United States v. Jackson ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 21-mj-115
EMANUEL JACKSON, Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION AND ORDER
In connection with the government’s motion for pretrial detention of defendant Emanuel
Jackson, who is charged with both felony and Class A misdemeanor violations for his conduct on
January 6, 2021, as part of the mob that violently breached the restrictions surrounding the
Capitol during the Joint Session of Congress convened to count electoral college votes from the
2020 Presidential election, the government submitted to the magistrate judge and to this Court,
unsealed, a total of five video clips of varying lengths and sources showing images of defendant
on that day (“Video Exhibits”). Gov’t’s Opp’n Def.’s Rev. Mot. (“Gov’t’s Opp’n”), Exs. 1–5.
NBC Washington News requested access to the Video Exhibits in a letter, which was docketed,
pursuant to LCrR 17.2(c) and LCrR 57.6, see Court’s Notice, ECF No. 16, to give the parties an
opportunity to respond, Min. Order (Feb. 26, 2021). While the government takes no position on
releasing the Video Exhibits to the media, Gov’t’s Resp. to Court’s Feb. 26, 2021 Min. Order
(“Gov’t’s Resp.”) at 2, ECF No. 20 (stating “government would submit to the Court’s discretion
regarding providing the exhibits to NBC News”), defendant objects and seeks to seal this
evidence, Def.’s Response to Court and Motion to Seal (“Def.’s Mot. Seal”) at 2, ECF No. 19.
For the reasons set out below, defendant’s Motion to Seal is DENIED and NBC News’
request for access to the Video Exhibits is GRANTED.
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I. BACKGROUND
Defendant Emanuel Jackson turned himself in to the Federal Bureau of Investigation
(“FBI”) and was charged, on January 19, 2021, in a criminal complaint with assaulting an officer
of the United States and doing so with a deadly or dangerous weapon, in violation of 18 U.S.C.
§§ 111(a) and (b), obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c)(2),
unlawful entry and physical violence on restricted building or grounds, in violation of 18 U.S.C.
§§ 1752(a) and (b), and violent entry and disorderly conduct on Capitol grounds, in violation of
40 U.S.C. § 5104(e)(2). Compl. at 1, ECF No. 1. These charges stemmed from defendant’s
participation in the assault on the United States Capitol building on January 6, 2021, which
disrupted for several hours the certification of the vote count of the Electoral College for the
2020 Presidential Election. Compl., Attach. 1, Aff. at 1, ECF No. 1-1.
Defendant was detained at his initial appearance, on January 19, 2021, in this District,
Minute Entry (Jan. 19, 2021), and, at a subsequent detention hearing, on January 22, 2021, the
magistrate judge granted the government’s motion for pretrial detention, Min. Entry (Jan. 22,
2021); Order of Detention Pending Trial, ECF No. 13. At the detention hearing, the government
submitted the Video Exhibits, which “were played during the detention hearing.” Gov’t’s Resp.
at 1 n.1 (citing Magistrate Judge Detention Hr’g Tr. (Jan. 22, 2021) (“MJ Hr’g”), ECF No. 9).
The five Video Exhibits—two from security cameras inside the Capitol building, one from a
police officer’s body-worn camera, and two from public online sources—are briefly described
below.
Video Exhibit 1, with the timestamp January 6, 2021 at 2:47 PM from a U.S. Capitol
security camera, is silent and 55 seconds in length, showing U.S. Capitol Police officers forming
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a line in a Capitol building entryway to block entry to a large crowd of rioters. See Gov’t’s
Opp’n, Ex. 1. At various points in the video, defendant is visible at the front of the crowd of
rioters jabbing a closed fist downward onto the helmet of one of the officers and, after the mob
heaves against the police line and successfully pushes into the Capitol building, defendant is
visible pushing an officer hard enough to dislodge the officer’s helmet.
Video Exhibit 2, without a timestamp from a different U.S. Capitol security camera, is
silent and 22 seconds in length, showing a Capitol building doorway from behind a police line.
See Gov’t’s Opp’n, Ex. 2. Defendant is again visible, this time using a black, metal baseball bat
to strike repeatedly at police officers, hitting the officers’ raised plastic shields, while another
rioter next to defendant similarly swings at the police with a helmet.
Video Exhibit 3, with a timestamp of January 6, 2021 at 4:49 PM from a police officer’s
body-worn camera, is 48 seconds, with sound. See Gov’t’s Opp’n, Ex. 3. Initially, many
different rioters are seen throwing objects at the police line and striking at police shields, and
then defendant is visible using the baseball bat repeatedly to strike the officers’ police shields.
Video Exhibit 4, without a timestamp and obtained from Getty Images, is 83 seconds in
length, taken from the side of a doorway the rioters are trying to breach. See Gov’t’s Opp’n, Ex.
4. Defendant is visible in this video clip holding the baseball bat in a large crowd of rioters, and
then retreating from the doorway, possibly due to pepper spray, droplets of which are seen in the
air. While defendant does not approach the doorway again during the clip, he is seen alternately
yelling along with the crowd and excitedly observing his surroundings.
Video Exhibit 5, without a timestamp and obtained from a social media post by
“@meldcole,” is 66 seconds in length, and captioned “‘I’m not here for Trump, I’m here for
America’ says the 19 year old who didn’t vote in last year’s election.” Gov’t’s Opp’n, Ex. 5.
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This video clip shows defendant on the Capitol grounds responding to questions from a person
off-camera. Defendant appears to have difficulty understanding certain questions posed, but
when asked what happened, defendant admits he had a bat and was pepper sprayed “in the eye,”
often repeating himself. When “asked why he is there,” defendant responds that he is “fighting
for America,” that he feels “we are being taken over by globalists, the Chinese,” that he is “here
for America.” When asked his age and whether he voted in the last election, defendant states
that he is nineteen and did not vote because he thought his vote “didn’t count,” but that he
“learned the lesson” and “will vote next in the midterms.” The first comment posted about the
video, by “@stretcharmstrong,” remarks “My man seems a little unwell, aside from the physical
pain. That’s just my superficial reading.”
A month after entry of the pretrial detention order, defendant sought review and release
on conditions. See Def.’s Mot. Review and Revocation of a Detention Order (“Def.’s Mot.
Rev.”), ECF No. 10. As support, defendant filed two exhibits, under seal. The first defense
exhibit, an expert neuropsychology evaluation, dated June 2020 and conducted pre-litigation “in
order to determine [defendant’s] need for disability services,” see Def.’s Mot. Rev., Ex. A,
Abbreviated Evaluation by Salya Namazi, Ph.D. (“Expert Evaluation”), ECF No. 11, details
defendant’s diagnosis with autism spectrum disorder, an intellectual disability and a language
disorder, noting his intellectual processing speed is in the first percentile out of 100 and his IQ is
in the fifth percentile out of 100, id. at 2, contributing to defendant’s language skills “range from
a ten- to eleven- year old level,” that “he does not have sufficient ability to independently
manage the basic language and literacy demands of life in a complex society,” that he “lacks
sufficient ability to make responsible decisions for himself,” id. at 5, and that he is at high risk
for “manipulation and being taken advantage of by others,” id. at 6. The second defense exhibit
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is a letter verifying defendant’s residency at an extended transitional housing program for
homeless youth, see Def.’s Mot. Rev., Ex. B, Letter from Roxanne Murray, Project Director,
Echelon Community Servs. (Feb. 17, 2021), ECF No. 11-1, which program, defense counsel
represents, will “welcome [defendant] back . . . with open arms,” Rough Hr’g Tr. at 9:7–9: (Feb.
25, 2021) (“Hr’g Tr. (Feb. 25)”), and will be able to “monitor [defendant’s]” compliance with
court-imposed release conditions, id. at 13:7–13:13.
In opposing defendant’s motion for review of the pretrial detention order, the government
submitted, unsealed, to the Court and defense counsel, the same five Video Exhibits previously
shown at the detention hearing before the magistrate judge. Gov’t’s Opp’n at 5 n.1; see id., Exs.
1–5.
At the hearing, on February 25, 2021, to review the magistrate judge’s pretrial
detention order, defendant supplemented the submitted expert report about defendant’s mental
disabilities with the testimony of a licensed clinical psychologist. See Hr’g Tr. (Feb. 25),
2:25–3:5. While acknowledging the “indisputably dangerous” nature of defendant’s conduct
depicted in the Video Exhibits, id. at 7:3–7:5, defense counsel pointed out that (1) defendant
had no prior criminal history, as this was his “first arrest [and] he has no history of violent
behavior,” Def.’s Mot. Rev. at 3; (2) defendant “is not a member of any anti-government,
hate, or militia-style groups,” id.; (3) defendant has a severe intellectual disability, autism
spectrum disorder, id. at 7:25–8:3; id. at 9:18–10:6; (4) defendant “owns no cell phone and is
not alleged to have communicated with any other attendees, before, during, or after the rally,”
Def.’s Mot. Rev. at 3; and (5) defendant turned himself in to the FBI, which otherwise had not
even identified him as the person depicted in the videos; indeed, after FBI agents “[defendant]
initially encountered outside of the building repeatedly told him that there was no warrant for
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his arrest,” he actually showed “the agents the FBI flyer on social media,” at which point he
was taken into custody, id.Highlighting the special circumstances of defendant’s mental condition, defense
counsel described defendant’s offense conduct as an isolated incident caused by the
confluence of his unique disability and the overwhelming social nature of the riot defendant
found himself pulled into. See Hr’g Tr. (Feb. 25) at 10:7–10:20; 11:23–11:25. To bolster this
point, defendant’s expert clinical psychologist testified that individuals with autism, like
defendant, struggle to “learn[ social] . . . rules, particularly rules about social behavior,” id. at
27:22–27:24, and so are prone to “mirror[ing] the behavior of the people around them,” for
lack of alternative or internal guidance, id. 29:4–29:7. At the same time, they often exhibit
“rigidity” and will “follow a rule . . . [or] what they believe to be a rule in a way that is so
inflexible that, at times, it is a problem.” Id. at 27:20–27:22. Individuals with autism are able
and motivated to follow rules that are “clear” and “explicit,” id. 27:25–28:2, such that
defendant’s compliance with conditions of release was reasonably assured, Rough Hr’g Tr. at
14:10–16:4 (Mar. 2, 2021) (“Hr’g Tr. (Mar. 2)”).
In response, the government argued pretrial detention was required because defendant
was dangerous, as the Video Exhibits showed him “attack[ing]” police officers, Hr’g Tr. (Feb.
25) at 22:11, at the front line of the mob assault on the Capitol building using an aluminum
baseball bat, id. at 22:20–22:21, and defendant continued to “affirmatively attack[]” the
officers, id. at 23:10–23:14, without provocation, id. at 33:25.
Defendant’s motion for pretrial release was granted and defendant was released to home
detention, with GPS location monitoring and other conditions of the High Intensity Supervision
Program (HISP). See Min. Entry (Mar. 2, 2021); Order Setting Conditions of Release at 2, ECF
6
No. 17. 1 Citing defendant’s self-identification to the FBI, Hr’g Tr. (Mar. 2) at 11:10–11:13, the
severity of defendant’s mental incapacity and the degree to which this condition makes him
“easily manipulated and susceptible to what’s going on around him,” id. at 12:5–12:16, his lack
of a criminal record or history of violence, id. at 13:14–13:16, his close family and community
ties to Washington, D.C., id. at 13:17–13:19, his housing instability and family circumstances,
id. at 13:5–13:13, and the availability of a third-party custodian at his transitional housing for
homeless youth to ensure defendant’s understanding of and compliance with court-ordered
release conditions, id. 15:21–16:4, the Court determined that the danger defendant posed could
be reasonably mitigated by a combination of conditions to reasonably assure the safety of other
persons and the community, see 18 U.S.C. § 3142(f). The reasoning behind the release
determination turned heavily on defendant’s intellectual disabilities, which served to explain how
a young person without a criminal record of any kind or history of any violence and generally
considered to be “exceedingly polite, likeable, and hardworking,” Expert Evaluation at 2, would
“out of nowhere . . . join[] this riot on January 6th,” Hr’g Tr. (Mar. 2) at 14:22–15:2.
On February 26, 2021, NBC Washington News submitted a letter to the Court seeking
immediate access to the government’s Video Exhibits. See Court’s Not. (Feb. 26, 2021).
Having received the parties’ positions, this media request is ripe for resolution.
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Aware that, in another case, United States v. Leffingwell, in which the defendant was charged with
assaulting a police officer inside the Capitol by pushing and striking the officer repeatedly in the helmet and chest
with his fists, Compl., Attach. 1, Aff. at 1, United States v. Leffingwell, Case No. 21-cr-05 (ABJ) (D.D.C. Jan. 7,
2021), ECF No. 1-1, the government had agreed to pretrial release due to that defendant suffering from memory
loss, see Pretrial Services Report (“PSR”), Leffingwell, Case No. 21-cr-05 (ABJ) (D.D.C. Jan. 8, 2021), ECF No. 4
(reporting that Leffingwell could not recall his address when asked where he lived); Min. Order (Jan. 8, 2021),
Leffingwell, Case No. 21-cr-05 (ABJ) (D.D.C. Jan. 8, 2021) (documenting government raising no objection to
Leffingwell’s pretrial release with conditions), the Court continued the hearing briefly, from February 25 to March
2, 2021, to give the parties an opportunity to reach a resolution on pretrial release.
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II. DISCUSSION
Defendant opposes release of the Video Exhibits to the media on grounds that this
evidence may be grand jury material and implicates defendant’s “constitutionally protected
interest” in “[f]undamental [f]airness,” Def.’s Mot. Seal at 2, and instead seeks to have these
exhibits placed under seal, id. The government disagrees with defendant’s reasons for sealing,
denying “that the exhibits are grand jury material or that the defendant has a constitutionally
protected interest,” Gov’t’s Resp. at 2, yet otherwise takes no position on providing public access
to this evidence, id. Neither party addresses whether the Video Exhibits qualify as judicial
records, the applicable legal principles governing public access to judicial records, or how those
principles apply to the Video Exhibits at issue here. These issues relevant to resolving the media
request for access and defendant’s sealing motion are addressed seriatim.
A. Video Exhibits Are Judicial Records
At the outset, the Video Exhibits are judicial records. The D.C. Circuit has “previously
explained, ‘not all documents filed with courts are judicial records.’” Leopold v. United States,
964 F.3d 1121, 1128 (D.C. Cir. 2020) (quoting SEC v. Am. Int'l Grp., 712 F.3d 1, 3 (D.C. Cir.
2013)); see also Am. Int’l Grp., 712 F.3d at 4 (finding consultant reports were not judicial
records because district court “made no decisions about them or that otherwise relied on them”);
United States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997) (finding plea agreement that
played no role in any adjudicatory function was not judicial record). Instead, “whether
something is a judicial record depends on ‘the role it plays in the adjudicatory
process.’” Leopold, 964 F.3d at 1128 (quoting Am. Int'l Grp., 712 F.3d at 3 (quoting El-Sayegh,
131 F.3d at 163)). Documents and other materials filed in court “intended to influence the
court,” Leopold, 964 F.3d at 1128, are judicial records. See, e.g., id. at 1129 (finding sealed
8
orders, applications for orders and supporting documents in criminal investigation matters, and
court dockets for these records, are judicial records); League of Women Voters v. Newby, 963
F.3d 130, 136 (D.C. Cir. 2020) (finding that “every part of every brief filed to influence a
judicial decision qualifies as a ‘judicial record’”); MetLife, Inc. v. Fin. Stability Oversight
Council, 865 F.3d 661, 668 (D.C. Cir. 2017) (holding that appellate briefs and appendices are
judicial records because they are “intended to influence” the court and the court “ma[kes]
decisions about them.”). 2
Here, the Video Exhibits were submitted to the magistrate judge and to this Court as
attachments to the government’s brief to “influence a judicial decision,” under the Bail Reform
Act, 18 U.S.C. § 3142, whether to detain or release defendant pending trial, see Gov’t’s Opp’n at
5 n.1; Newby, 963 F.3d at 136. The exhibits played a significant and meaningful role in the
adjudicatory process, with extensive discussion of these exhibits in the government’s briefing,
see Gov’t’s Opp’n at 5–6, 8–9, showing of the Video Exhibits at the detention hearing before the
magistrate judge, MJ Hr’g Tr. 3:25–4:13, 31:10–31:18, and close review of these exhibits by this
Court in considering whether defendant posed a danger to the community warranting pretrial
detention, Hr’g Tr. (Mar. 2) at 11:5–11:9, 12:22–13:4. 3
2
Other Circuits also use this broad definition of judicial records to extend “not only to items in evidence, but
rather more generally to ‘materials on which a court relied in determining the litigant’s substantive rights,’ which
may include ‘transcripts of proceedings [and] everything in the record, including items not admitted into evidence.’”
United States v. Graham, 257 F.3d 143, 152 (2d Cir. 2001) (quoting Smith v. United States Dist. Ct., 956 F.2d 647,
650 (7th Cir. 1992) and citing FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 40, 408 (1st Cir. 1987)). In Graham,
the Second Circuit held that video and audio recordings played at a pre-trial detention hearing but not introduced
into evidence as exhibits were nonetheless judicial documents subject to the presumption of public access,
explaining that “the definition of a ‘judicial document’ . . . extend[s] to any material presented in a public session of
court ‘relevant to the performance of the judicial function and useful in the judicial process’ whether or not it was
formally admitted.” 257 F.3d at 153 (quoting United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995)).
3
The fact that the Video Exhibits are not filed on the public docket has no bearing on whether they are
judicial records, since they are not in a format amenable to filing on the Court’s Case Management/Electronic Filing
(CM/ECF) system.
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This finding that the Video Exhibits are judicial records triggers a “strong presumption in
favor of public access.” Leopold, 964 F.3d at 1127 (quoting United States v. Hubbard, 650 F.2d
293, 317 (D.C. Cir. 1980); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573
(1980) (plurality opinion) (explaining that right of access “contributes to public understanding of
the rule of law and to comprehension of the functioning of the entire criminal justice
system”); Nixon v. Warner Commc’ns, 435 U.S. 589, 597 (1978) (“It is clear that the courts of
this country recognize a general right to inspect and copy public records and documents,
including judicial records and documents…”); MetLife, 865 F.3d at 674 (recognizing “the
longstanding common-law right of public access to judicial records -- a right that ‘antedates the
Constitution’”) (quoting El-Sayegh, 131 F.3d at 161). This common law “right to inspect and
copy judicial records is not absolute,” Nixon, 435 U.S. at 598, and “may be outweighed by
competing interests,” Leopold, 964 F.3d at 1127, as discussed next.
B. Presumptive Public Access to Judicial Records
The Supreme Court has instructed, “the decision as to access is one best left to the sound
discretion of the trial court, a discretion to be exercised in light of the relevant facts and
circumstances of the particular case.” Nixon, 435 U.S. at 599. The competing interests that may
overcome the presumption favoring public access to judicial records have been “crafted [] into a
six-factor test” originating in Hubbard. Leopold, 964 F.3d at 1127; id. at 1131 n.9 (noting that
the Hubbard factors are what “a court should weigh in ruling on a motion to seal or unseal a
judicial record” (citing MetLife, 865 F.3d at 665; Hardaway v. D.C. Housing Auth., 843 F.3d
973, 980, (D.C. Cir. 2016); Primas v. District of Columbia, 719 F.3d 693, 698–99 (D.C. Cir.
2013); In re Sealed Case, 237 F.3d 657, 666 (D.C. Cir. 2001); EEOC v. Nat’l Children’s Ctr.,
Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996); Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d
101268, 1277 (D.C. Cir. 1991)). The Hubbard six-factor test “has consistently served as our
lodestar” by “ensur[ing] that we fully account for the various public and private interests at
stake,” Metlife, 865 F.3d at 666, in evaluating motions to seal or to unseal and provide public
access to judicial records.
The Hubbard test considers:
“(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.”
Leopold, 964 F.3d at 1131 (quoting Metlife, 865 F.3d at 665); see also id. at 1129–30 (D.C. Cir.
2020) (explaining that unless “Congress has spoken directly to the issue at hand,” the “common-
law standard enshrined in the Hubbard balancing test” governs “[]sealing decisions” (internal
quotation marks omitted) (quoting Metlife, 865 F.3d at 669)); Hubbard, 650 F.2d at 317–22.
C. Application of Hubbard Factors
On balance, consideration of the Hubbard factors demonstrates that the arguments raised
in defendant’s motion to seal are insufficient to overcome the strong presumption of public
access to the government’s Video Exhibits.
1. Need for Public Access to Video Exhibits
“[T]he fact that the exhibits . . . were referenced in the [government’s] public filings may
create a public need for them.” Nat’l Children’s Ctr., 98 F.3d at 1410–11; see also Hubbard,
650 F.2d at 318 (finding that documents “specifically referred to in the trial judge’s public
decision” creates a public need for those documents). Media applications to inspect and copy
video exhibits have been granted where the exhibits raise “issues of major public importance
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related to the conduct not only of the defendant[] but also of government law enforcement
agents.” In re Appl. Nat’l Broad. Co., 653 F.2d 609, 620–21 (D.C. Cir. 1981).
NBC Washington News requested the Video Exhibits precisely because this evidence
reflects real-time images of the assault on the Capitol building on January 6, 2021 and this effort
to disrupt the democratic process in counting electoral votes for the peaceful transition of
Executive Branch power to the newly elected President. This violent challenge to a
constitutionally mandated process is of deep national importance and public interest both as to
the offense conduct and individuals involved, and the efforts of federal law enforcement agents,
prosecutors and the courts in handling the cases arising out the events on January 6th. Releasing
the exhibits would ensure the public is able to “keep a watchful eye on the workings of public
agencies” and the courts through the news outlet’s “intention to publish information concerning
the operation of government.” Nixon, 435 U.S. at 598 (citations omitted). This factor weighs
heavily in favor of public access.
2. Extent of Previous Public Access to Video Exhibits
“[P]revious access has been considered relevant to a determination whether more liberal
access should be granted to materials formerly properly accessible only on a limited basis
through legitimate public channels and to a determination [of] whether further dissemination of
already accessible materials can be restrained.” Hubbard, 650 F.2d at 318. As to Video Exhibits
4 and 5, which were retrieved, respectively, from Getty Images and Instagram, a social media
application, see Gov’t’s Opp’n, Exs. 4–5, the images are already readily accessible on the
internet and thus sealing of these exhibits in this case is both pointless and unwarranted.
By contrast, Video Exhibits 1 and 2, from security cameras inside the Capitol building,
and Video Exhibit 3, a video clip from a police officer’s body-worn camera, have not been made
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available online. Nevertheless, Video Exhibit 1 was publicly shown at the magistrate judge
detention hearing, see MJ Hr’g at 4:23–5:19, 11:8–11:24, a screenshot from Video Exhibit 3 was
included in the publicly-available criminal complaint, see Aff. at 3, and Video Exhibit 2 depicts
substantially the same conduct as Video Exhibit 3, merely from a different angle. While release
to the media of the full video clips in exhibits 1, 2 and 3, would allow more access than
previously provided in excerpted screenshots curated by the government, those screenshots
depict defendant’s most egregious conduct and therefore has already been made publicly
accessible. Further context for these already disclosed screenshots that shows the criminal acts
while occurring in this matter of national importance provides valuable information of public
interest. See In re Appl. Nat'l Broad. Co., 635 F.2d 945, 952 (2d Cir. 1980) (noting, in
ABSCAM public corruption criminal prosecutions, that “[t]hough the transcripts of the
videotapes [showing bribe payments to public officials] have already provided the public with an
opportunity to know what words were spoken, there remains a legitimate and important interest
in affording members of the public their own opportunity to see and hear evidence that records
the activities of a Member of Congress and local elected officials, as well as agents of the
Federal Bureau of Investigation.”). Thus, the second factor favors release of all the Video
Exhibits.
3. Identity of Person Objecting to Disclosure
The third Hubbard factor provides broader protection from disclosure “where a third
party’s property and privacy rights are at issue [and] the need for minimizing intrusion is
especially great . . . .” Hubbard, 650 F.2d at 319. As the D.C. Circuit explained, “the fact that
objection to access is made by a third party weighs in favor of non-disclosure.” Id. The only
party to object here is the defendant, not any third party, favors disclosure.
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4. & 5. Strength of Defendant’s Asserted Privacy Interests and Possibility of
Prejudice
The fourth and fifth Hubbard factors are considered together since, here, defendant’s
privacy and prejudice-related interests are the basis for his objection to disclosure and request for
sealing. As noted, defendant objects to disclosure of the Video Exhibits, arguing, first, that the
exhibits “are part of a potential grand jury investigation,” Def.’s Mot. Seal at 2, and,
consequently, making this evidence publicly available could result in “potential destruction of
mitigating evidence and the safety of potential witnesses . . . alert other individuals who are
subjects of an investigation of the existence and the extent of Mr. Jackson’s involvement, and []
might alert individuals to methods being used by law enforcement,” id., and thereby “could
prejudice an investigation, compromise the fairness of a grand jury, and endanger the safety of
Mr. Jackson, law enforcement agents, or other potential witnesses,” id. The government
disagrees with this asserted harm and makes no claim that the exhibits are grand jury material,
subject to the secrecy required under Federal Rule of Criminal Procedure 6(e).
Indeed, a major flaw in defendant’s argument is that just because an exhibit is presented
to a grand jury, or may be, as defendant suggests here, does not cloak the material with secrecy
or prompt the policy concerns animating such secrecy. As the D.C. Circuit has explained, “Rule
6(e) does not draw ‘a veil of secrecy . . . over all matters occurring in the world that happen to be
investigated by a grand jury.’” Labow v. United States Dep’t of Justice, 831 F.3d 523, 529 (D.C.
Cir. 2016) (quoting Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987)
(quoting SEC v. Dresser Indus. Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc))). Rather,
“the ‘touchstone’ is whether the information sought would reveal something about the grand
jury’s identity, investigation, or deliberation,” id., and merely because information could be, or
even was, presented to the grand jury does not trigger Rule 6(e) secrecy, without an affirmation
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that the grand jury considered the information. No such connection to grand jury consideration
has been made by the government and, therefore, the speculative jeopardy to grand jury
proceedings raised by defendant as a ground for sealing the Video Exhibits is unpersuasive.
Second, defendant seeks sealing of the Video Exhibits to protect a vaguely referenced
“constitutionally protected interest (‘Fundamental-Fairness’),” Def.’s Mot. Seal at 2, and to
avoid “a reasonable likelihood of substantial prejudice,” id. The fourth Hubbard factor is
designed to focus on the objecting party’s privacy interest in the particular material at issue, and
disclosure is discouraged where there is a possibility of “public humiliation and degradation”
that would “constitute an unconscionable invasion of privacy” to innocent third persons. In re
Appl. Nat’l Broad. Co., 653 F.2d at 620. This is simply not the situation here since defendant
wisely posits no privacy interests in the Video Exhibits themselves, and could not do so since the
images of defendant were captured while he was participating very publicly with a mob
assaulting the Capitol.
Defendant’s central argument that disclosure of the Video Exhibits would result in a
“reasonable likelihood of substantial prejudice” against defendant implicates the fifth Hubbard
factor. See Def.’s Mot. Seal at 2. “[T]the possibility of prejudice to the defendant[] by
sensational disclosure is a factor which may weigh in favor of denying immediate public access.”
Hubbard, 650 F.2d at 320–21. Here, however, defendant simply does not specify what
prejudice may result from disclosure that does not already arise from the fact that two of the
video exhibits, Video Exhibits 4 and 5, are already publicly available online and the obvious
circumstance that he has been charged with serious felony violations, based on alleged offense
conduct described in detail in publicly filed documents, including the criminal complaint and the
government’s briefs in support of pretrial detention. Further disclosures of his actual offense
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conduct as it occurred and captured on all five Video Exhibits may focus more attention on that
conduct and possibly exacerbate that prejudice, but not to an extent that overcomes the
presumption of public access. 4
6. Purpose for Which Video Exhibits Were Introduced
Finally, there is a “strong presumption of public access to documents that a litigant
submits with the intention that the court will rely on them.” United States v. All Assets Held at
Bank Julius Baer & Co., No. 04-cv-798 (PLF/GMH), 2020 U.S. Dist. LEXIS 244031, at *31
(D.D.C. Dec. 30, 2020). As the Video Exhibits were introduced for the Court’s consideration on
the matter of detaining defendant, the final factor weighs heavily in favor of disclosure. See In
re Appl. Nat’l Broad. Co., 653 F.2d at 620 (“conclud[ing] that the district court abused its
discretion when it denied the broadcasters’ post-trial application to inspect and copy the video
and audio tapes introduced into evidence and played to the jury in the criminal trial”). There are
exceptions to “the right to inspect and copy judicial records . . . where court files might have
become a vehicle for improper purposes . . . such as to ‘gratify private spite or promote public
scandal . . . ’” Nixon, 435 U.S. at 597 (quoting In re Caswell, 18 R.I. 835, 836 (1893)), but
defendant has made no claim, nor has government given the Court reason to believe, that the
Video Exhibits were introduced for any improper purpose.
Taken together, the presumption of access and additional interests supporting the media
request weigh heavily in favor of granting access to the Video Exhibits. The countervailing
interests, most notably the risk of prejudice to the defendant, are simply insufficient to justify
shielding the exhibits from public scrutiny.
4
While not mentioned by defendant, any concern about potential taint of the jury pool by allowing public
access to the Video Exhibits may be dismissed as premature, given that no trial date has been set and may be many
months away, if no disposition short of trial is reached, and also because alternative remedies exist to ensure that
defendant receives a fair trial, including a rigorous voir dire.
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III. ORDER
For the foregoing reasons, defendant has not overcome the strong presumption in favor of
public access to the exhibits. Accordingly, it is hereby
ORDERED that defendant’s Motion to Seal, ECF No. 9, is DENIED; and it is further
ORDERED that the government promptly provide Scott MacFarlane of NBC
Washington News with Video Exhibits 1–5 submitted in tandem with the government’s
Memorandum in Opposition to Defendant’s Motion for Review and Revocation of a Detention
Order, ECF No. 14.
SO ORDERED.
Date: March 17, 2021
__________________________
BERYL A. HOWELL
Chief Judge
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