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In re Stone

United States Court of Appeals, District of Columbia Circuit

October 22, 2019

In re: Roger Jason Stone, Jr., et al., Petitioners

          On 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.

          Jessie 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.

         Roger 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.


         Roger 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 government.

         During 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.

         On 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.

         Three 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.

         At the 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.

         At the 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 ...

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