UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA v. Criminal Action No. 24-256 (CKK) KEVIN BRENT BUCHANAN,

Defendant.

MEMORANDUM OPINION (May 13, 2025)

A grand jury has charged Kevin Brent Buchanan by indictment with three counts of making

threatening interstate communications, in violation of

(c). See Superseding

Indictment, ECF No. 25. Buchanan’s case is set for trial beginning in July 2025. See Am. Pretrial

Scheduling Order, ECF No. 40. Now pending before the Court is the Government’s [51] Omnibus

Motion in Limine requesting an order precluding Buchanan from presenting several types of

arguments and evidence at trial (“Motion” or “Gov’t’s Mot.”). Buchanan opposes the Motion in

part. See Def.’s Opp’n to the Gov’t’s Mot. in Limine (“Def.’s Opp’n”), ECF No. 56. Upon

consideration of the parties’ submissions,1 the relevant legal authority, and the entire record, the

Court shall GRANT IN PART and DENY IN PART the Government’s Motion. Specifically,

the Court shall DENY the Government’s request for an order categorically precluding argument

or evidence in support of a voluntary intoxication defense, GRANT the Government’s request for

an order precluding argument and evidence about whether Buchanan intended to carry out his

1 The Court’s consideration has focused on the following documents:

• The Superseding Indictment, ECF No. 25; • The Government’s Omnibus Motion in Limine (“Gov’t’s Mot.”), ECF No. 51; • Buchanan’s Opposition to the Government’s Motion (“Def.’s Opp’n”), ECF No. 49; and • The Government’s Reply in Support of its Motion (“Gov’t’s Reply”), ECF No. 58.

1 alleged threats, and DEFER RULING ON the Government’s request for a prophylactic order

barring the presentation of evidence about Buchanan’s character, Buchanan’s own out-of-court

statements, and argument or evidence that may tend to encourage jury nullification. The Court

shall request a further submission from Buchanan to help resolve the remaining issues before trial.

I. BACKGROUND

The Government alleges that, over the course of three days beginning in late October 2023,

Buchanan left five threatening voicemails for an organization—known in this case as

“Organization 1”—that is headquartered in this District. See Gov’t’s’ Mot., ECF No. 47, at 1–2;

Superseding Indictment, ECF No. 25. The Government alleges that Buchanan recorded these

voicemails from Utah. See Superseding Indictment ¶¶ 4, 6, 8. It further alleges that Buchanan

selected Organization 1 as the object of his threatening messages based on “race, color, religion,

national origin, and ethnicity.”

.

For this alleged conduct, a grand jury charged Buchanan by superseding indictment with

three counts of making threatening interstate communications, in violation of

(c),

enhanced by a special finding that Buchanan selected the “object of the offense[s]” because of one

or more protected characteristics. See Superseding Indictment ¶¶ 4, 6, 8, 10. The grand jury

specifically charged that Buchanan “intended to convey a threat” when he recorded these

voicemails and that he “intentionally selected” the recipient of his threats because of protected

characteristics.

In anticipation of trial on these charges, the Government has filed an Omnibus Motion in

Limine seeking to preclude several categories of evidence and argument that it contends would be

improper in this case. See Gov’t’s Mot. at 1. Buchanan opposes the Government’s Motion in part.

See Def.’s Opp’n at 2–6. The Government’s Motion is now ripe for decision.

2 II. 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,

(D.D.C. 2011) (CKK) (quoting Bradley v. Pittsburgh Bd. of Educ.,

, 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,

(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,

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,

(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,

. Accordingly, the Court has discretion “to

await developments at trial before ruling” on an evidentiary issue raised in a motion in limine,

rather than granting the motion before trial.

(quoting Stephen A. Saltzburg et al., Federal Rules 3 of Evidence Manual § 103.02[13] (9th ed. 2006)). The Court’s rulings on motions in limine are

based on the present record and are subject to revision as the record develops.

III. ANALYSIS

The Government’s Omnibus Motion in Limine requests pretrial rulings on the admissibility

of evidence related to five topics: (1) a potential voluntary intoxication defense, (2) whether

Buchanan intended to carry out his alleged threats, (3) Buchanan’s character, (4) Buchanan’s own

out-of-court statements, and (5) matters that may tend to encourage jury nullification. See Gov’t’s

Mot. at 1.

In this Memorandum Opinion, the Court resolves two of the important evidentiary issues

underlying the Government’s Motion. The Court defers ruling on the remaining issues in the

Government’s Motion because the present record lacks sufficient detail to allow the Court to

determine whether some evidence related to the topics the Government identifies may be relevant

and admissible.

For several of the issues not resolved in this Memorandum Opinion, Buchanan’s response

to the Government’s Motion amounts to a promise to follow the relevant Rules of Evidence. The

Court has no doubt that all counsel in this case know the Rules and will adhere to them. However,

given the complexity of some of the evidentiary issues in this case, it may be helpful to the parties

for the Court to resolve several of the remaining evidentiary issues before trial. Accordingly, the

Court shall request a further submission from Buchanan in which he may identify specific evidence

that he contends should be admitted at trial if he elects to put on a defense case. With a further

submission from Buchanan, the Court can make additional evidentiary rulings before trial.

A. Issues Resolved on the Present Record

The Court begins by resolving two legal issues raised in the Government’s Motion that can

be settled on the present record, without any need for further factual development: (1) the

4 availability of a voluntary-intoxication defense and (2) the admissibility of evidence regarding

whether Buchanan intended to carry out his alleged threats.

1. Because transmitting threats in violation of Section 875(c) is a specific- intent crime, a voluntary intoxication defense may be available at trial.

The Government first requests an order precluding Buchanan from presenting any evidence

or argument in support of a voluntary intoxication defense. Gov’t’s Mot. at 4–7. Buchanan

opposes this request. Def.’s Opp’n at 2–4.

Relying on the common-law principle that voluntary intoxication is not a defense to

prosecution for a “general-intent” crime, both parties’ arguments focus on whether making an

interstate threat in violation of

(c) is a “general-intent” crime or a “specific-intent”

crime. See Gov’t’s Mot. at 4–7; Def.’s Opp’n at 2–4; see also Proctor v. United States,

(D.C. Cir. 1949) (per curiam) (describing common-law principle). The Government

argues that a conviction under Section 875(c) requires only “general” intent, making a voluntary

intoxication defense categorically unavailable in this case. See Gov’t’s Mot. at 4–7.

Unfortunately, the distinction between “general” and “specific” intent is often elusive.

Both the Supreme Court and the U.S. Court of Appeals for the D.C. Circuit have acknowledged

that these terms can be ambiguous, especially when applied to crimes with multiple elements. See

United States v. Bailey,

, 405–06 (1980); Parker v. United States,

(D.C. Cir. 1966). The Supreme Court has even encouraged courts to avoid referring to

“difficult legal concepts like ‘specific intent’ and ‘general intent’” when instructing juries,

preferring “more useful” instructions that describe required mental states with greater specificity.

Liparota v. United States,

, 434 n.16 (1985).

To illustrate the traditional distinction between “general” and “specific” intent, the

Supreme Court has used the example of a person who entered a bank and took money from a teller

5 at gunpoint in the hope that he would be arrested and returned to prison, where he would receive

treatment for alcoholism. See Carter v. United States,

(2000) (citing United

States v. Lewis,

(10th Cir. 1980), cert. denied,

(1981)). The

Court explained that this person had “general” intent because he knowingly committed the

unlawful acts that make up the offense of robbery, but he lacked the “specific” intent to commit a

robbery because “he did not intend permanently to deprive the bank of its possession of the

money.” Id. Put differently, the man had “general” intent because he knowingly completed the

actus reus, but he lacked “specific” intent because he did not have a specific mens rea that the law

requires beyond the knowing commission of the relevant unlawful acts. See id.

The Government argues that communicating interstate threats in violation of

(c) is a general-intent crime for which voluntary intoxication is not a defense because—

according to the Government’s theory—the crime can be committed with a mens rea of

“recklessness” or “knowledge,” rather than “purpose,” with respect to the threatening nature of the

communication. See Gov’t’s Mot. at 5–6 & n.3 (citing Counterman v. Colorado,

(2023)). In support of this argument, the Government cites authority explaining that a mens rea

of “‘purpose’ corresponds loosely with the common-law concept of specific intent, while

‘knowledge’ corresponds loosely with the concept of general intent.”

at 5 (quoting United

States v. Bailey,

(1980)). The Government also cites authority holding that a

specific-intent crime traditionally requires some “bad purpose,” while a general-intent crime

requires only “knowing commission of an act that the law makes a crime.”

(quoting United

States v. Kleinbart,

, 592 n.4 (D.C. Cir. 1994)).

This argument misses the mark. The Government’s theory focuses on the Supreme Court’s

holding in Counterman v. Colorado that a person may be criminally responsible for a “true threat”

6 if the person “recklessly” communicates a statement with the subjective awareness that others

could reasonably regard the statement as a threat. See Gov’t’s Mot. at 5–6; Counterman,

. But the holding of Counterman does not mean that true-threat offenses like the one defined

in Section 875(c) are general-intent crimes. See

. As the Government

acknowledges, the common-law concepts of “specific” and “general” intent correspond only

“loosely” to modern mens rea standards like “purpose,” “knowledge,” and “recklessness.” See

Gov’t’s Mot. at 5 (quoting Bailey,

). According to the prevailing understanding of

the common-law categories of “specific” and “general” intent, the defining feature of a specific-

intent crime is “a special mental element which is required above and beyond any mental state

required with respect to the actus reus of the crime.” 1 Wayne R. LaFave, Substantive Criminal

Law § 5.2(e) (3d ed. 2024). That additional mental element could be a wrongful purpose, but it

could also be something less culpable. As the D.C. Circuit has explained, a person may be said to

have acted with specific intent if “he knew he was acting wrongly or violating the law in general

when he acted.” United States v. Haldeman,

, 114 n.226 (D.C. Cir. 1976).

Understood in that context, the mental state that is required to violate Section 875(c) is a

form of specific intent, not general intent. Before the Supreme Court’s decision in Elonis v. United

States,

(2015), several circuit courts of appeals had reached contrary conclusions and

held that a violation of Section 875(c) requires only the general intent to communicate a message

that a reasonable person would find threatening.2 The Elonis decision abrogated those holdings

by tethering liability under Section 875(c) to the defendant’s own, subjective understanding that

2 See, e.g., United States v. Whiffen,

(1st Cir. 1997); United States v. Francis,

, 122–23 (2d Cir. 1999); United States v. Darby,

(4th Cir. 1994); United States v. Myers,

(5th Cir. 1997); United States v. DeAndino,

(6th Cir. 1992); United States v. Stewart,

(7th Cir. 2005); United States v. Mabie,

, 332–33 (8th Cir. 2011); United States v. Alaboud,

, 1296–97 (11th Cir. 2003). But see United States v. Twine,

(9th Cir. 1988) (concluding that proving a violation of Section 875(c) requires proving specific intent).

7 his communication could reasonably be regarded as a threat. See 575 U.S. at 737–38. After Elonis,

it is not enough that the defendant knowingly or recklessly commits the actus reus by

communicating a message that a reasonable person would interpret as a threat. See

Instead,

because “‘the crucial element separating legal innocence from wrongful conduct’” under

Section 875(c) “is the threatening nature of the communication,” the Government must present

evidence of the defendant’s awareness of “the fact that the communication contains a threat.”

at 737 (quoting United States v. X-Citement Video, Inc.,

(1994)). The Government

can carry this burden by, for example, showing that the defendant sent a communication “for the

purpose of issuing a threat, or with knowledge that the communication [would] be viewed as a

threat.” Id. at 740. This requirement is a “special mental element” that is “above and beyond” the

mental state required regarding the actus reus. See LaFave, supra, § 5.2(e). The presence of such

a requirement makes the offense defined in Section 875(c) a specific-intent crime, not a general-

intent crime. See id.; see also Elonis,

(Thomas, J., dissenting) (noting that the

Court’s decision in Elonis means that “a requirement of [only] general intent will not do” to

establish liability under Section 875(c)).

Because the offenses under Section 875(c) that the Government has charged in this case

are specific-intent offenses, the Court declines to rule that a voluntary intoxication defense is

unavailable. The Government’s request for an order precluding Buchanan from presenting any

evidence or argument in support of a voluntary intoxication defense shall therefore be DENIED.

However, the admissibility of any specific evidence of intoxication will depend on the factual

record of Buchanan’s intoxication at the time of the alleged threats. See infra, Section III.B.1.

8 2. The Court shall not admit evidence regarding whether Buchanan intended to carry out his alleged threats.

The Government also requests an order precluding Buchanan from presenting argument or

evidence about whether he intended to carry out his alleged threats, which it argues is irrelevant to

his guilt or innocence. Gov’t’s Mot. at 7–8. Buchanan argues that whether he intended to carry

out the alleged threats “may be relevant” because, “depending on the underlying circumstances,”

intent to carry out the threat may be probative of whether he had the mens rea necessary to commit

the charged offenses. Def.’s Opp’n at 4–6.

Before the Supreme Court’s decision in Elonis, this Court concluded that whether a

defendant intended to carry out a threat is “entirely irrelevant” to the defendant’s guilt or innocence

of an interstate-threats charge under

(c). United States v. Syring,

, 129 n.5 (D.D.C. 2007) (CKK). That conclusion finds support in the Supreme Court’s earlier

decision in Virginia v. Black,

(2003), which explained that a speaker “need not

actually intend to carry out the threat” for a statement to be a “true threat” that lies outside the

protections of the First Amendment.

at 359–60.

There is a colorable argument that the Supreme Court’s holding in Elonis alters this

analysis. See 575 U.S. at 737–38. The Supreme Court held in Elonis that a defendant’s subjective

understanding of his statements is an element of the offense defined in Section 875(c), and a

defendant’s intent to carry out a threat could, in theory, be relevant to a jury’s assessment of that

understanding. See

However, the probative value of evidence of intent to carry out the threats in this case

would be substantially outweighed by the risk of confusing the issues before the jury. See Fed. R.

Evid. 403. The probative value of any such evidence—if any—would be minimal. Meanwhile,

the risk of confusing the issues would be substantial. The mental-state issues in this case are

9 already complex. Allowing argument and evidence about a kind of intent that is not required for

conviction as indirect evidence of another kind of intent that is required would further complicate

those issues for the jury. The Court shall therefore GRANT the Government’s motion in part and

preclude Buchanan from introducing argument or evidence about whether he intended to carry out

his alleged threats.

B. Issues Not Resolved on the Present Record

The Court next turns to four issues raised in the Government’s Motion that cannot be fully

resolved on the present record: the admissibility of (1) specific evidence of intoxication,

(2) evidence of Buchanan’s character, (3) evidence of Buchanan’s own out-of-court statements,

and (4) evidence that the Government contends may tend to encourage jury nullification. The

admissibility of evidence in each of these categories cannot be resolved without more information

about the type of evidence that Buchanan intends to offer or is contemplating offering and the

purpose for which it would be offered. The Court shall request a further submission from

Buchanan in which he should provide the Court with more information about specific evidence he

intends to offer or is considering offering that falls into one or more of these categories. The Court

can then rule on the admissibility of that evidence before trial.

1. Admissibility of specific evidence of intoxication

The Court has concluded that the offenses charged in this case are specific-intent crimes

for which a voluntary intoxication defense is available. See supra Section III.A.1. However, the

Court’s holdings do not necessarily mean that evidence of voluntary intoxication will be admitted

at trial. To be relevant and admissible in this case, evidence of intoxication must be such that a

reasonable jury could conclude that Buchanan was so intoxicated that he acted without the specific

mental state that is required to violate Section 875(c). See, e.g., State v. Dagnon,

,

, at *4–5 (2024) (applying Counterman and concluding that a

10 voluntary intoxication defense to true-threats prosecution should have been allowed where

evidence showed that the defendant “was intoxicated enough to urinate on himself” at the time

that he made the alleged threats). If the evidence would support only a finding of some lesser level

of intoxication, the Court may exclude that evidence because it would be minimally probative and

would present a substantial risk of confusing the issues before the jury. See Fed. R. Evid. 403.

Accordingly, the Court shall defer ruling on the admissibility of any specific evidence of

voluntary intoxication. Before any such evidence will be admitted, Buchanan must proffer—

outside the presence of the jury—evidence from which a reasonable jury could conclude that he

was so intoxicated at the time of making the alleged threats that he acted without the specific

mental state that is required to violate Section 875(c). Buchanan should seek a pretrial ruling on

the admissibility of any evidence of intoxication by filing a notice on or before June 6, 2025,

advising the Court of any specific evidence of intoxication that he intends to offer.

2. Admissibility of evidence of Buchanan’s character

The Government next requests a prophylactic order precluding Buchanan from introducing

inadmissible character evidence, such as reputation or opinion evidence of positive character traits

that are not pertinent to the offenses charged. See Gov’t’s Mot. at 8–10 (citing Fed. R. Evid. 404–

05). As Buchanan correctly notes, the Government’s request simply calls for the Court to enforce

the Federal Rules of Evidence regarding character evidence. Def.’s Opp’n at 5. Because Buchanan

affirms that he will comply with those rules, see

a ruling in limine that merely restates the

relevant rules would not “narrow the evidentiary issues for trial” and would be of little practical

use to the parties. See Graves,

. The Court shall therefore defer ruling on

the admissibility of character evidence. Buchanan should seek a pretrial ruling on the admissibility

of specific forms of character evidence by filing a notice on or before June 6, 2025, advising the

11 Court of the type of evidence he proposes to admit, the character trait he argues the evidence would

illuminate, and the purpose for which he contends the evidence is admissible.

3. Admissibility of Buchanan’s own out-of-court statements

The Government also requests an order precluding Buchanan from “elicit[ing],

suggest[ing], or “referenc[ing]” his own self-serving, out-of-court statements during voir dire,

opening and closing statements, or witness testimony “without subjecting himself to the truth-

seeking function of cross-examination.” Gov’t’s Mot. at 11–12. Buchanan responds that he “will

not seek to elicit impermissible self-serving hearsay statements.” Def.’s Opp’n at 5.

Because a defendant’s own out-of-court statements are not excluded from the definition of

hearsay, those statements are inadmissible as evidence of the truth of the matter asserted unless an

exception applies. See Fed. R. Evid. 801(a), 802; cf. Fed. R. Evid. 801(d)(2) (excluding an

opposing party’s own out-of-court statement from the definition of hearsay only if the statement

is “offered against” that party).

Several exceptions to the rule excluding hearsay may allow a defendant to introduce a self-

serving statement without taking the stand in his own defense. For example, the rule of

completeness may allow a defendant to introduce a statement that would otherwise be hearsay to

provide context for a related statement introduced by the Government if “fairness” requires that

both statements “be considered at the same time.” See Fed. R. Evid. 106. A defendant may also

seek to admit his own out-of-court statement as a present-sense impression, an excited utterance,

a statement of his then-existing state of mind, or any other kind of statement that is admissible as

an exception to the rule excluding hearsay. See Fed. R. Evid. 803–04.

Neither party has yet identified any specific out-of-court statement that Buchanan may seek

to admit. See Gov’t’s Mot. at 12; Def.’s Opp’n at 5. Buchanan also avers that he will not seek to

admit any “impermissible” statements. Def.’s Opp’n at 5. Accordingly, the Court cannot yet 12 evaluate whether any statement that Buchanan may offer would be admissible under relevant

exceptions to the rule excluding hearsay. The Court shall therefore defer ruling on the

Government’s motion in limine to the extent that it seeks a ruling on the admissibility of those as-

yet unspecified statements. Buchanan should seek a pretrial ruling on the admissibility of specific

out-of-court statements by filing a notice on or before June 6, 2025, advising the Court of the

content of any statement he may seek to admit and the purpose for which it would be admitted.

4. Admissibility of evidence that the Government contends may tend to encourage jury nullification

Finally, the Government seeks an order precluding Buchanan from presenting any

argument or evidence that is “geared towards encouraging jury nullification.” Gov’t’s Mot. at 12.

The Government identifies several topics that it argues fall into this category, including

“[Buchanan’s] wife’s poor health, his substance abuse, his mental health issues, his prior military

service, and video footage of his arrest in the presence of his infirm wife.”

Evidence and argument that would serve no purpose other than to encourage nullification

is not relevant to any issue properly before the jury. See Sparf v. United States,

(1895); United States v. Washington,

(D.C. Cir. 1983). Buchann agrees that

such evidence is inadmissible. See Def.’s Opp’n at 6; Fed. R. Evid. 401. He also does not appear

to dispute that the video recording showing his arrest in his wife’s presence would not be relevant

or admissible at trial. See Def.’s Opp’n at 5–6.

However, as Buchanan correctly notes, some of the evidence that the Government seeks to

exclude as irrelevant jury-nullification evidence may also be relevant for another purpose. See

Def.’s Opp’n at 5–6. For example, evidence of Buchanan’s mental condition or history of

substance abuse may be relevant to the issue of whether he had the mental state required to violate

13 Section 875(c) when he allegedly placed the calls that are at issue in this case. See supra

Section III.A.1; see also Mem. Op., ECF No. 53, at 6–8.

Because the probative value of evidence on these topics and its relative potential for unfair

prejudice will be best assessed in context of the parties’ presentations at trial, the Court may defer

ruling on the admissibility of evidence on these topics until trial. See Fed. R. Evid. 403. However,

Buchanan should seek a pretrial ruling on the admissibility of any specific evidence related to the

issues that the Government challenges as potential jury-nullification evidence by filing a notice on

or before June 6, 2025, advising the Court of the content of any evidence on those topics that he

intends to offer and the purpose for which he contends that evidence is admissible.

* * *

14 IV. CONCLUSION

For the foregoing reasons, the Government’s [51] Omnibus Motion in Limine shall be

GRANTED IN PART and DENIED IN PART, as follows:

(1) The Government’s request for an order categorically precluding argument or evidence in support of a voluntary intoxication defense shall be DENIED.

(2) The Government’s request for an order precluding argument and evidence about whether Buchanan intended to carry out his alleged threats shall be GRANTED.

(3) The Court shall DEFER RULING on the following issues:

a. The admissibility of any specific evidence of voluntary intoxication.

b. The admissibility of evidence of Buchanan’s character.

c. The admissibility of Buchanan’s own out-of-court statements.

d. The admissibility of evidence that the Government argues may tend to encourage jury nullification.

(4) Buchanan should seek a pretrial ruling on the admissibility of specific evidence related to the issues on which the Court has deferred ruling by filing a notice, on or before June 6, 2025, identifying any evidence in the categories at issue that he intends to offer or is considering offering and addressing the specific topics described in this Memorandum Opinion.

An appropriate Order accompanies this Memorandum Opinion.

Dated: May 13, 2025

COLLEEN KOLLAR-KOTELLY United States District Judge

15