Case 1:23-cr-00237-CJN Document 114 Filed 03/22/24 Page 1 of 6

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA )

)
)
v. ) Case No. 23-cr-237 CJN
)
NATHAN EARL HUGHES )
)
)
Defendant )
)

DEFENDANT NATHAN HUGHES’ MOTION TO COMPEL DISCOVERY

William L. Shipley, Jr., Esq.

PO Box 745
Kailua, Hawaii 96734
Tel: (808) 228-1341
Email: [email protected]

Attorney for Defendant

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NOW COMES, Defendant Nathan Hughes by and through his

undersigned counsel of record, William L. Shipley, and respectfully requests

this Court to enter an Order compelling the United States to produce pursuant

to Rule 16 the discovery outlined below.

During the trial in United States v. Kenyon, 23-cr-101-ABJ, on March

11, 2024, government witness USCP Lt. Frederick Hopkins testified that

Capitol was closed to the public pursuant to COVID-19 protocols in January

2021. In addition, because of the normal heightened security posture that

always is in place for the January 6 Joint Session of Congress to certify the

Electoral College vote count, any member of the media on the Capitol grounds

or inside the Capitol building to cover that proceeding had to apply in advance

to be admitted to the Capitol that day, vetted for security purposes, and then

given specific instructions as to where they were to go prior to the beginning of

the Session to gain admittance into the building or otherwise on the grounds.

Lt. Hopkins also testified that the approved list of all members of the media to

be allowed onto the grounds or inside the Capitol on January 6 is a record of

the USCP.

Defendant Hughes is a freelance independent journalist, with a history of

reporting on political rallies, demonstrations and protests going back to 2017.

He has received income and licensing fees for access to video footage captured

by him. He had also developed a sizeable following on Facebook from his

writings about the events he documented. This led him to be a frequent on-air

guest for various online and over-the-air media outlets, during which he

provided his first-hand observations of events he observed while attending

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these rallies, demonstrations and protests. Mr. Hughes covered the events of

January 6 in this same fashion, and posted his observations on various social

media and online news websites.

Upon the conclusion of the Kenyon trial, undersigned counsel contacted

Government Counsel in this case, Sean McCauley and Kaitlin Klamann, and

informally requested from them the following information under Rule 16:

1. The list of approved media members as described by Lt. Hopkins with

respect to the Joint Session on January 6, 2021.

2. A list of individuals on the grounds and/or inside the Capitol who

have been identified in the DOJ/FBI/USCP investigation as members

of the media -- both those employed by media companies as well as

those who work as a freelance journalist – but who were not on the

pre-approved list identified by Lt. Hopkins.

Three days after the request was made, the following email

communication was received by the undersigned counsel with regard to the

requested discovery:

After consulting with our team, this is something that

we’ll need to take up with the court. We are not going
to be producing this list without more to show that it
would be material to preparing Mr. Hughes’ defense.

Currently, undersigned is considering filing a motion to dismiss the

indictment against Defendant Hughes on the basis of impermissible “selective

prosecution” because of Mr. Hughes’ exercise of this First Amendment rights as

a freelance journalist.
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A member of the USCP has testified under oath – and was cross-

examined by the undersigned counsel – regarding the existence of an official

record maintained by the USCP that is relevant to the issue of the presence of

authorized media members who were pre-approved to be on the grounds and

inside the Capitol on January 6, 2021.

To the extent that the Government has identified members of media

companies or freelance journalists on the grounds or inside the Capitol who

were NOT on the pre-approved list, Mr. Hughes has a legitimate basis to be

provided that evidence in order to determine whether a motion to dismiss is

warranted based on his disparate treatment relative to other identified media

members who have not been charged in the more than three years since the

events.

Rule 16 requires the government to disclose certain information upon the

defendant's request. Fed.R.Crim.P. 16(a)(1). Specifically, Rule 16 provides for

the pretrial disclosure by the government of five types of documents: (1) the

defendant's oral, written or recorded statements; (2) the defendant's prior

criminal record; (3) certain documents and objects "within the government's

possession, custody, or control;" (4) reports of examinations and tests; and (5)

a summary of testimony from an expert witness that the government will rely

upon. Fed.R.Crim.P. 16(a)(1)(A)— (G).

Here, the request made by Defendant Hughes concerns the third

category under Rule 16(a)(1)(E). This exact language of this provision of the

rule provides, in part:

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Upon a defendant's request, the government must permit the

defendant to inspect and to copy or photograph books, papers,
documents, data, photographs, tangible objects, buildings or places, or
copies or portions of any of these items, if the item is within the
government's possession, custody, or control and:

(I) the item is material to preparing the defense...

"’The language and the spirit of the Rule are designed to provide to a

criminal defendant, in the interest of fairness, the widest possible opportunity

to inspect and receive such materials in the possession of the government as

may aid him in presenting his side of the case.’" United States v. Libby, 429

F.Supp. 2d 1, 5 (D.D.C. 2006)(quoting United States v. Poindexter, 727 F.Supp.

1470, 1473 (D.D.C.1989).

A motion to dismiss for government misconduct/selective prosecution is

certainly “material to preparing the defense” of Mr. Hughes.

A representative of the “Prosecution Team” – which includes the USCP –

has testified under oath that a relevant record exists. That record has not been

produced in discovery notwithstanding a precise request that the Government

do so.

That Mr. Hughes was a freelance journalist for several years prior to

January 6, 2021, is also not disputed.

The contemplated motion to dismiss cannot be completed in such a way

that would establish a foundation for a claim of disparate treatment based on

unconstitutional grounds -- i.e., the content of his First Amendment activities

before and after January 6 -- without information that is certainly possessed by

the Government.
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The Government will have an opportunity to respond to the motion at the

appropriate juncture if the motion is filed.

But the Government should not be allowed to prevent the inquiry from

being joined by refusing to produce documents and data in its possession that

are necessary and relevant to the preparation of such a motion in the first

instance.

In addition to an Order compelling the production of the requested

discovery, Defendant Hughes also requests an extension of time to file a motion

to dismiss based on selective prosecution, and requests that such motion not

be due until 21 days after the Government has produced the discovery that is

the subject of this motion.

Dated: March 22, 2024 Respectfully Submitted,

/s/ William L. Shipley

William L. Shipley, Jr., Esq.
PO BOX 745
Kailua, Hawaii 96734
Tel: (808) 228-1341
Email: [email protected]

Attorney for Defendant