United States v. Price ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 21-719 (JEB)
CYNTHIA BALLENGER and
CHRISTOPHER PRICE,
Defendants.
MEMORANDUM OPINION
Defendants Cynthia Ballenger and Christopher Price face charges for allegedly
participating in the insurrection at the United States Capitol on January 6, 2021. With trial
looming, they now move for a change of venue, claiming that they cannot receive a fair and
impartial trial in the District of Columbia. As Defendants advance no arguments that have not
already been considered and persuasively rejected in other cases in this district relating to
January 6 defendants, this Motion meets the same fate.
I. Background
Defendants are charged by Information with four misdemeanor counts: i) Entering and
Remaining in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1); ii)
Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C.
§ 1752(a)(2); iii) Disorderly Conduct in a Capitol Building or Grounds, in violation of 40 U.S.C.
§ 5104(e)(2)(D); and iv) Parading, Demonstrating, or Picketing in a Capitol Building, in
violation of 40 U.S.C. § 5104(e)(2)(G). See ECF No. 38 (Information). These charges relate to
their role in the January 6 insurrection. According to the Affidavit in Support of the Complaint
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in this case, Defendants traveled from their home in Maryland to attend the so-called “Stop the
Steal” rally, ultimately joining others in breaching both the restricted grounds and the building of
the Capitol during the insurrection. See ECF No. 1–1.
They were arrested in Baltimore on August 9, 2021, see ECF Nos. 6, 7, and were
subsequently charged by Information with the foregoing counts. They now move to transfer
venue to the Northern District of West Virginia, arguing that a District of Columbia jury is
presumptively prejudiced against them. See ECF No. 57 (Def. Mot.).
II. Legal Standard
Criminal defendants have a constitutional right to trial by “an impartial jury of the State
and district wherein the crime [was allegedly] committed.” U.S. Const. amend. VI. Federal
Rule of Criminal Procedure 21(a) nonetheless requires a court to “transfer the proceeding against
[the] defendant to another district” when “so great a prejudice against [that] defendant exists in
the transferring district that the defendant cannot obtain a fair and impartial trial there.” Where
“extraordinary local prejudice will prevent a fair trial,” such transfer is a “basic requirement of
due process.” Skilling v. United States, 561 U.S. 358, 378 (2010) (quoting In re Murchison, 349
U.S. 133, 136 (1955)).
“[A]dequate voir dire to identify unqualified jurors” is the primary safeguard against jury
prejudice. Morgan v. Illinois, 504 U.S. 719, 729 (1992). “Except in the most extreme cases, . . .
a pre-voir dire conclusion must depend solely on the subjective reaction of the judge who
reaches it.” United States v. Haldeman, 559 F.2d 31, 62 (D.C. Cir. 1976). “[I]f an impartial jury
actually cannot be selected, that fact should become evident at the voir dire.” Id. at 63.
“A presumption of [jury] prejudice” prior to voir dire “attends only the extreme case.”
Skilling, 561 U.S., at 381. Presuming prejudice in advance of voir dire should occur only in
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cases with “trial atmosphere[s] . . . utterly corrupted by press coverage,” and “juror exposure to
. . . news accounts of the crime” does not “alone presumptively deprive[] the defendant of due
process.” Id. at 380. “[P]retrial publicity, even if pervasive and concentrated, cannot be
regarded as leading automatically and in every kind of criminal case to an unfair trial.” Neb.
Press Ass’n v. Stuart, 427 U.S. 539, 565 (1976).
The Skilling court identified three principal factors to which courts should look in order
to determine whether prejudice should be presumed: the “size and characteristics of the
community,” the presence in news coverage of a “confession or other blatantly prejudicial
information of the type readers or viewers could not reasonably be expected to shut from sight,”
and the time between the alleged offense and jury selection and any attendant change in “the
decibel level of media attention.” 561 U.S. at 382–83.
III. Analysis
Defendants argue that the factors identified in Skilling weigh in favor of transfer because
i) “the amount of pre-trial publicity imputing collective guilt and providing prejudicial
characterization [here] is massive and unprecedented,” Def. Mot. at 2; ii) statements by “local
politicians” and others have contributed to this imputation and to these characterizations, as have
those by the Government and the judiciary, id. at 8, 17; and iii) “the circumstances involve
highly partisan bias.” Id. at 18. They further contend that survey evidence confirms that the
District of Columbia jury pool is prejudiced against January 6 defendants. Id. at 19. “A transfer
is [therefore] warranted because . . . the substantial local impact, the partisan divide, and negative
prejudgment in the District of Columbia is higher than [in] other states.” Id. at 22.
No court in this district has yet granted a January 6 defendant’s motion to transfer prior to
voir dire. See United States v. Williams, No. 21-618, ECF No. 63 (Order Denying motion to
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Transfer) at 2 (D.D.C. Aug. 12, 2022) (collecting cases). While “each case must turn on its
special facts,” Marshall v. United States, 360 U.S. 310, 312 (1959), Defendants offer no
arguments to distinguish their case from those others in this district or to explain why those other
decisions are erroneous. The Court nevertheless discusses each of Defendants’ arguments under
the applicable Skilling factors to explain anew why the same outcome obtains here.
A. Community Size and Characteristics
Ballenger and Price first maintain that an impartial jury cannot be empaneled in the
District of Columbia because of the small size of the judicial district, the high number of
residents here who work for the federal government, the unique impact that the insurrection had
on many of the city’s citizens, and the partisan composition of D.C.’s voters.
While Defendants correctly point out that the District is smaller than Houston, where the
Skilling court found no presumption of prejudice was warranted, Washington is hardly a one-
stoplight village, and it is much larger than districts in the handful of cases in which prejudice
has been presumed. Skilling, 561 U.S. at 379 (describing small-town setting where presumption
warranted). Indeed, the District is larger than districts where no such prejudice was presumed.
Id. at 382 (citing Gentile v. State Bar of Nev., 501 U.S. 1030, 1044 (1991) (prejudice unlikely in
smaller district than District of Columbia)); Mu’Min v. Virginia, 500 U.S. 415, 429 (1991) (no
presumption of prejudice warranted in smaller district than District of Columbia). “Given [the
district’s] large, diverse pool of potential jurors, the suggestion that 12 impartial individuals
could not be empaneled is hard to sustain.” Skilling, 561 U.S. at 382.
Defendants rejoin that “the impact of the events of January 6 on the residents of the
District of Columbia” was “far more widespread . . . than the [impact of the] conduct at issue in
Skilling” on Houston. See Def. Mot. at 24. To support this assertion, they first point out that “a
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huge proportion of District of Columbia residents either work for the federal government
themselves or have friends or family who do.” Id. Yet, as the Government rightly counters,
“Defendants do not explain how merely being employed by the Federal Government would
render a person incapable of serving as an impartial juror.” Gov. Opp. at 7. Indeed, “many
[federal employees] were neither directly nor indirectly affected” by the attack, which “was not
aimed at the Federal Government in general, but specifically at Congress’ certification of the
electoral vote.” Id. Vague insinuations that federal employees are biased by their employment
represent “exactly the kind of conjecture that is insufficient to warrant transfer prior to jury
selection.” United States v. Bochene, 579 F. Supp. 3d 177, 181 (D.D.C. 2022) (denying transfer
in January 6 case). Even if such bias could be assumed, twelve impartial jurors could still be
drawn from those hundreds of thousands of District residents who do not work for the federal
government.
Defendants further assert that this Court should presume that District residents are biased
because of their “significant and unique connections” to the events of January 6. See Def. Mot.
at 26. Many potential jurors, however, have no such connection to those events, living and
working in parts of the city that were unaffected by the attack or the efforts to respond to it. In
any case, a fair trial is possible even if an event had a significant impact on a community. See In
re Tsarnaev, 780 F.3d 14, 15 (1st Cir. 2015) (Boston Marathon bombing); Skilling, 561 U.S. at
384 (Enron collapse); United States v. Yousef, 327 F.3d 56, 155 (2d Cir. 2003) (1993 World
Trade Center bombing); United States v. Moussaoui, 43 F. App’x 612, 613 (4th Cir. 2002)
(September 11, 2001, attacks, including on Pentagon). “Although . . . widespread community
impact necessitate[s] careful identification and inspection of prospective jurors’ connections” to
the events of January 6, “voir dire [is] well suited to that task.” Skilling, 561 U.S. at 384.
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Defendants last gesture at the partisan composition of the District as a putative source of
prejudice. The fact that “an overwhelming number of District of Columbia residents” voted for
the Democratic candidate, see Def. Mot. at 28, is not “at all pertinent to venue,” as the D.C.
Circuit explained in a case related to the Watergate scandal. Haldeman, 559 F.2d at 64 n.43.
“The law assumes that every citizen is equally interested in the enforcement of the statute
enacted to guard the integrity of national elections, and that his political opinions or affiliations
will not stand in the way of an honest discharge of his duty as a juror in cases arising under that
statute.” Connors v. United States, 158 U.S. 408, 414 (1895). Voir dire is sufficient to screen
out those jurors who cannot put their partisan allegiance aside and to ensure that Defendants are
tried by “an unbiased jury capable of basing its verdict solely on the evidence introduced at
trial.” Haldeman, 559 F.2d at 70. To hold otherwise would be to assume that no politically
charged case could be fairly tried here.
The polling submitted by Defendants does little to undermine this conclusion. They
insist that a telephonic poll conducted by Select Litigation proves that prejudgment is higher in
this district than elsewhere. See Def. Mot. at 19–22. As a preliminary matter, courts have
generally rejected the notion that such polling can serve as a substitute for voir dire. In rejecting
the position that a survey similar to the one here mandated transfer, the Haldeman court opined:
It is our judgment that in determining whether a fair and impartial
jury could be empanelled the trial court did not err in relying less
heavily on a poll taken in private by private pollsters and paid for by
one side than on a recorded, comprehensive voir dire examination
conducted by the judge in the presence of all parties and their
counsel pursuant to procedures, practices and principles developed
by the common law since the reign of Henry II.
559 F.2d at 64 n.43.
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Even if polling could serve as a substitute safeguard for voir dire, the data presented by
Defendants would not counsel transfer. Defendants ask this Court to transfer their case to the
Northern District of West Virginia, but the survey they proffer compares this district to the
Atlanta Division of the Northern District of Georgia. See Def. Mot. at 20. The Court cannot
conclude, on the basis of such a survey, that transfer to Defendants’ preferred venue would make
selecting an impartial jury easier.
To the extent that the poll can be used for general comparisons of this district with others,
it still fails to establish pervasive prejudice here. For example, the difference in the percentage
of respondents in each district indicating the highest level of perceived media exposure was
within the margin of error, and only relatively modest differences exist between the percentage
of respondents indicating other levels of exposure across the districts. See Gov. Opp. at 19.
Defendants point out that 71% of those polled in the District of Columbia responded,
“Guilty” when asked for their “[o]pinion of whether people arrested for Jan 6 activities are guilty
or not guilty of the charges brought against them.” Def. Mot. at 20. They buttress their assertion
of widespread prejudgment with the poll’s findings on the high number of District residents who
gave unflattering characterizations of the participants in and purposes of the January 6
insurrection. Id. at 21. As the Government notes, however, the belief that most people arrested
for crimes are guilty is widespread; jurors who would nevertheless infer the guilt of a particular
defendant can be screened out with voir dire. See Gov. Opp. at 21. Indeed, the survey indicates
that nearly half of those surveyed responded, “Depends” or “Don’t know/Refused” when asked
specifically about the guilt or innocence of January 6 defendants in the context of a criminal trial.
Id. Because of the general presumption against supplanting voir dire with polling evidence and
because the poll submitted by Defendants fails to establish prejudice even if taken at face value,
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the Court need not reach the various potential methodological problems with the survey that the
Government discusses. See Gov. Opp. at 22–24.
In sum, the size and characteristics of this district do not merit a presumption of prejudice
against Defendants. Despite their generalizations about the District of Columbia jury pool, the
feelings towards them by many of the District’s potential jurors are best captured by Don
Draper’s now-memetic retort: “I don’t think about you at all.” Mad Men: Dark Shadows (AMC
television broadcast May 13, 2012).
B. Pretrial Publicity
The second factor to weigh in deciding about prejudice looks at whether pretrial coverage
features a “confession or other blatantly prejudicial information of the type readers or viewers
could not reasonably be expected to shut from sight.” Skilling, 561 U.S. at 382. Defendants cite
a potpourri of such purportedly prejudicial coverage, including statements by politicians or other
figures linking the insurrection to white supremacy, characterizing it as domestic terrorism, and
so on. See Def. Mot. at 2–18. They contend that such pretrial publicity constitutes the
“imput[ation] of collective guilt and providing prejudicial characterizations.” Id. at 2.
None of the coverage about which Defendants complain is “as inherently prejudicial nor
as unforgettable as the spectacle of [a defendant’s] dramatically staged and broadcast
confession.” Haldeman, 559 F.2d at 61. For prejudice to be presumed, it is not enough that pre-
trial publicity is “not kind,” Skilling, 561 U.S. at 382, or that it is “hostile in tone and accusatory
in content.” Haldeman, 559 F.2d at 61. The Skilling and Haldeman courts held that the
unflattering pre-trial publicity attending the Enron and Watergate scandals, respectively, was not
of a nature meriting transfer. As in those cases, moreover, while some accounts of the
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insurrection have been pointed, many have “consist[ed] of straightforward, unemotional factual
accounts of events and of the progress of official and unofficial investigations.” Id.In addition, as there, much of the coverage of the events of January 6 has been national,
not local, in nature. In cases involving crimes of national interest featured in coverage that is
“national in reach,” “a change of venue [is] of only doubtful value.” Id. at 64 n.43. “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 influence of that coverage would be
present wherever trial is held.” Bochene, 2022 WL 123893, at *3 (quotation marks omitted).
This district’s “size and diversity,” moreover, “dilute[] the media’s impact.” Skilling, 561 U.S.
at 384. Lastly, as far as the Court can tell, Defendants have not featured in local coverage this
calendar year. That is not surprising given that, based on the misdemeanors with which they are
charged, their roles were relatively minor.
C. Time
The final factor to consider is the amount of time elapsed between the underlying conduct
and the trial and any resultant attenuation in publicity. Nearly two years have passed since the
insurrection, which is not a substantial amount of time. While “there has recently been renewed
attention on the events of that day because of the widespread coverage of the congressional
hearings conducted by the Select Committee to Investigate the January 6th Attack on the United
States Capitol,” “coverage [has] related primarily to the events of January 6 in general and the
role that public officials and their advisors and campaigns may have played in bringing them
about, not the particular activities of any individual defendant.” Williams Order, No. 21-618, at
17–18. Relative to the media environment in the days after the attack, the “decibel level of
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media attention [has] diminished somewhat,” Skilling, 561 U.S. at 383, but the focus remains
substantial. This factor therefore may be said to be in equipoise.
* * *
The Court finds no reason to presume prejudice on the part of this district’s venire prior
to voir dire, the appropriate tool here for rooting out prejudice. Like defendants in other scandals
or January 6 cases, Ballenger and Price can be tried fairly and impartially in the District of
Columbia.
IV. Conclusion
For the foregoing reasons, the Court will deny Defendants’ Motion to Transfer Venue. A
separate Order so stating will issue this day.
s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 28, 2022
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