United States v. Gunby

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Defendant.

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UNITED STATES OF AMERICA )
)
v. ) Criminal No. 21-0626 (PLF)
)
DEREK COOPER GUNBY, )
)
)
)

OPINION AND ORDER

Defendant Derek Cooper Gunby is charged in a four-count information
(“Information”) based on conduct related to the events at the United States Capitol on
January 6, 2021. See Information [Dkt. No. 14]. Pending before the Court are Mr. Gunby’s
Motion to Dismiss the Information for Failure to State a Claim [Dkt. No. 38] and Motion to
Change Venue to [the] District of South Carolina, Greenville Division [Dkt. No. 36]. The Court
has carefully considered the parties’ written submissions and the applicable authorities.! For the
following reasons, the Court concludes that the counts in the Information adequately state the

offenses for which Mr. Gunby is charged. The Court also concludes that Mr. Gunby has not

! The Court has reviewed the following documents: Statement of Facts [Dkt. No.

1-1]; Information [Dkt. No. 14]; Motion to Change Venue to [the] District of South Carolina,
Greenville Division (“Venue Mot.’’) [Dkt. No. 36]; Motion to Dismiss the Information for
Failure to State a Claim (““Mot. to Dismiss”) [Dkt. No. 38]; United States’ Opposition to Motion
to Dismiss the Information for Failure to State a Claim (“Mot. to Dismiss Opp.”) [Dkt. No. 40];
United States’ Opposition to Defendant’s Motion to Transfer Venue (“Venue Opp.”) [Dkt. No.
43]; Reply to the United States’ Opposition Regarding Failure to State a Claim (ECF 40) (“Mot.
to Dismiss Reply”) [Dkt. No. 45]; and Memorandum in Reply to the United States’ Opposition
to Defendant’s Motion to Transfer Venue (“Venue Reply’’) [Dkt. No. 46]. Because Mr. Gunby’s
motions did not contain page numbers, citations to his pleadings refer to the electronic case filing
page numbers.
established a presumption of prejudice and that voir dire is the appropriate means of assessing

potential juror prejudice in this case. The Court therefore will deny both of Mr. Gunby’s

motions.

1. BACKGROUND

The events of January 6, 2021 are summarized in the Court’s opinion in United

States v. Puma. See United States v. Puma, 596 F. Supp. 3d 90, 93-94 (D.D.C. 2022). The
factual summary in this section is “for background purposes only,” and these facts “do not

inform the Court’s analysis of [Mr. Gunby’s] motion[s] to dismiss, which must be limited to ‘the

four comers of the [information].’” United States v. Montgomery, 578 F. Supp. 3d 54, 59 n.1

(D.D.C. 2021) (quoting United States y. Safavian, 429 F. Supp. 2d 156, 161 n.2 (D.D.C. 2006)).

The United States alleges that Mr. Gunby was a member of the crowd that entered
the Capitol building on January 6, 2021 and engaged in certain activities while there. See

Information; see also United States v. Gunby, Crim. No. 21-0626, 2023 WL 4993483, at *1

(D.D.C. Aug. 4, 2023). The Statement of Facts accompanying the criminal complaint describes
video footage that depicts Mr. Gunby inside the Capitol building on January 6. See Statement of
Facts at 6-8. The video footage shows Mr. Gunby walking inside of the Capitol, holding a cell
phone and taking photos on his cell phone. See id. On February 1, 2021, an FBI agent
interviewed Mr. Gunby, and Mr. Gunby admitted during the interview that he entered the Capitol
building on January 6. See id. at 8. He explained during the interview that no law enforcement
or security personnel tried to stop him from going into the Capitol building, and he showed the
FBI agent video he had taken that day with his phone. Id. at 8-9. The Statement of Facts also

describes a livestream video that Mr. Gunby posted to his Facebook account on January 6, 2021.
Id. at 4. The video appears to depict Mr. Gunby on the Metro after leaving the Capitol. Id. In

the video, Mr. Gunby stated:

[W]e surrounded the Capitol today. Eventually tear gas started

flying. They started shooting tear gas. . . . my lips are still burning

from it... . They detonated, it was like a flash bang.... Came a

little closer to some nightsticks and rubber bullets than we wanted

to. But, this was ultimately peaceful .... If the American patriot

wanted to storm this Capitol, take over this building, and take care

of all of Congress in there, they could do it.
Statement of Facts at 5-6.

On August 10, 2021, Mr. Gunby was arrested in South Carolina. See Executed
Arrest Warrant [Dkt. No. 9]. On October 12, 2021, the government charged Mr. Gunby by
information with four misdemeanor offenses: Entering and Remaining in a Restricted Building
or Grounds, in violation of 18 U.S.C. § 1752(a)(1); Disorderly and Disruptive Conduct in a
Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2); Violent Entry and
Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D); and
Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C.
§ 5104(e)(2)(G). See Information. A jury trial is scheduled to begin on October 2, 2023. See
Third Amended Scheduling Order [Dkt. No. 63]; Defendant Gunby’s Unopposed Motion and
Notice of Election to Be Tried by Jury After Previously Indicating an Intent to Waive Trial by

Jury [Dkt. No. 58]. Mr. Gunby moves to dismiss all four counts of the Information and to

transfer venue to the District of South Carolina.
IJ. DISCUSSION
A, Motion to Dismiss Information for Failure to State an Offense
1. Legal Standard
A defendant in a criminal case may move to dismiss an indictment or information
before trial for “failure to state an offense.” FED. R. CRIM. P. 12(b)(3)(B)(v). In determining
whether a charging document fails to state an offense, the operative question is “whether the
allegations, if proven, would be sufficient to permit a jury to find that the crimes charged were

committed.” United States v. Bowdoin, 770 F. Supp. 2d 142, 146 (D.D.C. 2011) (citing United

States v. Sampson, 371 U.S. 75, 76 (1962)). In considering a motion to dismiss, a court must

accept the allegations in the indictment or information as true. See United States v. Ballestas,

795 F.3d 138, 149 (D.C. Cir. 2015).

An indictment or information “need only contain ‘a plain, concise, and definite

written statement of the essential facts constituting the offense charged.’” United States v.

Ballestas, 795 F.3d at 149 (quoting FED. R. CRIM. P. 7(c)(1)). A charging document “is
sufficiently specific where it (1) contains the elements of the offense charged and fairly informs
the defendant of those charges so that he may defend against them, and (2) enables him to plead

acquittal or conviction in bar of future prosecutions for the same offense.’” United States v.

Safavian, 429 F. Supp. 2d 156, 158 (D.D.C. 2006) (quoting Hamling v. United States, 418 U.S,

87, 117-18 (1974)). “In ruling on a motion to dismiss for failure to state an offense, a district
court is limited to reviewing the face of the [charging document] and, more specifically, the

language used to charge the crimes.” United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C.

2009). The Court’s analysis of Mr. Gunby’s motion to dismiss “must be limited to ‘the four
corners of the [information].’” United States v. Montgomery, 578 F. Supp. 3d at 59 n.1 (quoting

United States v. Safavian, 429 F. Supp. 2d at161 n.2).

2. Analysis

Mr. Gunby asks the Court to dismiss each count in the Information because “the
Statement of Facts on file simply do not lay out facts which enunciate sufficient probable cause
to charge Gunby with the crimes listed.” Mot. to Dismiss at 2. He suggests that “nothing in the
Statement of Facts purports to refute Gunby’s alleged statement that Gunby entered the Capitol
unrestricted on January 6.” Id. at 3. He further states that “[c]riminal charges require more than
mere presence.” Id. at 4; see Mot. to Dismiss Reply at 2-3 (““Gunby’s alleged acts of ‘entering
the Capitol, . . . walking down a hallway, and after a few minutes, turn[ing] around and exit[ing]
through the same door’ does not constitute any crime.”).

Mr. Gunby’s argument “fundamentally misperceives the nature of a motion to

dismiss an [information].” United States v. Ballestas, 795 F.3d at 148. In determining whether

the Information adequately states an offense, the Court may not consider the Statement of Facts;
the Court’s analysis “must be limited to ‘the four corners’” of the charging document. United

States v. Montgomery, 578 F. Supp. 3d at 59 n.1 (quoting United States v. Safavian, 429 F.

Supp. 2d at 161 n.2). For the most part, Mr. Gunby does not contend that the Information omits
necessary elements or provides insufficient notice of the charged offenses — rather, he takes issue
with the sufficiency of the government’s account of his conduct as laid out in the Statement of
Facts. See Mot. to Dismiss Reply at 4.

For example, Mr. Gunby argues that “[t]he crime of disorderly conduct requires
an allegation that Gunby conducted himself in a disorderly manner.” Mot. to Dismiss Reply at 3.

In support of his argument that the Information does not contain this allegation, however, he
questions whether the description contained in the Statement of Facts constitutes disorderly

conduct. See id. (“The act of ‘walking down a hallway, and after a few minutes, [turning]
around and exit[ing] through the same door’ is not disorderly conduct.”). The Information,
however, in fact alleges that Mr. Gunby “engaged in disorderly and disruptive conduct” in
Counts Two and Three. Information at 3. The narrative contained in the Statement of Facts —
and Mr. Gunby’s assertions that he cannot be prosecuted for others’ behavior — are irrelevant to

the legal sufficiency of the Information. See United States v. Mosquera-Murillo, 153 F. Supp. 3d

130, 154 (D.D.C. 2015) (“[A] pretrial motion to dismiss an indictment allows a district court to
review the sufficiency of the government’s pleadings, but it is not a permissible vehicle for
addressing the sufficiency of the government’s evidence.” (internal quotations and citation

omitted)); United States v. Young-Bey, Crim. No. 21-0661, 2023 WL 3303819, at *5 (D.D.C.

May 8, 2023) (“{I]nformation about . . . what [the government’s] evidence will be at trial is not

relevant to the current inquiry.”); United States v. McHugh, Crim. No. 21-0453, 2023 WL

2384444, at *3 (D.D.C. Mar. 6, 2023) (“There is no requirement that the indictment make out the
government’s case or provide any details as to the logistics of the alleged offense.”).

Although Mr. Gunby primarily challenges the allegations in the Statement of
Facts, he comes closest to challenging the legal sufficiency of the Information when discussing
Count One, Entering and Remaining in a Restricted Building or Grounds, in violation of 18
U.S.C. § 1752(a)(1). He argues that “[t]he crime of illegally entering and remaining in an
unauthorized building” requires proof that Mr. Gunby knew that he was not authorized to be in
the building. Mot. to Dismiss Reply at 3. He asserts that “the information does not allege such
knowledge on the part of Gunby.” Id.; see id. at 4 (“The Statement of Facts says only that

Gunby entered the Capitol, with no mention of whether he knew he was unauthorized.”). Mr.
Gunby is incorrect. The Information specifically states that Mr. Gunby “did unlawfully and
knowingly enter and remain in a restricted building and grounds.” Information at 1 (emphasis
added). At this stage, the Court must assume the truth of the allegation that Mr. Gunby

“knowingly enter[ed] and remain[ed]” as stated in the Information. See United States v.

Ballestas, 795 F.3d at 149. This “plain, concise” recitation of the offense’s elements is sufficient

to withstand Mr. Gunby’s motion to dismiss. See FED. R. CRIM. P. 7(c)(1); Hamling v. United

States, 418 U.S. at 117.
For each of the charged offenses, the Information alleges the necessary elements,

“echoes the operative statutory text,” and “speciffies] the time and place of the offense.” United

States v. Williamson, 903 F.3d 124, 130 (D.C. Cir. 2018); see Information at 1-3; Mot. to

Dismiss Reply at 4 (conceding that “the information simply recites the elements of Count 1,
Count 2, and Count 3”). If the allegations contained in the Information — not the Statement of
Facts — are proven, that “would be sufficient to permit a jury to find that the crimes charged were

committed.” United States v. Bowdoin, 770 F. Supp. 2d at 146. Accordingly, the Court

concludes that the Information comports with constitutional requirements and the Federal Rules
of Criminal Procedure. Mr. Gunby’s motion to dismiss for failure to state an offense is denied.
Mr. Gunby requests that, if the Court denies his motion to dismiss for failure to
state an offense, the Court hold a preliminary hearing to determine if probable cause exists for
any of the offenses alleged. See Mot. to Dismiss at 1. Mr. Gunby is not entitled to a preliminary
hearing. Rule 5.1 of the Federal Rules of Criminal Procedure explains that a person “‘charged
with an offense other than a petty offense” is entitled to a preliminary hearing unless “the
government files an information charging the defendant with a misdemeanor.” FED. R. CRIM. P.

5.1(a)(4). The government has filed an information in this case charging Mr. Gunby with several
misdemeanors. See Information. And, as the government observes, Magistrate Judge G.
Michael Harvey has already determined that the complaint established probable cause to believe
that the charged offenses have been committed. Mot. to Dismiss Opp. at 7; see Complaint [Dkt.

No. 1]. Mr. Gunby’s request for a preliminary hearing is denied.

B. Motion to Transfer Venue
1. Legal Standard

In general, criminal trials are held in the state where the offense was committed.
See U.S. Const. art. III, § 2 (“The Trial of all Crimes... shall be held in the State where the said
Crimes shall have been committed.”); FED. R. CRIM. P. 18 (“[T]he government must prosecute an
offense in a district where the offense was committed. The court must set the place of trial
within the district with due regard for the convenience of the defendant, any victim, and the
witnesses, and the prompt administration of justice.”). As a “basic requirement of due process,”
a criminal defendant has the right to a “fair trial in a fair tribunal,” Irvin v. Dowd, 366
U.S. 717, 722 (1961), as well as a Sixth Amendment right to a trial “by an impartial jury of the
State and district wherein the crime [was allegedly] committed.” U.S. Const. amend. VI. Thus,
pursuant to Rule 21(a) of the Federal Rules of Criminal Procedure, a court “must transfer the
procecding against that defendant to another district if the court is satisfied that so great a
prejudice exists in the transferring district that the defendant cannot obtain a fair and impartial

trial there.”” FED. R. CRIM. P. 21(a).

In Skilling v. United States, the Supreme Court recognized that “if extraordinary
local prejudice will prevent a fair trial,” it may be necessary to transfer a proceeding “‘to a

different district at the defendant’s request.” Skilling v. United States, 561 U.S. 358, 378 (2010).

The Supreme Court set forth a list of three non-exhaustive factors to consider in determining
whether prejudice exists: (1) “the size and characteristics of the community in which the crime
occurred”; (2) whether media coverage of the crime “contained [a] confession or other blatantly
prejudicial information of the type readers or viewers could not reasonably be expected to shut
from sight”; and (3) whether the time between the crime and the trial has “diminished” the “level
of media attention.” Id. at 382-83. The Supreme Court also cautioned that a “presumption of
prejudice ... attends only the extreme case” and that “[p]rominence does not necessarily produce
prejudice, and juror impartiality ... does not require ignorance.” Id. at 381.

The D.C. Circuit has stated that it is “well established procedure” for a court to

decline to transfer venue except in “extreme circumstances.” United States y. Haldeman, 559

F.2d 31, 60, 64 (D.C. Cir. 1976) (en banc) (per curiam). Instead, voir dire is the preferred means
of excluding prejudiced jurors. See id. at 62 (counseling against a “‘pre-voir dire conclusion” that
“a fair jury cannot be selected”). “[I]f an impartial jury actually cannot be selected, that fact

should become evident at the voir dire.” Id. at 63.

2. Analysis Under Skilling v. United States

Mr. Gunby argues that the venire of District of Columbia residents is “so greatly
prejudiced against him that Mr. Gunby cannot obtain a fair and impartial trial in Washington,

D.C.” Venue Mot. at 7. Considering the factors enumerated in Skilling v. United States as they

pertain to this case, the Court disagrees.

a. Size and Makeup of D.C. Juror Pool

The first Skilling factor requires the Court to assess “the size and characteristics
of the community in which the crime occurred” to determine whether there is potential prejudice.

Skilling v. United States, 561 U.S. at 382. Mr. Gunby argues that Washington, D.C. is a “small

and highly insular political community,” whose residents overwhelmingly vote for Democrats
and are “political averse to Donald Trump supporters.” Venue Mot. at 8. The government
suggests that “[h]igh-profile individuals strongly associated with a political party” — including
John Poindexter, Oliver North, Roger Stone, Scooter Libby, and Steve Bannon, to name a few —
have all been fairly tried in this district without incident, despite the voting habits of D.C.
residents. Venue Opp. at 6-7. The Court agrees with the government.

Judge Bates considered similar arguments in United States v. Nassif. As

Judge Bates explained, “courts have rejected the presumption of prejudice when confronted with
similarly sized — and indeed smaller — populations” as the population of the District of Columbia.

United States v. Nassif, 628 F. Supp. 3d 169, 186 (D.D.C. 2022) (citing Skilling v. United

States, 561 U.S. at 382) (noting that there is a “reduced likelihood of prejudice where the venire

was drawn from a pool of over 600,000 individuals”); see United States v. Taylor, 942 F.3d 205,

223 (4th Cir. 2019) (affirming denial of venue transfer motion where local population “was
approximately 621,000 residents”). In addition, as Judge Jackson has explained, this court’s
“master list of available jurors is large enough to include individuals who have paid little or no
attention to the January 6 cases. It includes several hundred thousand District residents who may
not be involved in policy or politics or the operation of the federal government at all [and] who

travel to and from work or school without coming near the Capitol.” United States v, Garcia,

Crim. No. 21-0129, 2022 WL 2904352, at *8 (D.D.C. July 22, 2022). And, as Judge Chutkan
explained with respect to the political leanings of potential D.C. jurors, such leanings “are not,
by themselves, evidence that those jurors cannot fairly and impartially consider the evidence

presented.” Order, United States v. Alford, Crim. No. 21-0263 (D.D.C. Apr. 18, 2022) [Dkt.

No. 46] at 6 (denying defendant’s request to transfer venue but granting request for expanded

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examination of prospective jurors); see United States v. Haldeman, 559 F.2d at 64 n.43.

Notwithstanding the fact that some District of Columbia residents are employed by the federal
government or were affected by the events at the Capitol on January 6, 2021, see Venue Mot. at
8-10, the size and makeup of the D.C. juror pool does not create a presumption of prejudice or

partiality. See Skilling v. United States, 561 U.S. at 379; see also United States v.

GossJankowski, Crim. No. 21-0123, 2023 WL 395985, at *5-6 (D.D.C. Jan. 25, 2023).

b. Media Coverage

The second Skilling factor is whether media coverage of the defendant’s conduct
at issue “contained [a] confession or other blatantly prejudicial information of the type readers or

viewers could not reasonably be expected to shut from sight.” Skilling v. United States, 561

U.S. at 382. Mr. Gunby argues that the “relentless media coverage of political statements made
about the Capitol defendants” combined with “the already small and politically homogenous
community” of Washington, D.C. precludes Mr. Gunby from empaneling a fair jury. Venue
Mot. at 11-12. The Court disagrees. “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). Jurors need not be

“totally ignorant of the facts and issues involved” in a case; rather, “[i]t is sufficient if the juror
can lay aside his impression or opinion and render a verdict based on the evidence presented in
court.” Irvin v. Dowd, 366 U.S. at 722-23. Even if media coverage is “pervasive and

concentrated,” pretrial publicity “cannot be regarded as leading automatically and in every kind

of criminal case to an unfair trial.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 565 (1976). In

addition, “[w]hen publicity is about [an] event, rather than directed at the individual defendants,

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this may lessen any prejudicial impact.” Skilling v. United States, 561 U.S. at 384 n.17 (citation

omitted); see also United States v. GossJankowski, 2023 WL 395985, at *6.

The second Skilling factor therefore does not support a transfer of venue in this
case. Mr. Gunby has not suggested that he has been named or featured in any news stories that

D.C. residents would have come across. By contrast, in Rideau v. Louisiana, the pretrial

publicity that led the Supreme Court to determine that there was prejudice against the defendant

involved a recording of the defendant’s interrogation and confession, which was broadcast in a

small town prior to trial. See Rideau v. Louisiana, 373 U.S. 723, 724 (1963). Mr. Gunby’s case
is very different. It is likely that “not a single member of the venire will ever have heard of [Mr.

Gunby], much less have formed an opinion of his guilt.” United States v. Nassif, 628 F. Supp.

3d at 187.

c. Time Between January 6 and Trial

The third Skilling factor is whether the time between the date the offense was

committed and the date of trial has “diminished” the “level of media attention.” Skilling v.
United States, 561 U.S. at 383. Skilling suggests that potential prejudice may arise where “trial
swiftly follow[s] a widely reported crime.” Id. Although Mr. Gunby is correct that the events at
the Capitol on January 6, 2021 were widely documented, more than two and a half ycars will
have elapsed between January 6 and Mr. Gunby’s trial, which is scheduled to begin on

October 2, 2023. See Second Amended Scheduling Order [Dkt. No. 53]. While media coverage
of January 6 has continued, “it no longer dominate[s] the news and ha[s] become less intense

than it was in the immediate aftermath of the riot.” United States v. Garcia, 2022 WL 2904352,

at *9 (citing In re Tsarnaev, 780 F.3d 14, 22 (1st Cir. 2015) (“The nearly two years that have

passed since the [Boston] Marathon bombings has allowed the decibel level of publicity about

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the crimes themselves to drop and community passions to diminish.’”’)). There is also no
indication that Mr. Gunby’s case in particular has been heavily featured in the news. The Court
therefore concludes that the current media coverage “is not of the type or tenor requiring a

transfer of venue.” United States v. Nassif, 628 F. Supp. 3d at 188; see United States v.

GossJankowski, 2023 WL 395985, at *6.

3. Appropriateness of Voir Dire to Assess Potential Prejudice
As many judges of this Court have previously noted, voir dire is the appropriate
means of assessing potential juror prejudice, and many juries have been successfully empaneled

in January 6 cases to date. See, e.g., United States v. Garcia, 2022 WL 2904352, at *6; United

States v. GossJankowski, 2023 WL 395985, at *1 (collecting cases).

Mr. Gunby argues that transfer of venue is appropriate because voir dire is an
insufficient method for eliminating prejudice among prospective jurors. Venue Mot. at 14-16.
His observations about juries that have been empaneled in January 6 cases thus far, however,
undermine his argument. He explains that some prospective jurors in January 6 cases have
spoken passionately about their feelings relating to the attack on the Capitol during voir dire.
Venue Reply at 3-5. If potential jurors were to do the same in this case, Mr. Gunby would be
able to strike them from the jury panel either peremptorily or for cause. It is precisely because
experience shows that prospective jurors under oath during voir dire honestly and candidly
answer questions about their potential bias that the Court is confident that it will be able to
empanel a fair jury in this matter. Accordingly, there is no reason to transfer this case from the

District of Columbia to another jurisdiction without first attempting to voir dire potential jurors.

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For the foregoing reasons, it is hereby ORDERED that Mr. Gunby’s Motion to
Dismiss the Information for Failure to State a Claim [Dkt. No. 38] and Motion to Change Venue
to District of South Carolina, Greenville Division [Dkt. No. 36] are DENIED.

SO ORDERED.

Q tut Lf

PAUL L, FRIEDMAN
United States District Judge

DATE: 2 Jas | 2?

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