United States of America v. Darrell Neely

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2024 Decided December 27, 2024
No. 23-3166
UNITED S TATES OF A MERICA,
APPELLEE
v.
DARRELL NEELY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cr-00642-1)
Paul F. Enzinna, appointed by the court, argued the cause
and filed the briefs for appellant.
T. Dietrich Hill, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Matthew M. Graves,
U.S. Attorney, and Chrisellen R. Kolb, John P. Mannarino,
Michael L. Barclay, and Kyle R. Mirabelli, Assistant U.S.
Attorneys.
Before: W ILKINS and P AN, Circuit Judges, and R OGERS ,
Senior Circuit Judge.

-- 1 of 26 --

2
Opinion for the Court filed by Circuit Judge WILKINS .
WILKINS , Circuit Judge: On January 6, 2021, following a
rally held by former-President Trump, a number of individuals
entered the U.S. Capitol building and grounds, disrupting the
joint session of Congress held to certify the 2020 presidential
election. Darrell Neely was one of those individuals. He spent
over an hour in the Capitol building, during which time he stole
U.S. Capitol Police property. After a bench trial, Neely was
convicted of five misdemeanor offenses and sentenced to 28
months in prison. On appeal, he challenges the denial of three
pretrial motions on statutory and constitutional grounds. After
considering each of Neely’s arguments, we conclude that none
prevail and affirm his convictions and sentence.
I.
Darrell Neely, radio host of the streaming show “Global
Enlightenment Radio Network,” was part of a crowd of people
who stormed the Capitol on January 6, 2021. At the time that
Neely entered the Capitol grounds, law enforcement had
established a line barring further entry and signs displayed that
the area was closed. Neely spent at least 20 minutes on the
Lower West Terrace of the Capitol grounds, then entered the
building itself, where he remained for over an hour. While in
the building, Neely took various items that belonged to the
Government, including a U.S. Capitol Police patch, badge,
name tag, and baseball hat. Neely later wore the baseball hat
while broadcasting his radio show.
Based on this and other conduct, Neely was indicted on
October 12, 2022, in a Superseding Indictment. He moved to
dismiss the counts under 18 U.S.C. § 1752(a), arguing that the
statute did not cover his conduct because the U.S. Capitol
building and grounds were not “restricted” by the Secret

-- 2 of 26 --

3
Service. The same day, Neely moved to transfer venue based
on his concerns that he could not be tried by an impartial jury
in the District of Columbia. He also moved to suppress a
confession he gave to law enforcement. The District Court
denied all three motions. Neely waived his right to a jury trial
and proceeded to bench trial on all counts. That trial
commenced on May 22, 2023, and concluded on May 25, 2023.
On May 25, 2023, Neely was convicted of violations of 18
U.S.C. §§ 641, 1752(a)(1) & (2), and 40 U.S.C.
§ 5104(e)(2)(D) & (G) and acquitted of one count of 18 U.S.C.
§ 231(a). He was sentenced to a term of 28 months.
On appeal, Neely argues that the District Court erred in
denying his pretrial motions. Because the District Court
correctly decided each of the three issues, we affirm Neely’s
convictions and sentence in full.
II.
Neely filed three relevant pretrial motions: (1) a motion to
dismiss two counts of 18 U.S.C. § 1752(a) as improperly
charged, and alternatively, unconstitutionally vague; (2) a
motion to suppress certain statements he gave to police after he
signed a Miranda waiver; and (3) a motion to transfer venue
based on jury prejudice. We address each in turn.
A.
The motion to dismiss below was predicated on Neely’s
interpretation of 18 U.S.C. § 1752(a). “We review preserved
claims of statutory interpretation . . . de novo,” United States v.
Saffarinia, 101 F.4th 933, 939 (D.C. Cir. 2024), including
claims that a statute “is unconstitutionally vague,” which
present a “pure question[] of law,” United States v. Bronstein,

-- 3 of 26 --

4
849 F.3d 1101, 1106 (D.C. Cir. 2017) (internal quotation marks
omitted).
1.
Neely first contends that the statutory prohibition against
“knowingly enter[ing] or remain[ing] in any restricted building
or grounds without lawful authority to do so,” under 18 U.S.C.
§ 1752(a), is limited to buildings or grounds that have been
restricted by the U.S. Secret Service. Because the Capitol
building and grounds were restricted by the U.S. Capitol Police
on January 6, 2021, Neely argues that his conduct there is not
actionable under Section 1752(a). The District Court, per
Neely, thus erred in denying his motion to dismiss those
charges. The Government counters that the Court should read
the statute as it is: silent as to who restricts the pertinent area.
The plain text of the statute trumps Neely’s arguments to the
contrary.
18 U.S.C. § 1752(a)(1) criminalizes “knowingly enter[ing]
or remain[ing] in any restricted building or grounds without
lawful authority to do so.” Subsection (a)(2) defines the
offense of “knowingly, and with intent to impede or disrupt the
orderly conduct of Government business or official functions,
engag[ing] in disorderly or disruptive conduct in, or within
such proximity to, any restricted building or grounds,” where
the act “impedes or disrupts the orderly conduct of Government
business or official functions.” Subsection (c)(1) defines the
term “restricted buildings or grounds” as follows:
[A]ny posted, cordoned off, or otherwise restricted
area—(A) of the White House or its grounds, or the
Vice President’s official residence or its grounds; (B)
of a building or grounds where the President or other
person protected by the Secret Service is or will be
temporarily visiting; or (C) of a building or grounds

-- 4 of 26 --

5
so restricted in conjunction with an event designated
as a special event of national significance[.]
By its terms, Subsection (a) does not specify that the
“restricted building and grounds” shall be so restricted only by
the Secret Service. The District Court ruled that this was
dispositive, reasoning that “[t]o understand why Neely’s
argument has failed to persuade a single court, one need only
read the plain text of § 1752(c).” United States v. Neely, No.
21-cr-642, 2023 WL 1778198, at *3 (D.D.C. Feb. 6, 2023)
(Bates, J.). We agree.
As Neely conceded at oral argument, the statutory text is
silent as to who may restrict the relevant areas under Section
1752(a). Because the Court does not “read into statutes words
that aren’t there,” Romag Fasteners, Inc. v. Fossil, Inc., 140 S.
Ct. 1492, 1495 (2020), we decline to supplement Section
1752(a) with a requirement that “any restricted building or
grounds” be so designated only by the Secret Service. Accord
Johnston v. SEC, 49 F.4th 569, 577 (D.C. Cir. 2022) (“Because
the SEC’s interpretation does not require reading any
additional words into the statute, whereas Johnston’s would,
we adopt the SEC’s interpretation.”).
United States v. Bursey, 416 F.3d 301 (4th Cir. 2005), is
not to the contrary. There, local and federal law enforcement
coordinated to provide security for the restricted area. Because
the Fourth Circuit concluded that “there was ample evidence
that Bursey understood the area to have been restricted by the
Secret Service, and thus a federally restricted zone,” id. at 309,
per Neely, the focus on the Secret Service shows that restriction
by that entity is a statutory requirement. The Government
counters that the Bursey court’s analysis was limited to the
statute’s mens rea requirement and the court “does not hold, or
even imply, that § 1752 requires that only the Secret Service

-- 5 of 26 --

6
may restrict the relevant area.” Appellee Br. 35. But there is a
more fundamental issue with Neely’s reliance on Bursey: That
case interpreted a prior version of the statute, which defined
“restricted area[s]” as those restricted by Secret Service
regulations. Id. at 306–07. Even if Bursey conclusively held
that the Secret Service must restrict buildings or grounds, such
a holding was based on a statute which is no longer in effect.
Bursey does not control the question before this Court.
Neely argues that a plain text reading “ignores the fact that
in enacting the statute and in each of its amendments, Congress
has clearly understood—and intended—the statute to apply to
the Secret Service.” Appellant Br. 7. He urges that the
legislative history reveals that Congress intended the statute to
define conduct “within the purview of the Secret Service,” id.
at 11, citing statements made by two House representatives and
noting that “[t]he legislative history is devoid of any mention
of any other agency,” id. at 11–12. But even assuming that
Neely has correctly interpreted the legislative history, it cannot
be used to inject new meaning into unambiguous statutory text.
See United States v. Long, 997 F.3d 342, 356 (D.C. Cir. 2021).
“The intentions of committees of either house regarding a
certain subject, where these intentions conflict with the express
provisions of existing law, cannot simply be read into a statute
that is otherwise silent on the subject.” Demby v. Schweiker,
671 F.2d 507, 510 (D.C. Cir. 1981).
The same is true as to Neely’s appeal to the regulatory
history. Although he accurately notes that the Secret Service
used to possess regulatory authority to define specific restricted
areas under Subsection 1752(a), as the Government points out,
Congress subsequently amended the statute to eliminate any
references to the former regulatory regime. See USA
PATRIOT Improvement and Reauthorization Act of 2005,
Pub. L. No. 109-177, § 602, 120 Stat. 192, 252 (2006); Federal

-- 6 of 26 --

7
Restricted Buildings and Grounds Improvement Act of 2011,
Pub. L. No. 112-98, 126 Stat. 263 (2012). As such, the prior
regulations were rescinded by the agency, which clarified that
following amendment, since “the statute in its current form
makes no reference to regulation,” “the offense conduct is fully
described in the text of the statute itself.” Restricted Buildings
and Grounds, 83 Fed. Reg. 18939, 18940 (May 1, 2018).
While Neely concedes that the statute no longer contains the
language upon which he relies, he nevertheless claims that
because Congress has not expressly divested the Secret Service
of that authority or assigned it to another agency, the Secret
Service remains authorized to restrict grounds under
Subsection 1752(a). The parties agree that the Secret Service
can restrict grounds. The Government merely disputes that the
Secret Service is the exclusive restricting authority. Neely’s
invocation of the regulatory history simply confirms that
Congress intended to empower the Secret Service to restrict
grounds within the meaning of Section 1752 but does not show
that it sought to do so at the expense of other law enforcement
agencies.
Last, Neely’s proposed scenarios do not persuade us that a
plain text reading of Subsection 1752(a) would yield absurd
results. “A statutory outcome is absurd if it defies rationality
by rendering a statute nonsensical or superfluous or if it creates
an outcome so contrary to perceived social values that
Congress could not have intended it.” United States v. Cook,
594 F.3d 883, 891 (D.C. Cir. 2010) (cleaned up). To establish
absurdity is “a high threshold.” Id. Neely argues that under
the Court’s reading of the statute, any individual—whether
they are an employee of the Kennedy Center or a private
security officer at a deli—could establish restricted grounds
under Subsection 1752(a). But under these hypotheticals, the
mens rea requirement would ensure that any individual
convicted of such an offense would have knowingly entered

-- 7 of 26 --

8
into a restricted zone. As the Government presses, federal law
enforcement frequently coordinates with state and local
counterparts, or even private security, to secure areas. Neely
does not explain why such outcomes are “nonsensical” or “so
contrary to perceived social values” that they could not have
been intended.
Neely also argues that absent a limitation on who can
restrict relevant areas, private citizens could freewheelingly
create criminal liability for unsuspecting individuals. But the
statute does not sanction otherwise unauthorized individuals to
exercise such power: Neely points to no statutory provision
purporting to expand the class of individuals with restricting
authority and offers no response to the Government’s citation
to parallel provisions as examples of such enabling language.
See 18 U.S.C. § 3056(a) (“[T]he United States Secret Service
is authorized to protect [designees].”); 2 U.S.C. § 1961(a)
(authorizing the Capitol police to “police the United States
Capitol Buildings and Grounds”); id. § 1963 (same).
Section 1752(a) thus does not require that the Secret
Service restrict “any restricted building or grounds.”
2.
Neely also alternatively argues that, read as written,
Subsection 1752(a) is unconstitutionally vague as applied to
him. “The void-for-vagueness doctrine developed from the
rule of construction that penal statutes are to be construed
strictly in favor of the accused.” Bronstein, 849 F.3d at 1106
(internal quotation marks and citation omitted). “[A] statute is
unconstitutionally vague if, applying the rules for interpreting

-- 8 of 26 --

9
legal texts, its meaning specifies no standard of conduct at all.”
Id. at 1107 (cleaned up).
A law may be vague in violation of due process for
failure to give notice to the public or guidance to law
enforcement or both: “First, it may fail to provide the
kind of notice that will enable ordinary people to
understand what conduct it prohibits; second, it may
authorize and even encourage arbitrary and
discriminatory enforcement.”
United States v. Nassif, 97 F.4th 968, 981 (D.C. Cir. 2024)
(quoting City of Chicago v. Morales, 527 U.S. 41, 56 (1999)).
Neely persists that nothing in the statute indicates that
Subsection 1752(a) prohibits entry into areas restricted by the
U.S. Capitol Police, but the plain text of the statute
unambiguously includes such locations. The “restricted” signs
on the Capitol grounds, coupled with the presence of federal
law enforcement officers enforcing the boundaries, clearly
sufficed to “give [a] person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he
may act accordingly.” Grayned v. City of Rockford, 408 U.S.
104, 108 (1972).
Moreover, Neely states that he has been unable to locate a
single case prosecuted under Section 1752 involving areas
restricted by those other than the Secret Service, arguing that a
potential defendant would not be on notice that conduct on
grounds restricted by the U.S. Capitol Police could be charged
under the statute. But “Supreme Court precedent teaches that
the presence of enforcement discretion alone does not render a
statutory scheme unconstitutionally vague.” Kincaid v.
District of Columbia, 854 F.3d 721, 729 (D.C. Cir. 2017). This
is because the Department of Justice’s interpretation of a
statute does not elucidate legislative intent at enactment.

-- 9 of 26 --

10
“[C]riminal laws are for courts, not for the Government, to
construe.” Abramski v. United States, 573 U.S. 169, 191
(2014); see also United States v. Sorensen, 801 F.3d 1217,
1228 (10th Cir. 2015) (relying “on the statute’s plain language
to affirm the conviction” because “[e]ven if the government
had never prosecuted someone in [the defendant’s] position,”
courts would still “look to the statute’s plain language and
conclude that [his] charge fits within” it).
Bouie v. City of Columbia, 378 U.S. 347 (1964), does not
help Neely. There, two Black students entered a restaurant and,
in response, an employee hung up a “No Trespassing” sign. Id.
at 348. When asked to leave, the students refused, and were
charged with trespassing under a state statute that forbade
“entry upon the lands of another after notice prohibiting such
entry.” Id. at 348, 351–52 (cleaned up). The students were
convicted and on appeal, the South Carolina Supreme Court
affirmed, “constru[ing] the statute to cover not only the act of
entry on the premises of another after receiving notice not to
enter, but also the act of remaining on the premises of another
after receiving notice to leave.” Id. at 350. The Supreme Court
invalidated the defendants’ convictions because while the
statutory text was not vague, the state supreme court’s
“unforeseeable and retroactive judicial expansion of narrow
and precise statutory language” constituted “a deprivation of
the right of fair warning.” Id. at 352.
Neely cites Bouie to argue that the absence of judicial
decisions affirming Subsection 1752(a) convictions occurring
on grounds restricted by those other than the Secret Service
deprived him of fair notice that such conduct was criminal. But
in Bouie, the plain text of the statute was clear and “the
uncertainty as to the statute’s meaning [was] itself not revealed
until the court’s decision,” id., whereas here, Neely argues that
the statutory text itself is void-for-vagueness. (And we have

-- 10 of 26 --

11
rejected this argument.) Thus, Bouie does not support a
conclusion that Section 1752(a) is unconstitutionally vague as
applied.
Finally, because the statute is not ambiguous, the rule of
lenity has no role to play in its interpretation. See Beecham v.
United States, 511 U.S. 368, 374 (1994). Section 1752(a) is
consistent with the Due Process Clause and the District Court
correctly denied Neely’s motion to dismiss because the statute
is not unconstitutionally vague.1
B.
Neely also appeals the District Court’s denial of his motion
to suppress the videotaped statement that he gave to the Federal
Bureau of Investigation (“FBI”) on October 18, 2021,
following his arrest. That motion argued that Neely’s written
waiver of his Miranda rights was neither voluntary nor
intelligent as required by the Fifth Amendment. The
challenged interview was Neely’s third conversation with the
FBI. The first two occurred before his arrest, in January and
June 2021. Neely claims that because he was not provided with
Miranda warnings during the first two interviews, the warning
1 Neely argues in a footnote that Section 1752(a)(2), which
proscribes conduct “within such proximity to” restricted areas, is
unconstitutionally vague because it does not define the relevant
location with specificity. But Neely does not have standing to bring
such a claim. “[A]n individual ‘who engages in some conduct that
is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others.’” United States v. Nassif, 97 F.4th
968, 981 (D.C. Cir. 2024) (quoting Holder v. Humanitarian L.
Project, 561 U.S. 1, 20 (2010)). Neely was convicted of Section
1752(a) violations not just for remaining “within proximity to” the
U.S. Capitol buildings and grounds, but for actually entering them.
That conduct is clearly encompassed by the statute, depriving Neely
of standing to challenge its other applications.

-- 11 of 26 --

12
given prior to the third interview was constitutionally
ineffective under Missouri v. Seibert, 542 U.S. 600 (2004). He
asks us to hold that the District Court erred in denying his
motion without a hearing.
While any factual findings made by the District Court are
reviewed for clear error, “[t]he question whether a given set of
facts meets the legal threshold needed to overcome [the]
prophylactic protection of Fifth and Sixth Amendment rights is
reviewed de novo.” United States v. Straker, 800 F.3d 570, 621
(D.C. Cir. 2015) (per curiam). Although we have not yet
“establish[ed] a standard of review with respect to the District
Court’s denial of [a] request for a” motion to suppress hearing,
United States v. Guertin, 67 F.4th 445, 449 (D.C. Cir. 2023),
the Government urges the Court to “review the denial of an
evidentiary hearing on a motion to suppress for abuse of
discretion,” United States v. Edgeworth, 889 F.3d 350, 353 (7th
Cir. 2018) (internal quotation marks omitted). Neely does not
offer a contrary standard, so we will assume without deciding
that the District Court’s denial of a hearing is reviewed for
abuse of discretion.
1.
Neely contends that his two unmirandized pre-arrest
interviews invalidated his later Miranda waiver because at that
point, after being questioned without a Miranda warning twice,
he did not “think he had a genuine right to remain silent, let
alone persist in so believing once the police began to lead him
over the same ground again.” Seibert, 542 U.S. at 613. The
Government defends the ruling below that the October 18th
waiver was voluntary under Seibert.2 Because the Seibert
2 For the first time on appeal, the Government urges the Court to
decide that the lawfulness of the pre-arrest interviews is fatal to
Neely’s Seibert claim. The Circuits are unanimous that Seibert

-- 12 of 26 --

13
framework demonstrates that the contested statements were not
elicited unconstitutionally, we affirm.
a.
“A subsequent administration of Miranda warnings to a
suspect who has given a voluntary but unwarned statement
ordinarily should suffice to remove the conditions that
precluded admission of the earlier statement.” Oregon v.
Elstad, 470 U.S. 298, 314 (1985). “The relevant inquiry is
whether, in fact, the second statement was also voluntarily
made.” Id. at 318. In Seibert, a fractured Supreme Court
concluded that a law enforcement “strategy of withholding
Miranda warnings until after interrogating and drawing out a
confession,” then mirandizing the suspect and obtaining the
same confession after waiver, was unlawful because such
waivers were clearly involuntary. 542 U.S. at 609. This
technique, known as “question-first,” was designed “to render
Miranda warnings ineffective by waiting for a particularly
opportune time to give them, after the suspect has already
applies only if the initial unmirandized interview was custodial and
thus unlawful. See, e.g., United States v. Simmonds, 641 F. App’x
99, 101 (2d Cir. 2016); United States v. Courtney, 463 F.3d 333, 337
(5th Cir. 2006); Sturm v. Superintendent of Indian River Juv. Corr.
Facility, 514 F. App’x 618, 625 n.2 (6th Cir. 2013); United States v.
Thompson, 496 F.3d 807, 811 (7th Cir. 2007); Smith v. Clark, 612 F.
App’x 418, 421 (9th Cir. 2015). Yet courts that have circumvented
Seibert on the basis of an initially lawful interview have done so
where there was a factual record and ruling below on the custodial
nature of the first interview. Cf. Courtney, 463 F.3d at 337 (“Because
the record is well developed on this issue, we consider whether
Courtney was in custody during the first two interviews.”);
Thompson, 496 F.3d at 811 (same). We have no such record here.
Despite our doubts that Seibert governs, we assume without deciding
that it does. Accord United States v. Kiam, 432 F.3d 524, 531–33
(3d Cir. 2006).

-- 13 of 26 --

14
confessed.” Id. at 611. The Court concluded that “it is likely
that if the interrogators employ the technique of withholding
warnings until after interrogation succeeds in eliciting a
confession, the warnings will be ineffective in preparing the
suspect for successive interrogation, close in time and similar
in content.” Id. at 613 (emphasis added).
Justice Souter, writing for the four-Justice plurality, set
forth “a series of relevant facts that bear on whether Miranda
warnings delivered midstream could be effective,” including:
[T]he completeness and detail of the questions and
answers in the first round of interrogation, the
overlapping content of the two statements, the timing
and setting of the first and the second, the continuity
of police personnel, and the degree to which the
interrogator’s questions treated the second round as
continuous with the first.
Id. at 615. Justice Kennedy, the fifth vote for the majority,
concurred separately because he believed the plurality’s
“multifactor test that applies to every two-stage interrogation
may serve to undermine” Miranda’s clarity. Id. at 622
(Kennedy, J., concurring in the judgment). He instead
reasoned that a violation should be found where the question-
first method “was used in a calculated way to undermine the
Miranda warning,” that is, deliberately deployed to make the
warning ineffective. Id.
“When a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices,
‘the holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the
narrowest grounds . . . .’” Marks v. United States, 430 U.S.
188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169
n.15 (1976) (plurality opinion)). We have “interpreted Marks

-- 14 of 26 --

15
to mean that the narrowest opinion ‘must represent a common
denominator of the Court’s reasoning; it must embody a
position implicitly approved by at least five Justices who
support the judgment.’” United States v. Epps, 707 F.3d 337,
348 (D.C. Cir. 2013) (quoting King v. Palmer, 950 F.2d 771,
781 (D.C. Cir. 1991) (en banc)) (emphasis in original). Put
simply, the concurrence controls when it “posits a narrow test
to which the plurality must necessarily agree as a logical
consequence of its own, broader position.” Id. (quoting King,
950 F.2d at 782) (emphasis in original).
Circuits have split as to whether Justice Kennedy’s
concurrence controls under Marks, see Straker, 800 F.3d at
617, with some finding “Seibert’s holding in Justice Kennedy’s
opinion concurring in the judgment,” United States v.
Courtney, 463 F.3d 333, 338 (5th Cir. 2006), and others
concluding that “the Marks rule is not applicable to Seibert,”
because “Justice Kennedy’s intent-based test was rejected by
both the plurality opinion and the dissent,” United States v.
Heron, 564 F.3d 879, 884 (7th Cir. 2009). The vast majority
of Circuits have read Marks as requiring the application of
Justice Kennedy’s test. See, e.g., United States v. Capers, 627
F.3d 470, 476 (2d Cir. 2010); Kiam, 432 F.3d at 532; United
States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005);
Courtney, 463 F.3d at 338; United States v. Torres-Lona, 491
F.3d 750, 758 (8th Cir. 2007); United States v. Williams, 435
F.3d 1148, 1158 (9th Cir. 2006); United States v. Guillen, 995
F.3d 1095, 1120 (10th Cir. 2021); United States v. Street, 472
F.3d 1298, 1313 (11th Cir. 2006). Only the Sixth and Seventh
Circuits diverge. See United States v. Ray, 803 F.3d 244, 272
(6th Cir. 2015); Heron, 564 F.3d at 884.
This Court has yet not decided which test controls.
Straker, 800 F.3d at 617. We now join the majority to rule that
under Marks and Epps, the test articulated by Justice

-- 15 of 26 --

16
Kennedy’s concurrence controls. The plurality’s test in Seibert
analyzes the two-step interrogation through an objective lens:
Based on the consideration of a series of factors, were the
Miranda warnings rendered ineffective to accomplish their
object? Seibert, 542 U.S. at 615. This test would find both
intentionally and unintentionally illegal two-step interrogations
to be violative of the defendant’s constitutional rights. See
Guillen, 995 F.3d at 1115–16.
Justice Kennedy’s subjective test defines a constitutional
violation under a narrower set of circumstances, that is, when
the interrogation was deliberately used to circumvent the
protections of Miranda. Seibert, 542 U.S. at 622 (Kennedy, J.,
concurring in the judgment). Under this framework, only
intentionally unlawful two-step interrogations give rise to a
constitutional claim. Thus, “the analysis of the Seibert
plurality opinion and Justice Kennedy’s concurrence merge
when a two-step interrogation was deliberately used to evade
the requirements of Miranda, and the tests diverge when the
interrogating officer(s) unintentionally performed a two-step
interrogation.” Guillen, 995 F.3d at 1115. While Justice
Kennedy would not agree with every outcome resulting from
the plurality’s broader test, the plurality would “necessarily
agree” that intentional Miranda violations that made the
warnings ineffective stated a constitutional claim, “as a logical
consequence of its own, broader position” that both
unintentional and intentional violations are unconstitutional.
Epps, 707 F.3d at 348 (internal quotation marks and citations
omitted) (emphasis omitted). We thus inquire whether the FBI
utilized a two-step interrogation strategy “in a calculated way
to undermine the Miranda warning” given to Neely on October

-- 16 of 26 --

17
18th. Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the
judgment).
b.
As described, Justice Kennedy’s test inquires whether
“police deliberately use[d] a two-step interrogation to thwart
Miranda.” Straker, 800 F.3d at 618. “If the deliberate two-
step strategy has been used, postwarning statements that are
related to the substance of prewarning statements must be
excluded unless curative measures are taken before the
postwarning statement is made.” Seibert, 542 U.S. at 622
(Kennedy, J., concurring in the judgment). Here, Neely has
proffered no evidence that the FBI deliberately engaged in a
two-step interrogation. In Seibert, the officer testified at the
suppression hearing that his interrogation technique was an
official policy designed to secure admissible confessions. Id.
at 605–06.
The evidence here is very different. At the outset, there is
no suggestion that the FBI used the series of interviews with
Neely to secure a confession that would be admissible, and
Neely was not arrested at the time of the first two interviews.
Neely does not allege, for instance, that the FBI referenced any
of his prior statements in the October 18th interview. The
record does not reflect the nature of the questioning in the
January or June interviews, but it does show that the substance
of Neely’s statements greatly differed between the first two
pre-arrest interviews and the post-arrest interview conducted
on October 18th. In the January and June statements, Neely
focused on the conduct of others, clearly envisioning himself
as an informant. Suppl. App. 17–19 [hereinafter S.A.]. During
the October 18th interview, he instead discussed his own
actions, including charged conduct such as taking police
property and his entrance into the Capitol, including particular

-- 17 of 26 --

18
rooms visited. S.A. 15–16. The only common information
shared was Neely’s statement that he broadcast while in the
Capitol and that he saw a “male with the horns” there.
Compare S.A. 15–16, with S.A. 18–19. Unlike in Seibert, the
pre- and post-waiver statements were thus not identical. In
fact, the first two interviews contain little incriminating
information beyond the fact of Neely’s presence at the
Capitol.3
But even assuming that the FBI deliberately interviewed
Neely this way, the “curative measures” inquiry is dispositive.
In Seibert, the defendant was arrested prior to her initial
unmirandized interview, which occurred in the middle of the
night in a police interview room and involved 30–40 minutes
of questioning. 542 U.S. at 604–05. Seibert confessed her
awareness of the offense. Id. After a 20-minute break, officers
returned, turned on a tape recorder, obtained a Miranda waiver,
and confronted her with her prewarning statements. Id. at 605–
06. By contrast, here, the last pre-arrest interview was in June
3 Neely asserts that because he was charged under 18 U.S.C. § 1752,
“any discussion of his activities at the Capitol that day is necessarily
a confession.” Appellant Br. 25. But this argument misses the mark.
In Seibert, the Court was concerned with the nearly indistinguishable
nature of the incriminating statements before and after the warning
since the constitutional problem arises when law enforcement “leads
the suspect to cover the same ground a second time,” thereby
confusing the suspect who already provided the information without
a warning. 542 U.S. at 604, 613. Repeating the same questions and
eliciting the same statements before and after contributes to an
“impression that the further questioning was a mere continuation of
the earlier questions and responses was fostered by references back
to the confession already given.” Id. at 616. Neely’s proposed rule—
that any incriminating utterance in a prior interview renders a
subsequent interview that elicits similar, or different, incriminating
information involuntary—finds no support in Seibert.

-- 18 of 26 --

19
2021, and the challenged statements were elicited four months
later, in October.
Four months is “a substantial break in time and
circumstances” between the latter June 2021 interview and
Neely’s post-arrest interview in October of that year. Id. at 622
(Kennedy, J., concurring in the judgment). Neely points to no
case where a court determined that months between interviews
was not sufficiently curative. Cf. United States v. Lewis, 833
F.2d 1380, 1387 (9th Cir. 1987) (reasoning that “the interview
on the second day was [not] a continuation of what had
occurred on the previous day” as over 24 hours had elapsed
between interviews and “[t]he agents did not refer to the fact
that she had made a statement the previous day”).
Moreover, the evidence tended to show that “a reasonable
person in [Neely’s] situation would understand the import and
effect of the Miranda warning and of the Miranda waiver,”
Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the
judgment), because the circumstances giving rise to the
October 18th interrogation were very different than the pre-
arrest interviews. While each occurred in the FBI’s
Washington Field Office, October 18th was the first statement
Neely gave after being charged and arrested, and Neely had
undergone the booking process prior. He had not even been
charged when he gave the preceding two interviews. Finally,
the information conveyed in the interviews also reflects his
understanding that they differed in kind.
Neely failed to proffer evidence that the October 18th
interview was a part of one “extended interview.” Id. at 621
(Kennedy, J., concurring in the judgment). The District Court
thus did not abuse its discretion in denying Neely a hearing on

-- 19 of 26 --

20
this issue.4 “A defendant is entitled to an evidentiary hearing
on his motion to suppress only upon factual allegations which,
if established, would warrant relief.” United States v. Law, 528
F.3d 888, 903–04 (D.C. Cir. 2008) (per curiam) (internal
quotation marks and citation omitted). If the defendant’s
“assertions [a]re insufficient to establish a constitutional
violation,” United States v. Dale, 991 F.2d 819, 848 (D.C. Cir.
1993) (per curiam), or the District Court need not “resolve any
disputes of material fact to decide [the] suppression motion,”
Law, 528 F.3d at 904, denial of a hearing is warranted. For
these reasons, we affirm.
2.
Neely also appears to suggest that the statements he gave
during his January and June 2021 interviews were
4 Neely asserts in passing that he was subjected to a post-arrest, pre-
warning interrogation on October 18th that rendered his later
confession constitutionally infirm, disputing the District Court’s
statement that “[f]ollowing Neely’s arrest on October 18, 2021, he
was processed and signed a Miranda form indicating that he
understood and waived his rights,” and only after was he “then
questioned for approximately 35 minutes.” Neely, 2023 WL
1778198, at *10. Even though Neely alleged that, on October 18th,
officers engaged him in conversation about January 6th before he
was mirandized, the District Court had no reason to resolve this
disagreement through further factfinding because Neely did not
identify any incriminating statement made, “let alone one that was
later repeated in the statements he seeks to have suppressed.” Id. at
*11 (internal quotation marks omitted). Any pre-waiver questioning
on October 18th thus did not pose a constitutional problem under
Neely’s own version of events.

-- 20 of 26 --

21
unconstitutionally elicited. Any such claim was not adequately
raised before this Court. We thus decline to consider it.
The motion to suppress below was not a model of clarity.
Neely characterized “[t]he crux” of his motion as “whether or
not Mr. Neely’s waiver of his right to remain silent was
voluntary and knowing . . . before his questioning.” Jt. App.
19 [hereinafter J.A.]. This shows that Neely sought to suppress
the statements provided after the allegedly defective Miranda
waiver on October 18th, as Neely’s prior statements were
unmirandized. J.A. 22 (“Mr. Neely is asking this court to find
that his subsequent waiver during his third interview was
[invalid].”). The motion refers to the maxim that “failure to
give Miranda warnings and obtain a waiver of rights before
custodial questioning generally requires exclusion of any
statements obtained,” but only applies this principle to argue
that a post-Miranda confession obtained in violation of Seibert
would be invalid. J.A. 21–22 (challenging “this confession,”
singular). Neely did not argue that the FBI’s failure to
mirandize him prior to his January and June statements violated
his constitutional rights. Any challenge to those statements
was not preserved below.
This Court has not yet decided whether Federal Rule of
Criminal Procedure 12(b)(3)(C), which requires a defendant to
file a motion to suppress prior to trial, “permit[s] plain-error
review when a defendant did not intentionally relinquish a
claim within Rule 12’s ambit, even if the defendant has not
offered good cause for his or her failure to timely raise it.”
United States v. Burroughs, 810 F.3d 833, 838 (D.C. Cir.
2016). We need not resolve this question, because Neely has

-- 21 of 26 --

22
not argued (under any standard) that the unmirandized
interviews were unconstitutional.
On appeal, Neely merely states that “[t]he Motion to
Suppress clearly stated that in those earlier interrogations,
Appellant ‘discussed his broadcasting live from the Capitol
with the officers,’ which, again was necessarily a confession.
The District Court erred in failing to hold a hearing to
determine precisely what occurred in any of the
interrogations[.]” Appellant Br. 26 (quoting J.A. 19). But
“[s]imply listing the issues on review without briefing them
does not preserve them.” Terry v. Reno, 101 F.3d 1412, 1415
(D.C. Cir. 1996). When a defendant “assert[s] error . . . but
then offer[s] no argument in support,” he “abandon[s] his
argument[.]” United States v. Wilson, 605 F.3d 985, 1025
(D.C. Cir. 2010); United States v. Wade, 255 F.3d 833, 839
(D.C. Cir. 2001) (citing Unites States v. Feuver, 236 F.3d 725,
727 n.3 (D.C. Cir. 2001), for the proposition that “issues not
briefed are abandoned”). Neely offers no response to the
Government’s argument that the pre-arrest interviews were
noncustodial, such that no Miranda warning was required. His
failure to argue that the January and June 2021 interviews
violated his Fifth Amendment rights precludes our review of
any such claim.
C.
Lastly, the District Court was correct to deny Neely’s
motion to transfer venue. Because Neely has failed to establish
a presumption of prejudice in this jurisdiction, we affirm the
denial of his motion to transfer venue.
Criminal defendants have a Sixth Amendment right to be
tried “by an impartial jury of the State and district wherein the
crime shall have been committed.” U.S. C ONST. amend. VI.
“The Constitution’s place-of-trial prescriptions, however, do

-- 22 of 26 --

23
not impede transfer of the proceeding to a different district at
the defendant’s request if extraordinary local prejudice will
prevent a fair trial—a ‘basic requirement of due process.’”
Skilling v. United States, 561 U.S. 358, 378 (2010) (quoting In
re Murchison, 349 U.S. 133, 136 (1955)). Neely moved to
transfer venue based on a presumption of jury impartiality. We
review the denial of such a motion for an abuse of discretion.
Jones v. Gasch, 404 F.2d 1231, 1242 (D.C. Cir. 1967).
In this Court, Neely abandoned his contention that the
District of Columbia’s size and characteristics gave rise to a
presumption of jury prejudice, agreeing that such a claim was
foreclosed by our intervening decision in United States v.
Webster, 102 F.4th 471 (D.C. Cir 2024). Neely clarified that
he now relies exclusively on pretrial publicity regarding his
particular conduct on January 6th, as well as the timing of his
trial shortly after congressional hearings investigating those
events. Neither argument is persuasive after Webster.
First, Neely has not shown that press coverage tainted his
ability to receive a fair jury trial. “[E]xtensive knowledge in
the community of either the crimes or the putative criminal is
not sufficient by itself to render a trial constitutionally unfair.”
Dobbert v. Florida, 432 U.S. 282, 303 (1977). It is not enough
to establish “that the community was made well aware of the
charges against him.” Id. Neely must demonstrate “a trial
atmosphere . . . utterly corrupted by press coverage.” Id.
(quoting Murphy v. Florida, 421 U.S. 794, 798 (1975)). He has
not done so here.
Neely points to a handful of articles that directly refer to
him and his January 6th-related conduct. First, a Rolling Stone
piece describes his presence at the Capitol as well as a post
from his then-Twitter account publicizing the sale of a Capitol
Police cap. See Charisma Madarang, Jan. 6 Rioter Stole a

-- 23 of 26 --

24
Police Officer’s Hat, Then Tried to Sell It for $16, R OLLING
S TONE (Nov. 30, 2022), https://perma.cc/ED8T-9BWU. The
most inflammatory statement in that piece is that Neely
“appeared to taunt the FBI—Neely was aware that it had
launched an investigation into his actions at the Capitol,
including the alleged theft for the rogue hat.” Id. But even
some press statements that “are hostile in tone and accusatory
in content” are insufficient where “[t]he overwhelming bulk of
the material submitted . . . consists of straightforward,
unemotional factual accounts of events and of the progress of
official and unofficial investigations.” United States v.
Haldeman, 559 F.2d 31, 61 (D.C. Cir. 1976) (en banc) (per
curiam) (footnote omitted).
The same is true as to the Washington Post article, see
Jaclyn Peiser, A Man Stole a Capitol Police Officer’s Baseball
Cap on Jan. 6, Feds Say. He Wore It on His YouTube Channel.,
WASH. P OST (Oct. 19, 2021), https://perma.cc/D9LK-2VN6.
Every statement in the latter article is a quotation or paraphrase
from another source, “simply recit[ing] the facts of the
allegations confronting” Neely. Webster, 102 F.4th at 480.
Finally, an article from a local news outlet discusses a bench
warrant issued for Neely’s arrest for failure to appear at a
probation violation hearing. See Jordan Fischer, Capitol Riot
Defendant ‘Absconded’ With $200k from Property Sale, DOJ
Says, WUSA9, https://perma.cc/GA53-JS4B (Sept. 2, 2022,
4:58 PM EDT). That article also avoids editorializing, merely
describing the allegations against Neely and the contents of
court filings. None of the articles to which Neely points
contain language as inflammatory as “eye gouger” or
“junkyard dog,” terms used in articles that the Webster court
found insufficient to impede upon the defendant’s right to a fair
trial. 102 F.4th at 480. And even assuming this coverage could
create prejudice in the minds of particular jurors, Neely

-- 24 of 26 --

25
conceded at argument that jurors could be screened for such
bias through voir dire questioning, curing any prejudice.
Second, the timing of Neely’s trial did not prejudice him.
The Government contends that the long time period—more
than two years—between January 6th and Neely’s trial
mitigated the prejudice. Neely concedes that the period
between January 6, 2021, and his trial is more attenuated than
in Webster—there, about a year. Instead, he argues that the
voluminous news coverage in the months leading up to the
House Select Committee hearings regarding January 6th
intensified the prejudice, because his trial was less than a year
later.
But this Court previously concluded that highly publicized
Senate Select Committee hearings regarding the Watergate
scandal were not sufficient to presume prejudice, even though
it determined that coverage of those hearings was likely higher
in this jurisdiction than elsewhere. Haldeman, 559 F.2d at 61–
62. At argument, Neely contended that the volume of media
has exploded since the Watergate era, amplifying the prejudice
here, although he agreed that the proffered polling data did not
support a conclusion that District of Columbia jurors would be
more influenced than elsewhere by the hearings, because those
polls were taken before the congressional hearings. But in
Haldeman, the Court so ruled despite the fact that several jurors
had actually watched the congressional hearings. Id. The key
is not the jury’s likely exposure to media coverage, but rather

-- 25 of 26 --

26
the possibility of prejudice against the defendant as a result.
Neely has not shown the latter here.
We therefore affirm the District Court’s denial of Neely’s
motion to transfer venue.
III.
For these reasons, the District Court appropriately denied
each of the pretrial motions. We thus affirm Neely’s
convictions and sentence.
So ordered.

-- 26 of 26 --