United States Court of Appeals, District of Columbia Circuit
In re: Roger Jason Stone, Jr., et al., Petitioners
Petition For Writ of Mandamus (1:19-cr-00018) Bruce Rogow and
Robert C. Bushcel were on the petition for writ of mandamus
and the reply.
K. Liu, U.S. Attorney, Elizabeth Trosman and David B.
Goodhand, Assistant U.S. Attorneys, and Adam C. Jed, Special
Assistant U.S. Attorney, were on the opposition to the
petition for a writ of mandamus.
Before: Millett, Pillard, and Wilkins, Circuit Judges.
Wilkins, Circuit Judge.
Stone and members of his family petition this Court for a
writ of mandamus vacating the District Court's orders
modifying Stone's conditions of release, arguing that the
orders infringe on their First Amendment right to free
speech. Where a mandamus petitioner has an adequate
alternative remedy, however, we lack jurisdiction to grant
the petition. In re Asemani, 455 F.3d 296, 299-301
(D.C. Cir. 2006) (dismissing mandamus petition for lack of
jurisdiction). Here, because Stone and his family members
failed to avail themselves of adequate alternative remedies,
we dismiss their petition.
Stone is a political consultant who has worked in U.S.
politics for decades. During the 2016 presidential campaign,
Stone served as an official for then-candidate Donald J.
Trump's campaign. On January 24, 2019, a grand jury
returned a seven-count indictment charging Stone with: one
count of obstruction of proceedings, in violation of 18
U.S.C. §§ 1505 and 2; five counts of false
statements, in violation of 18 U.S.C. §§ 1001(a)(2)
and 2; and one count of witness tampering, in violation of 18
U.S.C. § 1512(b)(1). The indictment, signed by Special
Counsel Robert Mueller, alleges that Stone obstructed
investigations by Congress and the FBI into foreign
interference in the 2016 presidential election. Specifically,
the indictment alleges that Stone tried to block inquiries
into his communications with an organization that published
files stolen by Russian hackers from the Democratic National
Committee's computer system. Federal agents arrested
Stone, and Stone pleaded not guilty to the charges on January
29, 2019. He was released on personal recognizance, subject
to limited conditions, including travel restrictions and a
prohibition on communicating with witnesses disclosed by the
the initial status conference, the District Court explained
that the case had received "considerable publicity,
fueled in large part by extrajudicial statements of the
defendant himself." A.41. As such, the Court advised the
attorneys that it was considering issuing an order under
Local Criminal Rule 57.7(c), which governs special orders
restricting, among other things, "extrajudicial
statements by parties, witnesses and attorneys likely to
interfere with the rights of the accused to a fair trial by
an impartial jury." D.D.C. LCrR 57.7(c). The Court
directed the parties to file submissions on the appropriate
scope of such an order.
February 15, 2019, after receiving input from the parties,
the Court entered the Rule 57.7(c) order. In its order, the
Court explained its obligation to prevent improper influence
on the jury pool and the possibility that "public
pronouncements" may "inflame" the large and
"vociferous" crowds that had been attending the
proceedings. A.52. To that end, the Court first ordered that
"Counsel for the parties and the witnesses must refrain
from making statements to the media or in public settings
that pose a substantial likelihood of material prejudice to
this case." A.53. This part of the order applied only to
the attorneys. The second part of the order applied to all
participants in the case, but it applied only to statements
made in or around the courthouse:
[A]ll interested participants in the matter, including the
parties, any potential witnesses, and counsel for the parties
and the witnesses, must refrain, when they are entering or
exiting the courthouse, or they are within the immediate
vicinity of the courthouse, from making statements to the
media or to the public that pose a substantial likelihood of
material prejudice to this case or are intended to influence
any juror, potential juror, judge, witness or court officer
or interfere with the administration of justice.
A.53-54. The order imposed no conditions on Stone's
public remarks beyond the immediate vicinity of the
courthouse, but clarified that the order "may be amended
. . . if necessary." A.54. The order also advised that,
in deciding whether to grant "any future request for
relief based on pretrial publicity," the Court would
consider "the extent to which the publicity was
engendered by the defendant himself." Id.
days later, on February 18, 2019, Stone posted an image on
his Instagram account depicting the District Court judge in
this case with crosshairs next to her head, alongside
inflammatory commentary in which he accused her of bias. That
same day, he removed the post and filed a "Notice of
Apology," apologizing to the Court for "the
improper photograph and comment posted on Instagram
today." A.55. Stone himself signed the filing, but later
admitted that he did not write it and had "signed it on
the advice of counsel." A.57, 75. Even after taking the
post down, however, Stone did a media interview later the
same day in which he continued to accuse the judge of bias.
The day after the post went up and came down, the District
Court ordered Stone to show cause why its February 15, 2019
order and/or Stone's conditions of release should not be
modified or revoked in light of his Instagram post, and set a
hearing on the matter for February 21, 2019.
hearing, Stone apologized directly to the Court, recognizing
that he had "abused the latitude" the Court gave
him and blaming his "stupid lapse of judgment" on
"emotional stress." A.69, 87. Stone stated he could
"offer no excuse for [the post]." A.69. When the
Court asked Stone whether he understood "that the
posting could be viewed as a threat to the Court," Stone
replied, "I now realize that. That was not my
intention." A.70. Stone explained that he believed that
the crosshairs were actually a "Celtic cross" or a
"Celtic occult symbol," the same explanation he had
provided to media reporters shortly after posting the image.
A.70, 74, 85. Stone also testified that, while he posted the
image, he "did not select the image." A.69, 77-78.
According to Stone, one of the "five or six" people
who "volunteer" for him selected the image, and
Stone decided to post it. A.78-79, 88. However, when pressed
for the name of this volunteer, Stone could not remember who
had sent him the image.
conclusion of the hearing, the Court declared that it
"d[id] not find any of [Stone's] evolving and
contradictory explanations credible" and that Stone had
made "deliberate choices" to "express himself
in a manner that can incite others who may feel less
constrained," which "posed a very real risk that
others with extreme views and violent inclinations would be
inflamed." A.102. In addition, the Court noted that its
initial order imposed no restrictions on Stone's speech
beyond the courthouse and that it took Stone just "three
days" to abuse that trust. A.104-05. The Court found
that Stone's post had "the effect and very likely
the intent" to "denigrate th[e judicial] process
and taint the jury pool." A.109. The Court further found
that Stone's apology "r[ang] quite hollow,"
given that he "continued to adamantly defend ...