UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 23-175 (TJK)

JERRY MCKANE WAYNICK et al.,

Defendants.

MEMORANDUM

Jerry McKane Waynick was convicted at a bench trial of a host of offenses in connection

with his role in the attack on the U.S. Capitol on January 6, 2021, including one count of Assault-

ing, Resisting, or Impeding Certain Officers Using a Deadly or Dangerous Weapon, in violation

of

(a)(1) and (b); one count of Civil Disorder, in violation of

(a)(3);

two other counts of Assaulting, Resisting, or Impeding Certain Officers, in violation of

(a)(1); one count of Entering and Remaining in a Restricted Building or Grounds with a

Deadly or Dangerous Weapon, in violation of

(a)(1) and (b)(1)(A); one count of

Disorderly and Disruptive Conduct in a Restricted Building or Grounds with a Deadly or Danger-

ous Weapon, in violation of

(a)(2) and (b)(1)(A); one count of Engaging in Phys-

ical Violence in a Restricted Building or Grounds with a Deadly or Dangerous Weapon, in viola-

tion of

(a)(4) and (b)(1)(A); and several misdemeanors.

On November 26, 2024, the Court denied his motion to dismiss the charges against him

from the bench, before proceeding to sentencing. ECF No. 111. This Memorandum explains the

Court’s reasoning in doing so. Waynick argued that the Government violated its obligations under Brady v. Maryland,

(1963), by not disclosing the presence of government agents or confidential human

informants present during the events of January 6, 2021. He contended that testimony by an FBI

official to a congressional committee last year “highlights that [FBI] agents or informants” were

“embedded in” and “interacted with individuals in the crowd, potentially shaping or observing the

behavior of participants like Waynick.” ECF No. 111 at 2–3. The Government’s failure to dis-

close their presence and identities allegedly undermined his ability “to present a full and fair de-

fense,” including by arguing entrapment, countering the Government’s “narrative of Waynick’s

intent,” and impeaching “key witnesses.”

at 4–5, 8–9. The Government opposed the motion,

arguing that Waynick distorted the FBI official’s testimony and, even assuming a “handful” of FBI

confidential human sources were among the January 6 crowd as the FBI official testified, Waynick

had failed to explain how “such information would have been relevant (let alone exculpa-

tory).” ECF No. 116 at 2–4. The Court agreed.

The Government violates its obligation under Brady if (1) the evidence at issue favors the

defendant, either because it is exculpatory or because it is impeaching; (2) the Government sup-

pressed the evidence, whether willfully or inadvertently; and (3) the defendant was prejudiced,

meaning the withheld evidence is material. United States v. Pettiford,

(D.C.

Cir. 2010). For evidence to be material, there must be a “reasonable probability that, had the evi-

dence been disclosed to the defense, the result of the proceeding would have been differ-

ent.” United States v. Bagley,

(1985). A defendant cannot carry his burden of

showing a Brady violation by “mere speculation.” United States v. Mason,

(D.C. Cir. 2020) (citation omitted). But that is all Waynick offers.

2 To begin, the testimony at issue is not nearly what Waynick suggests. The FBI official

explained that—to his knowledge—no FBI sources were “proactively deployed” to the U.S. Cap-

itol on January 6. See ECF No. 111-1 (“Tr.”) at 156, 158. He acknowledged that “a handful” of

confidential human sources were at the Capitol because they were private citizens whose personal

lives were not controlled by the FBI. Id. at 158, 160–61. But on the point Waynick presses, the

FBI official was unequivocal that “none of this was orchestrated by the FBI.” Id. at 185.

Against this backdrop, Waynick bears the burden of showing how disclosure of the pres-

ence and identities of any FBI confidential human sources allegedly in the crowd of thousands at

the U.S. Capitol on January 6 meets the Brady standard. In particular, he must explain how that

information is both favorable to him and material to his defense—i.e., that there is a “reasonable

probability that, had the evidence been disclosed to the defense, the result of the proceeding would

have been different.” Bagley,

. Waynick advances three theories for why this

information is relevant and material, but for each he comes up well short of this demanding stand-

ard.

First, Waynick argues the undisclosed presence and identities of FBI confidential human

sources could have supported an entrapment defense. ECF No. 111 at 8. But he has no facts to

back up that theory. He offers no evidence or reason to believe that anyone—whether or not that

person was an FBI confidential human source—induced him in some way to commit the crimes

for which he was convicted. He offers no evidence or reason to believe that he spoke to or inter-

acted with an FBI confidential human source on January 6. And he offers no evidence or reason

to believe that an FBI confidential human source induced anyone to commit a crime that day, let

alone that a source did so at the FBI’s direction. So, as the Government argues, he offers no

evidence or reason to believe that the presence or the identities of any FBI confidential human

3 sources present could have impacted the Court’s conclusions about his intent, knowledge, or con-

duct, such that those identities might be Brady evidence. See ECF No. 116 at 4–5. What he does

have is speculation, guessing that FBI agents or informants could have “potentially shap[ed]” his

behavior “if [they] interacted with or observed him,” ECF No. 111 at 3, 7 (emphases added). But

that is not enough.

In his motion and at the sentencing hearing, Waynick gestured at several persons who he

asserted might have been FBI confidential human sources: an “individual in a red hat and camou-

flage backpack” whom officers were trying to detain (and whom Waynick tried to pull away from

them); a person who kicked a hard-sided construction marker that ended up in Waynick’s hands,

which he then chose to throw at the officers; and a woman who started “asking questions” inside

the Capitol to which Defendant responded, “we’re an imminent threat to the people inside.” ECF

No. 111 at 10; ECF No. 118 at 3; November 26, 2024 Sentencing Tr. But again, a close review of

the record reveals no evidence or reason to believe that any of these persons induced him to commit

the crimes for which he was convicted or was an FBI confidential human source. Indeed, the last

of these persons interacted with Waynick after all his crimes were completed, and the Court at

sentencing did not materially rely on the statement he made to her, which merely stated the obvious

at that point.1

Waynick also argues that the information is “highly relevant to impeaching” Government

witnesses who testified about his conduct that day. ECF No. 118 at 3. But he does not explain

why. There is no basis to think that the presence of an FBI confidential human source could be

1 Waynick also does not explain how an entrapment defense would have been viable given the ample evidence of his predisposition to commit the crimes for which he was convicted. See United States v. Glover,

(D.C. Cir. 1988). Even before he interacted with the three persons described above, he had arrived at the Capitol dressed as if prepared for violence, joined the mob that breached the restricted perimeter of the Capitol grounds, and—along with other rioters—physically confronted police officers protecting the Capitol building.

4 used to impeach any of the witnesses at trial who testified about what they personally observed on

January 6, especially with no reason to believe those witnesses (who worked for the U.S. Capitol

Police and the Metropolitan Police Department) would have known about such a source’s pres-

ence. Waynick also argues in reply that the information “could mitigate his culpability” for sen-

tencing purposes.

But again, he does not explain why, and there is no non-speculative reason

to think so. Moreover, on this record, the Court cannot see how it could have “substantially af-

fect[ed] the outcome of the sentencing phase.”

For all the above reasons, to the extent Waynick sought discovery of purported Brady in-

formation related to the presence and identities of FBI confidential human sources at the Capitol

on January 6, 2021, the Court denied that request. In addition, to the extent he sought dismissal

of the charges against him, the Court denied that request as well, because even if there had been a

Brady violation, such a remedy would have been improper. “[T]he remedy for a Brady violation

is a retrial, not dismissal[.]” United States v. Borda,

(D.D.C. 2011) (citing

Pettiford,

.2

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: December 13, 2024

2 Mark Waynick moved to adopt Jerry Waynick’s motion to dismiss. ECF No. 114. The Court’s reasoning for denying Jerry Waynick’s motion applies equally, if not with greater force, to Mark Waynick, as the latter did not even interact with the three persons who Jerry Waynick surmises could have been confidential human sources.

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