United States v. Zink ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 21-191 (JEB)
RYAN SCOTT ZINK,
Defendant.
MEMORANDUM OPINION
Defendant Ryan Scott Zink was a member of the crowd that stormed the U.S. Capitol on
January 6, 2021. He is charged with multiple criminal counts related to such conduct. With trial
fast approaching, the Government has filed three Motions in Limine to preclude certain evidence.
As it has in the past with identical motions relating to other January 6 defendants, the Court will
largely grant these Motions. Zink, meanwhile, has filed one Motion to Obtain Certain Evidence
from the Government and two Motions in Limine to preclude other evidence. The Court will
largely deny his Motions.
I. Background and Legal Standard
Zink has been indicted on four counts: Obstruction of an Official Proceeding, in violation
of 18 U.S.C. § 1512(c)(2) and (2) (Count I); Entering and Remaining in a Restricted Building or
Grounds, in violation of 18 U.S.C. § 1752(a)(1) (Count II); Disorderly and Disruptive Conduct in
a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2) (Count III); and
Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D) (Count IV).
See ECF No. 6 (Indictment). Both sides have now filed Motions in Limine.
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“[M]otions in limine are a means for arguing why ‘evidence should or should not, for
evidentiary reasons, be introduced at trial.’” Graves v. District of Columbia, 850 F. Supp. 2d 6,
11 (D.D.C. 2011) (emphasis omitted) (quoting Williams v. Johnson, 747 F. Supp. 2d 10, 18
(D.D.C. 2010)). They “are ‘designed to narrow the evidentiary issues for trial and to eliminate
unnecessary trial interruptions.’” Id. at 10 (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d
1064, 1069 (3d Cir. 1990)). The court has “broad discretion in rendering evidentiary rulings, . . .
which extends . . . to the threshold question of whether a motion in limine presents an evidentiary
issue that is appropriate for ruling in advance of trial.” Barnes v. District of Columbia, 924 F.
Supp. 2d 74, 79 (D.D.C. 2013).
Although state and federal rulemakers have the prerogative to fashion standards for the
inclusion of evidence at trial, the Constitution guarantees to criminal defendants the right to a
“meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S.
319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). This limits courts’
ability to impose “arbitrary” rules of evidence, including those that exclude “important defense
evidence” without serving “any legitimate interests,” or are otherwise “disproportionate to the
purposes they are designed to serve.” Id. at 324–25 (internal quotation marks omitted). At the
same time, it falls within a court’s discretion to exclude evidence that is not relevant or whose
probative value is outweighed by prejudicial factors. Id. at 326; see also id. at 330 (noting that
evidentiary rules seek to “focus the trial on the central issues by excluding evidence that has only
a very weak logical connection to the central issues”).
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II. Analysis
A. Government Motions
The Government has filed three Motions in Limine. They respectively request that this
Court restrict: (1) cross-examination regarding the Secret Service’s protocols for protecting high-
ranking executive officials, see ECF No. 52 (Secret Service Motion), (2) arguments and evidence
regarding inaction on the part of Capitol Police on January 6, 2021, see ECF No. 53 (Law
Enforcement Inaction Motion), and (3) evidence regarding the precise locations of U.S. Capitol
Police surveillance cameras. See ECF No. 54 (Camera Motion). The Court addresses each in
turn.
1. Secret Service Motion
The Government first moves to limit cross-examination of U.S. Secret Service witnesses,
seeking to exclude testimony about agency protocols for protecting high-ranking executive-
branch officials at the U.S. Capitol. See Secret Service Mot. at 2. Out of a concern for national
security, the Government requests that the questioning of such witnesses be limited to whether
the Capitol and its grounds were “restricted” on January 6. Id. at 3–4. Zink opposes the
Government’s request but never offers any substantive argument for why the Court should deny
this Motion. See ECF No. 57 (Def. Resp.). Because the Government represents that the
protocols at issue will be beyond the scope of direct examination, the Court will exclude such
testimony — with the caveat that Defendant may cross-examine within the scope of direct
testimony should the Government elicit these details there. See United States v. Bru, No. 21-
352, 2023 WL 4174293, at *2 (D.D.C. June 26, 2023) (granting identical motion).
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2. Law Enforcement Inaction Motion
The Government next seeks to preclude Zink from (1) raising a defense of entrapment by
law-enforcement officials, and (2) offering any evidence or argument that such officials’ failure
to act made Defendant’s entry into the restricted area lawful. In the alternative, it asks the Court
to preclude Zink from offering any evidence or argument concerning alleged inaction by such
officials “unless the defendant specifically observed or was otherwise aware of such conduct.”
Law Enforcement Inaction Mot. at 1. In response, Defendant contends that he “has a right to
introduce evidence and testimony” about “[p]olice refusal to stop, enforce, or otherwise follow
the law,” since this evidence is “material to the defendants’ defense.” ECF No. 56 (Def. Resp.)
at 2–3. This Court has previously agreed that precluding all evidence of potential law-
enforcement inaction on January 6 before trial “would be premature and should await the
presentation of evidence at trial.” United States v. Mock, No. 21-444, 2023 WL 3844604, at *3
(D.D.C. June 6, 2023) (quoting United States v. Carpenter, No. 21-305, 2023 WL 1860978, at *3
(D.D.C. Feb. 9, 2023)).
The Court will follow this well-trodden path and will not at this time “categorically
preclude an entrapment-by-estoppel defense.” Id. It will, however, grant the Government’s
alternative request. As in Mock, Defendant here does not — indeed, cannot — argue that
evidence of police inaction is admissible if he did not observe it. Id. (stating that “unobserved
behavior” would be “irrelevant under Federal Rule of Evidence 401”). Both sides otherwise
agree that any evidence of what Zink saw could be relevant to his state of mind. See Law
Enforcement Mot. at 4. Since Defendant will still be able to introduce evidence of what he
actually observed, the Court will thus grant the Government’s Motion in part.
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3. Camera Motion
The Government last moves to exclude information about the precise locations of
Capitol Police cameras, citing national-security concerns. See Camera Mot. at 2. It also requests
that, should the defense believe during the course of trial that such locations have become
relevant, the Court conduct an in camera hearing to resolve the issue. Id. at 5–6. The Court
recently granted a virtually identical motion with the same proviso in another January 6th trial.
See Mock, 2023 WL 3844604, at *2. It again finds that balance appropriate here, particularly
because Defendant has not registered any opposition to this Motion.
Defendant is unlikely to need to probe the precise placement and scope of individual
security cameras; general descriptions of each camera’s location, along with the video footage
each shows, should suffice. The Government, moreover, raises significant national-security
concerns with identifying camera locations, which would reveal areas not under video
surveillance and could result in security breaches. See Camera Mot. at 5; see also generally ECF
No. 54-1 (Declaration of Thomas DiBiase) (explaining security concerns). The Court will
accordingly preclude the defense from questioning witnesses about the precise location of
Capitol Police cameras but will allow in camera proceedings should Zink establish that
presentation of such locations becomes necessary during trial.
B. Defense Motions
Defendant requests that the United States disclose the identities of certain undercover
agents who he believes were present at the Capitol on January 6. See ECF No. 51 (Disclosure
Motion). He also moves in limine to restrict two categories of evidence: 1) signs and other
barriers that were allegedly not seen by Zink, see ECF Nos. 55 (Signage Motion), and 2) an
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aerial photograph of the Capitol. See ECF No. 62 (Aerial Photograph Motion). The Court now
turns to these Motions.
1. Disclosure Motion
Zink first moves to compel disclosure of “all undercover agents, Antifa activists, and
confidential human sources within the sphere of the Defendant’s alleged conduct on January 6,
2021.” Disclosure Mot. at 1. He contends that the identities of these individuals are “crucial” to
his ability to mount a defense. Id. at 2. The Government objects, arguing that Zink’s Motion has
no basis in fact and fails to explain how this broadly worded request is relevant to his defense.
See ECF No. 60 (Government Response to Disclosure Mot.) at 5–7.
Zink is certainly right that the identity of a potential undercover actor — assuming any
were present at the Capitol on January 6 — could be exculpatory evidence that the Government
must disclose under Brady v. Maryland, 373 U.S. 83 (1963). The Government recognizes as
much, too. See Gov’t Resp. to Disclosure at 7. For example, if an undercover officer or
informant directed or encouraged Defendant to enter the Capitol, that could well be relevant.
Yet Zink’s Motion never identifies a single individual he interacted with whom he now suspects
to be an undercover actor. Nor does he explain how the potential presence of “Antifa activists”
is relevant to any defenses he may raise. Instead, Zink’s Motion simply requests the
identification of any and all undercover Government agents who may have been present at the
Capitol on January 6, regardless of whether these purported actors could have affected or did
affect Zink’s conduct or state of mind. This request is far too broad. As a result, the Court will
deny his Motion subject to reconsideration upon a narrower request.
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2. Signage Motion
Defendant next moves to prevent the Government from introducing evidence or argument
regarding (1) signs and other barriers unless it “lays a foundation that Zink actually was in a
place to witness such features” and (2) the criminal conduct of others. See Signage Mot. at 1–2.
As is evident from Zink’s own Motion, both sides agree that the first category of evidence is
admissible so long as the Government provides an adequate foundation — meaning that Zink
could or should have seen these warnings — at trial. See id. at 1; ECF No. 59 (Government
Response to Signage Mot.) at 1. The Court will accordingly grant the Motion as to this category.
Zink’s second request is less compelling. Defendant argues that this category of evidence
should be excluded because it is “irrelevant, confusing, and misleading.” Signage Mot. at 2. He
seems to forget that he was charged with, inter alia, aiding and abetting the obstruction of an
official proceeding. See Indictment at 1 (Count I). Evidence of the criminal wrongdoing of
others is not only relevant but crucial to this count, since it is this conduct that Zink is charged
with aiding and abetting. The actions of other rioters, moreover, are relevant to some of the
other counts Zink faces. As an example, the rioters’ collective action is relevant to proving that
Defendant disrupted Congress in violation of 18 U.S.C. § 1752(a)(2), as courts have explained in
other January 6 cases. See, e.g., United States v. Rivera, 607 F. Supp. 3d 1, 9 (D.D.C. 2022)
(holding that defendant disrupted Congress by contributing to the overall riot that “collectively
disrupted Congressional proceedings”). Given what Zink has offered so far, the Court will deny
this Motion as to this category of evidence.
3. Aerial Photograph Motion
Zink’s final Motion seeks to exclude evidence or argument founded upon an aerial
photograph of the Capitol grounds with a red line superimposed to show the restricted area’s
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perimeter on January 6. See ECF No. 62 (Aerial Photograph Mot.) at 1; ECF No. 66
(Government Response to Photo Mot.) at 3 (depicting photograph in dispute). Zink contends
that this piece of evidence is not admissible under the Federal Rules of Evidence because it does
not depict what actually existed on January 6 and is thus a fake. See Aerial Photograph Mot. at 4
(“There was of course never any red line painted on the ground around the U.S. Capitol.”). He
further maintains that the photograph is irrelevant because it was never posted on the Capitol
grounds. See id. at 7. The Government retorts that the photograph is relevant to establishing the
restricted area and that it helps the jury understand the layout of the grounds. It readily
concedes, moreover, that no actual red line existed and that Defendant was not aware of the
photograph itself. See Gov’t Resp. to Photo at 4–5.
With these caveats, the Court sees no basis to bar the photograph’s admission. To prove
that Zink violated 18 U.S.C. § 1752(a)(1) (Count II), for instance, the Government must show
that he entered or remained “in any restricted building or grounds.” 18 U.S.C. § 1752(a)(1). The
photograph is plainly probative of the boundaries of the restricted area, which the Government
will have to establish with eyewitness testimony, and whether Defendant ever crossed said
boundaries on January 6. Title 18 U.S.C. § 1752(a)(2) (Count III) similarly requires the
Government to establish that Zink engaged in “disorderly or disruptive conduct in, or within . . .
proximity to, any restricted building or grounds.” Here, too, evidence as to the boundaries of the
restricted area is highly relevant. The probative value of the photograph thus outweighs any
potential prejudice or cumulativeness. See Fed. R. Evid. 403. Zink’s conclusory allegations that
the photograph has been “doctored,” Aerial Photograph Mot. at 4, do nothing to change the
Court’s conclusion, so it will deny this Motion. The Government, of course, must still
authenticate the photograph at trial through witness testimony. See Fed. R. Evid. 901(b)(1).
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And Defendant will have an opportunity at that time to cross-examine these witnesses about the
exact contours of the restricted area.
III. Conclusion
The Court, accordingly, will grant the Government’s Motions in Limine regarding Secret
Service testimony and Capitol camera locations in full and will grant its Motion regarding law-
enforcement inaction in part. The Court will also grant in part Defendant’s Motion in Limine
regarding signage and will deny his other Motions. A separate Order so stating will issue this
day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: August 14, 2023
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