UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v.

PATRICK EDWARD MCCAUGHEY, III, Case No. 1:21-cr-00040 (TNM) et al.,

Defendants.

MEMORANDUM ORDER

This Capitol breach case began with an indictment against one Defendant. See ECF No.

5. Over multiple superseding indictments, the Government has added other Defendants—

ultimately, nine of them. According to the Government, all Defendants infiltrated the Lower

West Terrace of the Capitol and then battled with police blocking their entry. Their actions

varied. Some Defendants allegedly struck police officers with objects. Others pushed in a large

group against a police line, and still others encouraged those efforts. There is no allegation that

Defendants knew each other beforehand. But the Government does allege that each Defendant

joined, at various times, the group that converged on the Terrace and ultimately swarmed the

tunnel.

The Indictment charges each Defendant with a different mix of offenses. See generally

Fifth Supers. Indictment (Indictment), ECF No. 179. For example, multiple Defendants face

charges of assaulting federal officers. Others face robbery charges. Yet despite the different

charges, the Indictment charges every Defendant with Civil Disorder, in violation of

, see

, and Obstruction of an Official Proceeding, in violation of

,

see

. 1

Before the Court are motions from Defendants David Judd, Steven Cappuccio, and

Federico Klein to sever their trials from the group. 2 See David Judd Mot. to Sever, ECF No. 206

(Judd Mot.); Steven Cappuccio Mot. to Sever, ECF No. 207 (Cappuccio Mot.); Federico Klein

Mot. to Sever, ECF No. 249 (Klein Mot.). Upon consideration of these motions and the

Government’s opposition, see Opp’n to Mots. to Sever, ECF No. 277 (Opp’n), the Court denies

the motions. As alleged by the Government, Defendants acted in concert by battling police

blocking a doorway to the Capitol to achieve a common goal: obstruction of the certification of

the Electoral College count. It is appropriate for them to be tried together.

I.

“There is a preference in the federal system for joint trials of defendants who are indicted

together.” Zafiro v. United States,

(1993). Two Federal Rules of Criminal

Procedure govern the propriety of a joint trial. The movants make arguments under both.

Rule 8(b) permits joinder of defendants in the same indictment when “they are alleged to

have participated in the same act or transaction, or in the same series of acts or transactions,

constituting an offense or offenses.” Fed. R. Cr. P. 8(b). Joinder is appropriate if there is “a

logical relationship between the acts or transactions.” United States v. Perry,

(D.C. Cir. 1984). The Court reviews the indictment and the Government’s pretrial evidence to

evaluate that relationship. See United States v. Carson,

(D.C. Cir. 2006).

1 All page citations refer to the pagination generated by the Court’s CM/ECF system. 2 The Court split Defendants into two groups for trial. See Minute Entry, Dec. 17, 2021. The three movants are in Group 2, along with Defendants Christopher Quaglin and Geoffrey Sills. See

2 Even if joinder is proper under Rule 8(b), however, Rule 14(a) allows the Court to sever a

defendant’s trial if joinder “appears to prejudice a defendant or the government.” Fed. R. Cr. P.

14(a). Prejudice arises where there is “a serious risk that a joint trial [will] compromise a

specific trial right of one of the defendants, or prevent the jury from making a reliable judgment

about guilt or innocence.” Zafiro,

. But as the Rule’s permissive language

suggests, “severance is not required even if prejudice is shown.” United States v. Tucker,

(D.C. Cir. 2021) (cleaned up).

The tailoring of appropriate relief is instead left “to the district court’s sound discretion.”

Zafiro,

. Often, “less drastic measures, such as limiting instructions, [ ] will

suffice to cure any risk of prejudice.”

For these reasons, Defendants seeking severance

under Rule 14 bear a “heavy burden,” United States v. Williams,

, 196

(D.D.C. 2020) (cleaned up), and courts “sparingly” grant motions under the Rule. Tucker,

(cleaned up).

II.

A.

Judd and Klein argue that joinder of their alleged offenses violates Rule 8(b) because

those offenses have no “logical nexus” with the offenses of their co-defendants. Judd Mot. at 5.

For support, they note that the joined Defendants “did not know one another prior to January 6,”

“did not travel to the Capitol together,” and “are not associated with the same group or

organization.” Judd Reply at 7, ECF No. 285. Nor has the Government charged them with

conspiracy. See Judd Mot. at 4. From these facts, Judd and Klein conclude that their actions

“were wholly separate and distinct” from their co-defendants, Klein Mot. at 6, without a “single,

common thread tying” them all together, id. at 9.

3 The Court disagrees. Defendants’ acts have a clear “logical relationship” based on the

facts alleged in the Indictment. Perry,

. Start with the obvious. Defendants

allegedly battled police officers in the same location and at the same time. But the Indictment

and pretrial evidence show commonality beyond mere spatial and temporal proximity. The

Indictment charges every Defendant with furthering a “civil disorder,” which is defined as any

public disturbance “involving acts of violence by assemblages of three or more persons.”

(1). In other words, one cannot advance or engage in a civil disorder alone. That

activity, like a conspiracy, requires multiple people. 3 Defendants worked together. It is

appropriate for them to be tried together.

The factual allegations here show their concerted activity. Defendants joined a mob that

collectively moved against police on the Terrace and in the tunnel. Judd and Klein then joined a

group of rioters who pushed against officers lined across the tunnel. See Opp’n at 8. In the

moment, both men also encouraged collective action. Klein yelled “we need more people” as he

prevented an officer from shutting a door in the tunnel.

And Judd urged others to pass riot

shields forward to construct a “shield wall” against police.

. They both then engaged in

their own acts of violence—Judd threw a firecracker at police, see

and Klein wielded a riot

shield to push against police, see

. Other Defendants individually battered police in

similar ways and assisted nearby rioters by “using their collective force” to push against the

police line in the tunnel.

.

Based on those allegations, the actions of Judd and Klein were not “separate and

distinct” from their co-defendants. Klein Mot. at 6. They worked collectively “in the same

3 Judd in particular highlights the lack of a conspiracy charge. See Judd Reply at 8–9. But the lack of a conspiracy charge does not automatically make joinder improper. See United States v. Gbemisola,

(D.C. Cir. 2000).

4 series of acts” to overwhelm police and to enter the Capitol. Fed. R. Civ. P. 8(b). And their

individual acts of violence contributed to that collective effort. More, all Defendants face an

obstruction charge, which alleges that they undertook these actions with corrupt intent to obstruct

an official proceeding. See

(c). So the Government has alleged not only

collective action but also a shared motive for that action.

Those allegations distinguish this case from United States v. Jackson,

(D.C.

Cir. 1977). There, one man emerged from the passenger side of a car and threatened two women

at gunpoint. See

. He ordered them to a secluded area, where he tore some of their

clothing. See

The women managed to escape, and the assailant fled. See

“A short while

later,” a man from inside the passenger side of the same car snatched a different woman’s purse

out of her hands.

Police ultimately found the two men in the car and charged both with

assault with intent to rape and robbery. See

. The D.C. Circuit overturned joinder of

the robbery charge with the rape charge because the crimes were “apparently unconnected,” with

“little or no indication of how or why defendants moved from one to the other.”

. The

Circuit also noted that the different motives for each crime underlined their “dissimilarity.”

.

In contrast, the Government here has alleged the same motive undergirding Defendants’

alleged conduct. And the pretrial evidence shows why every Defendant “moved from one”

offense to another.

. They sought to overrun police and enter the Capitol, and their

acts of violence fed off one another to achieve that shared goal. Indeed, any reader of Lord of

the Flies knows that mob mentality leads to collective violence well beyond what individuals

would do by themselves. Accord Whitley v. Albers,

, 323–24 (1986)

(acknowledging that any reaction of prison inmates during prison riot might lead to violence so

5 officer did not violate Eight Amendment by shooting in the knee one inmate that ran at him

during the riot).

Thus, the actions of Judd and Klein and the actions of their co-defendants were

“connected together,” Perry,

(cleaned up), and were “in the same series of acts,”

Fed. R. Cr. P. 8(b). Cf. United States v. Slatten,

. 788 (D.C. Cir. 2017) (noting that

a turret gunner who fired into an Iraqi public square “participated in the ‘same series of acts or

transactions’ that gave rise to the prosecution” of multiple military contractors who also fired and

killed bystanders (quoting Fed. R. Cr. P. 8(b))).

Considerations of judicial efficiency also support a joint trial here. In the event of

severed trials, Government witnesses would need to testify in front of multiple juries. Such

duplication of testimony will further cram a court docket already full of January 6 trials. More,

the charges in this case require jury findings applicable to all Defendants, such as whether they

engaged in civil disorder or acted with corrupt intent to obstruct an official proceeding. Much of

the evidence will presumably focus on activities at the Lower West Terrace that would likely be

directly relevant as to each Defendant but not clearly relevant as to other January 6 defendants.

And as the Government correctly points out, many of the individual charges require a finding—

applicable to all Defendants—that the Capitol was a “restricted area” on January 6. Thus, a

severed trial would create a burden of duplicating trials and reproducing evidence. When added

to the other commonalities between the Defendants, that burden “is a proper consideration” in

the Court’s decision “to deny severance.” United States v. Bridgeman,

(D.C. Cir. 1975).

The Court holds that the Government properly joined their alleged offenses with those of

the other co-defendants.

6 B.

The Court turns next to the arguments under Rule 14. All three movants assert that a jury

will prejudice them based on the conduct of their co-defendants. According to this argument,

their conduct “stands in stark contrast” with what other Defendants did, Cappuccio Mot. at 7,

including spraying officers with chemicals and striking officers with batons, see Klein Mot. at

10. The movants worry that the jury’s revulsion at those actions will spill over into the jury’s

consideration of the movants’ conduct. They might be “deeply prejudiced by association” with

allegedly more violent Defendants. Judd Mot. at 14.

The movants are right that a risk of spillover prejudice—“the risk the jury would use

evidence of one defendant’s guilt against another”—can support severance. Tucker,

(cleaned up). But that risk supports severance only “[w]hen the evidence against one or

more defendants is far more damaging than the evidence against another defendant.” United

States v. Wilson,

(D.C. Cir. 2010) (cleaned up). “Absent a dramatic

disparity” of that evidence, courts deal best with prejudice through “instructions to the jury to

give individual consideration to each defendant.” United States v. Moore,

(D.C.

Cir. 2011) (cleaned up).

The Court finds no dramatic disparity of evidence here. For one thing, the movants’

argument rests on a premise that their conduct was appreciably different from the conduct of

their co-defendants. The Government’s evidence says otherwise. Cappuccio allegedly yanked a

gas mask off an officer’s face, stole the officer’s baton, and struck him with it. See Opp’n at 9.

Judd allegedly threw a firecracker at police and joined the mob pushing them. See

at 8–9.

7 And Klein “pushed” an officer on the terrace before using riot shields to “battle” police. Id. at 7,

9. 4

True, others might have engaged in more instances of violence. But the movants were

hardly wallflowers during the events of January 6. According to the Government’s allegations,

they contributed substantially and independently to the violence of that day. See Moore,

(affirming denial of severance when Government presented “substantial and

independent” evidence of movants’ role in offense, even when those defendants “committed

fewer crimes” and “had a less extensive role” than their co-defendants).

More, the jury here can “reasonably compartmentalize the evidence introduced against

each individual defendant.” United States v. Celis,

(D.C. Cir. 2010) (cleaned

up). Video cameras captured much of that day’s events. Because each Defendant’s actions are

rendered on video, a jury need not “look beyond each defendant’s own” actions to judge guilt or

innocence.

(cleaned up). The risk of spillover prejudice is “minimal” in such a case,

and any remaining prejudice is best addressed through a jury instruction, not severance under

Rule 14(a), see Zafiro,

. 5

4 To suggest that he engaged in less violent conduct than other Defendants, Klein repeatedly cites Judge Bates’s opinion denying the Government’s request for pretrial detention. See Klein Mot. at 4 (citing and quoting United States v. Klein,

(D.D.C. 2021)). But that decision rested on a previous indictment, which charged Klein with only one count of assaulting police officers. See ECF No. 12, Case No. 21-cr-236 (D.D.C. Mar. 19, 2021). The current Indictment alleges six such counts against him. Given the increase in violent charges against Klein, Judge Bates’s conclusions based on the prior indictment have little relevance to the current one. 5 Cappuccio asserts that video does not capture his alleged actions. See Cappuccio Reply at 3, ECF No. 284. But the Government has witness testimony from the officer that he allegedly assaulted. See Opp’n at 9, n.4. That evidence is “substantial and independent” enough to allow a jury to compartmentalize it from the videos showing the other Defendants. Moore,

.

8 Kotteakos v. United States,

(1946), does not counsel otherwise. There, the

Supreme Court held that the Government may not charge eight separate conspiracies as one

conspiracy simply because “one man participated in all” of them.

. The Court noted

that defendants in such a situation had no right “to be tried en masse for the conglomeration of

distinct and separate offenses committed by others.”

(emphasis added).

That is not this case. This Indictment charges each Defendant for their own actions on

January 6. For example, Judd does not face punishment for Klein’s actions, or vice versa. The

indictment in Kotteakos worked differently, charging 32 defendants in one count for offenses

“committed by others.”

Not so here—each Defendant faces a mix of charges unique to his

alleged offenses. In this Indictment, guilt “remains individual and personal[,] . . . not a matter of

mass application,” unlike the indiscriminate conspiracy charge in Kotteakos.

.

Finally, Cappuccio argues that a joint trial will violate his confrontation rights because

introduced statements from his co-defendants “may implicate” him and those co-defendants

might not testify. Cappuccio Mot. at 6 (citing United States v. Bruton,

(1968)).

But Cappuccio does not show that the Government will introduce any of those statements, or

whether they implicate him. Such bare speculation does not justify severance. See United States

v. Diaz-Antunuez,

(D.D.C. 2013) (denying severance where defendant

“has made no proffer of . . . Bruton problems”).

9 III.

For these reasons, the Court holds that the Government complied with Rule 8(b) as to the

joinder of the Defendants and that Rule 14(a) does not require severance as to Judd, Cappuccio,

and Klein. Thus, the pending [206], [207], [249] Motions to Sever are DENIED.

SO ORDERED.

2022.05.20 16:27:10 -04'00' Dated: May 20, 2022 TREVOR N. McFADDEN, U.S.D.J.

10