Corps flag. After that, he joined the crowd in marching on the Capitol. Webster made his way toward the Capitol's West Terrace. As he got closer, he heard "flash bangs going off[,]" "sense[d] that there was some gas[,]" and "saw people being injured." J.A. 1140. He continued forward until he reached the leading edge of the rioters. A single row of bicycle racks separated them from a police line. He recognized that the bicycle racks were meant to keep people back. But he tried to get past them nonetheless.

Officer Noah Rathbun of the Metropolitan Police Department was one of the officers on the other side of the police line. Webster approached him, yelling and accusing him of being a communist who was attacking Americans. Officer Rathbun pushed Webster back from the barrier several times, and Webster responded by pushing the bicycle rack toward Officer Rathbun. Webster then swung his flagpole toward Officer Rathbun "in a chopping motion." J.A. 852. The flagpole struck the bicycle rack. Officer Rathbun grabbed the flagpole and wrested it from Webster.

Shortly thereafter, the mob broke through the police line. Webster charged Officer Rathbun, knocking him to the ground. He got on top of Officer Rathbun and began pushing Officer Rathbun's gas mask into his face. After about ten seconds of struggling, Webster got up, and the two men broke apart.

B

A grand jury in the District of Columbia indicted Webster on five felony counts: (1) Assaulting, Resisting, or Impeding Certain Officers Using a Dangerous Weapon, 18 U.S.C. § 111(a)(1), (b); (2) Civil Disorder, id. § 231(a)(3); (3) Entering and Remaining in a Restricted Building or Grounds with a Deadly or Dangerous Weapon, id. § 1752(a)(1), (b)(1)(A); (4) Disorderly and Disruptive Conduct in a Restricted Building or Grounds with a Deadly or Dangerous Weapon, id. § 1752(a)(2), (b)(1)(A); and (5) Engaging in Physical Violence in a Restricted Building or Grounds with a Deadly or Dangerous Weapon, id. § 1752(a)(4), (b)(1)(A). The grand jury also indicted Webster on one misdemeanor: Act of Physical Violence in the Capitol Grounds or Buildings. 40 U.S.C. § 5104(e)(2)(F).

Webster moved to change venue, arguing that he could not get an impartial jury in the District. According to him, the District's jury pool was simply too Democratic, too connected to the federal government, and too steeped in January 6th news coverage to produce twelve unbiased jurors.

The district court denied his motion. The court reasoned that the District's size and characteristics did not indicate that the jury pool was presumptively prejudiced against Webster. The court also found that the January 6th news stories were not clearly prejudicial to Webster. The district court added that other January 6th cases had proceeded to jury trial in the District without any jury-bias issues. On that basis, the district court concluded that it could empanel an impartial jury.

A jury subsequently found Webster guilty on all counts. The district court sentenced him to concurrent terms of 120 months for four of the felony counts, 60 months for another felony, and six months for the misdemeanor. The court also ordered that Webster serve 36 months of supervised release and pay a $510 special assessment.

II

The district court had jurisdiction over Webster's criminal prosecution under federal law. See 18 U.S.C. § 3231. We have jurisdiction over Webster's appeal of his conviction and sentence. See 18 U.S.C. § 3742; 28 U.S.C. § 1291.

Several standards of review apply in this case. We review legal questions that the defendant preserved de novo. United States v. Wilson, 605 F.3d 985, 1003 (D.C. Cir. 2010). We review his unpreserved claims for only plain error. United States v. Sayan, 968 F.2d 55, 59 (D.C. Cir. 1992); FED. R. CRIM. P. 52(b). We review a district court's finding of juror impartiality for manifest error, United States v. Childress, 58 F.3d 693, 706 (D.C. Cir. 1995), and its handling of voir dire for an abuse of discretion, United States v. Tsarnaev, 595 U.S. 302, 313, 142 S.Ct. 1024, 212 L.Ed.2d 140 (2022).

Lastly, we review Webster's sentence for both procedural and substantive reasonableness. At the procedural step, we review a district court's "purely legal" interpretation of the Guidelines de novo. United States v. Cooper, 886 F.3d 146, 155 (D.C. Cir. 2018). We give "due deference" to its "application of the Guidelines to facts." United States v. McKeever, 824 F.3d 1113, 1119 (D.C. Cir. 2016). We review the sentence's substantive reasonableness for an abuse of discretion. Id.

III

Webster raises three challenges to his convictions. First, he argues that the jury was not impartial. Second, he contends that the district court wrongly denied him his right to effectively cross-examine Officer Rathbun. Third, he objects to how the district court instructed the jury on his Section 111(b) charge. Each of those objections fails.

A

The Sixth Amendment guarantees criminal defendants an "impartial jury of the State and district wherein the crime shall have been committed[.]" U.S. CONST. Amend. VI. So when "extraordinary local prejudice" prevents impartiality, courts must transfer the trial to a location where an impartial jury can be drawn. Skilling v. United States, 561 U.S. 358, 378, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). The Sixth Amendment's requirement of a local trial cannot "impede" the right to a fair one. Id.

Webster first argues that the District's entire jury pool was presumptively prejudiced against him, and so the district court should have transferred his case to a different venue before the start of the jury-selection process (known as voir dire). He also argues that the voir dire process was flawed and produced a biased jury. He is incorrect on both fronts.

Prejudice across an entire jury pool can be presumed "only [in] the extreme case[,]" Skilling, 561 U.S. at 381, 130 S.Ct. 2896, where "prejudicial publicity so poisoned the proceedings that it was impossible for the accused to receive a fair trial by an impartial jury[,]" United States v. Capo, 595 F.2d 1086, 1090 (5th Cir. 1979); see Skilling, 561 U.S. at 380, 130 S.Ct. 2896. The Supreme Court has found presumptive prejudice in only the rare case where a jury pool was so "pervasively exposed" to prejudicial pretrial publicity about the defendant and the case that "[a]ny subsequent court proceedings in [that] community * * * [w]ould be but a hollow formality." Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).

Webster does not clear that very high bar.

First, nothing in the record suggests that the District's jury pool had any preconceived notions about Webster or his guilt or innocence, or even knew who he was. The record lacks any evidence of pervasive (or much of any) media coverage aimed at Webster and his conduct.

Webster points to two newspaper articles that name him and describe his January 6th conduct. Webster Opening Br. 24-25 & nn.5-6; see Jonah E. Bromwich, Retired N.Y.P.D. Officer Who Guarded City Hall Charged in Capitol Riot, N.Y. TIMES (Feb. 23, 2021, 1:16 PM), https://perma.cc/V6PC-QET6; Nina Golgowski, Ex-NYPD Cop Charged with Assaulting Washington Officer with Pole During Riot, HUFFPOST (Feb. 24, 2021, 3:19 PM), https://perma.cc/N92B-C4QV. Webster also claims that "[a] Google search using the terms 'Thomas Webster Capitol' garnered 4,690,000 search results at the time of the motion to change venue." Webster Opening Br. 25.

That evidence comes up short. To begin, neither of the newspaper articles contain the type of "vivid, unforgettable information" of the "smoking-gun variety" that is necessary to trigger presumptive prejudice concerns—that is, information that not only "invite[s]" jurors to prejudge the defendant's...