United States v. Gunby

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Defendant.
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UNITED STATES OF AMERICA )
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v. ) Criminal No. 21-0626 (PLF)
)
DEREK COOPER GUNBY, )
)
)
)
MEMORANDUM OPINION AND ORDER
A jury trial in this matter is scheduled to commence on October 31, 2023. See
Fourth Amended Scheduling Order [Dkt. No. 77]. In anticipation of trial, the United States has
filed three motions in limine. See Motion in Limine Regarding Evidence About the Specific
Locations of U.S. Capitol Police Surveillance Cameras [Dkt. No. 60]; United States’ Motion in
Limine Regarding Cross-Examination of U.S. Secret Service Witness [Dkt. No. 61]; United
States’ Motion in Limine to Preclude Improper Defense Arguments and Evidence About Law
Enforcement [Dkt. No. 62].
Mr. Gunby opposes the government’s motions. See Defendant Gunby’s Response
to Government’s Motion in Limine #61 (To Preclude Cross-Examination of Secret Service
Witnesses) [Dkt. No. 73]; Defendant Gunby’s Response to Government’s Motion in Limine #60
(To Preclude Locations of Capitol Cameras) [Dkt. No. 74]; Defendant Gunby’s Reply to United
States Opposition to Motion to Suppress [Dkt. No. 72].! The government has filed a reply. See
l Mr. Gunby has not filed a motion to suppress. The Court assumes that the title of
this document is in error. Document Number 72 contains Mr. Gunby’s arguments opposing the
government’s motion to preclude Mr. Gunby from presenting an entrapment-by-estoppel
defense, a public authority defense or some variation thereof, and argument about alleged
inaction by law enforcement not observed by Mr. Gunby.
United States’ Reply to Defendant’s Response Concerning Preclusion of Improper Defense
Arguments and Evidence About Law Enforcement [Dkt. No. 80].
The Court considered nearly identical motions in limine and oppositions in United
States v. Baez, Crim. No. 21-0507, 2023 WL 6364648 (D.D.C. Sept. 29, 2023). The Court has
carefully considered the parties’ written submissions and the applicable authorities. For the
reasons stated below and in the Court’s September 29, 2023 Opinion in United States v. Baez,
the Court will grant the government’s motions.
I. LOCATIONS OF SURVEILLANCE CAMERAS
The government seeks to prevent Mr. Gunby from introducing evidence about
“the exact location” of United States Capitol Police surveillance cameras, arguing that such
evidence risks “compromising [] national security concerns for no additional probative value.”
Motion in Limine Regarding Evidence About the Specific Locations of U.S. Capitol Police
Surveillance Cameras [Dkt. No. 60] at 4. In opposition, Mr. Gunby presents unsubstantiated
claims that surveillance footage may be “missing” and asserts that the government is engaged in
an attempt to deceive the Court and the jury “regarding the level of ‘security’ on Capitol
grounds.” Defendant Gunby’s Response to Government’s Motion in Limine #60 (To Preclude
Locations of Capitol Cameras) [Dkt. No. 74] at 2, 4. Mr. Gunby’s claims are insufficient to
establish that evidence about the specific locations of U.S. Capitol Police surveillance cameras is
relevant to any fact of consequence in this case. The government’s motion is granted; Mr.
Gunby may not introduce or attempt to introduce evidence about the precise locations of US.
Capitol Police surveillance cameras at trial. See United States v. Baez, 2023 WL 6364648,
at *4-5,
IJ. SECRET SERVICE WITNESSES
The government “seeks an order limiting the cross-examination of the Secret
Service witnesses” because the “nature of the Secret Service’s role in protecting the Vice
President and his family implicated sensitive information related to that agency’s ability to
protect high-ranking members of the Executive branch, and, by extension, national security.”
United States’ Motion in Limine Regarding Cross-Examination of U.S. Secret Service Witness
[Dkt. No. 61] at 2. In his opposition, Mr. Gunby puts forth a number of legal arguments about
the definition of a “restricted building or grounds” — arguments which are irrelevant to the
specific request made in the government’s motion. See Defendant Gunby’s Response to
Government’s Motion in Limine #61 (To Preclude Cross-Examination of Secret Service
Witnesses) [Dkt. No. 73] at 1-6.
Mr. Gunby then asserts that his right to present a defense includes the right to ask
the following questions:
1. Whether anything defendant did exposed the Vice President to
any danger?
2. How far away was the Vice President or protectees from
defendants?
3. Could the Vice President or protectees see or hear defendants?
4. How many rooms, walls, spaces, or barriers separated the Vice
President from defendants?
5. What role did defendants play, if any, in disrupting or changing
events of January 6, 2021?
6. What signage, flyers, or other indicators might have indicated
any restrictive status to defendants?
7. What staffing or officers was present to indicate any restrictions
to defendants?
8. The appearance, circumstances, and setting experienced by
defendants.
9. If areas were restricted, what process was followed?
10. Who has or claims authority to restrict areas?
11. Who can end or lift restrictions? What is the process?
12. If barriers or signage was erected, when and how were such
barriers or signage moved?
Defendant Gunby’s Response to Government’s Motion in Limine #61 (To Preclude Cross-
Examination of Secret Service Witnesses) [Dkt. No. 73] at 8.
Most of the questions Mr. Gunby wants to ask Secret Service witnesses have
nothing to do with the government’s reasons for seeking to limit cross examination about Secret
Service protocols and protective details. Only the second, third, and fourth questions Mr. Gunby
lists in his opposition seem related to the government’s concern — the potential questioning of
Secret Service witnesses regarding “general protocols about relocation for safety,” which could
“compromise national security.” United States’ Motion in Limine Regarding Cross-Examination
of U.S. Secret Service Witness [Dkt. No. 61] at 4. For the reasons stated in United States v.
Baez, the Court concludes that specific testimony about the areas in the Capitol to which Secret
Service protectees were escorted is irrelevant under Rule 401 of the Federal Rules of Evidence.
See United States v. Baez, 2023 WL 6364648 at *5-6. Mr. Gunby may not ask Secret Service
witnesses the second, third, and fourth questions he enumerates in his opposition. Nor may he
solicit testimony from Secret Service witnesses about (1) Secret Service protocols for when
emergencies occur, including protocols related to the locations where protectees or their
motorcades are taken at the Capitol; and (2) operational specifics about Secret Service protective
details, such as the number and type of agents the Secret Service assigns to protectees. See id.
at *6. As for the other proffered questions, the Court will not decide at this time whether Mr.
Gunby may pose such questions to Secret Service witnesses. If Mr. Gunby asks these questions
at trial, the government may raise appropriate objections.
HI. ARGUMENT REGARDING LAW ENFORCEMENT INACTION
The government asks the Court to preclude Mr. Gunby “from making arguments
or attempting to introduce evidence that law enforcement actually gave permission to the
defendant to enter the U.S. Capitol Building or grounds,” or that law enforcement officers’
actions “rendered [his] conduct legal.” United States’ Motion in Limine to Preclude Improper
Defense Arguments and Evidence About Law Enforcement [Dkt. No. 62] at 1-2, 4. Mr. Gunby
argues that “[a]ny person allowed into the U.S. Capitol building by a U.S. Capitol police officer
has committed no crime.” Defendant Gunby’s Reply to United States Opposition to Motion to
Suppress [Dkt. No. 72] at 6. Mr. Gunby is incorrect.
As the Court explained in its Baez opinion, to argue entrapment-by-estoppel, a
defendant must demonstrate that the government agent who “actively misled him about the state
of the law” was the person “responsible for interpreting, administering, or enforcing the law
defining the offense.” United States v. Baez, 2023 WL 6364648 at *6 (quoting United States v.
Chrestman, 525 F. Supp. 3d 14, 31 (D.D.C. 2021) (emphasis added)). Thus, law enforcement
inaction, without an affirmative statement of law, is insufficient to establish entrapment-by-
estoppel. Id. at *8; see United States’ Reply to Defendant’s Response Concerning Preclusion of
Improper Defense Arguments and Evidence About Law Enforcement [Dkt. No. 80] at 7
(collecting cases). Furthermore, to assert a public authority defense, a defendant must file a
timely notice pursuant to Rule 12.3 of the Federal Rules of Criminal Procedure. See FED. R.
CRIM. P. 12.3(a)(1), (2). Mr. Gunby has not done so. He thus may not present a public authority
defense to the Court or the jury. See United States v. Baez, 2023 WL 6364648 at *7 n.3.
For these reasons and the reasons that the Court explained in United States v.
Baez, Mr. Gunby may present evidence of law enforcement inaction to the extent such inaction
is relevant to his state of mind; he may not, however, argue to the jury that law enforcement
inaction rendered his conduct lawful. See United States v. Baez, 2023 WL 6364648 at *7-8.
In view of the foregoing, it is hereby
ORDERED that the United States’ Motion in Limine Regarding Evidence About
the Specific Locations of U.S. Capitol Police Surveillance Cameras [Dkt. No. 60] is GRANTED;
it is
FURTHER ORDERED that Mr. Gunby shall not introduce or elicit evidence on
the specific locations of surveillance cameras within the Capitol building and its grounds; it is
FURTHER ORDERED that the United States’ Motion in Limine Regarding
Cross-Examination of U.S. Secret Service Witness [Dkt. No. 61] is GRANTED; it is
FURTHER ORDERED that cross-examination of Secret Service witnesses shall
exclude questions as to (1) Secret Service protocols for when emergencies occur, including
protocols related to the locations where protectees or their motorcades are taken at the Capitol;
and (2) operational specifics about Secret Service protective details, such as the number and type
of agents the Secret Service assigns to protectees; it is
FURTHER ORDERED that the United States’ Motion in Limine to Preclude
Improper Defense Arguments and Evidence About Law Enforcement [Dkt. No. 62] is
GRANTED; it is
FURTHER ORDERED that Mr. Gunby shall not argue to the jury that law
enforcement officers’ purported inaction rendered his conduct legal, though he may argue that
law enforcement officers’ actions or inaction affected his state of mind and whether he acted
with the criminal intent required for the charged offenses; and it is
FURTHER ORDERED that the parties shall conduct themselves during trial in
conformity with the rulings set forth and explained in this Memorandum Opinion and Order, as
well as the Court’s September 29, 2023 Opinion in United States y. Baez, Crim. No. 21-0507.
PAUL L. FRIEDMAN
United States District Judge
SO ORDERED.
DATE: Zo [13 {23