UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal Action No. 22-096-2 (CKK)
JONATHAN DARNEL,
Defendants.
MEMORANDUM OPINION
(September 26, 2023)
On October 22, 2020, a group of pro-life activists forced entry into a reproductive health
clinic in the District of Columbia in order to halt, for as long as possible, abortions scheduled for
that day. Defendant Jonathan Darnel (“Defendant”) helped co-conspirator and -Defendant
Lauren Handy plan the incursion and filmed a substantial part of the activists’ occupation of the
clinic that day. For his actions, a jury of impartial Washingtonians found Defendant guilty on
both counts of the operative indictment: (1) conspiracy against rights, in violation of 18 U.S.C. §
241; and (2) obstructing, with force, access to a reproductive health clinic, in violation of 18
U.S.C. §§ 248(a)(1), (b)(1). Although Defendant did not present a case, he mainly contested
during closing argument: (1) that there was an agreement to engage in any forceful or violent
conduct and (2) that Defendant was of the character to use, agree to use, or assist another in
using violent force. See Trial Trans. 28:3-29:17 (Sept. 14, 2023) (“Trial Trans.”).
Defendant relied on a number of the Government’s documentary exhibits in arguing that
Defendant did not use, agree to use, or assist another in using violent force. Key for present
purposes, Defendant relied in his closing argument on Government’s exhibits 5082 and 5083. In
unredacted form, exhibit 5082 features a wide array of Facebook messages and posts, including
one in which she announced on September 11, 2023 that Defendant would lead a discussion on
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“non-violent pro-life direct action.” See id. at 11 (emphasis added). Government exhibit 5083
features a similar discussion. Id. at 7. The Government objected to this particular argument,
however, because exhibits 5082 and 5083 were moved into evidence in redacted form. Both
exhibits were clearly redacted at the time each was moved into evidence, because the first page
of each featured large black boxes hiding certain text. Defense counsel evidently did not notice
the distinction between the two exhibits, redacted and unredacted, and orally moved to reopen
evidence during closing argument so that the unredacted 5082 and 5083 would go to the jury for
its consideration. See Trial Trans. 34:12-15. The Court denied that motion, and further explains
that ruling here. 1
First, the Court noted that both parties are at fault to some degree. In the Court’s [154]
Amended Pretrial Scheduling Order, the Court ordered the parties to exchange their exhibits in
advance of trial. The Court also directed the Government to provide Chambers with a courtesy
copy of the exhibits that it would move into evidence at trial. For the relevant exhibits, the
Government provided unredacted versions, i.e., exhibits that it evidently did not intend to move
into evidence. It appears the Government provided the same incorrect copies of its exhibits to
defense counsel as well. Understandably, defense counsel would have expected that the
Government would rely on the exhibits it provided pursuant to the Court’s prior order.
Yet the Government did not do so. Nevertheless, at trial, in presenting each exhibit to
opposing counsel and the Court in advance of moving it into evidence, defense counsel was
clearly placed on notice that a distinct exhibit would be moved into evidence that might not have
each statement defense counsel intended the jury to consider. As a rule, it is incumbent upon
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The Court assumes the reader’s familiarity with this matter. For further background, the Court
refers the reader to its prior opinions in this case: United States v. Handy, Crim. A. No. 22-096
(CKK), 2023 WL 4744057 (D.D.C. July 25, 2023); United States v. Handy, Crim. A. No. 22-096
(CKK), 2023 WL 5651844 (D.D.C. Aug. 31, 2023).
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defense counsel to object to a motion by the Government at the time it is made. Fed. R. Crim. P.
51(b); Fed. R. Evid. 103(a)(1)(A). Here, Defendant consented to the admission of both redacted
exhibits. Trial Trans. 103:14-20 (Sept. 12, 2023). Having consented to their admission,
Defendant waived the objection. See United States v. McCray, 433 F.2d 1173, 1175 & n.1 (D.C.
Cir. 1970); United States v. Redditt, 381 F.3d 597, 602 (7th Cir. 2004).
Even had Defendant not waived his objection, and assuming arguendo that the statements
he intended to move into evidence were admissible, the Court would not have reopened evidence
in the midst of closing arguments. Pursuant to Federal Rule of Evidence 611(a), the Court
generally has broad discretion in determining whether to reopen evidence. See United States v.
Watson, 391 F. Supp. 2d 89, 92 (D.D.C. 2005); United States v. Terry, 729 F.2d 1063, 1067 (6th
Cir. 2004). For example, where further cross-examination would provide little value to a
defendant, it is well within the Court’s discretion to preclude the defense from recalling that
witness. See United States v. Sampol, 636 F.2d 621, 670 (D.C. Cir. 1980). Moreover, the closer
a case is to its submission to the jury, the higher the bar for either party to demonstrate the
necessity of reopening the evidence. See United States v. Crawford, 533 F.3d 133, 137-38 (2d
Cir. 2008).
Ultimately, whether to reopen evidence before or during closing arguments turns on the
degree of prejudice to the moving party. See id. at 138 (collecting cases). Here, the Court
precluded Defendant from arguing just one statement in an exhibit to the jury. Defendant had
many more of his own statements in evidence, in addition to exculpatory testimony from his co-
conspirator Caroline Davis. For example, in the Government’s redacted exhibit 5083, Defendant
Handy highlighted that she worked with Defendant on “non-violent direct action.” Id. at 1. In
response, Defendant contested not his commitment to nonviolence, but rather suggested to
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Defendant Handy that she characterize their work as “civil disobedience,” i.e., unlawful direct
action. Id. at 2. Similarly, co-conspirator Caroline Davis stressed in her testimony that Darnel
and others agreed in advance of the blockade to be nonviolent during the blockade. See Trial
Trans. 45:14-18 (Sept. 12, 2023). The Government’s 404(b) evidence also demonstrated that
Defendant’s prior efforts to obstruct clinics providing abortion services were also nonviolent.
See, e.g., Trial Trans. 83:8-24 (Sept. 11, 2023); Gov.’s Ex. 1124. Broadly, defense counsel
argued each of these points during his summation. Trial Trans. at 52:17-58:18. Accordingly, the
Court cannot find substantial prejudice, or any degree of prejudice, to merit reopening evidence
in the midst of closing argument.
* * *
Therefore, for the foregoing reasons and the reasons the Court placed on the record, the
Court again concludes that Defendant did not carry his burden to merit reopening evidence to
introduce an additional, exculpatory statement.
Dated: September 26, 2023 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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