02-21-23 - RESPONSE by USA as to JOHN EARLE SULLIVAN re 84 MOTION to Change Venue Motion to Change Venue.txt

1 UNITED STATES DISTRICT COURT  
 FOR THE DISTRICT OF COLUMBIA 
 
UNITED STATES OF AMERICA   : 
:  CASE NO. 21- cr-78 (RCL)  
v.    :   
:   
JOHN SULLIVAN,    : 
      : 
Defendant.   : 
            
GOVERNMENT’S OPPOSITION TO DEFENDANT’S   
MOTION TO TRANSFER VENUE   
 
Defendant John Sullivan, who is charged in connection with events at the U.S. Capitol on 
January 6, 2021, has moved to transfer venue in this case to the District of Utah .  Sullivan  fails to 
establish  that he “cannot obtain a fair and impartial trial” in t his district, Fed. R. Crim. P. 21(a) , 
and this Court should deny his motion.1 
 
1 Judges on this Court have denied motions for change  of venue  in dozens of  January 6 
prosecutions, and no judge has granted a change of venue in a January 6 case.  See, e.g., United 
States v. Ramey , 22- cr-184, Minute Entry (D.D.C. Jan. 30, 2023) (DLF);  United States v.  
Eckerman, et al. , No. 21- cr-623, Minute Order (D.D.C. Jan. 26, 2023) (CRC);  United States v. 
Pollock, et al., No. 21- cr-447, Minute Entry (D.D.C. Jan. 25, 2023) (CJN);  United States v. 
Gossjankowski , No. 21- cr-12, ECF No. 114 (D.D.C. Jan. 25, 2023) (PLF);  United States v. Adams , 
No. 21- cr-212, ECF No. 60 ( D.D.C. Jan. 24, 2023)  (ABJ); United States v. Rhine , No. 21- cr-687, 
ECF No. 78 (D.D.C. Jan. 24, 2023) (RC);  United States v. Oliveras , No. 21- cr-738, ECF No. 52 
(D.D.C. Jan. 17, 2023) (BAH);  United States v. Sheppard, No. 21 -cr-203, ECF No. 62 (D.D.C. 
Dec. 28, 2022) (JDB);  United States v. Samsel, et al., No. 21- cr-537, ECF No. 227 ( D.D.C. Dec. 
14, 2022) (JMC);  United States v. Gillespie, No. 22- cr-60, ECF No. 41 (D.D.C. Nov. 29, 2022) 
(BAH);  United States v. Barnett , No. 21- cr-38, ECF No. 90 (D.D.C. Nov. 23, 2022) (CRC);  United 
States v. Bender , et al., No. 21- cr-508, ECF No. 78 ( D.D.C. Nov. 22, 2022) (BAH);  United States 
v. Sandoval , No. 21- cr-195, ECF No. 88 ( D.D.C. Nov. 18, 2022) (TFH); United States v. Vargas 
Santos , No. 21- cr-47, Minute Entry (D.D.C. Nov. 16, 2022) (RDM);  United States v. Nordean, et 
al., No. 21- cr-175, ECF No. 531 ( D.D.C. Nov. 9, 2022) (TJK);  United States v. Ballenger , No. 21-
719, ECF. No. 75 (D.D.C. Oct. 28, 2022)  (JEB);  United States v. Eicher , No. 22- cr-38, ECF No. 
34 (D.D.C. Oct. 20, 2022)  (CKK) ; United States v. Schwartz, et al., No. 21 -cr-178, ECF No. 142 
(D.D.C. Oct. 11, 2022)  (APM);  United States v. Nassif , No. 21- cr-421, ECF No. 42 (D.D.C. Sep. 
12, 2022) (JDB);  United States v. Brock , No. 21 -cr-140, ECF No. 58 (D.D.C. Aug. 31, 2022)  
(JDB); United States v. Jensen , No. 21- cr-6, Minute Entry (D.D.C. Aug. 26, 2022) (TJK);  United Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 1 of 172 BACKGROUND 
On January 6, 2021, a Joint Session of the United States House of Representatives and the 
United States Senate convened to certify the vote of the Electoral College of the 2020 U.S. 
Presidential Election .  While the certification process was proceeding, a large crowd gathered 
outside the United States Capitol, entered the restricted grounds, and forced entry  into the Capitol 
building.  As a result, the Joint S ession and the entire official proceeding of the Congress was 
halted until law enforcement was able to clear the Capitol of hundreds of unlawful occupants and ensure the safety of elected officials.  
John Sullivan traveled from Utah to Washington, D.C., to attend  and film  the “Stop the 
Steal” rall y on January 6, 2021. Afterwards, Sullivan joined rioters at the U.S. Capitol where he 
filmed a crowd pushing through several police barriers on the west side of the Capitol . After the 
crowd broke through the last barricade. As Sullivan and the others approach the Capitol Building, 
Sullivan can be heard in his video saying at various points: “There are so many people. Let’s go. 
 
States v. Seitz , No. 21- cr-279, Minute Order (D.D.C. Aug. 17, 2022) (DLF);  United States v. 
Strand, No. 21- cr-85, ECF No. 89 (D.D.C. Aug. 17, 2022)  (CRC) ; United States v. Williams , No. 
21-cr-618, ECF No. 63 (D.D.C. Aug. 12, 2022) (ABJ);  United States v. Herrera , No. 21- cr-619, 
ECF No. 54 (D.D.C. August 4, 2022) (BAH);  United States v. Garcia, No. 21- cr-129, ECF No. 83 
(D.D.C. July 22, 2022) (ABJ); United States v. Rusyn, et al., No. 21 -cr-303, Minute Entry (D.D.C. 
July 21, 2022) (ABJ);  United States v. Bledsoe , No. 21- cr-204, Minute Order  (D.D.C. July 15, 
2022) (BAH) ; United States v. Calhoun, No. 21 -cr-116, Minute Order  (D.D.C. July 11, 2022) 
(DLF);  United States v. Rhodes, et al., No. 22- cr-15, ECF No. 176 (D.D.C. June 28, 2022) (APM); 
United States v. Williams , No. 21- cr-377, Minute Entry (D.D.C. June 10, 2022) (BAH); United 
States v. McHugh, No. 21- cr-453, Minute Entry (D.D.C. May 4, 2022) (JDB);  United States v. 
Hale -Cusanelli , No. 21- cr-37, Minute Entry ( D.D.C. Apr. 29, 2022) (TNM) ; United States v. 
Webster , No. 21- cr-208, ECF No. 78 (D.D.C. Apr. 18, 2022)  (APM); United States v. Alford, 21-
cr-263, ECF No. 46 (D.D.C. Apr. 18, 2022) (TSC) ; United States v. Brooks , No. 21- cr-503, ECF 
No. 31 (D.D.C. Jan. 24, 2022) (RCL); United States v. Bochene , No. 21- cr-418, ECF No. 31 
(D.D.C. Jan. 12, 2022) (RDM); United States v. Fitzsimons , No. 21- cr-158, Minute Order  (D.D.C. 
Dec. 14, 2021) (RC);  United States v. Reffitt, No. 21- cr-32, Minute Order  (D.D.C. Oct. 15, 2021) 
(DLF); United States v. Caldwell , 21-cr-28, ECF No. 415 (D.D.C. Sept. 14, 2021) (APM). Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 2 of 173 This shit is ours! Fuck yeah,” “We accomplished this shit. We did this together. Fuck yeah! We 
are all a part of this history,” and “Let’s burn this shit down.”  
Sullivan entered the Capitol via a broken Senate Wing Door. Once inside the Capitol 
Building, Sullivan roamed t he building with other individuals who unlawfully entered.  During 
one of his interactions with others, Sullivan can be heard in the video saying, “We gotta get this shit burned,” “it’s our house motherfuckers,” and “we are getting this shit.” Sullivan ignored law enforcements commands to leaving and told the officers to stand down, so they would not get hurt. Sullivan encouraged other rioters, explaining he was “ready” because he had “been in so many riots.”  
Sullivan filmed the crowds trying to break open doors as the House and the Speaker’s 
Lobby. At both locations, Sullivan informed other members of  the crowd he had a knife  which 
allowed him to cut  to the front of the crowd. At the front of the Speaker’s Lobby crowd, Sullivan 
filmed the crowd trying to break down the doors ’ glass windows. Sullivan can be heard telling law 
enforcement to “go home” while encouraging those attempting to break the windows to “Get this shit!” Shortly thereafter, the video includes footage of a female getting shot as she tries to enter through the window opening. Sullivan later claimed to be a journalist but admitted he did not have 
any press credentials. 
 
Based on his  actions on January 6, 2021, the defendant  was charged with  Obstruction of 
an Official Proceeding, in violation of 18 U.S .C. § 1512(c)(2), and 2; Civil Disorder in violation 
of U.S.C. § 231(a)(3), and 2; Entering and Remaining in a Restricted Building and Grounds  with 
a dangerous weapon, in violation of 18 U.S.C. § 1752(a)(1)  and (b)(1)(A); Disorderly and 
Disruptive Conduct in a Restricted Building or Grounds  with a dangerous weapon, in violation of 
18 U.S.C. § 1752(a)(2)  and (b)(1)(A);  Unlawful Possession of a Dangerous Weap on Capitol Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 3 of 174 Grounds or Buildings, in violations of 40 U.S.C. § 5104(e)( 1)(A)i);  Disorderly Conduct in a 
Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D); Parading, Demonstrating, or Picketing 
in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G) ; False Statement or Representation 
to an Agency of the United States, in violations of 18 U .S.C. § 1001(a)(2); and Aiding and Abetting, 
in violation of 18 U.S.C. § 2.  
The defendant  now moves for a change of venue.  ECF No.  84.  He contends that prej udice 
should be presumed in this district for two  reasons , under Federal Rule of Criminal Procedure 2 : 
prejudice and  convenience. Id. at 2. Each of the defendant’s  arguments is without merit, and the  
motion should be denied. 
ARGUMENT  
The Constitution provides that “[t]he trial of all Crimes . . . shall be held in the State where 
the said Crimes shall have been committed .”  U.S. Const. Art. III, § 2, cl. 3.  The Sixth Amendment 
similarly guarantees the right to be tried “by an impartial jury of the State and district wherein the crime shall have been committed .”  U.S. Const. amend. VI.  These provisions provide “a safeguard 
against the unfairness and hardship involved when an accused is prosecuted in a remote place.” United States v. Cores , 356 U.S. 405, 407 (1958).  Transfer to another venue is constitutionally 
required only where “extraordinary l ocal prejudice will prevent a fair trial.”  Skilling v. United 
States , 561 U.S. 358, 378 (2010); see Fed. R. Crim. P. 21(a)  (requiring transfer to another district 
if “so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there”).  
The primary safeguard of the right to an impartial jury is “an adequate voir dire to identify 
unqualified jurors.”  Morgan v. Illinois , 504 U.S. 719, 729 (1992)  (italics omitted) .  Thus, the best 
course when faced with a pretrial publicity claim is ordinarily “to proceed to voir dire to ascertain Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 4 of 175 whether the prospect ive jurors have, in fact, been influenced by pretrial publicity.”  United States 
v. Campa, 459 F.3d 1121, 1146 (11th Cir. 2006) (en banc) .  “[I]f an impartial jury actually cannot 
be selected, that fact should become evident at the voir dire.”  United Stat es v. Haldeman, 559 F.2d 
31, 63 (D.C. Cir. 1976) (en banc) (per curiam).  And, after voir dire, “it may be found that, despite 
earlier prognostications, removal of the trial is unnecessary.”  Jones  v. Gasch , 404 F.2d 1231, 1238  
(D.C. Cir. 1967) . 
I. The Venue is not Prejudicial   
 
a. Size and characteristics of the community  
The defendant suggests that an impartial jury cannot be found in Washington, D.C., despite 
the District’s population of nearly 700,000. See No. ECF 84 at 4.  Although this District may be 
smaller than most other federal judicial districts, it has a larger population than two states (Wyoming and Vermont ).  The relevant question is not whether the  District of Columbia is as 
populous as the Southern District of Texas in Skilling , but whether it is large enough that an 
impartial jury can be found.  In Mu’Min v. Virginia, 500 U.S. 415, 429 (1991), the Court cited a county population of 182,537 as supporting the view than an impartial jury could be selected.  And Skilling  approvingly cited a state case in which there was “a reduced likelihood of prejudice” 
because the “venire was drawn from a pool of over 600,000 individuals.”  Skilling , 561 U.S. at 382  
(quoting Gentile v. State Bar of Nev. , 501 U.S. 1030, 1044 (1991)).  There is simply no reason to 
believe that, out of an eligible jury pool of nearly half a million, “12 impartial individuals could not be empaneled.”   Id.    
 Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 5 of 176 b. The Pretrial Publicity Does Not Support a Presumption of Prejudice in This 
District.  
i. The Pretrial Publicity Related to January 6 Does Not Support a Presumption of Prejudice in This District.  
 
 
The defendant contends that a change of venue is warranted  based on pretrial publicity in 
relation to both January 6 and Sullivan himself .  E.C.F. No. 84 at 4).  “The mere existence of intense 
pretrial publicity is not enough to make a trial unfair, nor is the fact that potential jurors have been 
exposed to this publicity. ”  United States v. Childress , 58 F.3d 693, 706 (D.C. Cir. 1995) ; see 
Murphy v. Florida, 421 U.S. 794, 799 (1975) (juror exposure to “news accounts of the crime with which [a defendant] is charged” does not “alone presumptively deprive[] the defendant of due process”).  Indeed, “ every case of public interest is almost, as a matter of necessi ty, brought to the 
attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits.”  Reynolds v. United States , 98 U.S. 145, 155- 56 (1878).   
Thus, the “mere existence of any preconceived notion as to the guilt or innocence of an accused, without more,” is insufficient to establish prejudice.  Irvin v. Dowd, 366 U.S. 717, 723 (1961) .  “It 
is sufficient if the  juror can lay aside his impression or opinion and render a verdict based on the 
evidence presented in court.”  Id.   
The Supreme Court has recognized only a narrow category of cases in which prejudice is 
presumed to exist without regard to prospective jurors’ answers during voir dire.  See Rideau v. 
Louisiana, 373 U.S. 723 (1963) .   In Rideau, the defendant’s confession—obtained while he was 
in jail and without an attorney present —was broadcast three times shortly before trial on a local 
television station to audiences ranging from 24,000 to 53,000 individuals in a parish of 
approximately 150,000 people.  Id. at 724 (majority opinion), 728- 29 (Clark, J., dissenting).  The Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 6 of 177 Court concluded that , “to the tens of thousands of people who saw and heard it,” the televised 
confession “in a very real sense was Rideau’s trial —at which he pleaded guilty to murder.”  
Rideau, 373 U.S. at 726.  Thus, the Court “d[id] not hesitate to hold, without pausing to examine 
a particularized transcript of the voir dire,” that these “kangaroo court proceedings” violated due 
process.  Id. at 726- 27. 
Since Rideau, the Supreme Court has emphasized that a “presumption of prejudice . . . 
attends only the extreme case,” Skil ling, 561 U.S. at 381, and the Court has repeatedly “held in 
other cases that trials have been fair in spite of widespread publicity,” Nebraska Press Ass’ n v. 
Stuart , 427 U.S. 539, 554 (1976).  In the half century since Rideau, the Supreme Court has never 
presumed prejudice based on pretrial publicity.  But see Estes v. Texas , 381 U.S. 532 (1965)  
(presuming prejudice based on media interference with courtroom proceedings) ; Sheppard v. 
Maxwell , 384 U.S. 333 (1966)  (same).  In fact, courts have declined to transfer venue in some of 
the most high- profile prosecutions in recent American history.  See  In re Tsarnaev , 780 F.3d 14, 
15 (1st Cir. 2015) (per curiam) (capital prosecution of Boston Marathon bomber); Skilling , 561 
U.S. at 399 (f raud trial of CEO of Enron Corporation); United States v. Yousef , 327 F.3d 56, 155 
(2d Cir. 2003) (trial of participant in 1993 World Trade Center bombing); United States v. Moussaoui , 43 F. App’x 612, 613 (4th Cir. 2002)  (per curiam) (unpublished) (terrorism 
prosecution for conspirator in September 11, 2001 attacks); Haldeman, 559 F.2d at 70 (Watergate 
prosecution of former Attorney General John Mitchell and other Nixon aides).  
In Skilling , the Supreme Court considered several factors in determining that prejudice 
should not be presumed where former Enron executive Jeffrey Skilling was tried in Houston, 
where Enron was based.  Skilling , 561 U.S. at 382 -83.  First, the Court considered the “size and 
characteristics of the community.”  Id.  at 382.  U nlike Rid eau, where the murder “was committed Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 7 of 178 in a parish of only 150,000 residents,” Houston was home to more than 4.5 million people eligible 
for jury service.  Id. at 382.  Second, “although news stories about Skilling were not kind, they 
contained no confession or other blatantly prejudicial information of the type readers or viewers 
could not reasonably be expected to shut from sight.”   Id.  Third, “over four years elapsed between 
Enron’s bankruptcy and Skilling’s trial,” and “the decibel level of media attenti on diminished 
somewhat in the years following Enron’s collapse.”  Id. at 383.  “Finally, and of prime significance, 
Skilling’s jury acquitted him of nine insider -trading counts,” which undermined any “supposition 
of juror bias.”   Id.   
Although these Skilling  factors are not exhaustive, courts have found them useful when 
considering claims of presumptive prejudice based on pretrial publicity.  See, e.g.,  In re Tsarnaev , 
780 F.3d at 21- 22; United States v. Petters , 663 F.3d 375, 385 (8th Cir. 2011).  And contrary to 
the defendant’s contention, those factors do not support a presumption of prejudice in this case.   
ii. The Pretrial Publicity Related to Sullivan  Does Not Support a 
Presumption of Prejudice in This District.  
The defendant also asserts that a fair trial cannot be had in D.C. because of news coverage 
about  himself .  ECF No. 84 at 5.   But even “massive” news coverage of a crime does not require 
prejudice to be presumed.  Haldeman, 559 F.2d at 61.  Sullivan has not pointed to any s alacious 
new coverage about himself, or any specific news coverage for that matter .  Unlike most cases 
involving pretrial publicity,  where the news coverage focuses on the responsibility of a single 
defendant (as in Rideau  or Tsarnaev ) or small number of c o-defendants (as in Skilling  and 
Haldeman) , the events of January 6 involved thousands of participants and have so far resulted in 
charges against more than 900 people.  The Court can guard against any spillover prejudice from 
the broader coverage of Janua ry 6 by conducting a careful voir dire and properly instructing the 
jury about the need to determine a defendant’s individual guilt.  Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 8 of 179 And, in any event, any threat of such spillover prejudice is not limited to Washington, D.C. 
because much of the news cover age of January 6 has been national in scope.  See Haldeman , 559 
F.2d at  64 n.43 (observing that “a change of venue would have been of only doubtful value” where 
much of the news coverage was “national in [its] reach” and the crime was of national interest) ; 
United States v. Bochene , No. 21- cr-418-RDM, 2022 WL 123893, at *3 (D.D.C. Jan. 12, 2022) 
(“The fact that there has been ongoing media coverage of the breach of the Capitol and subsequent 
prosecutions, both locally and nationally, means that the influenc e of that coverage would be 
present wherever the trial is held.” (internal quotation marks omitted)) .  Thus, the nature and extent 
of the pretrial publicity do not support a presumption of prejudice.  
c. Passage of time before trial  
 
In Skilling , the Court considered the fact that “over four years elapsed between Enron’s 
bankruptcy and Skilling’s trial.”  Skilling , 561 U.S. at 383.  In this case, twenty -five months have 
already elapsed since the events of January 6, and more time will elapse before trial.  T his is far 
more than in Rideau, where the defendant’s trial came two months after his televised confession.  
Rideau, 373 U.S. at 724.  Although January 6 continues to be in the news, the “decibel level of media attention [has] diminished somewhat,” Skillin g, 561 U.S. at 383.  Moreover, only a 
relatively small percentage of the recent stories have mentioned Sullivan, and much of the reporting has been national is scope, rather than limited to Washington, D.C.  
d. The jury verdict  
Because Sullivan  has not yet gone to trial, the final Skilling factor —whether the “jury’s 
verdict . . . undermine[s] in any way the supposition of juror bias,” Skilling , 561 U.S. at 383—does 
not directly apply.  But the fact that Skilling considered this factor to be “of prime significance,” 
id., underscores how unusual it is to presume prejudice before trial.  Ordinarily, a case should Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 9 of 1710 proceed to trial in the district where the crime was committed, and courts can examine after trial 
whether the record supports a finding of actual or presumed prejudice.   In short, none of the Skilling 
factors support s the defendant’s contention that the Court should presume prejudice and order a 
transfer of venue without even conducting voir dire.  
The defendant  suggests that this factor ac tually supports  his claim of prejudice because the 
other jury trials involving January 6 defendants have resulted in prompt and (until recently) unanimous guilty verdicts .  ECF No. 84 at 5- 6. But although the Skilling  indicated that a split 
verdict could “undermine” a presumption of prejudice, it never suggested that a unanimous verdict —particularly a unanimous verdict in a separate case involving a different defendant —was 
enough to establish prejudice.  The prompt and unanimous guilty verdi cts in other January 6 jury 
trials resulted from the strength of the government’s evidence.  Moreover, juries in two  recent 
January 6 trial s have either been unable to reach a verdict  on certain counts , see United States v. 
Williams , No. 21-cr-618 ( D.D.C. ), or have acquitted on some  counts, see United States v. Rhodes, 
et al. , No. 22- cr-15, ECF No. 410 (D.D.C. Nov. 29, 2022) .  This indicates that D.C. jurors are 
carefully weighing the evidence and not reflexively convicting January 6 defendants on all 
charges.  And, as explained below, the jury selection in those cases actually indicates that impartial 
juries can be selected in this district.  
II. A Change of Venue Is Not Warranted Under Federal Rule of Criminal Procedure 
21(b) Based on Convenience or the Interest of Justice.  
 
The defendant argue s (ECF No. 84 at 3 and 7 ) that this Court should transfer venue to the 
District of Utah  under Rule 21(b), which allows transfer to another district “for the convenience 
of the parties, any victim, and the witnesses, and in the interest of justice.”  Fed. R. Crim. P. 21(b).  
The defendant  asserts that a change in venue is necessary because he and his witnesses live in Utah 
and one of the numerous charges arose out of conduct in Utah. ECF No.  84 at 7.  These arguments Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 10 of 1711 do not support a transfer of venue under Rule 21(b).    
“There is a general presumption that a criminal prosecution should be retained in the 
original district.” United States v. Bowdoin, 770 F. Supp. 2d 133, 138 (D.D.C. 2011) (quoting 
United States v. Baltimore & Ohio R.R., 538 F. Supp. 200, 205 (D.D.C. 1982) ).  That presumption 
is rooted in the Constitution, which states that “[t]he trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed.”  U.S. Const. Art. III, § 2, cl. 3.  And it is reflected in the Federal Rules of Criminal Procedure, which state that, “[u]nless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense 
was committed.”  Fed. R. Crim. P. 18.  To obtain a change of venue under Rule 21(b), a defendant must demonstrate that trial in the district where the crime occurred  “would be so unduly 
burdensome that fairness requires the transfer to another district of proper venue where a trial would be less burdensome.”  Bowdoin, 770 F. Supp. 2d at 138 (quotations marks omitted).   Factors 
a court considering a motion to transfer venue are:  
(1) location of the defendant; (2) location of possible witnesses; (3) location of 
events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of the defendant’s business; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district of division involved; and (10) any other special elements w hich 
might affect the transfer.  
 
Id. at 137- 38.   Those factors strongly support keeping the prosecution in this District.  The events 
at issue took place in the District of Columbia, and the witnesses and evidence are in this District.  
Holding a trial in  the District of Utah would require a significant expenditure of government funds 
for the prosecution team and witnesses to travel to that district.   
Moreover, none of the defendant’s  reasons for transfer under Rule 21(b) support s an 
interest of justice transfer.  A trial in the District of Utah would undoubtedly be more convenient 
for the defendant .  But that fact alone is not sufficient to justify transfer, particularly considering Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 11 of 1712 that the defendant  chose to travel to Washington, D.C. to commit his  crimes at the U.S. Capitol.  [  
The defendant’s claim that venue should be transferred under Rule 21(b) because the 
District of Utah  would provide him with a fairer jury pool , (ECF No. 84 at 3- 7) is similar ly 
unavailing.  As explained above, the defendant cannot obtain a change of venue based on 
prejudicial publicity under the constitutional standard or Rule 21(a).  And the defendant cannot use Rule 21(b)’s “interest of justice” standard as an alternative way to raise a claim of “local 
community prejudice.”  Jones v. Gasch, 404 F.2d 1231, 1238 (D.C. Cir. 1967) .  In Jones , the D.C. 
Circuit denied a petition for mandamus which challenged the presiding judge’s denial of his 
motion to transfer under Rule 21(b) based on a claim of prejudicial publicity.  Id.  at 1234, 1238-
39.  T he court of a ppeals held “that the standard of Rule 21(a) is the exclusive gauge by which 
circumstances of that character (prejudice) are to be measured.”  Id.  at 1239.  The defendant has 
failed to establish that he  cannot receive a fair trial in this District, and the defendant  has failed to 
articulate a basis for transfer under Rule 21(b).  
III. The January 6- Related Jury Trials That Have Already Occurred Have 
Demonstrated the Availability of a Significant Number of Fair, Impartial Jurors 
in the D.C. Venire.  
 
At this point, more than a dozen  January 6 cases have proceeded to jury trials, and the 
Court in each of those cases has been able to select a jury without  undue expenditure of time or 
effort .  See Murphy, 421 U.S. at 802- 03 (“The length to which the trial court must go to select 
jurors who appear to be impartial is another factor relevant in evaluating those jurors’ assurances 
of impartiality.”); Haldeman, 559 F.2d at  63 (observing that “i f an impartial jury actually cannot 
be selected, that fact should become evident at the voir dire ”).  Instead, the judges presiding over 
nearly all of those trials were able to select a jury in one or two days.  See  United States v. Reffitt, 
No. 21-cr-32, Minute Entries ( Feb. 28 & Mar. 1, 2022) ; United States v. Robertson, No. 21-cr-34, Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 12 of 1713 Minute Entry ( Apr. 5, 2022) ; United States v. Thompson, No. 21- cr-161, Minute Entry (Apr. 11, 
2022); United States v. Webster , No. 21- cr-208, Minute Entry (Apr. 25, 2022); United States v. 
Hale -Cusanelli , No. 21-cr-37, Minute Entry (May 23, 2022) ; United States v. Anthony Williams , 
No. 21-cr-377, Minute Entry (June 27, 2022) ; United States v. Bledsoe , No. 21- cr-204, Minute 
Entry (July 18, 2022); United States v. Herrera , No. 21- cr-619, Minute Entry (D.D.C. August 15, 
2022) ; United States v. Jensen, No. 21-cr-6, Minute Entries (Sep. 19 &  20, 2022) ; United States v. 
Strand, No. 21- 85, Minute Entry (D.D.C. Sep. 20, 2022);  United States v. Alford , No. 21- cr-263, 
Minute Entry (Sep. 29, 2022);  United States v. Riley Williams , No. 21- cr-618, Minute Entries 
(D.D .C. Nov. 7 &  8, 2022) ; United States v. Schwartz , No. 21- cr-178, Minute Entries (D.D.C. 
Nov. 22 & 29, 2022); United States v. Gillespie  No. 22- cr-60, Minute Entry ( D.D.C. Dec. 19, 
2022) ; United States v. Barnett , 21-cr-38, Minute Entries (D.D.C. Jan. 9 & 10, 2023);  United States 
v. Sheppard, No. 21- cr-203, Minute Entries (D.D.C. Jan. 20 & 23, 2023); United States v. 
Eckerman , No. 21- CR-623, Minute Entry (D.D.C. Jan. 23, 2023) . The only exceptions  have trials  
involving seditious conspiracy charges.  See Uni ted States v. Rhodes, et al., No. 22- cr-15, Minute 
Entries (Sept. 27, 28, 29; Dec. 6, 7, 8, 9, 2022).   And, using the first five jury trials as exemplars, 
the voir dire that took place undermines the defendant’s claim that prejudice should be presumed.  
In Reffitt, the Court individually examined 56 prospective jurors and qualified 38 of them 
(about 68% of those examined).  See Reffitt, No. 21- cr-32, ECF No. 136 at 121.  The Court asked 
all the prospective jurors whether they had “an opinion about Mr. Reffi tt’s guilt or innocence in 
this case” and whether they had any “strong feelings or opinions” about the events of January 6 or 
any political beliefs that it would make it difficult to be a “fair and impartial” juror.  Reffitt, No. 
21-cr-32, ECF No. 133 at 23, 30. The Court then followed up during individual voir dire.  Of the 
18 jurors that were struck for cause, only nine  (or 16% of the 56 people examined) indicated that Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 13 of 1714 they had such strong feelings about the events of January 6 that they could not serve as fair or 
impartial jurors.2 
In Thompson, the Court individually examined 34 prospective jurors, and qualified 25 of 
them (or 73%).  See Thompson, No. 21- cr-161, ECF No. 106 at 170, 172, 181, 190, 193.  The court 
asked the entire venire 47 standard  questions, and then followed up on their affirmative answers 
during individual voir dire.  Id.  at 4-5, 35.  Of the nine prospective jurors struck for cause, only 
three (or about 9% of those examined) were stricken based on an inability to be impartial, as  
opposed to some other cause.3   
Similarly, in Robertson, the Court individually examined 49 prospective jurors and 
qualified 34 of them (or about 69% of those examined).  See Robertson, No. 21- cr-34, ECF No. 
106 at 73.  The Court asked all prospective jurors whether they had “such strong feelings” about the events of January 6 that it would be “difficult” to follow the court’s instructions “and render a fair and impartial verdict.”  Robertson, No. 21- cr-34, ECF No. 104 at 14.  It asked whether 
anything about the allegations in that case would prevent prospective jurors from “being neutral and fair” and whether their political views would affect their ability to be “fair and impartial.”  Id.  
 
2 For those struck based on a professed inability to be impartial, see Reffitt, No. 21- cr-32, 
ECF No. 133 at 49- 54 (Juror 328), 61- 68 (Juror 1541), 112- 29 (Juror 1046); ECF No. 134 at 41 -
42 (Juror 443), 43- 47 (Juror 45), 71- 78 (Juror 1747), 93- 104 (Juror 432), 132- 43 (Juror 514); ECF 
No. 135 at 80- 91 (Juror 1484).  For those struck for other reasons, see Reffitt, No. 21- cr-32, ECF 
No. 134 at 35- 41 (Juror 313, worked at Library of Congress); ECF No. 134 at 78- 93 and ECF No. 
135 at 3 (Juror 728, moved out of D.C.); ECF No. 135 at 6- 8 (Juror 1650, over 70 and declined to 
serve), 62 -73 (Juror 548, unavailability), 100- 104 (Juror 715, anxiety and views on guns ), 120 
(Juror 548, medical appointments); ECF No. 136 at 41- 43 (Juror 1240, health hardship), 53- 65 
(Juror 464, worked at Library of Congress), 65- 86 (Juror 1054, prior knowledge of f acts).  
 
3 For the three stricken for bias, see Thompson, No. 21- cr-161, ECF No. 106 at 51- 53 (Juror 
1242), 85- 86 (Juror 328), 158- 59 (Juror 999).  For the six stricken for hardship or inability to focus, 
see Thompson, No. 21- cr-161, ECF No. 106 at 44 (Juror 1513), 45 (Juror 1267), 49- 50 (Juror 503), 
50-51 (Juror 1290), 86 -93 (Juror 229), 109- 10 (Juror 1266).  
  Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 14 of 1715 at 13, 15.  The Court followed up on affirmative answers to those questions during individual voir 
dire.  Of  the 15 prospective jurors struck for cause, only nine (or 18% of the 49 people examined) 
indicated that they had such strong feelings about the January 6 events that they could not be  fair 
or impartial.4   
In Webster , the Court individually examined 53 jurors and qualified 35 of them (or 66%),  
Webster , No. 21- cr-208, ECF No. 115 at  6, though it later excused one of those 35 based on 
hardship, Webster , No. 21- cr-208, ECF No. 114 at 217- 18.  The Court asked all prospective jurors 
whether they had “strong feelings” about the events of January 6 or about the former President that 
would “make it difficult for [the prospective juror] to serve as a fair and impartial juror in this case.”  We bster , No. 21- cr-208, ECF No. 113 at 19.  During individual voir dire, t he Court followed 
up on affirmative answers to clarify whether prospective jurors could set aside their feelings and 
decide the case fairly .  See, e.g., id. at 32 -33, 41- 42, 54- 56, 63, 65-66.  Only 10 out of 53 
prospective jurors (or about 19%) were stricken based on a professed or imputed inability to be impartial, as opposed to some other reason.
5  The Webster Court observed that this number “was 
 
4 For those struck based on a professed inability to be impartial, see Robertson, No. 21- cr-
34, ECF No. 104 at 26- 34 (Juror 1431), 97- 100 (Juror 1567); ECF No. 105 at 20- 29 (Juror 936), 
35-41 (Juror 799), 59- 70 (Juror 696), 88- 92 (Juror 429); ECF No. 106 at 27- 36 (Juror 1010), 36-
39 (Juror 585), 58- 63 (Juror 1160).  For those struck f or other reasons, see Robertson, No. 21- cr-
34, ECF No. 104 at 23- 26 (Juror 1566, hardship related to care for elderly sisters), 83- 84 (Juror 
1027, moved out of D.C.); ECF No. 105 at 55- 59 (Juror 1122, language concerns), 92- 94 (Juror 
505, work hardship); E CF No. 106 at 16- 21 (Juror 474, work trip); 50- 53 (Juror 846, preplanned 
trip).  
 
5 Nine of the 19 stricken jurors were excused based on hardship or a religious belief.  See 
Webster , No. 21 -cr-208, ECF No. 113 at 46 (Juror 1464), 49- 50 (Juror 1132), 61 (Juror 1153), 68 
(Juror 951), 78 (Juror 419); Webster , No. 21- cr-208, ECF No. 114 at 102- 04, 207, 217 (Juror 571), 
188 (Juror 1114), 191 (Juror 176), 203- 04 (Juror 1262).  Of the ten other stricken jurors, three 
professed an ability to be impartial but were nevertheless stricken based on a connection to the 
events or to the U.S. Attorney’s Office.  See Webster , No. 21- cr-208, ECF No. 113 at 58 -60 (Juror 
689 was a deputy chief of staff for a member of congress); Webster , No. 21- cr-208, ECF No. 114 Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 15 of 1716 actually relatively low” and therefor e “doesn’t bear out the concerns that were at root in the venue 
transfer motion” in that case.  Webster , No. 21- cr-208, ECF No. 115 at 7.  
In Hale -Cusanelli , the Court individually examined 47 prospective jurors and qualified 32 
of them (or 68%).  Hale -Cusanelli, No. 21- cr-37, ECF No. 91 at 106, 111.  The Court asked 
prospective jurors questions similar to those asked in the other trials.  See  Hale -Cusanelli , No. 21-
cr-37, ECF No. 90 at 72- 74 (Questions 16, 20).  Of the 15 prospective jurors struck for cause, 11 
(or 23% of those examined) were stricken based on a connection to the events of January 6 or a 
professed inability to be impartial.6 
In these first five jury trials, the percentage of prospective jurors stricken for cause based 
on partiality is far lower than in Irvin , where the Supreme Court said that “statement[s] of 
impartiality” by some prospective jurors could be given “little weight” based on the number of other prospective jurors who “admitted prejudice.”  Irvin , 366 U.S. at 728.  In Irvin , 268 of 430 
prospective jurors ( or 62%) were stricken for cause based on “fixed opinions as to the guilt of 
petitioner. ”  Id.  at 727.  The percentage of parti ality-based strikes in these first five January 6-
related jury trials —between 9% and 23% of those examined—is far lower than the 62% in Irvin .  
The percentage in these cases is lower  even than in Murphy , where 20 of 78 prospective jurors 
(25%) were “excuse d because they indicated an opinion as to petitioner’s guilt .”  Murphy , 421 
U.S. at 803.  Murphy said that this percentage “by no means suggests a community with sentiment 
so poisoned against petitioner as to impeach the indifference of jurors who displaye d no animus 
 
at 139- 41 (Juror 625’s former mother- in-law was a member of congress); 196 -98 (Juror 780 was 
a former Assistant U.S. Attorney in D.C.).  
 
6 See Hale -Cusanelli , No. 21- cr-37, ECF No. 90 at 61- 62 (Juror 499), 67- 68 (Juror 872), 
84-85 (Juror 206), 91- 94 (Juror 653); ECF No. 91 at 2- 5 (Juror 1129), 32 (Juror 182), 36 (Juror 
176), 61- 62 (Juror 890), 75- 78 (Juror 870), 94- 97 (Juror 1111), 97- 104 (Juror 1412).  For the four 
jurors excused for hardship, see Hale -Cusanelli , No. 21- cr-37, ECF No. 90 at 77 -79 (Juror 1524), 
99 (Juror 1094); ECF No. 91 at 12 (Juror 1014), 31 (Juror 899).  Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 16 of 1717 of their own.”  Id.   As in Murphy , the number of prospective jurors indicating bias does not call 
into question the qualifications of others whose statements of impartiality the Court has credited. 
Far from showing that “an impartial jury actua lly cannot be selected,” Haldeman, 559 F.2d 
at 63, the first five January 6- related jury trials have confirmed  that voir dire can adequately screen 
out prospective jurors who cannot be fair and impartial , while leaving more than sufficient 
qualified jurors to hear the case.   The Court should deny the defendant’s request for a venue 
transfer and should instead rely on a thorough voir dire to protect the defendant’s right to an 
impartial jury.  
CONCLUSION 
 For the foregoing reasons, the defendant’s motion to transfer venue should be denied. 
Respectfully submitted,  
 
MATTHEW M. GRAVES  
United States Attorney  
D.C. Bar No. 481052 
 
By:  /s/ Rebekah Lederer  
REBEKAH LEDERER  
Pennsylvania Bar No. 320922  
Assistant  United  States  Attorney 
U.S Attorney’s Office  for District of Columbia 
601 D St. N.W, Washington, DC 20530 
Tel. No. (202) 252- 7012  
Email: rebekah.lederer@usdoj.gov  Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 17 of 17