United States v. Munchel

• Decision Date: 08 October 2021
• Docket Number: Case No. 1:21-cr-118-RCL
• Parties: UNITED STATES of America, v. Eric Gavalek MUNCHEL, Lisa Marie Eisenhart, Defendants.
• Court: U.S. District Court — District of Columbia

567 F.Supp.3d 9

UNITED STATES of America,

v.Eric Gavalek MUNCHEL, Lisa Marie Eisenhart, Defendants.

Case No. 1:21-cr-118-RCL

United States District Court, District of Columbia.

Signed October 8, 2021

Ahmed Muktadir Baset, Assistant U.S. Attorney, Leslie A. Goemaat, Assistant U.S. Attorney, U.S. Attorney's Office, Justin Todd Sher, Assistant U.S. Attorney, U.S. Department of Justice, Washington, DC, for United States of America.

Sandra Gayle Roland, Public Defender, Federal Public Defender for D.C., Washington, DC, for Defendant Eric Gavelek Munchel.

Gregory Stuart Smith, Law Offices of Gregory S. Smith, Washington, DC, for Defendant Lisa Marie Eisenhart.

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge

Pending before the Court is an application submitted on behalf of sixteen media organizations (the "Press Coalition") for access to video exhibits related to the pretrial detention proceedings in this criminal case. Defendants Eric Munchel and Lisa Eisenhart are charged by indictment relating to the events at the U.S. Capitol on January 6, 2021. This Court reversed a magistrate judge's decision releasing the defendants and ordered defendants detained pending trial. United States v. Munchel , 521 F. Supp. 3d 54 (D.D.C. 2021). But the D.C. Circuit remanded to this Court for additional consideration whether defendants posed an identified and articulable threat to the community. United States v. Munchel , 991 F.3d 1273 (D.C. Cir. 2021). All three courts relied heavily on an iPhone video shot by Munchel at the Capitol. To support its request for pretrial detention, the government submitted to this Court the iPhone video and eight CCTV videos from the Senate Lobby hallway. The government does not oppose the release of these requested videos. Defendants, however, argue that while the Court may permit the Press Coalition to access the videos, the Court should prohibit "release"—copying or rebroadcasting the videos to the public. Defendants argue that release may prejudice their privacy rights and right to a fair trial. Upon consideration of the parties’ filings, ECF Nos. 97, 98, 99, and the arguments set forth at the hearing, the Court will GRANT the Press Coalition's application.

I. BACKGROUND

Defendants face criminal charges for participating in the unsuccessful insurrection at the Capitol on January 6, 2021. See ECF No. 76. That day, Munchel wore an iPhone mounted on his chest, which filmed a fifty-minute video of events outside and inside the Capitol. See ECF No. 3 at 5. Following defendants’ arrests in Tennessee, the government moved to detain defendants pending trial. See ECF Nos. 3, 6. At his detention hearing, Munchel introduced under seal excepts from the iPhone video. The government's witnesses described the full iPhone video's contents in detail. At Eisenhart's detention hearing, the magistrate judge admitted the full iPhone video under seal. The magistrate judge ordered defendants released pending trial subject to a litany of conditions.

The government moved for an emergency stay and appealed the magistrate judge's decision. ECF Nos. 3, 6. In a letter to the Chief Judge, the government provided Munchel's iPhone video and eight CCTV videos from the Senate Lobby hallway. See ECF No. 35-2 at 1. Chief Judge Howell granted the government's motion to stay the release order. ECF Nos. 4, 7. The case was subsequently assigned to the undersigned and the Court scheduled a detention hearing for February 17, 2021. See 2/17/2021 Min. Order.

On February 17, 2021, the government sent an additional letter to this Court's chambers with the CCTV videos from the Capitol and Munchel's iPhone video. See ECF No. 35-1. Munchel also submitted excerpts from the iPhone video under seal in support of his motion for pretrial release. At the detention hearing, all parties relied heavily on the iPhone video. See, e.g. , 2/17/21 Tr. 10, 23. Relying in substantial part on the iPhone video, this Court granted the government's motion for review and ordered defendants detained pending trial. See Munchel , 521 F. Supp. 3d at 56–67. After defendants appealed, the government subsequently filed a notice with the videos and motion to supplement the record on appeal with the iPhone video. ECF Nos. 35, 36. Defendants disputed whether the iPhone video should be included in the record because the government provided these videos ex parte. ECF No. 39. The Court granted the government's motion. ECF No. 43.

The D.C. Circuit remanded this Court's decision for additional consideration as to whether defendants posed "an identified and articulable threat to the community." Munchel , 991 F.3d at 1282. The Circuit also cited the iPhone video at length, see id. at 1275–77, and recognized that this Court's consideration encompassed the CCTV video as well, id. at 1280.

On September 19, 2021, the Press Coalition filed an application for access to the CCTV videos and Munchel's iPhone video. ECF No. 97. This Court granted the application and ordered the government to make the videos available within 72 hours in accordance with the Chief Judge's Standing Order 21-28. See 9/16/2021 Min. Order. The government and defendants moved for a stay the following day. See ECF Nos. 98, 99. The government requested time to consult with equity holders (including the United States Capitol Police) as to whether they opposed the release of the videos. ECF No. 98. And defendants moved for reconsideration or a stay of the minute order and asked for additional time to "fully submit their position on this request." ECF No. 99. The Court granted the parties a stay until September 20, 2021, ECF No. 100, at which time the Court held a hearing on the Press Coalition's motion. 9/20/2020 Min. Entry.

At the hearing, the government withdrew its objection to the release of the videos in this case. 9/20/2021 Tr. 17. Defendants, however, explained that while they do not oppose "access" to the videos, they oppose "release" or transmitting and rebroadcasting these videos to the public. See id. at 24. They argue that permitting the release and dissemination of these videos could endanger their safety, prejudice their right to a fair trial, and taint the jury pool. Id. at 28–30. Defendants’ proposed solution is "to wait to produce the full tape until after the trial is started, if we get that far." Id. at 25. After the hearing, the Court stayed its order granting the application pending further order. 9/20/2021 Min. Order. In the subsequent weeks, defendants have not attempted to file any further briefing to supplement their oral argument. The Press Coalition's application is ripe for consideration.

II. LEGAL STANDARDS

Standing Order 21-28 provides "a procedure for providing media access to video exhibits submitted in Capitol Cases." See In re Press & Public Access to Video Exhibits in Capitol Riot Cases , 21-MC-46, 2021 WL 1946378, at *7 D.D.C. May 14, 2021 (emphasis added). It does not displace the common law right of access and instead advises that each judge should assess what type of access is appropriate on a case-by-case basis. Id. at *5. Accordingly, the Court will analyze the Press Coalition's request under the common law right of access.

The D.C. Circuit has explained that the "common-law right of public access to judicial records ‘is a fundamental element of the rule of law, important to maintaining the integrity and legitimacy of an independent Judicial Branch.’ " In re Leopold to Unseal Certain Elec. Surveillance Applications & Ords. , 964 F.3d 1121, 1127 (D.C. Cir. 2020) (quoting MetLife, Inc. v. Fin. Stability Oversight Council , 865 F.3d 661, 663 (D.C. Cir. 2017) ). The importance of the right cannot be understated. It "serves to produce an informed and enlightened public opinion[,] ... safeguard[s] against any attempt to employ our courts as instruments of persecution, promote[s] the search for truth, and [ ] assure[s] confidence in judicial remedies." Id.

To determine whether this important right is implicated, the Court first asks whether the subject of an application is a "judicial record." "[N]ot all documents filed with courts are judicial records"; rather, "whether something is a judicial record depends on the ‘role it plays in the adjudicatory process.’ " Id. at 1128 (quoting SEC v. Am. Int'l Grp. , 712 F.3d 1, 3 (D.C. Cir. 2013) ). But "in all cases," In re Application for Access to Certain Sealed Video Exhibits , No. 21-MC-78 (JDB), 2021 WL 2711706, at *2–3 (D.D.C. June 30, 2021), "materials filed in court [and] ‘intended to influence the court’ " qualify as judicial records, United States v. Jackson , No. No. 21-mj-115 (BAH), 2021 WL 1026127, at *4 (D.D.C. Mar. 17, 2021) (quoting In re Leopold , 964 F.3d at 1128 ).

A "strong presumption in favor of public access" attaches to judicial records. In re Leopold , 964 F.3d at 1127 (quoting United States v. Hubbard , 650 F.2d 293, 317 (D.C. Cir. 1980) ). But this presumption "may be outweighed by competing interests." MetLife , 865 F.3d at 665. To balance the public and private interests at stake, courts in this Circuit apply a six-factor test crafted by the D.C. Circuit in Hubbard. See In re Leopold , 964 F.3d at 1131. Specifically, a court must weigh:

(1) the need for public access to the documents at issue;

(2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person;

(4) the strength of any property and privacy interests asserted;

(5) the possibility of prejudice to those opposing disclosure; and

(6) the purposes for which the documents were introduced during the judicial proceedings.

Id. (quoting MetLife , 865 F.3d at 665 ).

III. ANALYSIS

As noted previously, defendants do not oppose the Press Coalition's request for immediate access to the video exhibits in this case. Nor do defendants oppose releasing the videos after trial has started. 9/20/2021 Tr. 25. Defendants frame their challenge to the Press Coalition's application as one to when...