United States v. Gossjankowski ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
V. Criminal No. 21-0123 (PLF)
VITALI GOSSJANKOWSKI,
Defendant.
T
|
Nr Ne Ne Ne Nae Ne ee ee ee”
OPINION AND ORDER
Defendant Vitali GossJankowski has filed an Amended Motion for Transfer of
Venue (“Mot.”) [Dkt. No. 79]. Mr. GossJankowski’s trial is currently scheduled to begin with
jury selection on February 27, 2023. He has requested that the Court move his trial outside of
the District of Columbia pursuant to Rule 21(a) of the Federal Rules of Criminal Procedure and
on constitutional grounds, citing the risk of potential juror prejudice against defendants charged
in connection with the events at the U.S. Capitol on January 6, 2021. The government opposes
Mr. GossJankowski’s motion, see Government’s Opposition to Defendant’s Motion to Transfer
Venue (“Gov’t Opp.”) [Dkt. No. 75], and counsel for the parties presented oral argument on
January 17, 2023.
The legal challenges that Mr. GossJankowski raises, as well as the jury surveys
that he cites in his motion, have been considered and rejected by other judges of this court. In
fact, every judge who has ruled on a motion for a transfer of venue in connection with a
January 6 case has denied the motion. See United States y. Oliveras, Crim. No. 21-738, 2023
WL 196679 (D.D.C. Jan. 17, 2023) (Howell, C.J.); United States v. Sheppard, Crim.
No. 21-203, 2022 WL 17978837 (D.D.C. Dec. 28, 2022) (Bates, J.); Memorandum Opinion and
Order, United States v. Nordean, Crim. No. 21-175 (D.D.C. Nov. 9, 2022) [Dkt. No. 531]
(Kelly, J.); United States v. Ballenger, Crim. No. 21-719, 2022 WL 16533872 (D.D.C.
Oct. 28, 2022) (Boasberg, J.); United States v. Eicher, Crim. No. 22-0038, 2022 WL 11737926(D.D.C. Oct. 20, 2022) (Kollar-Kotelly, J.); United States v. Nassif, Crim. No. 21-421, 2022
WL 4130841 (D.D.C. Sept. 12, 2022) (Bates, J.); United States v. Brock, Crim.
No. 21-140, 2022 WL 3910549 (D.D.C. Aug. 31, 2022) (Bates, J.); Order, United States v.
Williams, Crim. No. 21-618 (D.D.C. Aug. 12, 2022) [Dkt. No. 63] (Jackson, J.); United States v.
Garcia, Crim. No. 21-0129, 2022 WL 2904352 (D.D.C. July 22, 2022) (Jackson, J.); Minute
Order, United States v. Bledsoe, Crim. No. 21-204 (D.D.C. July 15, 2022) (Howell, C.J.); United
States v. Rhodes, Crim. No. 22-15, 2022 WL 2315554 (D.D.C. June 28, 2022) (Mehta, J.);
Minute Entry, United States v. Williams, Crim. No. 21-377 (D.D.C. June 10, 2022)
(Howell, C.J.); Minute Entry, United States v. McHugh, Crim. No. 21-453 (D.D.C. May 4, 2022)
(Bates, J.); Order, United States v. Alford, Crim. No. 21-263 (D.D.C. Apr. 18, 2022) [Dkt.
No. 46] (‘Alford Order”) (Chutkan, J.) (denying defendant’s request to transfer venue but
granting request for expanded examination of prospective jurors); Order, United States v.
Webster, Crim. No. 21-208 (D.D.C. Apr. 18, 2022) [Dkt. No. 78] (Mehta, J.); Memorandum
Opinion and Order, United States v. Brooks, Crim. No. 21-503 (D.D.C. Jan. 24, 2022) [Dkt.
No. 31] (Lamberth, J.); United States v. Bochene, 579 F. Supp. 3d 177 (D.D.C. 2022) (Moss, J.);
Minute Entry, United States v. Fitzsimons, Crim. No. 21-158 (D.D.C. Dec. 14, 2021)
(Contreras, J.); Minute Order, United States v. Reffitt, Crim. No. 21-32 (D.D.C. Oct. 15, 2021)
(Friedrich, J.); Order, United States v. Caldwell, Crim. No. 21-28 (D.D.C. Sept. 14, 2021) [Dkt.
No. 415] (Mehta, J.). For the following reasons, the Court concludes that Mr. GossJankowski
has not established a presumption of prejudice and that voir dire is the appropriate means of
assessing potential juror prejudice in this case. The Court therefore will deny
Mr. GossJankowski’s motion.
I. BACKGROUND
The charges against Mr. GossJankowski relate to the events at the U.S. Capitol on
January 6, 2021. The events of January 6, 2021 are summarized in the Court’s opinion in United
States v. Puma. See United States v. Puma, 596 F. Supp. 3d 90, 93-94 (D.D.C. 2022). The
government alleges that Mr. GossJankowski was a member of the crowd that entered the Capitol
building on January 6, 2021 and engaged in certain activities while there. See Superseding
Indictment [Dkt. No. 41]. According to the statement of facts accompanying the criminal
complaint in this case, a publicly available video depicts Mr. GossJankowski attempting to gain
access to the U.S. Capitol building on January 6, 2021. See Statement of Facts [Dkt. No. 1-1]
at 2. The video depicts Mr. GossJankowski handling and activating a Taser. See id. On
January 14, 2021, Mr. GossJankowski contacted law enforcement regarding an FBI “Be on the
Lookout” poster that included a picture of him, and officers of the Metropolitan Police
Department interviewed him that same day. See id. at 4. Law enforcement officers interviewed
Mr. GossJankowski again on January 17, 2021. See id. at 5. During these interviews,
Mr. GossJankowski admitted to possessing a Taser on January 6, 2021 but denied using the
Taser on a law enforcement officer. See id. at 4-5.
On January 18, 2021, the United States charged Mr. GossJankowski by criminal
complaint for offenses arising out of his conduct in relation to the Capitol riot, see Complaint
[Dkt. No. 1], and he was arrested that same day at his residence. A grand jury returned an
indictment on February 17, 2021, and a superseding indictment on November 10, 2021. The
superseding indictment charges Mr. GossJankowski with five felony offenses and one
misdemeanor offense: Civil Disorder, in violation of 18 U.S.C. § 231(a)(3); Obstruction of an
Official Proceeding and Aiding and Abetting, in violation of 18 U.S.C. §§ 1512(c)(2) and 2;
Assaulting, Resisting, or Impeding Certain Officers Using a Dangerous Weapon, in violation
of 18 U.S.C. §§ 111(a)(1) and (b); Entering and Remaining in a Restricted Building or Grounds
with a Deadly or Dangerous Weapon, in violation of 18 U.S.C. § 1752(a)(1) and (b)(1)(A);
Disorderly and Disruptive Conduct in a Restricted Building or Grounds with a Deadly or
Dangerous Weapon, in violation of 18 U.S.C. § 1752(a)(2) and (b)(1)(A); and Disorderly
Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D). See Superseding
Indictment.
In support of his motion to transfer venue, Mr. GossJankowski submits two jury
surveys. The first is a survey conducted by Select Litigation, LLC (‘‘Select Litigation’), a
consulting firm engaged by the Federal Public Defender for the District of Columbia to “assess
the federal jury pool in the District of Columbia.” See Exhibit 1, Amended Motion for Transfer
of Venue (“Select Litigation Survey”) [Dkt. No. 79-1] at 2 (page numbering based on ECF
stamp). Select Litigation “conducted two public opinion polls, one among jury-eligible citizens
of the District of Columbia, and one among jury-eligible citizens of the Atlanta Division of the
Northern District in Georgia.” Id. Four hundred respondents were polled in each jurisdiction.
Id. Select Litigation also “retained the services of a media research firm, News Exposure, to
analyze aspects of news coverage concerning January 6.” Mot. at 4.
The second survey was conducted by In Lux Research (“ILR”), a firm engaged by
Juli Haller and Fischer & Putzi, P.A., who represent January 6 defendants Connie Meggs and
Thomas Edward Caldwell. See Exhibit 2, Amended Motion for Transfer of Venue (“ILR
Survey”) [Dkt. No. 79-2] at 2 (page numbering based on ECF stamp). ILR was asked “to design
and conduct a study that would meet the following objectives”:
1. Identify any specific themes of bias.
2. Gauge the intensity of any prejudicial bias detected.
3. Determine whether the rates and intensity of any prejudicial bias
discovered within the DC [c]ommunity are unique to the DC
[c]ommunity.
4. Ascertain whether respondents who indicate harboring bias
against [January 6] [d]efendants report doubt in their ability to be
fair and impartial jurors for [such] [d]efendants.
Id. ILR “conducted a telephone poll of potential jurors in the District of Columbia and in three
other jurisdictions: the Ocala Division of the Middle District of Florida, the Eastern District of
North Carolina, and the Eastern District of Virginia.” Gov’t Opp. at 4. The polling yielded
“over 350 responses” from each jurisdiction. ILR Survey at 2.
Il. LEGAL STANDARD
In general, criminal trials are held in the state where the offense was committed.
See U.S. Const. art. III, § 2 (“The Trial of all Crimes . . . shall be held in the State where the said
Crimes shall have been committed.”); FED. R. CRIM. P. 18 (“[T]he government must prosecute an
offense in a district where the offense was committed. The court must set the place of trial
within the district with due regard for the convenience of the defendant, any victim, and the
witnesses, and the prompt administration of justice.”). As a “basic requirement of due process,”
a criminal defendant has the right to a “fair trial in a fair tribunal,” Irvin v. Dowd, 366
U.S. 717, 722 (1961) (citation omitted), as well as a Sixth Amendment right to a trial “by an
impartial jury of the State and district wherein the crime [was allegedly] committed.” U.S.
Const. amend. VI. Thus, pursuant to Rule 21(a) of the Federal Rules of Criminal Procedure, a
court “must transfer the proceeding against that defendant to another district if the court is
satisfied that so great a prejudice exists in the transferring district that the defendant cannot
obtain a fair and impartial trial there.” FED. R. CRIM. P. 21(a).
In Skilling v. United States, the Supreme Court recognized that “if extraordinary
local prejudice will prevent a fair trial,” it may be necessary to transfer a proceeding “to a
different district at the defendant’s request.” Skilling v. United States, 561 U.S. 358, 378 (2010).
The Supreme Court set forth a list of three non-exhaustive factors to consider in determining
whether prejudice exists: (1) “the size and characteristics of the community in which the crime
occurred”; (2) whether media coverage of the crime “contained [a] confession or other blatantly
prejudicial information of the type readers or viewers could not reasonably be expected to shut
from sight”; and (3) whether the time between the crime and the trial has “diminished” the “level
of media attention.” Id. at 382-83. The Supreme Court also cautioned that a “presumption of
prejudice . . . attends only the extreme case” and that “[p]rominence does not necessarily produce
prejudice, and juror impartiality . . . does not require ignorance.” Id. at 381.
The D.C. Circuit has stated that it is “well established procedure” for a court to
decline to transfer venue except in “extreme circumstances.” United States vy. Haldeman, 559
F.2d 31, 60, 64 (D.C. Cir. 1976) (en banc) (per curiam). Instead, voir dire is the preferred means
of excluding prejudiced jurors. See id. at 62 (counseling against a “pre-voir dire conclusion” that
“a fair jury cannot be selected”). “[I]f an impartial jury actually cannot be selected, that fact
should become evident at the voir dire.” Id. at 63.
III. DISCUSSION
A, Jury Surveys
Mr. GossJankowski cites two jury surveys in his motion — the Select Litigation
' Survey and the ILR Survey — and argues that these surveys “lead to the inescapable conclusion
that prejudice has attached to the D.C. jury pool.” Mot. at 4. Other judges of this court,
however, have considered the same surveys in the context of motions to transfer venue, and have
found that these surveys are “flawed” and fail to “supply persuasive evidence that would support
a decision to transfer the case without trying the voir dire process first.” United States v.
Garcia, 2022 WL 2904352, at *10; see also, e.g., United States v. Nassif, 2022 WL 4130841,
at *8-11; United States v. Rhodes, 2022 WL 2315554, at *20-23.
In United States v. Garcia, Judge Amy Berman Jackson examined both the Select
Litigation Survey and ILR Survey and found both to be flawed. The first problem with the two
surveys, she concluded, is that these surveys are not representative of the D.C. jury pool. See
United States vy. Garcia, 2022 WL 2904352, at *10. With respect to the Select Litigation Survey,
“99% of the D.C. respondents were ‘officially registered to vote in Washington, D.C.’” Id.
at *11 (quoting Select Litigation Survey at 14). In contrast, the D.C. master jury wheel generates
lists of potential jurors from three different sources, consisting of “the Registered Voters Master
File of the D.C. Board of Elections”; “D.C. Department of Motor Vehicles records ‘of
individuals 18 years and older who hold a driver’s license, learner’s permit, or valid
identification card’”; and “the list of all individuals of the District of Columbia whose income
tax forms are filed with the D.C. Department of Finance and Revenue.” Id. at *10 (citing Jury
Selection Plan for the United States District Court for the District of Columbia for the Random
Selection of Grand and Petit Jurors, United States District Court: District of Columbia, 1 (2016),
https://www.decd.uscourts.gov/sites/dcd/files/JurySelectionPlan2016.pdf). These sources include
swaths of the D.C. population beyond individuals registered to vote in the District of Columbia.
Thus, the Select Litigation Survey “excludes many [potential jurors] who live or work [in the
District of Columbia] but may have no particular political affiliation or interest” and fails to
“target the full range of this district’s jury pool.” Id. Because the Select Litigation Survey’s
“method utilized for selecting survey participants is unexplained, there are no grounds to feel
confident that it accurately reflects the views of a cross-section of the D.C. jury pool.” Id.
at *11. This Court agrees with Judge Jackson.
The ILR Survey also offers “limited utility as a predictor of juror behavior.”
United States v. Garcia, 2022 WL 2904352, at *11. Although this survey purports to rely on this
Court’s Jury Selection Plan in creating its list of potential survey respondents, the survey still
fails to “specify the sources it used” to generate its list, “clarify how [a] ‘supplemental list of
consumers’ was generated or obtained,” or “describe how that [supplemental] list might be
related to the sources utilized by the Jury Office.” Id.In addition, both surveys suffer from the problem of flawed questions. As
Judge Jackson explained, the respondents to the Select Litigation Survey “were informed that [it]
was a public opinion poll, and the questions specifically asked for a prediction based on what
respondents had ‘heard or read[]’ [about January 6 defendants] or to guess about a theoretical
case.” United States vy. Garcia, 2022 WL 2904352, at *12 (quoting question four of the Select
Litigation Survey: “From what you have heard or read, do you think the people who were
arrested for activities related to those demonstrations are guilty or not guilty of the charges
brought against them?”). The questions that the Select Litigation Survey posed to respondents
do not offer much insight on what potential jurors who are “screened for biases during voir dire
and asked if they can put aside what they have read or heard, and who are specifically instructed
that they may base their verdicts only on the evidence, will do when called upon to render a
verdict with respect to an individual defendant.” Id.The ILR Survey is similarly flawed in the questions it posed to respondents. The
survey asked “how respondents feel about current events, or to speculate, rather than how they
would behave during the formality of a jury trial.” United States v. Garcia, 2022 WL 2904352,
at *13. For example, question three of the ILR Survey — which asked whether respondents were
“more likely to find a defendant charged with crimes for activities on January 6th guilty or not
guilty” — “called for the ‘likely’ result in an abstract case with an unidentified defendant,
and . . . d[id] not do much to show that jurors would ultimately find any particular defendant
guilty, or refuse to view the evidence objectively even if instructed to do so by the presiding
judge.” Id. (quoting ILR Survey at 22).
For the same reasons articulated by Judge Jackson in United States v.
Garcia — and by other judges of this court — the Court is not persuaded that either the Select
Litigation Survey or the ILR Survey demonstrate that the risk of juror prejudice against
Mr. GossJankowski is so great as to warrant transfer of venue. Based on the imprecise
formulation of their questions, both surveys draw overgeneralized conclusions from their results.
See, e.g., Select Litigation Survey at 4 (“An overwhelming majority of the District of Columbia
jury pool have a prejudgment about the case.”); ILR Survey at 5 (“The results . . . show that bias
against individual defendants can be reasonably imputed from bias against the group of all
defendants charged with crimes related to the [e]vents of January 6th.”).
Furthermore, irrespective of the flaws in the surveys, the D.C. Circuit has held
that the results of jury surveys do not necessitate mandatory transfer of venue before voir dire.
In United States v. Haldeman, the defendants — including high-level White House officials and
the former Attorney General of the United States, prosecuted in connection with the Watergate
scandal — commissioned a poll showing that “93% of the Washington, D.C. population was
found to know of the [Watergate] indictments”; “73% of those people were found to have an
opinion of guilt or innocence[,] a proportion 15% more than the corresponding national average
and 23% more than in one other sampled area, close by Richmond, Virginia”; and “the
proportion of the total Washington, D.C. population that thought the [defendants] to be in fact
guilty was about 61%[,] [which was] significantly higher than the corresponding national
average of about 43%.” See United States v. Haldeman, 559 F.2d at 144 (MacKinnon, J.,
concurring in part and dissenting in part). Nevertheless, despite these results and the prominence
of the defendants on trial, the D.C. Circuit concluded that the district 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.” Id. at 64.43. As in United States v. Haldeman, the Select Litigation
Survey and ILR Survey in this case do not support a finding of prejudice or the need for a change
of venue.
In addition to the jury surveys, Mr. GossJankowski argues that each of the three
factors that the Supreme Court articulated in United States v. Skilling for assessing potential
juror prejudice compels transfer of venue in this case. Mot. at 3. The Court disagrees and will
address each Skilling factor in turn.
B. Size and Makeup of D.C. Juror Pool
The first Skilling factor requires the Court to assess “the size and characteristics
of the community in which the crime occurred” to determine whether there is potential prejudice.
10
Skilling v. United States, 561 U.S. at 382. Mr. GossJankowski asserts that the “size and makeup
of the D.C. juror pool ensures that prejudice has attached.” Mot. at 10. He argues that the
District of Columbia is a relatively small major U.S. city, with a total population of
approximately 690,000 residents, and that “an enormous share of D.C. residents has connections
with the federal government and entities that were directly affected by January 6.” Id. at 10-12.
He points out that a large proportion of D.C. residents work for the federal government,
including Congress; many D.C. residents have friends or family in law enforcement who
responded to the Capitol on January 6; D.C. residents “report feeling deeply traumatized by the
events that took place so close to where they live and work”; and “an overwhelming number” of
D.C. residents voted for President Biden, whose electoral college certification was the target of
the conduct of January 6 defendants. Id. at 10-13.
Judge Bates considered similar arguments in United States v. Nassif. As
Judge Bates explained, “courts have rejected the presumption of prejudice when confronted with
similarly sized — and indeed smaller — populations” as the population of the District of Columbia.
United States v. Nassif, 2022 WL 4130841, at *9 (citing Skilling v. United States, 561 U.S.
at 382 (noting that there is a “reduced likelihood of prejudice where the venire was drawn from a
pool of over 600,000 individuals”); see United States v. Taylor, 942 F.3d 205, 223 (4th
Cir. 2019) (affirming denial of venue transfer motion where local population “was
approximately 621,000 residents’’)). In addition, as Judge Jackson explained, this court’s
“master list of available jurors is large enough to include individuals who have paid little or no
attention to the January 6 cases. It includes several hundred thousand District residents who may
not be involved in policy or politics or the operation of the federal government at all [and] who
travel to and from work or school without coming near the Capitol.” United States v.
11
Garcia, 2022 WL 2904352, at *8. And with respect to the political leanings of potential D.C.
jurors, such leanings “are not, by themselves, evidence that those jurors cannot fairly and
impartially consider the evidence presented.” Alford Order at 6; see United States v.
Haldeman, 559 F.2d at 64 n.43.
During oral argument on January 17, 2023, counsel for Mr. GossJankowski
contended that as more January 6 defendants go to trial and as more D.C. residents become
jurors in January 6 trials, the more the D.C. jury pool shrinks. See Transcript of Motions
Hearing, January 17, 2023 (“Tr.”) at 3:1-3:15.! The Court is unpersuaded by this argument.
There have been approximately twenty January 6 jury trials so far. With a jury of twelve for
each trial — and with the generous assumption of four alternate jurors on each jury — sixteen
jurors for twenty trials would result in 320 individuals who potentially would have to be
excluded from serving on a jury in another January 6 trial. That is an extremely small number
when compared to the District of Columbia’s total population of 690,000 residents. The fact that
jurors are being impaneled for other January 6 trials has no meaningful impact on the number of
potential jurors for Mr. GossJankowski’s trial. It therefore is not a reason to transfer his trial
from this district.
C. Media Coverage
The second Skilling factor is whether media coverage of the defendant’s conduct
at issue “contained [a] confession or other blatantly prejudicial information of the type readers or
viewers could not reasonably be expected to shut from sight.” Skilling v. United States, 561
US. at 382. Mr. GossJankowski argues that he is prejudiced by media coverage of the events of
l No official transcript of these proceedings has yet been prepared. References are
to a rough draft of the transcript generated by the court reporter at the Court’s request.
12
January 6 in the District of Columbia. Mot. at 14. The Court disagrees. “The mere existence of
intense pretrial publicity is not enough to make a trial unfair, nor is the fact that potential jurors
have been exposed to this publicity.” United States v. Childress, 58 F.3d 693, 706 (D.C.
Cir. 1995). Jurors need not be “totally ignorant of the facts and issues involved” in a case;
rather, “[i]t is sufficient if the juror can lay aside his impression or opinion and render a verdict
based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. at 722-23. Even if media
coverage is “pervasive and concentrated,” pretrial publicity “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). In addition, “[w]hen publicity is about [an] event, rather than
directed at the individual defendants, this may lessen any prejudicial impact.” Skilling v. United
States, 561 U.S. at 384 n.17 (citation omitted).
The second Skilling factor therefore does not support a transfer of venue. As
Mr. GossJankowski himself acknowledges, “[m]ost, if not all” of the media coverage of the
events of January 6 “has nothing to do with Mr. GossJankowski or this prosecution.” Mot. at 16.
By contrast, in Rideau v. Louisiana, the pretrial publicity that led the Supreme Court to
determine that there was prejudice against the defendant involved a recording of the defendant’s
interrogation and confession, which was broadcast in a small town prior to trial. See Rideau v.
Louisiana, 373 U.S. 723, 724 (1963). Mr. GossJankowski’s case is very different. It is likely
that “not a single member of the venire will ever have heard of [Mr. GossJankowski], much less
have formed an opinion of his guilt.” United States v. Nassif, 2022 WL 4130841, at *10. The
Court is also unpersuaded by Mr. GossJankowski’s attempt to distinguish his case from Skilling,
where the Supreme Court concluded that a change of venue was unwarranted in the criminal
13
prosecution of a former Enron executive despite extensive local media coverage. See Skilling v.
United States, 561 U.S. at 367-68, 385.
D. Time Between January 6 and Trial
The third Skilling factor is whether the time between the date the offense was
committed and the date of trial has “diminished” the “level of media attention.” Skilling v.
United States, 561 U.S. at 383. Mr. GossJankowski suggests that for the past twenty months,
D.C. residents have been exposed to “extensive and persistent” news coverage of the events of
January 6. Mot. at 16-17. Mr. GossJankowski’s trial, however, is scheduled to begin on
February 27, 2023 — over two years after the events of January 6, 2021 and his arrest on
January 18, 2021. While media coverage of January 6 has continued, particularly around the
anniversary of the event, “it no longer dominate[s] the news and ha[s] become less intense than it
was in the immediate aftermath of the riot.” United States v. Garcia, 2022 WL 2904352, at *9
(citing In re Tsarnaev, 780 F.3d 14, 22 (1st Cir. 2015) (“The nearly two years that have passed
since the [Boston] Marathon bombings has allowed the decibel level of publicity about the
crimes themselves to drop and community passions to diminish.”’)). There is also no indication
that Mr. GossJankowski’s case in particular has been heavily featured in the news. The Court
therefore concludes that the current media coverage “‘is not of the type or tenor requiring a
transfer of venue.” United States v. Nassif, 2022 WL 4130841, at *10.?
2 During oral argument, counsel for Mr. GossJankowski highlighted a fourth
Skilling factor: whether a jury’s verdict “undermine[s] in any way the supposition of juror bias.”
Skilling v. United States, 561 U.S. at 383; see Tr. at 2:8-2:25. Counsel argued that this factor
reinforces Mr. GossJankowski’s argument that he cannot receive a fair and impartial jury trial in
this district because nearly every jury trial in a January 6 case has resulted in the conviction of
the defendant or defendants on all counts.
14
E. The Sufficiency of Voir Dire
The Court agrees with the other judges of this court who have concluded that voir
dire is the appropriate means of assessing potential juror prejudice. As Judge Jackson pointed
out, “[t]he January 6 cases will not be the first politically or emotionally charged trial in the
District of Columbia.” United States v. Garcia, 2022 WL 2904352, at *6. In those other
cases — relating to the assassination of President Garfield in 1881, the Teapot Dome scandal in
the 1920s, the shooting of members of Congress from the gallery of the House of
Representatives in 1954, the Watergate scandal in the 1970s, John Hinckley’s attempted
assassination of President Reagan in 1981, and, more recently, the prosecutions of
Scooter Libby, Senator Ted Stevens, Paul Manafort, and Roger Stone — “the safeguard against a
biased jury has always been the same: an ‘extensive voir dire’ with a ‘detailed inquiry into the
sources and intensity of the [ ] exposure to [pretrial] publicity.’” Id. (quoting United States v.
Haldeman, 559 F.2d at 69). In fact, several juries have successfully been impaneled in other
January 6 cases, including cases involving defendants who have received much more individual
news coverage than Mr. GossJankowski has. See Minute Entry, United States v. Rhodes, Crim.
No. 22-15 (D.D.C. Sept. 27, 2022) (“Minute Entry for proceedings [in Oath Keepers trial] held
before Judge Amit P. Mehta: Jury Selection as to ELMER STEWART RHODES, III (1),
KELLY MEGGS (2), KENNETH HARRELSON (3), JESSICA WATKINS (4), and THOMAS
The Court disagrees that this factor supports Mr. GossJankowski’s request to
transfer venue. Whether a jury’s verdict “undermine[s] in any way the supposition of juror bias”
is not for this Court to consider at this stage of the proceedings, before a jury in
Mr. GossJankowski’s trial has even been selected, let alone reached a verdict. See Skilling v.
United States, 561 U.S. at 383 (“It would be odd for an appellate court to presume prejudice in a
case in which jurors’ actions run counter to that presumption.” (emphasis added)). Moreover,
the jury verdicts in other January 6 trials, with facts specific to those defendants, do not support
juror prejudice against Mr. GossJankowski.
15
EDWARD CALDWELL (10) began and held on 9/27/2022.”); see also United States v.
Garcia, 2022 WL 2904352, at *10 (collecting cases and concluding that “[t]o date, courts have
had little difficulty qualifying enough jurors to empanel juries, with the requisite number of
alternates, in January 6 cases”). Accordingly, there is no reason to transfer this case from the
District of Columbia to another jurisdiction without first attempting to voir dire potential jurors.
For the foregoing reasons, it is hereby ORDERED that Mr. GossJankowski’s
Amended Motion for Transfer of Venue [Dkt. No. 79] is DENIED; and it is
FURTHER ORDERED that Mr. GossJankowski’s Motion for Transfer of Venue
[Dkt. No. 71] is DENIED as moot.
SO ORDERED.
One a
PAUL L. FRIEDMAN
United States District Judge
DATE: , | 25/23
16