United States v. Kelley

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal Action No. 22-408 (CKK)
EDWARD KELLEY,
Defendant.
MEMORANDUM OPINION
(October 18, 2024)
Defendant Edward Kelley faces trial on multiple felony and misdemeanor charges related
to his alleged conduct during the riot at the United States Capitol on January 6, 2021. The Court
described Kelley’s alleged role in the events of that day in its prior Memorandum Opinion in this
case. See Mem. Op., ECF No. 68. For this conduct, a grand jury charged Kelley by Superseding
Indictment in September 2024 with multiple felony and misdemeanor offenses. ECF No. 52. Now
pending before the Court are the Government’s [48] Motion in Limine Regarding Evidence about
the Specific Locations of U.S. Capitol Police Surveillance Cameras, [49] Motion in Limine
Regarding Cross-Examination of U.S. Secret Service Witness, and [50] Motion in Limine to
Preclude Improper Defense Arguments and Evidence about Law Enforcement. Kelley filed
responses to all three motions, opposing them in part. See ECF Nos. 57–59. Upon consideration
of the pleadings,1 the relevant legal authority, and the entire record, the Court shall GRANT IN
PART the Government’s [48] Motion regarding the locations of U.S. Capitol Police surveillance
cameras and its [49] Motion regarding cross-examination of its Secret Service witness and
otherwise DEFER RULING ON those Motions until the relevant issues arise during trial. The
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The Court’s consideration has focused on the Government’s Motions in Limine, ECF Nos. 48–50; Kelley’s
Responses to the Motions, ECF Nos. 57–59; the Superseding Indictment, ECF No. 52; and the Statement of Facts in
Support of the Criminal Complaint, ECF No. 1-1.
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Court shall also DEFER RULING ON the Government’s [50] Motion to preclude certain defense
arguments until the relevant issues arise during trial.
I. LEGAL STANDARD
District courts may grant motions in limine to “narrow the evidentiary issues for trial” and
“eliminate unnecessary trial interruptions.” Graves v. District of Columbia, 850 F. Supp. 2d 6, 11
(D.D.C. 2011) (CKK) (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir.
1990)). “Although the Federal Rules of Evidence do not explicitly authorize in limine rulings,”
district courts may entertain and grant such motions to decide evidentiary issues pursuant to their
“inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 (1984)
(citing Fed R. Evid. 103(c); Fed. R. Crim. P. 12(e)).
When deciding motions in limine, like other evidentiary motions, this Court must assess
the relevance of the proffered evidence and weigh its probative value against any factors that
counsel against admissibility. Fed. R. Evid. 401–03. Evidence is relevant if it tends to make any
fact that “is of consequence to determining the action” more or less probable than it would be
without the evidence. Fed. R. Evid. 401. “Relevant evidence is admissible” unless a rule, statute,
or constitutional provision provides otherwise. Fed. R. Evid. 402. However, the Court may
exclude relevant evidence if its probative value is “substantially outweighed” by the risk of “unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403.
District courts are afforded “a wide discretion” when applying these standards to decide
whether to admit evidence. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).
That discretion “extends not only to the substantive evidentiary ruling, but also to the threshold
question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling
in advance of trial.” Graves, 850 F. Supp. 2d at 11. Accordingly, the Court has discretion “to
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await developments at trial before ruling” on an evidentiary issue raised in a motion in limine,
rather than granting the motion before trial. Id. (quoting Stephen A. Saltzburg et al., Federal Rules
of Evidence Manual § 103.02[13] (9th ed. 2006)).
II. ANALYSIS
A. Camera Locations and U.S. Secret Service Procedures
The Government moves to limit the introduction of evidence related to the location of
surveillance cameras in and around the U.S. Capitol and the details of specific protocols of the
United States Secret Service that go beyond the scope of the evidence the Government intends to
elicit on direct examination. ECF Nos. 48 at 1–5; ECF No. 49 at 1–5. The Government also
requests that, in the interest of national security, any hearing on the admissibility of disputed
evidence related to these issues be conducted in camera. ECF No. 48 at 5–6, ECF No. 50 at 5–6.
Kelley responds that he should not be precluded from cross-examining witnesses about
surveillance camera locations or Secret Service procedures if those issues arise on direct
examination. ECF No. 57 at 1; ECF No. 58 at 1. He also argues that he should be allowed to
present video recorded by U.S. Capitol Police cameras and introduce evidence of their general
locations. ECF No. 57 at 1. Finally, he argues that he should not be precluded from introducing
“any information that has been publicly reported,” including certain details about the location of
the Vice President during the events of January 6 that he contends are available in “public reports.”
ECF No. 58 at 1.
As other courts in this District have recognized, evidence of U.S. Capitol Police camera
locations and Secret Service protocols is of limited relevance or probative value in cases arising
from the events of January 6, and its introduction risks confusing the issues, wasting time, and
potentially compromising compelling national security interests. See, e.g., United States v.
Easterday, No. 22-cr-404, 2023 WL 6646384, at *2 (D.D.C. Oct. 12, 2023) (JEB).
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Therefore, upon consideration of the present record and the parties’ arguments, the Court
shall grant the Government’s motions to exclude evidence of specific camera locations and Secret
Service procedures in part, with three limitations. First, the Court shall only exclude information
that exceeds the scope of the Government’s evidence on direct examination. Second, the Court
shall allow Kelley to introduce video recorded by U.S. Capitol Police cameras and elicit evidence
of the general areas of the Capitol where relevant cameras are located. Third, the Court shall defer
ruling on the admissibility of information on these topics that Kelley contends has been “publicly
reported,” which Kelley may seek to introduce by filing a motion for in camera hearing regarding
the relevant evidence. Otherwise, Kelley shall be prohibited from introducing or eliciting evidence
of nonpublic information beyond the scope of direct examination regarding the specific location
of surveillance cameras in and around the U.S. Capitol or regarding specific Secret Service
protocols or emergency procedures.
B. Potential Defense Arguments
The Government also moves to preclude certain arguments and evidence about action or
inaction by law enforcement during the riot at the U.S. Capitol on January 6. See generally ECF
No. 50.
First, the Government seeks to preclude argument and limit the introduction of evidence
in support of any entrapment-by-estoppel theory to the effect that law enforcement officers
authorized Kelley’s conduct. ECF No. 50 at 1–3. Kelley does not oppose this aspect of the Motion
but represents that he has “no plans” to assert an entrapment-by-estoppel defense. ECF No. 59 at
1.
Second, the Government seeks to preclude argument and limit the introduction of evidence
in support of any contention that inaction by law enforcement officers rendered Kelley’s conduct
lawful. ECF No. 50 at 3–4. Again, Kelley does not oppose this aspect of the Motion but represents
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that he does not plan to argue that law enforcement inaction rendered his conduct lawful. ECF
No. 59 at 1.
Third, the Government argues that Kelley should not be permitted to present or elicit
evidence of any inaction by law enforcement officers unless he was personally aware of that
inaction. ECF No. 50 at 4–5. Kelley opposes this aspect of the Motion, arguing that it is
premature. ECF No. 59 at 1. He notes that he may choose to testify in his own defense and could
lay proper foundation for some testimony about inaction by law enforcement officers of which he
was personally aware. Id.The Court concludes that ruling on these issues would be premature, particularly in the
context of a bench trial. Accord United States v. Bru, No. 21-cr-352, 2023 WL 4174293, at *3
(D.D.C. June 26, 2023) (JEB). The Court shall not “preemptively limit legal arguments” that
Kelley may later present to the Court in a motion for acquittal or other proper relief on the basis
that his conduct was protected by the Constitution or did not fall within the prohibitions of the
relevant criminal statutes. See United States v. Griffith, No. 21-cr-244-2, 2023 WL 2043223, at
*5 (D.D.C. Feb. 16, 2023) (CKK). And the Court shall not preemptively exclude evidence of
action or inaction by law enforcement, which may, depending on the evidence developed at trial,
prove to be relevant to Kelley’s state of mind. Instead, the Court shall rule on the admissibility of
any such evidence at trial, weighing its probative value against the risk of unfair prejudice and any
other factors that counsel against admissibility. See Fed. R. Evid. 403. The Court shall therefore
defer ruling on the Government’s motion to preclude arguments and evidence on these topics.
Before presenting argument or offering or eliciting evidence on these topics in open court, Kelley
shall identify the argument or evidence he intends to present and request a ruling from the Court
on its admissibility.
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III. CONCLUSION
For the foregoing reasons, the Court shall GRANT IN PART and otherwise DEFER
RULING ON the Government’s Motions in Limine. An appropriate Order accompanies this
Memorandum Opinion.
Dated: October 18, 2024 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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