United States v. Fitzsimons
| Decision Date | 24 May 2022 |
| Docket Number | Case No.: 21-cr-158 |
| Parties | UNITED STATES of America v. Kyle FITZSIMONS, Defendant. |
| Court | U.S. District Court — District of Columbia |
Brandon K. Regan, Puja Bhatia, Assistant U.S. Attorneys, DOJ-USAO, Washington, DC, Douglas Burton Brasher, Assistant U.S. Attorney, DOJ-USAO, Dallas, TX, Michael Matthew Gordon, Assistant U.S. Attorney, DOJ-USAO, Criminal Division, Violent Crimes and Narcotics Section, Tampa, FL, Robert Craig Juman, Assistant U.S. Attorney, U.S. Attorney's Office, Fort Lauderdale, FL, for United States of America.
Natasha Taylor-Smith, Public Defender, Federal Community Defender Office, Philadelphia, PA, for Defendant.
Defendant Kyle Fitzsimons is facing an eleven-count indictment stemming from his actions at the United States Capitol on January 6, 2021.1 The charges against him include civil disorder; obstruction of an official proceeding; using a dangerous or deadly weapon on certain officers; two counts of inflicting bodily injury on certain officers; assaulting, resisting, or impeding certain officers; entering and remaining in a restricted building or grounds; disorderly and disruptive conduct in a restricted building or grounds; engaging in physical violence in a restricted building or grounds; disorderly conduct in the Capitol grounds or buildings; and act of physical violence in the Capitol grounds or buildings. See 2d. Superseding Indictment, ECF No. 69. He is accused of having violently attacked law enforcement officers stationed at the tunnel entrance of the Lower West Terrace—the location where some of the most violent acts of the day occurred—and of having physically injured some of those officers as part of an attempt to obstruct the certification of the Electoral College vote. See Gov't’s Notice & Mot. Admit Evidence as Intrinsic or, in Alt., as "Other Acts" Evidence Pursuant to Fed. R. Evid. 404(b) ("Gov't Mot.") at 2–3, ECF No. 61.
Trial is set to begin on June 13, 2022. See Am. Pretrial Order, ECF No. 63. In advance of trial, the Government has moved to introduce a series of statements made by Fitzsimons over the course of just over a year leading up to January 6, 2021, which it believes are probative of Fitzsimons's motive and intent on January 6, 2021. See Gov't Mot. at 5. Specifically, the Government seeks to introduce:
Fitzsimons has opposed the motion, arguing that the evidence is not intrinsic, is irrelevant to Fitzsimons's conduct on January 6, 2021, and would be unfairly prejudicial. Def.’s Resp. to Gov't’s Mot. Lim. ("Def.’s Opp'n"), ECF No. 66. For the following reasons, the Court will grant in part and deny in part the Government's motion.
"While neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence expressly provide for motions in limine , the Court may allow such motions ‘pursuant to the district court's inherent authority to manage the course of trials.’ " Barnes v. District of Columbia , 924 F. Supp. 2d 74, 78 (D.D.C. 2013) (quoting Luce v. United States , 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) ). "Motions in limine are designed to narrow the evidentiary issues at trial." Williams v. Johnson , 747 F. Supp. 2d 10, 14 (D.D.C. 2010). "[T]he trial judge's discretion extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial." 1443 Chapin St., LP v. PNC Bank, N.A. , No. 08-cv-01532, 2012 WL 13225423, at *1 (D.D.C. Aug. 14, 2012). Still, such "pre-trial ruling[s], if possible, may generally be the better practice, for it permits counsel to make the necessary strategic determinations" prior to trial. United States v. Jackson , 627 F.2d 1198, 1209 (D.C. Cir. 1980). However, "a motion in limine should not be used to resolve factual disputes or weigh evidence." C & E Servs., Inc. v. Ashland Inc. , 539 F. Supp. 2d 316, 323 (D.D.C. 2008) (citation omitted).
"In evaluating the admissibility of proffered evidence on a pretrial motion in limine the court must assess whether the evidence is relevant and, if so, whether it is admissible, pursuant to Federal Rules of Evidence 401 and 402." Daniels v. District of Columbia , 15 F. Supp. 3d 62, 66 (D.D.C. 2014). "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401. Under Rule 402, only relevant evidence is admissible. Fed. R. Evid. 402. Relevant evidence may still be excluded by a court if "its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403.
Federal Rule of Evidence 404(b) governs the use of "other crimes, wrongs, or acts" in trials, making such evidence inadmissible to prove that "on a particular occasion the person acted in accordance with" a certain character trait, but allowing such evidence for other permissible purposes. Fed. R. Evid. 404(b)(1–2). Only acts "extrinsic" to the charged crime are subject to those limitations, whereas "acts ‘intrinsic’ to the crime are not." United States v. McGill , 815 F.3d 846, 879 (D.C. Cir. 2016). In other words, " Rule 404(b) only applies to truly ‘other’ crimes and bad acts; it does not apply to ‘evidence ... of an act that is part of the charged offense’ or of ‘uncharged acts performed contemporaneously with the charged crime ... if they facilitate the commission of the charged crime.’ " Id. (quoting United States v. Bowie , 232 F.3d 923, 929 (D.C. Cir. 2000) ). The Court disagrees with the Government's argument that the December 2020 phone calls and Facebook post are "intrinsic" evidence but finds that the December 2020 phone calls are nonetheless admissible under Rule 404(b). However, the Court finds that the December 2019 and March 2020 phone calls are inadmissible and will defer ruling on the December 2020 Facebook post.
Evidence is intrinsic when it "is of an act that is part of the charged offense" or is of "uncharged acts performed contemporaneously with the charged crime ... if they facilitate the commission of the charged crime." Bowie , 232 F.3d at 929. This Circuit has explicitly rejected the more permissive approach to defining intrinsic evidence embraced by other circuits "because ‘all relevant prosecution evidence explains the crime or completes the story’ to some extent, and the fact that ‘omitting some evidence would render a story slightly less complete cannot justify circumventing Rule 404(b) altogether.’ " McGill , 815 F.3d at 879 (quoting Bowie , 232 F.3d at 929 ). To be "intrinsic," evidence must be more than merely relevant to a charged crime, otherwise " Rule 404(b) would be a nullity." Bowie , 232 F.3d at 929.
The December 2020 calls and Facebook post3 were made in the weeks leading up to January 6, 2021 and were therefore not "contemporaneous" with Fitzsimons's actions on that day. See United States v. Oseguera Gonzalez , 507 F. Supp. 3d 137, 159 (D.D.C. 2020) (); United States v. Thorne , No. 18-cr-389, 2020 WL 122985, at *13 (D.D.C. Jan. 10, 2020) (). Nor did the calls "facilitate" Fitzsimons's unlawful conduct by helping to bring it about. See United States v. Roberson , 581 F.Supp.3d 65, 73–75 (D.D.C. 2022) ().
The Government's argument instead turns on the fact that the calls and posts are probative of one element of the obstruction of an official proceeding charge, which requires the Government to prove that "the defendant attempted to or did obstruct or impede any official proceeding." Gov't Mot. at 5 (citing 18 U.S.C. § 1512(c)(2) ). The Government believes the messages show a clear link between Fitzsimons's beliefs about election fraud and his willingness to use violence to overturn the election. There is no doubt that the calls and messages are relevant to that element, as Fitzsimons describes in his own words his disagreement with the 2020 election results...
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