UNITED STATES v. FULLER (2025)

MEMORANDUM OPINION & ORDER

Defendants Kenneth Fuller and Caleb Fuller face trial on felony and misdemeanor charges related to their alleged conduct during the riot at the United States Capitol on January 6, 2021. The Court described the Fullers’ alleged role in the events of that day in a prior Memorandum Opinion. See Mem. Op., ECF No. 105, at 3. For this conduct, a grand jury charged them by Superseding Indictment in March 2024 with Obstructing Certain Officers During a Civil Disorder, in violation of 18 U.S.C. §§ 231(a)(3) and 2; Entering and Remaining in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1); Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2); and Disorderly Conduct in a Capitol Building or Grounds, in violation of 40 U.S.C. § 5104(e)(2)(D). Superseding Indictment, ECF No. 46. Now pending before the Court is a portion of Defendant K. Fuller's [77] Third Motion in Limine, in which he seeks a ruling that two video montage exhibits that the Government proposes to introduce at trial contain inadmissible hearsay. See Def.’s Third Mot. in Limine and Brief in Support (“Def.’s Mot.”), ECF No. 77, at 2. The Government opposes this request. See Gov't’s Opp'n to Def.’s Mot. in Limine to Exclude Video Montages (“Gov't’s Opp'n”), ECF No. 86, at 12–13. The Court deferred ruling on this portion of K. Fuller's Motion when it resolved most of the parties’ other motions in limine in a prior order. See Order, ECF No. 104, at 1; Mem. Op., ECF No. 105, at 10–11.

Upon consideration of the parties’ submissions,¹ the relevant legal authority, and the entire record, the Court agrees with the Defendants that the montages at issue contain hearsay and further concludes that the Government has not met its burden of demonstrating the applicability of an exception to the rule against hearsay. The Court shall therefore GRANT IN PART the Motion and EXCLUDE from evidence both the Capitol Police Montage and the Congressional Montage.

I. BACKGROUND

The Government proposes to introduce two video montage exhibits into evidence at trial. Gov't’s Opp'n at 5–6. The Government represents that it has used “one or both of these montages—in one way or another—in virtually every January 6 prosecution that has gone to trial since inception.” Id. at 5. But neither party has identified any case in this District assessing whether these montages contain inadmissible hearsay.

One of the exhibits, according to the Government, is “a compilation of U.S. Capitol Police (USCP) CCTV footage” from “approximately 1600 cameras present at the U.S. Capitol building and grounds on January 6, 2021.” Id. The Court will refer to this exhibit as the “Capitol Police Montage.” This exhibit contains audio clips, which the Government represents are taken “from simultaneous USCP police radio traffic.” Id. For example, in one of these clips, someone can be heard stating, “We just had protestors at Peace Circle breach the line!” Capitol Police Montage at 00:18. The exhibit also includes “satellite map depictions,” which the Government explains are intended “to orient the factfinder of the area of the U.S. Capitol and the general area with which the CCTV depictions are occurring.” Gov't’s Opp'n at 6.; see infra, Figure 1. Finally, the exhibit includes text labels that the Government represents identify the “camera number, the relative geographic location of the camera, and time of the video obtained from said camera location” before each video clip plays. See Gov't’s Supp. at 6; Figure 2, infra.

Figure 1. Satellite map, as depicted in the Capitol Police Montage at 0:01.

Figure 2. Satellite map with text label showing time, camera number (redacted here), and geographic location, as depicted in the Capitol Police Montage at 0:10.

The other montage exhibit, according to the Government, contains a “compilation of portions of the official Congressional Record with portions of official Congressional Media” and depicts “Congressional activities” taking place on January 6, 2021. Gov't’s Opp'n at 5. The Court will refer to this exhibit as the “Congressional Montage.” This exhibit includes labels and illustrations that purport to indicate the time and place at which certain events took place on January 6, 2021. See infra, Figure 3; see also, e.g., Congressional Montage at 0:02, 0:12, 0:26.

Figure 3. Congressional Record excerpt, video clip, text label, and illustration, as depicted in the Congressional Montage.

This Court has already ruled that both montage exhibits are relevant and that their probative value is not “substantially outweighed” by the risk of unfair prejudice. See Order, ECF No. 104, at 1; Mem. Op., ECF No. 105, at 7–10 (quoting Fed. R. Evid. 403). As the Government has argued, both montage exhibits are highly probative evidence of whether—as the Government has charged in Count One—there was a civil disorder at the U.S. Capitol on January 6, 2021, that obstructed, delayed, or adversely affected the performance of a federally protected function. See Gov't’s Opp'n at 7; Mem. Op., ECF No. 105, at 7–9; see also 18 U.S.C. § 231(a)(3). But the Court deferred ruling on K. Fuller's objection that both exhibits contain inadmissible hearsay and directed further briefing because the parties’ initial submissions did not illuminate either “the precise contours of K. Fuller's hearsay objection or the Government's response thereto.” See Mem. Op. at 11. After receiving the parties’ further briefing and reviewing the montages that the Government proposes to introduce, the Court is now prepared to rule on K. Fuller's hearsay objection. See Def.’s Supp.; Gov't’s Supp.

II. LEGAL STANDARDS

Hearsay is any “statement,” other than one made by the declarant “while testifying at the current trial or hearing,” that “a party offers in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). A “person's oral assertion” or “written assertion” is a “statement” for purposes of this definition, as is a “person's ․ nonverbal conduct, if the person intended it as an assertion.” Fed. R. Evid. 801(a). Hearsay is not admissible unless provided otherwise by a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court. Fed. R. Evid. 802. The party opposing the introduction of relevant evidence bears the burden of persuading the Court that the evidence constitutes hearsay as defined in Rule 801. 30B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 6712 (2024 ed.). Once the Court determines that evidence constitutes hearsay, the burden shifts and the proponent of the hearsay must establish that the challenged evidence satisfies an applicable hearsay exception by a preponderance of the evidence. Id. § 6803; Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).

III. ANALYSIS

A. The montage exhibits contain hearsay.

K. Fuller argues that both montage exhibits should be excluded because they contain inadmissible hearsay. Def.’s Mot. at 2. Most straightforwardly, he argues that some of the audio clips of “radio runs” included in the Capitol Police Montage are hearsay. Id. He also raises what appears to be a novel argument: that both montages contain hearsay about the time and place at which certain events occurred and which cameras recorded certain footage. Def.’s Mot. at 2. The Court takes these arguments in turn.

1. The recorded radio runs contain statements that would be hearsay if offered for the truth of the matter asserted.

Some of the statements in the recordings of radio runs that are included in the Capitol Police Montage are hearsay. Hearsay includes any out-of-court “oral assertion” that is “offered for the truth of the matter asserted.” Fed. R. Evid. 801(a). Many statements in the audio recordings included in the Capitol Police Montage could satisfy this definition. For example, early in the montage, an audio clip plays in which someone can be heard stating, “We just had protestors at Peace Circle breach the line!” Capitol Police Montage at 00:18. This clip plays simultaneously with video depicting the breach at Peace Circle. Id. If offered as evidence that protestors in fact breached the line at Peace Circle, this statement is hearsay. See Fed. R. Evid. 801(a). Statements like this one are inadmissible unless they are offered for a purpose other than proving the truth of the matter asserted or an exception applies. See Fed. R. Evid. 801(a), 802.

2. Assertions in both montages about the times and places at which certain events occurred or recordings were made are hearsay.

Both the Capitol Police Montage and the Congressional Montage include text labels and illustrations that purport to indicate the time and place at which certain events occurred and certain recordings were made. The montages are also edited in a manner that indicates relationships between different kinds of source media, for example by displaying a satellite map of an area immediately before a video that the Government submits was recorded from the location shown on the map.

The text labels added to the Government's two montage exhibits to indicate the time and place when certain events occurred are hearsay. The labels added to identify specific cameras as the source of footage in the Capitol Police Montage are also hearsay. Text labels included in a video exhibit are “a person's ․ written assertion[s]” when the creator of the video added those labels to explain or provide context for other assertive content in the video. See United States v. Martinez, 588 F.3d 301, 310–11 (6th Cir. 2009) (concluding that explanatory phrases superimposed on a video prepared for the purpose of demonstrating proper surgical technique “easily” qualified as hearsay statements). Here, the text labels at issue assert that certain videos in the montages were recorded at specific locations at certain times of day on January 6, 2021. See, e.g., Capitol Police Montage at 0:01, 0:15–0:24, 0:45–0:59; Congressional Montage at 0:12, 0:26. The challenged exhibits are offered, in part, to prove that those events in fact occurred at the stated times. See Gov't’s Opp'n at 5–6. Similarly, labels in the Capitol Police Montage assert that certain footage in that exhibit was recorded by specific cameras. The only relevant purpose for admitting these labels is to prove the truth of the matter asserted: that the places, times, and camera numbers stated in the label correspond to the place and time depicted in the accompanying media clips and the source of the accompanying security camera footage. The labels are therefore hearsay and are admissible over an objection only if an exception applies. See Fed R. Evid. 802.

The labelled map of the Capitol Grounds in the Capitol Police Montage and the labelled illustrations of the U.S. Capitol Building in the Congressional Montage are also hearsay. “[N]onverbal conduct of a person” is a “statement” for purposes of the hearsay rules “if it is intended by the person as an assertion.” Fed. R. Evid. 801(a). Creating an illustration is a form of “nonverbal conduct” that can be hearsay if it is intended by the illustrator as an assertion and is later offered to prove the fact asserted. See id.; cf. United States v. Moskowitz, 581 F.2d 14, 21 (2d Cir. 1978) (holding that a composite sketch by a police artist was not hearsay because—unlike the montage exhibits—it was offered not “as a ‘statement’ by the artist,” but rather as evidence of “the likeness that [witnesses] had identified” to the artist). Here, context makes clear that the person or people who added the labelled map and illustrations to the Capitol Police Montage and the Congressional Montage intended them to be assertions about the locations where certain video clips in the montages were recorded. See, e.g., Congressional Montage at 0:02, 0:12, 0:26. And the Government is offering the exhibits to prove that the depicted events in fact took place at those locations. See Gov't’s Opp'n at 5. That is the only relevant purpose for admitting the labelled map and illustrations. Therefore, the labelled map and illustrations, like the text labels, are hearsay and are admissible over an objection only if an exception applies. See Fed R. Evid. 802.

Finally, the montage creators’ editorial choices about how to present multiple pieces of media—including excerpts of the Congressional Record, maps, video recordings, and audio recordings—are hearsay if the montages are offered to prove that the various pieces of media depict or describe the same places or events. Like the act of adding illustrations, the act of curating, editing, and placing different pieces of media side-by-side or in immediate sequence is “nonverbal conduct” that is hearsay if it is intended as an assertion. See Fed. R. Evid. 801(a); Martinez, 588 F.3d at 310–11. And as with the illustrations, context makes clear that the author or authors of the montages intended the editorial choices evident in the montages to convey that the various pieces of media were related. See, e.g., Capitol Police Montage at 0:01, 0:15–0:24, 0:45–0:59; Congressional Montage at 0:12, 0:26. For example, the decision to show an aerial map of a specific area immediately before the first video clip in the Capitol Police Montage conveys the message that the map and video clip depict the same area. See, e.g., Capitol Police Montage at 0:15–0:24. Similarly, the decision to show an excerpt of the Congressional Record alongside the first video clip in the “Congressional Montage” conveys the message that the excerpt of the Congressional Record describes the same events shown in the video clip. Based on the content of the montages and the fact that the montages were prepared for use in prosecutions arising from the attack on the Capitol on January 6, the Court concludes that the author or authors of the montages intended these editorial choices to convey these specific messages. Because they were intended to convey specific messages, these out-of-court editorial choices were hearsay. See United States v. Long, 905 F.2d 1572, 1580 (D.C. Cir. 1990) (“[T]he crucial distinction under [Evidence R]ule 801 is between intentional and unintentional messages, regardless of whether they are express or implied.”). Therefore, even if the individual pieces of media would be admissible if offered as standalone exhibits, the resulting curated presentations of multiple pieces of media in the montages are admissible over an objection only if an exception applies. See Fed. R. Evid. 802; Fed. R. Evid. 805.

B. Some of the hearsay in the montage exhibits is inadmissible.

Having concluded that the montage exhibits contain hearsay, the Court next must decide whether the Government has met its burden of showing that an exception to the rule excluding hearsay applies. Two exceptions may allow the admission of some of the hearsay that K. Fuller challenges. But the Government has not demonstrated that any exception to the prohibition against hearsay applies to much of the hearsay in the montages. The Court shall therefore exclude the montages.

1. Some of the “radio runs” may be admissible under Rules 803(1) and (2).

The Government cites two exceptions to the rule against hearsay that it argues allow the admission of the audio recordings of “radio runs” contained in the Capitol Police Montage. See Gov't’s Opp'n at 12; Gov't’s Supp. at 2–3. First, it argues that the statements are admissible under Federal Rule of Evidence 803(1), which allows admission of “[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” See Gov't’s Opp'n at 12; Gov't’s Supp. at 8. Second, it argues that the statements are admissible under Federal Rule of Evidence 803(2), which allows admission of “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” See Gov't’s Opp'n at 12; Gov't’s Supp. at 8.

K. Fuller argues that these exceptions are inapplicable because some of the statements at issue seem from their context to have been made by dispatchers who were calmly relating information received from other officers, rather than their own observations. Def.’s Supp. at 4–5. Because the Government may be able to lay foundation at trial showing that some of the statements in the recorded radio runs are admissible as present-sense impressions or excited utterances, the Court declines to rule on their admissibility at this stage. See Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 103.02[12] (9th ed. 2006) (“[A] trial judge is not required to make an in limine ruling.”).

The Government also cites the exception in Federal Rule of Evidence 803(3) allowing admission of an out-of-court statement of “the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health),” but this exception is inapplicable here. See Gov't’s Supp. at 2. This exception does not apply to “a statement of ․ belief to prove the fact ․ believed.”² Fed. R. Evid. 803(3). And as the Government acknowledges, it “does not permit the declarant to relate what caused the state of mind” at issue. Id. at 3 (quoting United States v. Slatten, 395 F. Supp. 3d 45, 87 (D.D.C. 2019) (RCL)). Therefore, none of the recorded statements at issue here—for example, officers’ statements that “we have a breach” and “they [are] in the building”—fall within the scope of this exception if they are offered to prove the truth of the matter asserted. See Slatten, 395 F. Supp. 3d at 87.

In sum, the Court concludes that some of the audio recordings of radio runs in the Capitol Police Montage may be admissible as present-sense impressions or excited utterances. See Fed. R. Evid. 803(1), (2). The Court will defer ruling on the admissibility of these individual recordings until trial.

2. The Government has not shown that any hearsay exception applies to the assertions in the montages about the times and places where events occurred or video footage was recorded.

The Government raises several responses to K. Fuller's hearsay objections to the labels, illustrations, and editorial choices in the two montages, but none are successful. See Gov't’s Supp.

The Government first argues that the text labels in the montages should be admitted because they “simply describe in a non-prejudicial way what the jury is viewing,” but that argument misses the mark. See Gov't’s Supp. at 8. Because the labels are hearsay, the question the Court must answer is not whether they are prejudicial, but whether they fall within an exception to the rule that renders hearsay inadmissible. See Fed. R. Evid. 802. And the Government has not identified any exception that applies to these labels. See Gov't’s Opp'n; Gov't’s Supp. Therefore, the Court concludes that the text labels are inadmissible.

In support of its argument that the Congressional Montage should be admitted, the Government invokes Rules of Evidence related to authentication. See Gov't’s Supp. at 9–11 (citing Fed. R. Evid. 901, 902(5)). However, because rules of authentication are not hearsay exceptions, they are unavailing here. Evidence that satisfies all the requirements for authentication may still be hearsay and therefore inadmissible unless a hearsay exception applies. See, e.g., United States v. Safavian, 435 F. Supp. 2d 36, 42–43 (D.D.C. 2006) (PLF); see also Paul F. Rothstein, Federal Rules of Evidence, Rule 901: Authenticating or Identifying Evidence (2024 ed.) (“ ‘Authentication’ does not mean factual recitals in the document (or other recordation) may be accepted as true. If that is why the document or recordation is being offered ․, a hearsay exception or exemption is required, as well.”). Because the Government has not identified any hearsay exception that applies to the challenged labels and illustrations indicating time and place in the Congressional Montage, it has not shown that the montage is admissible, regardless of whether the video clips and Congressional Record excerpts within the montage are authentic.

The Court has also considered whether other hearsay rules would allow the admission of the statements at issue. For example, in its prior Memorandum Opinion, the Court noted that some hearsay in the Congressional Montage may be admissible under Federal Rule of Evidence 803(8), which provides an exception allowing the admission of certain public records. See Mem. Op., ECF No. 105, at 11. However, that exception does not apply to the exhibit's hearsay assertions about the times and places where events occurred or video footage was recorded. The public records exception in Rule 803(8) allows the admission of “[a] record or statement of a public office if ․ it sets out,” among other things, “a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel” and “the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.” Fed. R. Evid. 803(8). The Government has not shown that the labels and illustrations in the Congressional Montage indicating when and where certain video clips were recorded were based on observations that the montage's creators made “while under a legal duty to report.” See id. Therefore, even if some of the individual components of the Congressional Montage would be admissible under the public records exception, the specific illustrations and labels about time and place that K. Fuller challenges are not.

The Court also noted in its prior Memorandum Opinion that some hearsay in the Congressional Montage may be admissible under the residual exception, Federal Rule of Evidence 807. See Mem. Op., ECF No. 105, at 11. That exception allows the admission of hearsay that is “supported by sufficient guarantees of trustworthiness” and “is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.” Fed. R. Evid. 807. Neither party has addressed the residual exception in its briefing. See Def.’s Mot.; Gov't’s Opp'n; Def.’s Supp.; Gov't’s Supp. And the Court concludes that it is inapplicable to the hearsay at issue here because the assertions in the montages about the times and places where events occurred or video footages was recorded are not “more probative” than other evidence of those facts “than any other evidence” that the Government can obtain “through reasonable efforts.” See Fed. R. Evid. 807(a)(2). For example, rather than relying on labels in the Capitol Police Montage to establish the time and place of the first breaches of the secure perimeter of the Capitol Grounds on January 6 and identify the source of video footage depicting that breach, the Government could call as a witness a USCP officer who was on duty at the time of the breach.

Finally, the Government argues that the Congressional Montage is admissible under Federal Rule of Evidence 1006 because the exhibit “represents an appropriate ‘summary ․ to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in Court.’ ” Gov't’s Supp. at 11 (quoting Fed. R. Evid. 1006). But as K. Fuller correctly notes, “Rule 1006 is not an exception to the rule against hearsay.” Def.’s Supp. at 9. For a summary to be admissible under Rule 1006, the underlying records to be summarized “themselves must be admissible.” United States v. Fahnbulleh, 752 F.3d 470, 479 (D.C. Cir. 2014); see also; Paul F. Rothstein, Federal Rules of Evidence, Rule 1006: Summaries to Prove Content (2024 ed.) (“[I]n the case of voluminous or complex originals, a chart, summary, or calculation ․ representing the originals may be introduced ․ assuming the originals would have been admissible.” (emphasis added)). Moreover, when a party offers a summary under Rule 1006, “the witness who prepared the summary should introduce it.” Id. Here, the Government has not shown that the text labels and illustrations indicating time and place in the Congressional Montage are admissible, nor has it indicated that it will call any of the creators of the montage as witnesses. Therefore, Federal Rule of Evidence 1006 does not provide a basis for the Court to admit the Congressional Montage over K. Fuller's objection.

In sum, the Government has failed to show that any exception to the rule excluding hearsay applies to the labels, illustrations, and editorial choices in the Capitol Police Montage and the Congressional Montage asserting that certain events occurred or recordings were made at particular times or places. Therefore, the Court concludes that these out-of-court assertions are inadmissible. The Court shall exclude both montages from evidence.

IV. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that the Defendants’ [77] Third Motion in Limine is GRANTED IN PART. The Court shall EXCLUDE from evidence both the Capitol Police Montage and the Congressional Montage. The Court does not rule here on whether any individual item of evidence contained in the montages—for example, a radio run or excerpt from the Congressional Record—is admissible as a standalone exhibit.

MEMORANDUM OPINION & ORDER ON RECONSIDERATION

(Opinion Denying Reconsideration January 10, 2025)

Defendants Kenneth Fuller and Caleb Fuller face trial on felony and misdemeanor charges related to their alleged conduct during the riot at the United States Capitol on January 6, 2021. See Superseding Indictment, ECF No. 46; Mem. Op., ECF No. 105, at 3. Their trial is scheduled to begin in this District on January 13, 2025. Pretrial Scheduling Order, ECF No. 60.

Now pending before the Court is the Government's [128] Motion for Reconsideration of the Court's recent [122] Memorandum Opinion and Order excluding from evidence two proposed video montage exhibits on the grounds that those exhibits contain inadmissible hearsay (“Motion” or “Mot.”). Defendant K. Fuller has filed a [129] Motion to Strike the Government's Motion, arguing that the Government “already had an opportunity to advance its arguments,” and that to the extent that the Government raises new arguments, those argument “clearly lack merit.” Def.’s Mot. to Strike Gov't’s Mot. for Reconsideration, ECF No. 129.

Because the Court agrees with Defendant K. Fuller that the Government has not shown that reconsideration is warranted, the Court shall DENY the Government's Motion. Because the Court denies the Government's Motion on the merits, it shall DENY AS MOOT K. Fuller's Motion to Strike.

I. BACKGROUND

The Court described the Fullers’ alleged role in the events of January 6, 2021, in a prior Memorandum Opinion. See Mem. Op., ECF No. 105, at 3. For this alleged conduct, a grand jury charged them by Superseding Indictment in March 2024 with Obstructing Certain Officers During a Civil Disorder, in violation of 18 U.S.C. §§ 231(a)(3) and 2; Entering and Remaining in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1); Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2); and Disorderly Conduct in a Capitol Building or Grounds, in violation of 40 U.S.C. § 5104(e)(2)(D). Superseding Indictment, ECF No. 46.

In a recent Memorandum Opinion and Order, the Court granted in part a motion in limine filed by Defendant K. Fuller and ruled that two of the Government's proposed exhibits will be excluded from evidence at trial because they contain inadmissible hearsay about the time and place at which certain events occurred and certain video footage was recorded. Mem. Op. & Order, ECF No. 122; see also Def.’s Third Mot. in Limine, ECF No. 77. The Government now seeks reconsideration of this ruling. Mot., ECF No. 129, at 1.

II. LEGAL STANDARD

Courts in this District have entertained motions for reconsideration of interlocutory orders in criminal cases “by importing the standards of review applicable in motions for reconsideration in civil cases.” United States v. Hassanshahi, 145 F. Supp. 3d 75, 80 (D.D.C. 2015) (RC) (collecting cases). Under those standards, reconsideration of interlocutory decisions is available “as justice requires.” Id. (quoting collected cases). Justice may require reconsideration if the Court “patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, has made an error not of reasoning but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court.” Id. (quoting Singh v. George Washington Univ., 383 F.Supp.2d 99, 101 (D.D.C. 2005) (RCL)). But “a motion for reconsideration is ‘not simply an opportunity to reargue facts and theories upon which a court has already ruled.’ ” Id. at 80–81 (quoting New York v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995) (per curiam) (three-judge panel)). Nor is it a proper “vehicle for presenting theories or arguments that could have been advanced earlier.” United States ex rel. Landis v. Tailwind Sports Corp., 167 F. Supp. 3d 80, 82 (D.D.C. 2016) (CRC) (quoting Loumiet v. United States, 65 F.Supp.3d 19, 24 (D.D.C. 2014) (CKK)). The moving party bears the burden of persuading the Court that reconsideration is warranted. Hassanshahi, 145 F. Supp. 3d at 80. Therefore, “[o]nly if the moving party presents new facts or a clear error of law which ‘compel’ a change in the court's ruling will the motion to reconsider be granted. New York, 880 F. Supp. at 39 (quoting Nat. Res. Def. Council, Inc. v. E.P.A., 705 F. Supp. 698, 702 (D.D.C. 1989) (JLG), vacated on other grounds, 707 F. Supp. 3 (D.D.C. 1989)).

III. ANALYSIS

The Government's Motion raises six arguments in favor of reconsidering the Court's recent ruling and admitting the montage exhibits, but none is successful.

First, the Government argues that the date, time, and camera-number labels contained in the montage exhibits are admissible because those labels are not hearsay, but the Court has already rejected this argument. See Mot. at 3–4. As the Court previously explained, the labels at issue are “ ‘a person's ․ written assertion’ ” because the creator of the montages added those labels to “assert that certain videos in the montages were recorded at specific locations at certain times of day on January 6, 2021.” Mem. Op. & Order, ECF No. 122, at 7 (quoting Fed. R. Evid. 801(a)). The Government argues that these labels are not the assertions of a “person” because the “raw data” underlying them was “generated by machines, the data are not statements,” and “the machines are not declarants.” Mot. at 3. This argument misses the mark. The Court has not excluded any machine-generated data, such as automated timestamps embedded in security camera videos. Instead, the Court's ruling addresses the human-generated labels that the creator of the montages added to the exhibits as assertions about the time and place at which certain events occurred or camera footage was recorded. The Court has ruled that these labels are hearsay. Mem. Op. & Order, ECF No. 122, at 6–7. Because the Government has not identified any persuasive reason for the Court to revisit this issue, the Court declines to reconsider its ruling.¹

Second, the Government argues that the date, time, and camera-number information contained in the montage exhibits is admissible under the business-records exception to hearsay in Federal Rule of Evidence 803(6) because those details are derived from “information from the U.S. Capitol Police that are records of regularly conducted activity.” Mot. at 4–5. But because the Government failed to raise the business-records exception in either its original Opposition to Defendant K. Fuller's Motion in Limine or its supplemental brief in opposition to that motion, this argument is not a proper basis for reconsideration of the Court's ruling. See Tailwind Sports Corp., 167 F. Supp. 3d at 82. Moreover, even if the Court were to consider this argument on the merits, the Court is not persuaded that the business-records exception applies here. Even if the underlying information from which the Government derived the labels in the montage exhibits was “kept in the course of a regularly conducted activity of a business, organization, occupation, or calling,” the Government has not shown that the montage exhibits themselves or the labels therein were kept in that context. See Fed. R. Evid. 803(6). Instead, these exhibits and labels were created for the purpose of use in litigation. The montage exhibits and the labels therefore lack the “circumstantial guarantees of trustworthiness” and “unusual reliability” that ordinarily justify the admission of hearsay under the business-records exception. See id. notes of advisory committee on 1972 proposed rules. The Court declines to reconsider its prior ruling based on this new argument.

Third, the Government argues that information in the montages about “the locations of various places within and immediately around the U.S. Capitol are not hearsay” because the Court may take judicial notice of those locations under Federal Rule of Evidence 201(b). Mot. at 5. The Government is correct that the Court may take judicial notice of these locations; an unannotated map depicting those locations may also be admissible. But the rules allowing judicial notice are not exceptions to the rule against hearsay, and the Government has not identified any provision in the Federal Rules of Evidence that would allow the Court to admit hearsay merely because the subject matter of the hearsay may be proven in a different way. On the contrary, the availability of alternate means of proving a fact generally cuts against the admission of hearsay. Cf. Fed. R. Evid. 807(a)(2) (allowing admission of hearsay under the residual exception only if “it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts”). The Court shall not reconsider its ruling based on this argument.

Fourth, the Government repeats its argument that portions of the montages may be admissible under Federal Rule of Evidence 803(8), which is the public-records exception to the hearsay rules. Mot. at 5.² The Court already considered and rejected this theory because the Government has not shown that the montages or the embedded assertions at issue were made “while under a legal duty to report.” Mem. Op. & Order, ECF No. 122, at 12 (quoting Fed. R. Evid. 803(8)). The Government has not advanced any persuasive argument for reconsidering this conclusion, and the Court declines to do so. See New York, 880 F. Supp. at 38.

Fifth, the Government briefly suggests that the montages may be admissible under the ancient-documents exceptions to the hearsay rules in Federal Rule of Evidence 803(16). Mot. at 5. This argument is not developed in the Government's brief, but the Court infers that the Government's argument is that because there exist some ancient, authentic maps of the U.S. Capitol and its grounds, the annotated digital maps displayed in the montage exhibits are admissible under the ancient-documents exception. See id. This argument is unpersuasive. The ancient-documents exception applies to “[a] statement in a document that was prepared before January 1, 1998.” Fed R. Evid. 803(16). The annotated maps in the montages that K. Fuller challenges were prepared after the events of January 6, 2021, for use in this litigation. Therefore, even if the ancient-documents exception may apply to some maps of the U.S. Capitol and its grounds, it does not apply to the maps at issue here. The Court declines to reconsider its prior ruling based on the ancient-documents exception.

Sixth, the Government argues that the montage exhibits are admissible under Federal Rule of Evidence 1006 because they are accurate summaries of “voluminous records.” Mot. at 5–8. But here again, the Court has already considered and rejected this argument. See Mem. Op. & Order, ECF No. 122, at 13–14. As the Court previously explained, Federal Rule of Evidence 1006 is not an exception to the rule excluding hearsay. Id. “For a summary to be admissible under Rule 1006, the underlying records to be summarized ‘themselves must be admissible.’ ” Id. (quoting United States v. Fahnbulleh, 752 F.3d 470, 479 (D.C. Cir. 2014)). The Government resists the application of this rule here, observing that creating the kind of summary contemplated by Rule 1006 “necessarily” involves some measure of “editorial discretion.” Mot. at 6. The Government suggests that this fact means that assertions in summary exhibits are beyond the reach of the hearsay rules so long as the resulting summaries are “accurate and nonprejudicial.” See id. (quoting United States v. Abou-Khatwa, 40 F.4th 666, 685 (D.C. Cir. 2022)). But as even the case the Government cites for this proposition makes clear, the “underlying records must themselves be admissible.” Abou-Khatwa, 40 F.4th at 684. And the Government has not shown that the assertions at issue—statements about the specific time and place at which certain events occurred or video was recorded—are contained in any of the purportedly admissible records to be summarized. For example, the first video clip played in the Capitol Police Montage does not contain any information about the location of the camera. See Capitol Police Montage at 0:12–0:19. But the label that immediately precedes it in the montage asserts that this video was recorded at “Peace Circle (facing East).” See id. at 0:08. This label may be accurate, and in fact may accurately summarize information contained in some other record that may be admissible under a hearsay exception. But the Government has not met its burden of laying the foundation for the Court to admit the labels in the montages as Rule 1006 summaries on this basis. The Court therefore declines to reconsider its prior ruling that the montages containing these labels and illustrations are not admissible as Rule 1006 summaries.

In closing, the Government urges the Court to “[c]onsider the alternative” to admitting the montage exhibits. Mot. at 8. The Government explains that if it cannot admit these exhibits as summaries, it will call summary witnesses with personal knowledge of the events of January 6, 2021, who will lay the foundation for the admission of each video clip and Congressional Record excerpt contained in the montages, orient the jury, and explain the significance of the information in context. Id. “The result,” the Government says, “would be nearly identical to the montages,” except that the relevant information would be “conveyed to the jury through testimony and exhibits” rather than annotated montages. Id. That procedure is permissible: Assuming the Government can lay the appropriate foundation and establish the authenticity of the video clips and excerpts in the montages, it is free to admit those pieces of evidence through the testimony of a witness. Although criminal defendants are free to waive hearsay objections and allow the Government to present similar evidence in the form of annotated montages if they choose, when a defendant objects to the admission of hearsay, the procedure the Government describes is exactly what the Federal Rules of Evidence require.

In summary, the Government has not persuaded the Court to reconsider its prior ruling that the montage exhibits contain inadmissible hearsay. The Government remains free to seek admission of the individual pieces of media contained in the montages through other means. For example, the Government may be able to admit security camera video through the testimony of a witness with personal knowledge of the events of January 6, 2021. It may be able to admit maps of the Capitol Building and its grounds by similar means. And the Government may be able to admit excerpts of the Congressional Record as public records under Federal Rule of Evidence 803(8). However, for all the foregoing reasons, the montage exhibits themselves shall not be received into evidence at trial.

IV. CONCLUSION

For the foregoing reasons, and for all the reasons stated in the Court's prior [122] Memorandum Opinion and Order, which the Court hereby incorporates and makes a part of this Order, it is hereby ORDERED that the Government's [128] Motion for Reconsideration is DENIED. It is further ORDERED that Defendant K. Fuller's [129] Motion to Strike is DENIED AS MOOT.

SO ORDERED.

Dated: January 10, 2025

FOOTNOTES

1.   The Court's consideration has focused on the following documents:• the Defendant's Third Motion in Limine (“Motion” or “Def.’s Mot.”), ECF No. 77;• the Government's Opposition (“Opposition” or “Gov't’s Opp'n”), ECF No. 86;• the Defendant's Supplemental Brief in Support of the Motion (“Def.’s Supp.”), ECF No. 115; and• the Government's Reply in Opposition to the Defendants’ Motion (“Gov't’s Supp.”), ECF No. 119.

2.   This rule is subject to a further exception that is not relevant in this case: a party may introduce an out-of-court statement of belief to prove the fact of the matter believed if that belief “relates to the validity or terms of the declarant's will.” Fed. R. Evid. 803(3).

1.   For the avoidance of any doubt or confusion, the Court clarifies that the Government remains free to introduce camera footage that includes embedded timestamps or camera number labels; if the Government can authenticate that footage and lay foundation for the reliability of the embedded timestamps or camera number labels, those embedded statements may be admissible for the truth of the matters asserted.

2.   The Government cites “Rule 803(7),” but the Court understands from context that the Government intended to refer to Federal Rule of Evidence 803(8). Cf. Fed. R. Evid. 803(7) (allowing admission of certain “[e]vidence that a matter is not included in a record” that would be admissible as a business record).

COLLEEN KOLLAR-KOTELLY, United States District Judge