United States v. Rhine

• Decision Date: 24 January 2023
• Docket Number: CRIMINAL ACTION 21-0687 (RC),Re Document 42,43,46,47
• Parties: UNITED STATES OF AMERICA v. DAVID CHARLES RHINE, Defendant.
• Court: U.S. District Court — District of Columbia

UNITED STATES OF AMERICA
v.
DAVID CHARLES RHINE, Defendant.

CRIMINAL ACTION No. 21-0687 (RC)

Re Document Nos. 42, 43, 46, 47

United States District Court, District of Columbia

January 24, 2023

MEMORANDUM OPINION DENYING DEFENDANT'S MOTION TO TRANSFER VENUE, GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR EXPANDED VOIR DIRE; DENYING DEFENDANT'S MOTIONS TO DISMISS COUNTS 1-4, DENYING DEFENDANT'S MOTION TO SUPPRESS GEOFENCE EVIDENCE

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Defendant David Charles Rhine is charged with four misdemeanor counts arising out of his alleged participation in the riot at the Capitol on January 6, 2021. Specifically, the Government charged Defendant by information with (1) entering or remaining in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(1); (2) disorderly or disruptive conduct in a restricted building or grounds in violation of 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). See Information, ECF No. 8. Defendant has filed a motion to transfer venue and for expanded voir dire (ECF No. 42), motions to dismiss the charged counts (ECF Nos. 46, 47), and a motion to suppress evidence obtained pursuant to a “geofence warrant” (ECF No. 43). The motions are ripe for consideration. For the reasons stated below, the Court denies Defendant's motion to transfer venue, grants in

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part and denies in part Defendant's motion for expanded voir dire, denies Defendant's motions to dismiss the charged counts, and denies Defendant's motion to suppress.

II. FACTUAL BACKGROUND

At approximately 1:00 p.m. on January 6, 2021, Congress convened to count the votes of the Electoral College and certify the results of the 2020 presidential election. Vice President Mike Pence was present to preside over the session in his role as President of the Senate. About an hour later, at approximately 2:00 p.m., the crowd that had gathered outside the Capitol building began to force its way inside. The Government alleges that Defendant, who resides in Bremerton, Washington, was among that crowd. Specifically, the Government alleges that Defendant entered the capitol at approximately 2:42 p.m. wearing a dark blue hooded jacket, a red hat, and a backpack, and carrying a blue flag with white stars and white cow bells. Gov't's Statement of Facts, ECF No. 1-1 at 4. Defendant allegedly proceeded to walk through the Capitol until he encountered a U.S. Capitol Police (“USCP”) officer at approximately 2:57 p.m. Id. at 6. The officer allegedly detained Defendant and conducted a search that yielded two knives and pepper spray, which USCP officers seized before placing Defendant in flex cuffs with his hands behind his back. Id. After escorting Defendant through the hallways for a few minutes, at approximately 3:02 p.m. the USCP officer that detained Defendant allegedly released him, still in flex cuffs, to attend to other responsibilities after Defendant told the officer that he would leave the building. Id. at 8. The Government alleges that one minute later an unidentified individual cut the flex cuffs from Defendant's hands, and one minute after that, at approximately 3:04 p.m., Defendant left the building. Id. at 8-9.

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III. ANALYSIS

The Court first considers Defendant's motion to transfer venue and for expanded voir dire, followed by Defendant's motions to dismiss and motion to suppress.

A. Defendant's Motion to Transfer Venue and for Expanded Voir Dire

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.; see also Id. Art. III (“The Trial of all Crimes . . . shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.”). The Federal Rules of Criminal Procedure reflect the requirement to “prosecute an offense in a district where the offense was committed,” Fed. R. Crim. P. 18, but also permit defendants to move to transfer venue either due to local prejudice or for convenience, Fed. R. Crim P. 21(a)-(b). Where a defendant moves to transfer venue due to local prejudice, the “court must transfer the proceeding . . . to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.” Id.

The Supreme Court has recognized the principle that transfer of venue is a “basic requirement of due process” where “extraordinary local prejudice will prevent a fair trial, ” but emphasized that a pre-voir dire “presumption of prejudice . . . attends only the extreme case.” Skilling v. United States, 561 U.S. 358, 378, 381 (2010) (internal citation omitted). Because “juror impartiality . . . does not require ignorance,” even “pervasive, adverse publicity” does not necessarily compel a presumption of prejudice, unless the press coverage is so intense as to “utterly corrupt[]” the trial. Id. at 380-81 (emphasis in original). Accordingly, the “default practice of this jurisdiction [is] to conduct voir dire in order to determine whether a fair and impartial jury can be seated.” United States v. Eicher,

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No. 22-cr-0038, 2022 WL 11737926, at *2 (D.D.C. Oct. 20, 2022) (citing United States v. Haldemann, 599 F.2d 31, 41 (D.C. Cir. 1976). “‘[A]dequate voir dire to identify unqualified jurors' is the primary safeguard against jury prejudice.” United States v. Ballenger, No. 21-cr-0719, 2022 WL 16533872, at *1 (D.D.C. Oct. 28, 2022) (quoting Morgan v. Illinois, 504 U.S. 719, 729 (1992)).

In Skilling, the Supreme Court identified three main factors to guide the inquiry into whether prejudice should be presumed before voir dire: (1) the “size and characteristics of the community in which the crime occurred;” (2) whether press coverage of the crime “contain[s] a confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight;” and (3) the time that elapsed between the crime and the trial. 561 U.S. at 382-83. Courts in this district have considered a large number of motions to transfer venue similar to that submitted by Defendant in this case. In every case, the court has denied the motion after evaluating the Skilling factors, finding that the defendant failed to establish extraordinary local prejudice that would prevent a fair trial. See Eicher, 2022 WL 11737926, at *1 (denying motion to transfer by defendant charged in connection with January 6, 2021 “[l]ike every other court of this jurisdiction to consider the same argument”); Gov't's Opp'n to Mot. Transfer Venue (“Gov't's Transfer Opp'n”) at 1 n.1, ECF No. 55 (explaining that “[e]very judge on this Court to have ruled on a motion for change of venue in a January 6 prosecution has denied the motion” and listing cases). After thorough review of Defendant's motion, the Government's opposition, and Defendant's reply, the Court is convinced that the same result should obtain here.

1. Size and Characteristics of the Community

Defendant argues that the District of Columbia's size and characteristics weigh in favor of a presumption of prejudice. Regarding size, Defendant explains that the population of D.C. is

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approximately 700,000, with 550,000 of voting age, and points out that this number is “far smaller” than the 4.5 million-strong juror pool in the Houston area that the Skilling court held was “large and diverse” such that “the suggestion that 12 impartial individuals could not be empaneled [was] hard to sustain.” Def.'s Mot. Transfer Venue at 8-9 (“Def.'s Mot. Transfer”), ECF No. 42; Skilling, 561 U.S. at 382. But as the Government argues in response, the “relevant question is not whether the District of Columbia is as populous as the Southern District of Texas . . but whether it is large enough that an impartial jury can be found.” Gov't's Transfer Opp'n at 6. As other courts in this district have pointed out, the Skilling court itself “recognized a ‘reduced likelihood of prejudice where [the] venire was drawn from a pool of over 600,000 individuals.” United States v. Brock, No. 21-cr-0140, 2022 WL 3910549, at *6 (D.D.C. Aug. 31, 2022) (quoting Skilling, 561 U.S. at 382). Moreover, “the District's population is greater in size than those few cases in which the Court has found that transfer to a different jurisdiction was constitutionally required” and it is “larger than population sizes that the Supreme Court has found reduced the likelihood of prejudice.” United States v. Rhodes, No. 22-cr-0015, 2022 WL 2315554, at *21 (D.D.C. June 28, 2022) (listing examples, including Mu'Min v. Virginia, 500 U.S. 415, 429 (1991), in which the Supreme Court found no presumption of prejudice despite a jury pool of only approximately 182,000). As every other court to consider the question in connection with a January 6 prosecution has held, the size of D.C. does not weigh in favor of a presumption of prejudice.

Defendant next argues that the “events of January 6 have impacted D.C. residents much more directly than persons outside the District,” such that “the aftershocks of January 6 continue to reverberate.” Def.'s Mot. Transfer at 9. This is unpersuasive, as surely most crimes “more directly” impact the local area than elsewhere, and courts have held that a fair trial is possible

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even where that impact is a result of particularly heinous crimes. See, e.g., In re Tsarnaev, 780 F.3d 14 (1^st Cir. 2015) (affirming denial of motion to transfer venue in Boston Marathon bombing case); Ballenger, 2022 WL 16533872, at *3 (listing additional examples and explaining, in the context of a January 6 prosecution, that a “fair trial is possible even if an event had a...