1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. PATRICK STEDMAN, Defendant. Criminal Action No. 2 1

- 383 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION AND ORDER Defendant Patrick Stedman, who is facing trial on June 5, 2023, on a five

- count indictment stemming from his alleged conduct at the U.S. Capitol on January 6, 2021 , seek s (1) to exclude evidence , under Federal Rules of Evidence 401, 402, and 403 , regarding any events on January 6, 2021 for which defendant was not present and did not observe ; and (2) expanded voir dire and additional peremptory challenges during jury selection

. Def.’s Not. of Motions at 1 (Parts III and IV) , ECF No. 46; Def.’s Br. in Supp. Pretrial Mot. (“Def.’s M em .”) at 31

– 3 7 , ECF No. 46

- 1

. 1 Both motions are denied for the reasons outlined below

. I. Admissibility of General Evidence of Events at the U.S. Capitol Building and Grounds on January 6, 2021 . E vidence is relevant if “ it has any tendency to make a fact more or less probable than it would be without the evidence ” and “ the fact is of consequence in determining the action .” F ED
. R. E VID
. 401. Generally , “[i] rrelevant evidence is not admissible ,” F ED
. R. E VID
. 402 , but even if relevant, the evidence may be exclude d “ if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury,

1 Defendant filed all pretrial motions in a single motion, with Parts I and II addressed in a separate Memorandum Opinion and Order, ECF No. 57

.2 undue delay, wasting time, or needlessly presenting cum ulative evidence ,” F ED
. R. E VID
. 403. According to Rule 40 3’s plain text , this exclusion ary rule does not bar all potentially prejudicial evidence

. Instead, the term “unfair prejudice” “means an undue tendency to suggest decision on an improper basis, co mmonly, though not necessarily, an emotional one.” United States v. Ring , 706 F.3d 460, 472 (D.C. Cir. 2013) (quoting A dvisory C ommittee’s N ote , Fed eral R ule of Evid ence 403). “Rule 403 ‘tilts .

. . toward the admission of evidence in close cases.” Id. at 474 (quoting United States v. Moore , 732 F.2d 983, 989 (D.C. Cir. 1984)). These evidentiary standards make untenable defendant’s instant motion to exclude “video or other footage or testimony about the conduct of other persons present on the Capitol Building grounds or in the Capitol Building, including physical assault on any other person, property destruction, movement of barricades or other barriers, verbal threats to other persons, non

- verbal threats to other persons, or other such words o r actions that were not observed by ” defendant

. Def.’s M em . at 3 1

. In his view, “ [a]ny action and words of which [he] was not personally aware could not possibly have impacted his state of mind, and thus are irrelevant and inadmissible.” Id

. The glari ng omission in d efendant ’s facile position is the obvious relevance of the general context in which he allegedly engaged in the offense conduct with which he is charged

. See Gov’t’s Opp’n to Def.’s Mot. in Limine Regarding Preclusion of Evidence and Jury Selection (“Gov’t’s Opp’n”) at 1

– 4 , ECF No. 55

. The sheer numbers of individuals making up the mob that marched on the U.S. Capitol on January 6, 2021

— without stopping at the fencing or the barricades or the police lines or the chemical spray and other cr owd control tools deployed by law enforcement

— had the effect of overwhelm ing law enforcement officers attempting to secure the Capitol, with the direct consequence of creating a catastrophic security risk requiring the evacuation of lawmakers, staff , and press representatives legitimately gathered inside the Capitol3 building that day to conduct, facilitate , and observe the certification of the Electoral College vote count and triggering a lengthy delay before this constitutionally

- mandated proceeding could

resume . See id. at 2

– 3. T he property damage and violence against law enforcement officers that occurred on January 6, 2021, at the U.S. Capitol , resulted in the breach of restricted grounds and the Capitol building itself, and thus is relevant to t he threat that the mob of people posed to the safety of both law enforcement and lawmakers , whether before, during , and after the latter’s
evacuat ion from the Capitol building

. See i d. at 2 . E vidence of the magnitude of th is mob that descended on the Capi tol is also relevant to contextualizing law enforcement’s threat mitigation efforts that day and the challenge law enforcement had in dealing with any specific individual ’s criminal conduct

. See i d . All such general evidence about the events on January 6

— even if defendant did not personally observe all of the conduct engaged in by other s in multiple parts of the Capitol Building and restricted grounds

— assists the jury in better understanding the parties’ actions that day and thus the alleged crim inal conduct of defendant. The specific charges defendant faces also require general evidence of events on January 6, 2021, to prove elements of those offenses. For example, defendant is charged in Count One with Obstruction of an Official Proceeding, i n violation of 18 U.S.C. § 1512(c)(2) , see Indictment ¶ 1 , ECF No. 18, which requires the government to show that the Electoral College vote taking place that day was an “official proceeding” and that defendant ’s conduct “influence [d] , delay [ed] , or preven t[ed]” that “proceeding

. ” Id. Additionally, Count One charges defendant with Aiding and Abetting in violate of 18 U.S.C. § 2, which provides, in pertinent part, that anyone who “commits an offense against the United States or aids, abets, counsels, comman ds, induces or procures its commission, is punishable as a principal. ” Id. § 2(a). As the Supreme Court has held in Rosemond v. U nited States , 572 U.S. 65 (2014), “[t]o aid and abet a crime, a defendant must not just ‘in some4 sort associate himself with the venture,’ but also ‘participate in it as in something that he wishes to bring about’ and ‘seek by his action to make it succeed.’” Id. at 76 ( quoting Ny e & Nissen v. United States , 336 U.S. 613, 619 (1949) )

. Plainly, others’ actions on January 6 at the Capitol , in combination with defendant’s own actions , are relevant to whether a federally protected function

— i.e ., the Electoral College vote certificatio n

— was obstructed, delayed, or adversely affected , and defendant ’s knowing joinder of a broader crowd is probative of his participation in a venture that interfere d with a congressional proceeding. Defendant doubles down in arguing that “the unfair prejud icial impact of any evidence ” of illegal conduct by others “ would substantially outweigh any minimal probative value to be obtained from that evidence. ” Def.’s M em . at 32

. This concern is overblown. To the extent that other members of the mob, even in defendant’s vicinity , engaged in criminal conduct, defendant’s conduct may be viewed more positively in comparison. Moreover, defendant has an effective tool with cross

- examination effectively to differentiate himself from other rioters. In short , t he

co ntextual evidence of the conduct of others is so probative of the charges defendant faces that the probative value “substantially outweighs” the risk of unfair prejudice. F ED
. R. E VID
. 403. Judges on this Court, including the undersigned, have denied simi lar motions in limine in criminal cases stemming from the January 6, 2021 attack on the C apitol Building for the same or substantially similar reasons. See , e.g. , United States v. Gillespie , 22

- CR

- 60 (BAH) , Memorandum & Order , ECF No. 43 (D.D.C. Nov. 30, 2022) (Howell, C.J.) (denying defendant’s motion in limine seeking to exclude “‘general evidence’ of the events on January 6, 2021, including testimony, videos, photos, or other exhibits from sites at and around the U.S. Capitol where defendant was not located , ” pursuant to Federal Rules of Evidence 401, 402, and 403 , for the same

reasons outlined above ); United States v. Griffith , No. CR 21

- 244

- 2 (CKK), 2023 WL 2043223,5 at *2

– *3 (D.D.C. Feb. 16, 2023) (denying defendant’s motion in limine seeking “to ex clude ‘ all conduct by others other than defendant, ’ ” pursuant to Rules 401, 402, and 403 because “ the collective nature of the mob likens these cases to those involving criminal conspiracies where individuals work in concert to achieve a collective goal ” a nd “t his ‘ general ’ evidence is a far cry from Defendant ’ s prior ‘ bad acts ’ that implicate any risk of prejudice ”) (emphasis omitted) ; United States v. MacAndrew , No. CR 21

- 730 (CKK), 2022 WL 17961247, at *3 (D.D.C. Dec. 27, 2022) ( similar ); United States v . Carpenter , No. CR 21

- 305 (JEB), 2023 WL 1860978, at *3

– 4 (D.D.C. Feb. 9, 2023) ( similar )

. Given that d efendant fails to address or show any deficiency in the reasoning in any of these decisions , they remain persuasive here for the reasons outlined above

. Accordingly, defendant’s motion in limine to exclude any evidence of what occurred on January 6, 2021 that he perso nally did not observe is denied. II. Expanded Voir Dire And Additional Peremptory Challenges Are Unnecessary. As part of his motion in limine , defendant adds requests that have nothing to do with any limitations on evidence at trial but instead relate to “exp anded voir dire and additional peremptory challenges.” Def.’s Mem. at 32. Specifically, defendant asks the Court to: (1) send a questionnaire to summoned prospective jurors, after review and approval by the Court, with the parties present during any pre

- screening questioning the Court conducts before formal voir dire , id

. at 35 ; (2) allow “individual questioning” during voir dire , which apparently mean s attorney

- conducted voir dire , id

. ; and (3) expand the number of peremptory challenges to be used by defendant from ten to twenty, id

. at 36

– 37. Each of these requests are denied as unnecessary. With respect to defendant’s requests for a questionnaire and attorney

- conducted voir dire , the law is clear that “t he trial court retains great latitude in deciding what questions should be asked

on voir dire ,” Mu’Min v. Virginia , 500 U.S. 415, 42 4 (1991) ; accord United States v. Tsarnaev ,6 142 S. Ct. 1024, 1034 (2022) , including in the “mode and man ner of proceeding” and “the range of questions put to the prospective jurors,” United States v. Littlejohn , 489 F.3d 1335, 1342 (D.C. Cir. 2007) (quoting United States v. Robinson , 475 F.2d 376, 380 (D.C. Cir. 1973)). That discretion will be exercised here by rejecting defendant’s request for a questionnaire and party

conducted voir dire

. To start , requiring prospective jurors in a venire to respond to a questionnaire would consume time as well as judicial and party resources to prepare a wri tten questionnaire and additional court resources to mail, collect, and review responses. Such an undertaking for a questionnaire is wholly unnecessary here

. The parties are required to submit proposed voir dire questions directly to the Court as part of their Joint Pretrial Statement, see Standing Order ¶ 10(c), ECF No. 35, and, consequently, any concern about “[p]redetermined views” held by p rospective jurors, Def.’s M em. 35, may be addressed through those proposed and the Court’s supplemental questions during in person, oral voir dire rather than in a written questionnaire

. A t the time of jury selection , p rospective jurors will be able to respond to questions posed collectively and then to follow

- up questions on an individual basis outside the presence of the other prospective jurors. Any questions that would be posed on a questionnaire may be posed orally during voir dire

. This is certainly not a case requiring a lengthy period of jury service, which is the more typical circumstance deemed to warrant a special questionnaire to ensure an adequate venire of prospective jurors able to serve. With one exception , see United States v. Alford , No. CR 21

- 263 (TSC) , ECF No. 46 at 14

– 15 (D.D.C. Apr

. 18, 2022) (“ Alford Order”) , no other J udge on this Court has adopted use of a questionnaire for trials of single (or even multiple) defendants on charges arising from the attack on the U.S. Capitol on January 6, 2021. S ee , e.g., United States v. Nassif , No. CR 21

- 421 (JDB), 2022 WL 4130841, at *1 1 (D.D.C. Sept. 12, 2022) ( declining to adopt any special voir dire7 procedures, including individual questioning and using questionnaires , explaining that most courts

“ have empaneled juries in January 6 cases without resorting to enhanced protocols ” ); Unit ed States v. Rhine , No. CR 21

- 0687 (RC), 2023 WL 372044, at *5 (D.D.C. Jan. 24, 2023) ( rejecting “[d]efendant’s request for a written juror questionnaire”); United States v. Chwiesiuk , No. CR 21

- 536 (CKK), 2023 WL 2562517, at *7 (D.D.C. Mar. 17, 2023) (sam e)

. In sum , defendant’s requested use of a written questionnaire to prospective jurors is superfluous and unnecessary here

. Defendant further requests attorney

- conducted voir dire

. The applicable procedural rule gives the Court discretion to “examine prospective jurors or [] permit the attorneys for the parties to do so.” F ED
. R. C RIM
. P. 24(a). To be sure, some Judges on this Court allow counsel to ask follow

- up questions during v oir dire

. See, e.g ., Alford Order at 14

– 15, Rhine , 2023 WL 372044, at *5 (“The Court grants Defendant’s alternative request for individual questioning during voir dire .”); Chwiesiuk, 2023 WL 2562517, at *7 (explaining that the Court’s “trial procedures or der” already allows counsel to “pose brief follow

- up questions” to potential jurors during voir dire ). This is a matter of discretion, however. A llowing attorney

- conducted voir dire may invariably , as the government notes, “ take more time and will increa se the risk that improper or leading questions are asked to prospective jurors .” Gov’t’s Opp’n at 5 ; see also C.J. Williams, To Tell You the Truth, Fed. Rule of Criminal Procedure 24(A) Should Be Amended to Permit Attorneys to Conduct Voir Dire of Prospective Jurors , 67 S. C. L. R EV
. 35, 62 (2015) (acknowledging, without rebutting, the criticism “that attorneys abuse the opportu nity to question prospective jurors by trying to improperly influence them”); Reid Hastie, Is Attorney

- Conducted Voir Dire an Effective Procedure for the Selection of Impartial Juries?, 40 A M
. U

. L

. R EV
. 703, 705 (1991) (“ [A] negative factor in jury select ion relates to attorney use of voir dire to systematically indoctrinate jurors by creating doubts about the credibility of opposition witnesses, or construing the evidence or the law8 in a manner to favor their side of the case [.] ”). With the Court in cont rol of voir dire questioning, the risk of potential jurors being prejudiced or influenced by counsel’s questioning is significantly mitigated if not outright eliminated

. In the view of this Court, d efendant’s request for attorney

- conducted voir dire is b oth unnecessary and counterproductive . During the jury selection process, the Court will pose questions collective ly to the venire panel as a whole, based upon input from the parties through proposed voir dire questions submitted as part of the Joint Pretrial Statement

. Then , follow

- up questions will be asked of prospective jurors individually, as necessary , after consu ltation with counsel for defendant and the government

. See F ED
. R. C RIM
. P. 24(a)(2)(B) (“If the court examines the jurors, it must permit the attorneys for the parties to:

. . . submit further questions that the court may ask if it considers them proper. ”). Thus, counsel for both parties will have the opportunity to p ropose to the Court follow

- up questions to be posed to prospective jurors to ensure a searching voir dire without unnecessarily delaying the jury

- selection process and risking prejudicing po tential jurors. Finally , defendant’s request for double the number of peremptory challenges allowed under the governing procedural rules is denied

. Federal Rule of Criminal Procedure 24(b)(2) provides that a defendant in a non

- capital, felony case is entitled to ten peremptory challenges, with additional peremptory challenges only expressly allowed when the trial involves “ multiple defendants ,” F ED
. R. C RIM
. P . 24(b)

. Given that only a single criminal defendant is on trial in this felony case, the circumstance contemplated under the applicable rule for an increased number of peremptory challenges is plainly inapplicable. Defendant has identified no authority to exceed the number of ten peremptory challenges provide in Rule 24, nor provided any persuasive reason why the authorized number is in sufficient “to ensure that he receives his right to a fair and impartial9 jury.” Def.’s M em . at 32

. As defendant concedes, “ pere mptory challenge [s] ha [ve] never been held to be constitutionally mandated by the Supreme Court ,” id. at 37 (quoting Boone v. United States , 483 A.2d 1135, 1138 (D.C. Cir. 1984)), and he has provided no persuasive reason why additional ones should be grant ed here, even if permitted under Rule 24. Defendant’s request for an expanded number of peremptory challenges is accordingly denied

. III. ORDER For the foregoing reasons, it is hereby ORDERED that defendant’s Notice of Motion s (Parts III and IV) , ECF No. 46 , are DENIED

. SO ORDERED. Date: May 8 , 2023

__________________________ BERYL A. HOWELL District Judge