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  • Chutkan DENIES Trump Motion To Strike Inflammatory Allegations

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    The court denied the defendant's motion to strike inflammatory allegations from the indictment. The motion sought to remove paragraphs alleging the defendant made false election fraud claims and directed supporters to obstruct congressional proceedings. The court found that while the allegations may not be relevant, the defendant did not clearly show they would prejudice the jury. As the court does not provide the indictment to jurors, there is little risk of prejudice. Voir dire and jury instructions will also help prevent prejudice.

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    Chutkan DENIES Trump Motion to Strike Inflammatory Allegations

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    The court denied the defendant's motion to strike inflammatory allegations from the indictment. The motion sought to remove paragraphs alleging the defendant made false election fraud claims and directed supporters to obstruct congressional proceedings. The court found that while the allegations may not be relevant, the defendant did not clearly show they would prejudice the jury. As the court does not provide the indictment to jurors, there is little risk of prejudice. Voir dire and jury instructions will also help prevent prejudice.

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    28 views3 pages

    Chutkan DENIES Trump Motion To Strike Inflammatory Allegations

    Uploaded by

    Robert Gouveia
    The court denied the defendant's motion to strike inflammatory allegations from the indictment. The motion sought to remove paragraphs alleging the defendant made false election fraud claims and directed supporters to obstruct congressional proceedings. The court found that while the allegations may not be relevant, the defendant did not clearly show they would prejudice the jury. As the court does not provide the indictment to jurors, there is little risk of prejudice. Voir dire and jury instructions will also help prevent prejudice.

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    © All Rights Reserved
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    of 3

    Case 1:23-cr-00257-TSC Document 158 Filed 11/17/23 Page 1 of 3

    UNITED STATES DISTRICT COURT


    FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA,

    v.
    Criminal Action No. 23-257 (TSC)
    DONALD J. TRUMP,

    Defendant.

    OPINION AND ORDER

    Defendant has filed a Motion to Strike Inflammatory Allegations from the Indictment.

    ECF No. 115 (“Motion”). The Motion asks the court to strike paragraphs 10(d) and 105–13 of

    the indictment. Id. at 1. Those paragraphs allege that on January 6, 2021, “Defendant and co-

    conspirators repeated knowingly false claims of election fraud to gathered supporters, falsely

    told them that the Vice President had the authority to and might alter the election results, and

    directed them to the Capitol to obstruct the certification proceeding and exert pressure on the

    Vice President to take the fraudulent actions he had previously refused,” and that after the

    supporters “broke through barriers cordoning off the Capitol grounds,” “violently attack[ed] law

    enforcement officers,” and “breached the building,” Defendant “refused” to “issue a calming

    message aimed at the rioters” and instead “issued a Tweet intended to further delay and obstruct

    the certification,” attacking Mike Pence for failing to halt the certification proceedings.

    Indictment, ECF No. 1, ¶¶ 10(d), 107, 110–11. The court will DENY Defendant’s Motion.

    Federal Rule of Criminal Procedure 7(d) provides that a “court may strike surplusage

    from the indictment or information” upon a defendant’s motion. That rule “has been strictly

    construed against striking surplusage,” United States v. Jordan, 626 F.2d 928, 930 n.1 (D.C. Cir.

    1980), so motions like Defendant’s “are highly disfavored in this Circuit,” United States v. Watt,

    Page 1 of 3
    Case 1:23-cr-00257-TSC Document 158 Filed 11/17/23 Page 2 of 3

    911 F. Supp. 538, 554 (D.D.C. 1995). They “should be granted only if it is clear that the

    allegations are not relevant to the charge and are inflammatory and prejudicial.” United States v.

    Rezaq, 134 F.3d 1121, 1134 (D.C. Cir. 1998) (quotation omitted). If an allegation is relevant, or

    is not inflammatory and prejudicial, the motion should be denied. See United States v.

    Hedgepeth, 434 F.3d 609, 612–13 (3d Cir. 2006); United States v. Trie, 21 F. Supp. 2d 7, 20

    (D.D.C. 1998).

    Regardless of whether the allegations at issue are relevant, Defendant has not satisfied his

    burden to clearly show that they are prejudicial. He argues that sharing the allegations with the

    jury may result in prejudice at his trial “because members of the jury may wrongfully impute

    fault to [him]” for “the actions at the Capitol on January 6.” Motion at 5; see also id. at 4

    (arguing that “the jury might decline to give defendants the benefit of reasonable doubt due to

    extraneous allegations”). But consistent with its past practice, this court will not provide a copy

    of the indictment to jurors, eliminating that source of potential prejudice. Compare Trie, 21 F.

    Supp. 2d at 19 (“Since it is the practice of this Court to provide a copy of the indictment to the

    jury in all cases, there is the possibility of prejudice” resulting from irrelevant, inflammatory

    allegations.), with Hedgepeth, 434 F.3d at 613 (The “indictment was neither shown nor read to

    the jury and . . . could not have prejudiced its deliberations.”); see also United States v. Awan,

    966 F.2d 1415, 1426 (11th Cir. 1992) (“[T]he district court carefully prevented the jury from

    being prejudiced by the challenged allegations by providing the jury with only a summary of the

    indictment that did not include references to the [allegations at issue].”).

    Defendant’s sixteen-page Reply In Support of the Motion, despite making numerous

    inflammatory and unsupported accusations of its own, see, e.g., ECF No. 156 at 7 (“President

    Biden directed the Department of Justice to prosecute his leading opponent for the presidency

    Page 2 of 3
    Case 1:23-cr-00257-TSC Document 158 Filed 11/17/23 Page 3 of 3

    through a calculated leak to the New York Times.”), devotes only a single paragraph to the

    prejudice requirement. His sole argument is that even if the jury does not receive a copy of the

    indictment, “[v]oluminous evidence exists here that the jury pool has been, and continues to be,

    exposed to the Indictment and its inflammatory and prejudicial allegations, through media

    coverage relating to the case.” Id. at 16. But Defendant fails to cite even one example of that

    evidence. In any event, the voir dire process will allow the court to examine and address the

    effects that pretrial publicity, including any generated by Defendant, has had on the impartiality

    of potential jurors. When trial begins, the court will also take steps to screen from the jury any

    irrelevant and prejudicial material that either party seeks to introduce. Moreover, before the

    jurors deliberate, the court will instruct them on the actual charges and the evidence they may

    consider in their deliberations. See United States v. Empire Bulkers Ltd., 583 F. Supp. 3d 746,

    760 (E.D. La. 2022) (providing that jury instructions would “make clear to [jurors] what

    defendants are actually charged with” and “the verdict form will not ask the jury to consider

    issues for which defendants have not been charged”). This too will prevent “potential prejudice

    from the alleged surplusage.” Id.

    For these reasons, Defendant’s Motion to Strike Inflammatory Allegations from the

    Indictment, ECF No. 115, is hereby DENIED.

    Date: November 17, 2023

    Tanya S. Chutkan
    TANYA S. CHUTKAN
    United States District Judge

    Page 3 of 3

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