United States v. Griffith, Sr ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal Action No. 21-244-2 (CKK)
ANTHONY ALFRED GRIFFITH, SR.,
Defendant.
OMNIBUS MEMORANDUM OPINION AND ORDER
(February 16, 2023)
This criminal case is one of approximately one thousand arising from the insurrection at
the United States Capitol on January 6, 2021. For his actions at the Capitol on January 6,
Defendant Anthony Alfred Griffith (“Defendant” or “Griffith”) is charged by indictment with four
misdemeanor counts. Before the Court are the Government’s [108] Omnibus Motion in Limine,
Defendant’s [92] Motion in Limine as to Certain Subjects, [93] Motion in Limine, and [95] Motion
in Limine to Exclude Evidence Concerning Conduct by Others than Defendant. Upon
consideration of the briefing, 1 the relevant legal authorities, and the entire record, the Court shall
GRANT IN PART, DENY IN PART, AND HOLD IN ABEYANCE IN PART the
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The Court’s consideration has focused on:
• The Government’s Statement of Facts in Support of its Sealed Complaint, ECF No. 1-1
(“Aff.”); and
• the Indictment, ECF No. 12;
• Defendant’s Motion in Limine as to Certain Subjects, ECF No. 92;
• Defendant’s Motion in Limine, ECF No. 93;
• Defendant’s Motion in Limine to Exclude Evidence Concerning Conduct by Others than
Defendant, ECF No. 95;
• The Government’s Omnibus Motion in Limine, ECF No. 108;
• Defendant’s Response to Government’s Omnibus Motion in Limine, ECF No. 112; and
• The Government’s Response to Defendant’s Motion in Limine to Preclude Certain
Evidence at Trial, ECF No. 113 (“Gov.’s Opp.”).
Neither party filed a reply.
In an exercise of its discretion, the Court has concluded that oral argument would not be helpful
in the resolution of the Motions.
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Government’s [108] Omnibus Motion in Limine, DENY IN PART, DENY AS MOOT IN
PART, AND HOLD IN ABEYANCE IN PART Defendant’s [92] Motion in Limine as to Certain
Subjects, DENY IN PART AND HOLD IN ABEYANCE IN PART Defendant’s [93] Motion
in Limine, and DENY Defendant’s [95] Motion in Limine to Exclude Evidence Concerning
Conduct by Others than Defendant each Motion.
I. BACKGROUND
Briefly, the Court restates some of the background discussed in the Court’s last
memorandum opinion in this case, United States v. Griffith, 2023 WL 1178192 (D.D.C. Feb. 6,
2023). Defendant is charged by indictment with: (1) Entering and Remaining in a Restricted
Building, in violation of 18 U.S.C. § 1752(a)(1); (2) Disorderly and Disruptive Conduct in a
Restricted Building or Grounds, in violation 18 U.S.C. § 1752(a)(2); (3) Disorderly Conduct in a
Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D); and (4) Parading, Demonstrating, or
Picketing in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G). Indictment, ECF No.
12. These charges arise from Defendant’s alleged conduct during the insurrection of January 6,
2021. The Government alleges that Defendant traveled from Oklahoma to the District of Columbia
for then-President Donald J. Trump’s “Stop the Steal” rally. See Aff. at 4. After the rally, Griffith,
with co-Defendant Jerry Ryals, allegedly made his way to the Capitol and entered the building
with the crowd. Id. at 4-5. Griffith also purportedly took photos of armored police battling with
insurrectionists on the West Front of the Capitol. Id. at 5 (figure 4). 2 This case is set for a bench
trial on March 13, 2023.
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Defendant’s motion to suppress those inculpatory statements remains pending. At the time of
his arrest, Defendant made a number of inculpatory admissions to law enforcement confessing
his conduct, although he maintains that he did not know it was unlawful for him to enter the
Capitol. See id.; ECF No. 106-5 (recorded interview of Defendant conducted by FBI agents).
The Court’s analysis here does not rest in any substantial part on these alleged statements.
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II. DISCUSSION
A. Defendant’s Motions in Limine
Defendant raises a substantial number of challenges to a variety of hypothetical exhibits
and testimony. For the vast majority of these challenges, Defendant argues that admission would
unduly prejudice him pursuant to Federal Rule of Evidence 403. Although the United States Court
of Appeals for the District of Columbia Circuit has never precisely held as much, the various
Courts of Appeals are in relative unanimity that prejudice objections “have no logical application
in bench trials[;] . . . excluding relevant evidence on the basis of unfair prejudice [in a bench trial]
is a useless procedure.” E.g., Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir.
1981). 3 Commentators agree. E.g., Stephen A. Saltzburg et al., Federal Rules of Evidence Manual
§ 403.02[13] (12th ed. 2019) (Because “we presume that trial judges are unlikely to rule
emotionally, or to misuse evidence, in the way that juries might,” “[w]here a case is tried to a
judge, the risk of prejudice is not a proper ground for excluding evidence under Rule 403.”); Muller
& Kirkpatrick, Federal Evidence § 413 (4th ed. 2013). The Court effectively adopted this rule in
a recent insurrection-related prosecution and more explicitly adopts it here, joining at least one
other judge of this jurisdiction. See United States v. MacAndrew, Crim. A. No. 21-730 (CKK),
2022 WL 17961247, at *3 (D.D.C. Dec. 27, 2022). 4 Because each of Defendant’s Rule 403
objections are based exclusively on the risk of unfair prejudice, they are OVERRULED.
3
Accord Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994); United States v. Hall, 202 F.3d
270, 2000 WL 32010, at *2 (6th Cir. Jan. 4, 2000) (unpublished); United States v. Kienlen, 349
F. App’x 349, 351 (10th Cir. 2009); United States v. Vigne, 571 F. App’x 932, 934 n.2 (11th Cir.
2014). Cf. also United States v. Raymond, 697 F.3d 32, 39 n.6 (1st Cir. 2012) (favorably noting
such approach but declining to explicitly adopt it); Towe v. U.S. Dep’t of Treasury, 168 F.3d 502,
1999 WL 96453, at *3 (9th Cir. 1999) (unpublished) (similar).
4
Accord, e.g., United States v. Fitzsimons, --- F. Supp. 3d ---, 2022 WL 1658846, at *5 n.6
(D.D.C. May 24, 2022) (RC); United States ex rel. Morsell v. NortonLifeLock, Inc., 567 F. Supp.
3d 248, 258 (D.D.C. 2021) (RC).
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Turning to Defendant’s objections in more detail, in his first motion in limine, he raises six
challenges. First, he moves to exclude “[a]ny news reports during and after January 6, 2021 that
mention police personnel that died” on Rule 403 grounds. Because the Government has
represented that it does not intend to introduce any such news reports, this request is DENIED AS
MOOT on the present record.
Second, Defendant moves to exclude reference to former President Trump’s challenges to
the outcome of the 2020 Presidential Election in his scores of lawsuits during 2020 and 2021 on
Rule 403 grounds. Because the Government has represented that it does not intend to introduce
any such material, this request is also DENIED AS MOOT on the present record.
Third, Defendant moves to exclude “[a]ny reference to the proud boys, patriot boys, three
percenters[,] or oath keepers” on Rule 403 grounds. Because the Government has represented that
it does not intend to introduce any such material, this request is also DENIED AS MOOT on the
present record.
Fourth, Defendant moves to exclude “[a]ny photos taken from Mr. Griffith’s phone that
are irrelevant to this case” on relevancy and prejudice grounds. Because the Court has not
reviewed any such photos, and it may be the case that some photos are, in fact, relevant/irrelevant,
this request is HELD IN ABEYANCE pending trial.
Fifth, Defendant moves to exclude his mug shot on Rule 403 grounds. Because the
Government has represented that it does not intend to introduce Defendant’s mug shot, this request
is also DENIED AS MOOT on the present record.
Sixth, Defendant moves to exclude “[r]eferences to violence at the West Terrace Tunnel,
the breach of the Capitol on the East side at the Rotunda doors, the initial breach at the Senate
Wing Doors[,] and any other breach at the Capitol other than the doors” through which Defendant
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entered. This request appears quite similar to Defendant’s third motion in limine to exclude all
“conduct by others other than defendant,” relying on Rules 401, 402, and 403. The Court shall
take this set of objections together.
As the Court explained in MacAndrew, “the size of the crowd, political leaders, and false
allegations of voter fraud and election interference all go to intent, motive, and preparation.”
2022 WL 17961247, at *3. For example, to prevail on all charges, the Government must
identify a cause for which Defendant demonstrated, United States v. Rivera, --- F. Supp. 3d ---,
2022 WL 2187851, at *7 (D.D.C. June 17, 2022), and must show that Defendant specifically
intended to impede or disrupt Congressional proceedings, United States v. Grider, --- F. Supp. 3d
---, 2022 WL 17829149, at *10-11 (D.D.C. Dec. 21, 2022). Statements by political leaders and
the conduct and statements made by the mob surrounding Defendant both bear on Defendant’s
mental state at the time of the charged offenses. See id. at *11-12.
Although the Government has not charged conspiracy in most January 6th cases, the
collective nature of the mob likens these cases to those involving criminal conspiracies where
individuals work in concert to achieve a collective goal––here, the disruption of Congressional
proceedings. See 2022 WL 17829149, at *10-12. For such offenses, “the [G]overnment is usually
allowed considerable leeway in offering evidence of other offenses to inform the jury of the
background of the conspiracy charged, to complete the story of the crimes charged, and to help
explain to the jury how the illegal relationship between the participants in the crime developed.”
See United States v. Mathis, 216 F.3d 18, 26 (D.C. Cir. 2000). Indeed, prejudice only arises in
these circumstances where there is a substantial risk that the factfinder will convict a defendant
based on character evidence. See United States v. McGill, 815 F.3d 846, 887 (D.C. Cir. 2016).
This “general” evidence is a far cry from Defendant’s prior “bad acts” that implicate any risk of
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prejudice. Moreover, the Government does not seek to convict Defendant here because he engaged
in purported “bad” conduct in the past. Rather, the Government understandably seeks to admit
evidence of, for example, Defendant’s political beliefs only to show Defendant’s state of mind and
intent on January 6, 2021. Because the conduct of others and Defendant’s political beliefs are not
“bad act” evidence under Rule 404(b) and are otherwise relevant, such evidence is admissible.
Moreover, what Defendant saw and heard around him goes precisely to his knowledge and
intent. What he was able to observe around him at the Capitol informs his actions and “mental
state at the time of the charged offenses.” MacAndrew, 2022 WL 17961247, at *3. As such, any
objection to the introduction of evidence regarding those around him fails.
Altogether, Defendant’s sixth objection in [92] Motion in Limine as to Certain Subjects is
OVERRULED and his [95] Motion in Limine to Exclude Evidence Concerning Conduct by
Others than Defendant is DENIED.
That leaves Defendant’s [93] Motion in Limine, in which Defendant moves to exclude: (1)
any reference to the terms “rioters,” “breach,” “confrontation,” “police line,” “anti-government
extremism,” “insurrectionists,” and “mob;” and (2) any efforts by the Government to “introduce
evidence, make prejudicial statements, or ask prejudicial questions about” about Defendant’s
purportedly negative “views about the government.”
As to the first request, it appears Defendant fears that these terms will appear in certain
Government exhibits and therefore constitute inadmissible hearsay or lay opinion testimony by a
witness (those on video or those who edited certain videos) not present at trial. To the extent that
such terms will appear in Government exhibits, the Court assures the parties that its consideration
of the evidence will be guided only by what the videos actually depict, not editorialization
superimposed on the videos themselves. To the extent that Defendant moves to exclude any use
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of these words on prejudice grounds, that objection fails for the reasons stated above. 5 The Court
HOLDS IN ABEYANCE the remainder of this objection because it has not yet reviewed the
videos in question.
As to the second request, Defendant’s views about the federal government are, in fact, at
the heart of this case. As already noted above, the Government must demonstrate, among other
things, a particular cause for which Defendant allegedly demonstrated, and the Government may
show by circumstantial evidence, if applicable, that such a cause was general opposition to the
federal government. See Rivera, 2022 WL 2187851, at *7 Therefore, this second objection is
OVERRULED.
Altogether, the Court holds in abeyance only two objections pending trial: (1) a relevance
objection to certain photos retrieved from Defendant’s phone, and (2) a hearsay objection to certain
purported statements in video exhibits. The remainder of Defendant’s objections are either
overruled on the merits or denied as moot.
B. The Government’s Omnibus Motion in Limine
The Government makes six requests in limine: (1) to limit cross-examination of United
States Secret Service (“Secret Service”) and United States Capitol Police (“Capitol Police”) on the
basis of national security; (2) to preclude Defendant from raising a legal argument that any of his
speech on or about January 6, 2021 was protected by the First Amendment; (3) to hold admissible
5
That said, it must be noted that, for certain defendants and certain types of conduct, these terms
are accurate. There were rioters present at the Capitol on January 6, 2021, and there were
insurrectionists there, too. The Court necessarily offers no legal opinion on whether any
defendant is or could be guilty of the crime of “insurrection” (18 U.S.C. § 2383); no defendant
has even been charged with such an offense. Merely as a factual matter, however, it is eminently
clear that certain defendants violently “revolt[ed] against civil authority” on January 6, 2021.
See Insurrection, Merriam-Webster.com Dictionary (last accessed Feb. 12, 2023); Insurrection,
Black’s Law Dictionary (11th ed. 2019); United States v. Munchel, 991 F.3d 1273, 300 (D.C.
Cir. 2021) (characterizing events of January 6, 2021 as “insurrection”).
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Defendant’s statements as non-hearsay when offered by the Government; (4) to hold inadmissible
Defendant’s statements as hearsay when offered by Defendant; and (5) to judicially notice certain
statutes and records. 6 The Court proceeds to each request in turn.
First, the Government mainly requests that the Court preemptively limit cross-examination
to bar Defendant from eliciting testimony regarding the placement of Capitol Police CCTV
cameras and specific procedures regarding the movement of the Vice President’s protective detail.
For the most part, Defendant represents that he will not pursue such lines of questioning, but he
does intend to question Secret Service and Capitol Police witnesses regarding (1) why no CCTV
cameras were present in a room Defendant allegedly entered in the Capitol and (2) law
enforcement failures to quell the insurrection generally. In other words, Defendant argues that
police “allowed the area to be unrestricted for purposes of [s]ection 1752 violations by failing to
maintain a perimeter.” Repl. at 8. This argument lacks legal relevance.
Once the evidence establishes that the Capitol grounds were, in fact, restricted, whether
additional measures could have been taken to further restrict the area is not relevant. Cf. Order,
ECF No. 92 at 4, United States v. Griffin, Crim. A. No. 21-092 (TNM) (Mar. 18, 2022) (for
purposes of section 1752 charges, only Vice President’s presence in Capitol is relevant; precisely
how and where he was protected is not). For example, once it is established that the federal
government took some measures to restrict an area, and those measures made a defendant aware
he is trespassing, whether the federal government could have built more barriers or barred any
member of the public from accessing the area is generally irrelevant to the inquiry. See United
States v. Wright, Case No. 5:21-po-0583-SAB-1, 2022 WL 4537799, at *7 n.7 (E.D. Cal. Sept. 28,
6
Filed before the Court converted the trial to one before the Court, the Government in its
Motion also requested that the Court bar Defendant from arguing that the jury should return a
nullification verdict. This request is now moot; needless to say, the Court will not entertain any
argument in favor of nullification.
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2022) (for purposes of criminal statute barring trespass in military facility, “[t]he ability to enter a
military base at one point without physically bumping into a fence or a warning sign does not
equate” to the area being unrestricted). 7
True, whether individual law enforcement officers were ordered to “stand down” in order
to “un-”restrict Capitol grounds may go to whether Capitol grounds were in fact “restricted” on
January 6, 2021, but that is not Defendant’s argument. Rather, Defendant seeks to shift the blame
to law enforcement, as if barriers, signs, and police lines are not enough to place members of the
public on notice that they were entering a restricted area. The Court rejected such an approach in
MacAndrew and does so again here. 2023 WL 196132 at *6-7. Assuming Defendant’s proposed
facts, rioters cannot simply “annex” Capitol grounds in such a way as to un-restrict an area by
forcing law enforcement’s retreat.
Nor is a line of questioning permissible insinuating that law enforcement caused disruption
to Congressional business rather than rioters and insurrectionists. Section 1752 includes no
requirement that the Government establish but-for causation. Rivera, 2022 WL 2187851, at *6
n.15. In other words, the Government need not establish that Defendant was the sole cause of
disruption to Congressional business through disorderly conduct. Id. at *6. Rather, the
Government need only demonstrate that Defendant in some part disrupted or impeded
Congressional business. Grider, 2022 WL 17829149, at *13. Whether others (including, in
Defendant’s meritless view, law enforcement protecting the Capitol) were disruptive does not
make it particularly less likely that Defendant in fact disrupted Congressional business. Not only
is this line of questioning legally irrelevant, a minitrial on law enforcement alleged security failures
7
Cf. also United States v. Apel, 571 U.S. 359, 373 (2014) (for purposes of same statute, that
some members of public were admitted into facility immaterial once Government established
facility was, in fact, restricted).
9
would be an utter waste of time. Cf. United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007)
(finding no abuse of discretion in exclusion chart of cooperating witness’s profits in charged Ponzi
scheme as waste of time).
Therefore, the Government’s first request to limit cross-examination of Secret Service and
Capitol Police is GRANTED.
Second, to the extent that Defendant intends to argue as a legal matter that any conduct in
evidence is constitutionally protected, he may certainly do so through allocution at the end of the
Government’s case-in-chief or during closing arguments in favor of a Rule 29 motion for acquittal.
As the Government notes, no court of this jurisdiction has sustained such an argument, see, e.g.,
United States v. Chansley, 525 F. Supp. 3d 151, 164 (D.D.C. 2021), but the Court will not
preemptively limit legal argument in closing. Therefore, the Government’s request that the Court
exclude such argument is DENIED.
Third, Defendant concedes that statements offered against him are admissible as statements
by a party opponent. To the extent Defendant argues that certain statements should be played in
their entirety for completeness, such an argument goes only so far. Rule 106 directs the Court to
“permit such limited portions [of a statement] to be contemporaneously introduced as will remove
the distortion that otherwise would accompany the prosecution’s evidence.” United States v.
Sutton, 801 F.2d 1346, 1369 (D.C. Cir. 1986) (emphasis added). This rule is only “invoked rarely
and for a limited purpose.” Id. That said, because the Court has not reviewed all statements the
Government may seek to introduce, the Court will leave any completeness objections for trial. The
Government’s specific request to hold Defendant’s statements as non-hearsay when offered
against him is GRANTED.
Fourth, Defendant argues that any of his statements made to law enforcement are
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admissible against the Government as law enforcement’s adoptive statements. Strictly speaking,
Defendant concedes that his statements are hearsay and inadmissible unless an exception applies.
Defendant then notes that, when one of his statements is introduced through a Government witness,
that Government witness can then be questioned about the statement on cross-examination. Yet
Defendant appears to go further to suggest that Defendant can introduce his statements through a
Government witness in his case-in-chief because “any statement made to an agent of the United
States, and memorialized by that agent, then becomes the agent’s statement.” Def.’s Opp. at 7.
That is not the law. Statements made to law enforcement, when offered through a law enforcement
officer, are nevertheless hearsay. See United States v. Sutton, --- F. Supp. 3d ---, 2022 WL
13940371, at *8-9 (D.D.C. Oct. 23, 2022). As such, the Government’s fifth request is
GRANTED, and the Court holds that any statements made by Defendant are generally
inadmissible hearsay.
Fifth, Defendant represents that the parties are likely to stipulate to the admissibility of
these proposed exhibits. As such, the Court HOLDS IN ABEYANCE the Government’s request
to judicially notice these statutes and Congressional records.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART, DENIES IN PART, AND
HOLDS IN ABEYANCE IN PART the Government’s [108] Omnibus Motion in Limine,
DENIES IN PART, DENIES WITHOUT PREJUDICE AS MOOT IN PART, AND HOLDS
IN ABEYANCE IN PART Defendant’s [92] Motion in Limine as to Certain Subjects, DENIES
IN PART AND HOLDS IN ABEYANCE IN PART Defendant’s [93] Motion in Limine, and
DENIES Defendant’s [95] Motion in Limine to Exclude Evidence Concerning Conduct by Others
than Defendant each Motion.
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Specifically, Defendant is precluded from eliciting testimony regarding security failures
generally and in an effort to demonstrate (1) the Capitol grounds were not, in fact, restricted for
the purposes of 18 U.S.C. § 1752 or (2) that Defendant did not, in fact, disrupt Congressional
business.
However, Defendant may elicit testimony regarding which authority designated Capitol
grounds as restricted, how that authority did so, and if and when that same authority allegedly
“un”-restricted Capitol grounds on January 6, 2021.
The Court holds admissible as non-hearsay Defendant’s statements when offered by the
Government and finds inadmissible as hearsay Defendant’s statements when offered by Defendant
in his case-in-chief unless an exception applies.
The Court holds in abeyance three requests pending trial: (1) a relevance objection to
certain photos retrieved from Defendant’s phone, (2) a hearsay objection to certain purported
statements in video exhibits, and (3) the Government’s request that the Court judicially notice
certain statutes and Congressional records pending the parties’ stipulations
Objections to the following evidence are denied as moot: (1) any news reports during and
after January 6, 2021 that mention police personnel that died; (2) any reference to former President
Trump’s challenges to the outcome of the 2020 Presidential Election in his scores of lawsuits
during 2020 and 2021; and (3) Defendant’s mug shot.
The Court makes these evidentiary rulings on the present record and may revisit them at
trial.
SO ORDERED.
Dated: February 16, 2023 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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