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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Case No. 1:21-CR-708-RCL-1

LEO CHRISTOPHER KELLY,

Defendant.

MEMORANDUM OPINION

Defendant Leo Christopher Kelly was convicted after a jury trial of seven counts stemming 

from his conduct during the Capitol Riot on January 6, 2021. Defense counsel for Mr. Kelly spoke 

to members of the jury panel after it was discharged. One member of the jury panel made 

statements that Mr. Kelly believes show the juror lied during voir dire and was biased against Mr. 

Kelly. Mr. Kelly thereafter moved for a new trial and judgment of acquittal under Federal Rules 

of Criminal Procedure 33 and 29, respectively. The government opposed.

Upon consideration of Mr. Kelly’s motion for new trial and judgment of acquittal, Def.’s 

Mot., ECF No. 118, the government’s opposition, Gov’t Opp’n, ECF No. 122, the applicable law, 

and the whole record, the Court DENIES the motion. 

I. BACKGROUND

A. Procedural History

On May 9, 2023, the jury unanimously found Mr. Kelly guilty of all seven counts charged 

in the indictment: (1) obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c)(2); 

(2) entering and remaining in a restricted building or grounds, in violation of 18 U.S.C. 

§ 1752(a)(1); (3) disorderly and disruptive conduct in a restricted building or grounds, in violation 

of 18 U.S.C. § 1752(a)(2); (4) entering and remaining on the floor of Congress, in violation of 

40 U.S.C. § 5104(e)(2)(A); (5) entering and remaining in certain rooms in the Capitol Building, 
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40 U.S.C. § 5104(e)(2)(C); (6) disorderly conduct in a Capitol Building, 40 U.S.C. 

§ 5104(e)(2)(D); and (7) parading, demonstrating, or picketing in a Capitol Building, 40 U.S.C.

§ 5104(e)(2)(G). Indictment, ECF No. 27; Minute Entry (May 9, 2023).

On July 13, 2023, Mr. Kelly moved under Federal Rules of Criminal Procedure 33 and 29 

for a new trial and judgment of acquittal. Def.’s Mot. The motion raised two arguments: (1) Mr. 

Kelly is entitled to a new trial under Rule 33 because a juror was inherently biased and failed to 

disclose that bias during the Court’s voir dire examination; and (2) Mr. Kelly is entitled to acquittal 

on all counts under Rule 29 because no reasonable juror could find the elements of the statutes at 

issue proven beyond a reasonable doubt. See Def.’s Mot; Gov’t Opp’n. In connection with the first 

claim, Mr. Kelly argued that juror 1437 (“the Juror”) lied to the Court during voir dire. The 

government opposed Mr. Kelly’s motion and disputed its characterization of the Juror’s 

statements. Gov’t Opp’n. Mr. Kelly did not file a reply. The motion is now ripe for review.

B. Voir Dire

The Court conducted voir dire over the course of two days commencing on May 1, 2023. 

Minute Entries (May 1–2, 2023). During voir dire, the Court questioned the prospective jurors

about their ability to serve fairly and impartially. See May 1, 2023 Tr. Transcript (“Tr.”) at 5. The

Court also asked them about their connections to the United States Capitol. Id. at 13–14.1 The 

Juror was among those interviewed by the Court on May 1. Id. at 37–44. The Court engaged the

Juror in the following colloquy:

THE COURT: You live or work near the Capitol? 

JUROR: I live about a mile from the Capitol. 

THE COURT: Where do you live? 

JUROR: Mount Vernon Square, Mount Vernon right north of us.

1 The Court asked four questions regarding the United States Capitol: (1) “[d]o any of you live or work at or near the 

U.S. Capitol?”; (2) “[does] anyone you are close to live or work at or near the U.S. Capitol?”; (3) “were you at or near 

the U.S. Capitol on January 6, 2021?”; (4) “did any of you watch the events at the U.S. Capitol on January 6, 2021 on 

live TV at that time?” Tr. at 13–14.
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THE COURT: Okay. And you watched this live on TV that day? 

JUROR: Yeah, I was watching the news that morning and working from home and watched 

it as it all unfolded.

THE COURT: And you did say you thought you could put that aside and decide this case 

just on the evidence you saw here at the trial, is that right? 

JUROR: Yes, I have served on a jury before, so I have -- you know, aware of how to, like, 

think about the law and think about the evidence and would like to think I could do that 

here too. 

THE COURT: Okay. Any reason you couldn't be a fair and impartial juror if you were 

chosen to serve here? 

JUROR: No. 

THE COURT: Tell me how much you followed the investigation here. Did you watch the 

TV coverage? 

JUROR: I would say I would follow it just like a normal person reading news articles and 

major updates about it obviously. 

THE COURT: Like in the Post or –

JUROR: Yeah, yeah. I mean, I wasn't one of those people that was watching all the 

hearings. I was, like, reading news articles about them afterwards. And, you know, in D.C. 

it's hard to avoid. And yeah, I was interested in it, so... 

THE COURT: Okay. Tell me your impression, if you can, of that day and what you have 

followed that has led you to what kind of impression? 

JUROR: I mean, it was a pretty major event. I wasn't happy that it was happening, both in 

my city and also that people were breaking into the Capitol and there seemed to be violence 

going on, and obviously people died on both sides of it. So, you know, I'm glad that these 

cases are going to trial because I think that's important. But yeah, I generally don't think it 

was a good thing. You know, I am very supportive of protesters. I am very supportive of 

activism and people's right to protest. I think there's always like a line you have to be --

you can't cross. And so was that line crossed on January 6? Probably I guess that's what 

the Court is trying to determine, so... 

THE COURT: Any reason you couldn't follow the law and decide whether this defendant 

really crossed that line under the instructions I give to this jury? 

JUROR: Yeah. 

THE COURT: That's what you would have to do here is decide what the facts are here in 

this case, whether this defendant really crossed the line of the instructions I would give the 

jury. Do you think you could do that fairly? 

JUROR: Yeah. I mean, I think that's what the purpose of these trials is, for each individual 

defendant to plead -- you know, for the government to give their case and defendants to 

give their case, and for us as the jury to determine that. And that's, you know, why I do 

think I could be an impartial juror, because on my last jury, I was really impressed with 

everybody and how thoughtful our jury was at examining the evidence –

THE COURT: That’s what –

JUROR: -- and think about the law and how to apply it even if we didn't particularly agree 

with the circumstances. So that would be my hope, is that –

THE COURT: What is the last case you were on?

JUROR: It was 2019. It was a drug case here in D.C.
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THE COURT: I have found my juries contentious too. Now I will ask you the hardest 

question. If you are sitting over there in his seat, would you want somebody like you on 

your jury in this kind of case where you have some views? 

JUROR: Yeah, I think so, because like I said, I respect the court systems and I respect the 

rule of law. I almost went to law school. I didn't end up going, but, you know, I think what 

we have in this country is really important. And I have even said to friends, like my friends 

who always talk about how to get out of jury duty, I tell them, like, I don't think you should 

try to get out of it. 

THE COURT: Right.

JUROR: Like, I have friends that have had very bad jury experiences, and I have always 

said that I was really impressed with my jury, and if I ever was a defendant, hopefully I 

will never be, that I would want to have the type of jury I had. So yeah.

THE COURT: I'm glad to hear that. Was that in this court or across the street?

JUROR: It was in this building. I think it was across the room -- across the hallway in that 

courtroom, so... 

THE COURT: Any follow-up by counsel? 

(The following was heard sidebar.) 

DEFENSE COUNSEL: Your Honor, I'm not sure you asked her about question No. 8, 

which is arrested, convicted, or charged with a crime. And I see that that is crossed on the 

list. And I would like to know whether or not they reached a verdict in her case and whether 

or not it was civil or criminal. And she made a statement that she said that the government 

and the defendant each have to give a case. And I want to make sure that she understands 

the defendant does not have to give a case and whether or not she would hold that against 

the defendant if he did not do a case. 

ASSISTANT U.S. ATTORNEY: Your Honor, I don't have any additional follow-up, and 

I don't disagree with Ms. West's proposed questions. 

(The following was heard in open court.)

THE COURT: I think there's another question I didn't ask you about. You, a member of 

your family or friends arrested for or charged with a crime or victim or witness to a crime? 

JUROR: I have an extended family member that was charged with a crime, but that was a 

cousin, so I don't know if that counts as immediate or close. But otherwise, no one else 

that's close. 

THE COURT: What was that one?

JUROR: My cousin, ten years ago, was charged -- I don't actually know what the charge 

was, but it was, like, kind of like petty crime stuff. It was up in Boston. But he was 

convicted and went to jail for a few years.

THE COURT: What was the crime? 

JUROR: He was involved -- I don't know what the actual crime was. He was involved with 

people who were -- I think there was something to do with parking meters and maybe 

parking meters being broken into and being stolen. And he was caught up with someone 

else, and they got in a fight with people, and because he had a record, I think they kind of 

threw the book at him, so... 

THE COURT: From what you know, and I know you may not know all the facts, was he 

fairly treated by the criminal justice system? 

JUROR: I guess. I mean, I don't have a lot of opinion -- I wasn't like super close with him 

back then. We are closer now. But I know he's very much like, I never want to go back and 
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I want to live my life straight. And I'm like, great, we are going to support you in every 

way we can. 

THE COURT: In the case when you were on the jury, did the jury reach a verdict? 

JUROR: Uh-huh. 

THE COURT: Was that civil or criminal? 

JUROR: Criminal. 

THE COURT: It was a drug case? 

JUROR: Drug case, yeah. 

THE COURT: And in the -- I missed what the other point was. Let me ask you. Oh, I know 

what it was. I think you said something about you understand the defendant doesn't have 

to put on a case at all because the burden is on the government to prove everything? 

JUROR: Uh-huh. 

THE COURT: So the defendant doesn't have to testify, doesn't have to call any witnesses 

or do anything. The total effort has to be by the government. The defendant doesn't have 

the burden to even testify or call a witness or do anything. Do you understand the 

government has the burden of proof –

JUROR: Yes. 

THE COURT: -- and the burden of producing evidence? You don't have any problem with 

that? 

JUROR: No. In my last case, the defendant didn't testify, and that wasn't an issue in how 

we came to our conclusion. 

THE COURT: Okay. Thank you very much.

JUROR: Thank you. 

THE COURT: You can step down.

(Prospective juror exited the courtroom.)

THE COURT: Any challenge for cause? 

ASSISTANT U.S. ATTORNEY: None on behalf of the government.

THE COURT: She will be in the group. We will go to 18.

Id.

Besides the follow-up questions proffered by defense counsel during the sidebar, which 

encompassed the Juror’s prior jury service, understanding of the burdens of proof in criminal cases, 

and criminal history, neither Mr. Kelly nor the government asked the Court to ask the Juror any 

other questions. Id. Defense counsel did not ask the Court to inquire into the Juror’s employment 

history or whether the Juror had ever worked at the United States Capitol. Id. And neither Mr. 

Kelly nor the government challenged the Juror for cause. Id. at 44.
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C. Post-Trial Conversation with Members of the Jury Panel

Defense counsel apparently spoke with members of the jury panel in the hallways of the 

courthouse shortly after they rendered their verdict and were dismissed. Def.’s Mot. at 1.

According to defense counsel, the Juror agreed to speak with her. Id. Defense counsel alleges that

the Juror told her, in the presence of “at least 7 other jurors,” that the Juror “used to work at the 

[Capitol] as an intern, and once you’re in, you’re in. Even I couldn’t go on the floor.” Id. The Juror

also allegedly stated, “this is our city. We live here. We know what went on.” Id. The government 

was not present for this exchange. Gov’t Opp’n at 4.

For the purposes of this motion, the Court will assume that defense counsel had permission 

to speak to members of the jury panel and that the Juror in fact made the statements ascribed to 

her by defense counsel.2

II. LEGAL STANDARDS

Mr. Kelly has filed a motion asking the Court to grant him a new trial pursuant to Federal 

Rule of Criminal Procedure 33. He also requests a judgment of acquittal under Rule 29.

A. Federal Rule of Criminal Procedure 33

Rule 33 authorizes a court to vacate a judgment and grant a new trial “if the interest of 

justice so requires.” Fed. R. Crim. P. 33(a). A defendant “is entitled to a fair trial but not a perfect 

one, for there are no perfect trials.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 

548, 553 (1984) (quotations and citations omitted).“[G]ranting a new trial motion is warranted 

2 Defense counsel asserts that the Court, acting ex parte, granted her permission to speak to jurors ex parte. See Def.’s 

Mot. at 1. Under Local Criminal Rule 24.2, after the jury has been discharged, “no party or attorney shall speak with 

a juror concerning the case except when permitted by the Court for good cause shown in writing.” LCvR 24.2(b). So, 

defense counsel has put the Court in the posture of having violated its own rules. The Court is troubled by defense 

counsel’s claim that she received permission. Over the last ten years, this Court has never granted permission to

counsel to speak with a jury that rendered a verdict. Although defense counsel “asked permission of the Court’s law 

clerk and courtroom deputy [to speak to the jury],” and asserts that “[p]ermission was granted,” defense counsel does 

not state by whom. Def.’s Mot. at 1. In any event, the Court’s concerns do not affect the outcome of this motion. Mr. 

Kelly is not entitled to a new trial.
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only in those limited circumstances where ‘a serious miscarriage of justice may have occurred.’”

United States v. Wheeler, 753 F.3d 200, 208 (D.C. Cir. 2014) (quoting United States v. Rogers, 

918 F.2d 207, 213 (D.C. Cir. 1990)). A motion for new trial is “committed to the sound discretion 

of the trial judge.” United States v. Reese, 561 F.2d 894, 898 (D.C. Cir. 1977); see also United 

States v. Stone, 613 F. Supp. 3d 1, 27 (D.D.C. 2020). The decision is subject to reversal “only for 

abuse of discretion or misapplication of the law.” Reeves, 561 F.2d at 898. This is because trials

courts are “obviously . . . the tribunal best qualified to weigh the relevant factors.” United States 

v. Williams, 822 F.2d 1174, 1189 (D.C. Cir. 1987). Trial courts’ factual determinations are given 

“great weight.” United States v. White, 116 F.3d 903, 929–30 (D.C. Cir. 1997) (per curium)

(quoting Hobson v. Wilson, 737 F.2d 1, 49 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985)).

Mr. Kelly seeks a new trial under Rule 33 based on alleged juror misconduct during voir 

dire. See Def.’s Mot. A defendant seeking a new trial based on a juror’s statements during voir 

dire must demonstrate both that the juror “failed to answer honestly a material question on voir 

dire” and “that a correct response would have provided a valid basis for a challenge for cause.”

McDonough, 464 U.S. at 556. Additionally, a new trial is proper only if the juror’s falsehood at 

voir dire “demonstrated actual bias.” United States v. North, 910 F.2d 843, 904 (D.C. Cir. 1990) 

(per curiam); see also United States v. Brown, 26 F.3d 1124, 1127 (D.C. Cir. 1994); United States 

v. Boney, 97 F. Supp. 2d 1, 5 (D.D.C. 2000).

A Rule 33 motion on grounds other than newly discovered evidence ordinarily must be 

filed “within 14 days after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2). Mr. Kelly’s 

Rule 33 motion was filed before the deadline set by the Court and therefore is timely. See ECF 

No. 111; Def.’s Mot.
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B. Federal Rule of Criminal Procedure 29

Rule 29 requires a “court on the defendant’s motion to enter a judgment of acquittal of any 

offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). A 

defendant seeking a judgment of acquittal based on insufficient evidence must show that no 

“rational trier of fact could have found the elements of the crime beyond a reasonable doubt.”

United States v. Williams, 836 F.3d 1, 6 (D.C. Cir. 2016). The Court “must view the evidence in 

the light most favorable to the government, drawing no distinction between direct and 

circumstantial evidence, and giving full play to the right of the jury to determine credibility, weigh 

the evidence and draw justifiable inferences of fact.” Id. This standard is “highly deferential” to 

the jury verdict. Id.

A Rule 29 motion may be filed or “renew[ed] . . . within 14 days after a guilty verdict or 

after the court discharges the jury, whichever is later.” Fed. R. Crim. P. 29(c)(1). The jury was 

discharged on May 9, 2023, the same day it rendered its verdict. Minute Entry (May 9, 2023). 

Here, the motion is untimely because it was filed sixty-five days after the guilty verdict. See Def.’s 

Mot. The Court granted Mr. Kelly’s motion to extend the time for filing a motion for new trial 

until July 15, 2023. ECF No. 111. However, Mr. Kelly’s motion for an extension of time, and the 

Court’s order, were specific to motions for new trial under Rule 33. ECF Nos. 110 and 111.

Defense counsel’s motion did not request an extension of time to file or renew a motion for a 

judgment of acquittal under Rule 29, and the Court did not grant one. Id. In any event, the Court 

will analyze Mr. Kelly’s motion for a judgment of acquittal as though it were timely.

III. DISCUSSION

A. Juror Misconduct

Mr. Kelly’s Rule 33 motion for new trial fails because his allegations do not warrant a new 

trial under the McDonough factors as interpreted by the D.C. Circuit in North. Mr. Kelly bears the 
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burden of showing that: (1) the Juror failed to answer honestly a material question on voir dire; 

(2) a correct response would have provided a valid basis for a challenge for cause; and (3) the 

Juror’s failure to answer honestly demonstrated actual bias. McDonough, 464 U.S. at 556; North,

910 F.2d at 904. Mr. Kelly fails on each point.

First, there is no evidence the Juror lied, withheld, or concealed information in response to 

questioning. The Court asked the Juror four questions regarding her connections to the Capitol. 

Tr. at 13–14. The Court asked whether she lived or worked at or near the Capitol, whether anyone 

she was close to lived or worked at or near the Capitol, whether she was at or near the Capitol on 

January 6, and whether she watched the events at the Capitol on January 6 on live television. Id.

The Juror’s prior internship at the Capitol is not responsive to any of these questions. And nothing 

about the Court’s questioning or follow-up inquiries required the Juror to volunteer that 

information.

The Juror answered each of the Court’s questions directly and truthfully. The Court knows

the Juror answered truthfully because the Court thoroughly interrogated each of the Juror’s 

answers. Id. at 37–44. When the Juror stated that she lived or worked near the Capitol, the Court 

asked the Juror to identify the exact neighborhood where she lived. Id. at 37. When the Juror stated

that she watched the events of January 6 unfold on live television, the Court asked her to clarify 

the extent to which she had followed media coverage of the Capitol Riot. Id. at 37–38. And when

the Court ask the Juror to describe her feelings regarding January 6, the Juror responded candidly, 

explaining, “I wasn’t happy that it was happening, both in my city and also that people were 

breaking into the Capitol and there seemed to be violence going on, and obviously people died on 

both sides of it[, s]o, you know, I’m glad that these cases are going to trial because I think that’s 

important[, b]ut yeah, I generally don’t think it was a good thing.” Id. at 38–39 (emphasis added).
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The Court then asked the Juror whether she could “follow the law and decide whether this 

defendant really crossed that line [of illegality] under the instructions I give to this jury.” Id. at 39. 

The Juror responded by affirming that she would follow the Court’s instructions and that she 

believed she could serve impartially. Id.

The Juror was not asked whether she was ever an intern, volunteer, or employee at the 

Capitol. Id. at 37–44. She was not asked whether she was familiar with the layout of the Capitol.

Id. Rather, she was asked about her connections to the Capitol on January 6 and her feelings about 

the events of that day. Id. The Juror described her feelings to the Court. Id. at 38–39. The Juror

explained to the Court’s satisfaction that she understood the proper role of the jury and would 

decide the case fairly and impartially. Id. at 39. In other words, the Juror answered the Court’s 

questions directly and truthfully. The Juror concealed nothing. And the Juror’s candid answers 

permitted the Court to gauge her credibility and determine that she would follow the Court’s 

instructions. Because the Juror did not answer a material question on voir dire untruthfully, or 

deliberately conceal material information, Mr. Kelly’s motion fails at the first McDonough factor. 

See McDonough, 464 U.S. at 556.

Second, the Juror’s statements during voir dire and during the post-verdict conversation 

with defense counsel are entirely consistent. According to Mr. Kelly, the Juror told defense counsel 

that she “used to work at the [Capitol] as an intern, and once you’re in, you’re in[, e]ven I couldn’t 

go on the floor,” and further, “this is our city[, w]e live here[, w]e know what went on.” Def.’s 

Mot. at 1 (emphasis added). The Court has already noted that it did not ask the Juror whether she 

previously worked at the Capitol. Nor did defense counsel ask the Court to ask this question. Tr. at 

41. So, nothing about the first part of the Juror’s post-verdict statement is inconsistent with her

statements during voir dire. The second part of the Juror’s post-verdict statement is also consistent. 
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During voir dire, the Juror expressed that she was not “happy that [the events of January 6 were]

happening in . . . my city.” Id. at 38 (emphasis added). This is entirely consistent with the Juror’s 

post-verdict statement that she knew “what went on” in “our city.” Def.’s Mot. at 1 (emphasis 

added). That the Juror’s voir dire and post-verdict statements are consistent demonstrates that 

nothing the Juror told the Court about her ability to serve fairly and impartially was false.

Third, defense counsel had the opportunity to ask the Juror whether she had ever worked

in the Capitol but failed to do so. Tr. at 41. Both parties were given the opportunity to propose 

questions to the Court before the commencement of voir dire. The Court has reviewed the parties’

joint proposed voir dire questions as well as Mr. Kelly’s supplemental requests. ECF Nos. 78-1 

and 89. Mr. Kelly never proposed asking the prospective jurors whether they had ever been 

employed or worked in the Capitol. Id. Moreover, before concluding its interview of the Juror, the

Court asked counsel for the government and defense counsel whether they had any follow-up 

questions. Tr. at 41. Defense counsel had several. Id. Defense counsel asked the Court to inquire 

into whether the Juror had ever been arrested, convicted, or charged with a crime; whether she had 

reached a verdict in a previous case in which she had served as a juror; and whether she understood 

that Mr. Kelly did not have to present a case in his defense. Id. Notably, defense counsel proffered

these follow-up questions after the Juror had already affirmed that she did not work at or near the 

Capitol and after she had already explained that she was not “happy that [the events of January 6

were] happening in . . . my city.” Id. at 37–38, 41. Defense counsel plainly had the opportunity to 

solicit additional information regarding the Juror’s employment history and feelings regarding the 

events of January 6 but failed to do so. Id. at 41. The Court surmises that defense counsel did not 

raise these additional questions because she was otherwise satisfied with the Court’s line of 

inquiry. Defense counsel’s current protestations are belied by the record.
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Fourth, even if the Juror had disclosed their prior internship at the Capitol, the Juror would 

not have been stricken for cause. In United States v. Maxwell, No. 20-cr-330 (AJN), 2022 WL 

986298, at *4 (S.D.N.Y. Apr. 1, 2022), the parties learned after the trial that a juror failed to 

disclose during voir dire that they were the victim of sexual abuse. The court denied the 

defendant’s Rule 33 motion, in part because it found that responses during voir dire disclosing the 

history of sexual abuse would not have provided a sufficient basis to strike the juror for cause. 

Id. at *11. The court reached this conclusion because the juror “repeatedly and credibly affirmed 

that his personal history of sexual abuse would not affect his ability to serve as a fair and impartial 

juror.” Id. Here, it is evident that even if the Court had learned of the Juror’s prior employment 

history during voir dire, the Juror’s repeated and credible affirmations that she could serve fairly 

and impartially would have overcome any for cause challenge. Tr. at 38–39. Indeed, the Juror’s 

prior employment history is nothing like the juror’s admission of victimhood in Maxwell. Although 

Mr. Kelly claims that “[a]nyone who worked at the Capitol has the life experience of being in the 

exact same position as everyone present on January 6, 2021,” and that therefore, the Juror “is a 

victim of the J6 riot,” this contention is wholly unsubstantiated and is not supported by the Juror’s 

post-verdict statements. See Def.’s Mot. at 1, 6. Basic familiarity with the Capitol Riot does not 

evince bias, let alone bias specifically directed against Mr. Kelly. See United States v. 

GossJankowski, No. 21-cr-123 (PLF), 2023 WL 395985, at *6 (D.D.C. Jan. 25, 2023). There is no 

evidence that the Juror was a victim of the Capitol Riot such that she was biased, and even if she

were a victim, the Court’s careful questioning during voir dire was sufficient to dispel any risk 

that she would fulfill her role partially and without regard for the Court’s legal instructions. See 

Irvin v. Dowd, 366 U.S. 717, 722–23 (1961).
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Fifth, several other jurors empaneled in this case had stronger connections to the Capitol

than the Juror, were not challenged for cause, and are not challenged here. At least four other 

empaneled jurors had connections to the Capitol that were disclosed during voir dire. Juror 1895 

disclosed that he worked in an office near the House Office Building on January 6 and had friends 

and clients who worked at the Capitol and were forced to evacuate on January 6. Tr. at 99–100. 

Juror 330 disclosed that he worked near the Capitol on January 6 and was at work that day. Id. at 

193. Juror 2173 disclosed that his sister works for a Congressperson at the Capitol. Id. at 82. Juror

1753 disclosed that the juror’s nephew had worked for the U.S. Capitol Police since December 

2022. Id. at 186–87. None of these jurors were challenged for cause. Id. at 83, 105, 193, 197. Mr. 

Kelly did challenge juror 277, who worked as a Senate staffer during 2021. Id. at 202. But the 

Court denied that challenge based on its assessment of the juror’s credibility. Id. at 206. The same 

reasoning applies here. Even if the Court assumes that the Juror lied during voir dire, the Juror’s 

prior employment history would not have sustained a for cause challenge because she credibly 

attested that she would serve fairly and impartially and follow the Court’s legal instructions. 

In summary, the Juror did not fail to honestly answer a material question on voir dire. Full 

disclosure of the Juror’s prior employment history would not have provided a valid basis for a 

challenge for cause. And Mr. Kelly has not shown that omission of the Juror’s prior employment 

history demonstrated actual bias. Mr. Kelly’s motion for new trial under Rule 33 is denied. 

B. Sufficiency of the Evidence

Mr. Kelly’s Rule 29 motion for judgment of acquittal fails because it is untimely and

because he is unable to show that no “rational trier of fact could have found the elements of the 

crime beyond a reasonable doubt.” Williams, 836 F.3d at 6. Mr. Kelly argues there was insufficient 

evidence from which the jury could conclude that Mr. Kelly intended to obstruct a judicial 
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proceeding or had knowledge that the Capitol Grounds were restricted. Def.’s Mot. at 6–7. But the 

government presented ample evidence to support the jury’s verdict.

The Court will not recount the entire corpus of evidence admitted at trial. Instead, it will 

note only that the jury heard evidence that Mr. Kelly had been closely following alleged election 

fraud; intended to come to D.C. to “stop the steal”; attended former President Trump’s rally at the 

Ellipse; took photographs and videos of fellow rioters; personally observed tear gas, law 

enforcement perimeters, and rioters climbing scaffolding; entered the Capitol Building and 

personally observed violent property destruction within the Building; breached a police line; and 

entered the Senate Chamber, climbed on the dais, and filmed himself stating that he was “send[ing] 

a message to all the tyrants, communists, and globalists that this is our nation and not theirs.” Gov’t 

Exs. 104.5, 107, 108, 109, 306, 307, 313, 403, 404, 405, 406, 410, 504, 604.1, 702, 703, 704, 900; 

May 5, 2023 Tr. Transcript at 22–25, 28–29, 32, 52–53.

The jury also heard testimony from Mr. Kelly’s father. Mr. Kelly’s father acknowledged 

that the scene around the Capitol was “shocking.” May 5, 2023 Tr. Transcript at 223. The elder 

Mr. Kelly ultimately did not advance on the Capitol because of the prevalence of tear gas and the 

“chaos” of the day’s events. Id. The jury was aware, of course, that the younger Mr. Kelly advanced

on the Capitol despite the circumstances that deterred his father. The contrast between the younger 

Mr. Kelly and his father could not have been lost on the jury.

Ultimately, the jury was faced with evidence that Mr. Kelly pushed past lines of police 

officers, engaged in disruptive conduct on the Senate floor, and made various statements evincing 

his intent to stop the certification of President Biden as winner of the 2020 presidential election. 

From this, the jury could conclude beyond a reasonable doubt that Mr. Kelly knowingly intended 

to obstruct, impede, and interfere with law enforcement officers and the orderly conduct of