United States of America v. Thomas Webster

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2024 Decided May 28, 2024
No. 22-3064
UNITED STATES OF AMERICA,
APPELLEE
v.
THOMAS WEBSTER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cr-00208-1)
Elizabeth A. Brandenburg argued the cause for appellant.
With her on the briefs was Marcia G. Shein.
David B. Goodhand, Assistant U.S. Attorney, was on the
brief for appellee. With him on the brief were Chrisellen R.
Kolb, Nicholas P. Coleman, and Brian P. Kelly, Assistant U.S.
Attorneys.
Before: MILLETT, KATSAS, and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.

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MILLETT, Circuit Judge: Thomas Webster attended
former-President Trump’s rally on January 6, 2021, and then
went to the Capitol. Upon arriving, Webster confronted a line
of police officers and violently assaulted Officer Rathbun of
the Metropolitan Police Department. A jury convicted Webster
of five felonies and one misdemeanor offense. The district
court imposed a ten-year prison sentence. Webster appeals,
raising challenges both to his convictions and his sentence. We
have considered each of Webster’s challenges and, because
none of them succeed, we affirm his convictions and sentence.
I
A
Thomas Webster is a retired police officer and resident of
New York. In the days and months following the 2020
presidential election, Webster became convinced that the
election had been stolen. He planned to attend the January 6th
rally convened by the former President, and he spoke with
others about how they should prepare for the event. For
example, he texted two contacts: “Guide to your Jan 6 trip
includes D.C. gun laws, self-defense options, citizen’s arrest
policy, drone policy, common sense gear list, bonus prep info,
and the Constitution for obvious reasons. Don’t be a liability,
be prepared for it to get wild. The Donald. America first[.]”
J.A. 982.
Two days before the rally, Webster drove from his home
in New York to Washington, D.C. He brought an assortment
of gear with him, including body armor and a United States
Marine Corps flag on a metal flagpole. J.A. 1120–1122.
Webster attended former-President Trump’s speech on
January 6th, wearing his body armor and carrying his Marine

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Corps flag. After that, he joined the crowd in marching on the
Capitol. Webster made his way toward the Capitol’s West
Terrace. As he got closer, he heard “flash bangs going off[,]”
“sense[d] that there was some gas[,]” and “saw people being
injured.” J.A. 1140. He continued forward until he reached the
leading edge of the rioters. A single row of bicycle racks
separated them from a police line. He recognized that the
bicycle racks were meant to keep people back. But he tried to
get past them nonetheless.
Officer Noah Rathbun of the Metropolitan Police
Department was one of the officers on the other side of the
police line. Webster approached him, yelling and accusing him
of being a communist who was attacking Americans. Officer
Rathbun pushed Webster back from the barrier several times,
and Webster responded by pushing the bicycle rack toward
Officer Rathbun. Webster then swung his flagpole toward
Officer Rathbun “in a chopping motion.” J.A. 852. The
flagpole struck the bicycle rack. Officer Rathbun grabbed the
flagpole and wrested it from Webster.
Shortly thereafter, the mob broke through the police line.
Webster charged Officer Rathbun, knocking him to the ground.
He got on top of Officer Rathbun and began pushing Officer
Rathbun’s gas mask into his face. After about ten seconds of
struggling, Webster got up, and the two men broke apart.
B
A grand jury in the District of Columbia indicted Webster
on five felony counts: (1) Assaulting, Resisting, or Impeding
Certain Officers Using a Dangerous Weapon, 18 U.S.C.
§ 111(a)(1), (b); (2) Civil Disorder, id. § 231(a)(3); (3)
Entering and Remaining in a Restricted Building or Grounds
with a Deadly or Dangerous Weapon, id. § 1752(a)(1),

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(b)(1)(A); (4) Disorderly and Disruptive Conduct in a
Restricted Building or Grounds with a Deadly or Dangerous
Weapon, id. § 1752(a)(2), (b)(1)(A); and (5) Engaging in
Physical Violence in a Restricted Building or Grounds with a
Deadly or Dangerous Weapon, id. § 1752(a)(4), (b)(1)(A). The
grand jury also indicted Webster on one misdemeanor: Act of
Physical Violence in the Capitol Grounds or Buildings. 40
U.S.C. § 5104(e)(2)(F).
Webster moved to change venue, arguing that he could not
get an impartial jury in the District. According to him, the
District’s jury pool was simply too Democratic, too connected
to the federal government, and too steeped in January 6th news
coverage to produce twelve unbiased jurors.
The district court denied his motion. The court reasoned
that the District’s size and characteristics did not indicate that
the jury pool was presumptively prejudiced against Webster.
The court also found that the January 6th news stories were not
clearly prejudicial to Webster. The district court added that
other January 6th cases had proceeded to jury trial in the
District without any jury-bias issues. On that basis, the district
court concluded that it could empanel an impartial jury.
A jury subsequently found Webster guilty on all counts.
The district court sentenced him to concurrent terms of 120
months for four of the felony counts, 60 months for another
felony, and six months for the misdemeanor. The court also
ordered that Webster serve 36 months of supervised release and
pay a $510 special assessment.
II
The district court had jurisdiction over Webster’s criminal
prosecution under federal law. See 18 U.S.C. § 3231. We have

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jurisdiction over Webster’s appeal of his conviction and
sentence. See 18 U.S.C. § 3742; 28 U.S.C. § 1291.
Several standards of review apply in this case. We review
legal questions that the defendant preserved de novo. United
States v. Wilson, 605 F.3d 985, 1003 (D.C. Cir. 2010). We
review his unpreserved claims for only plain error. United
States v. Sayan, 968 F.2d 55, 59 (D.C. Cir. 1992); FED. R.
CRIM. P. 52(b). We review a district court’s finding of juror
impartiality for manifest error, United States v. Childress, 58
F.3d 693, 706 (D.C. Cir. 1995), and its handling of voir dire for
an abuse of discretion, United States v. Tsarnaev, 595 U.S. 302,
313 (2022).
Lastly, we review Webster’s sentence for both procedural
and substantive reasonableness. At the procedural step, we
review a district court’s “purely legal” interpretation of the
Guidelines de novo. United States v. Cooper, 886 F.3d 146,
155 (D.C. Cir. 2018). We give “due deference” to its
“application of the Guidelines to facts.” United States v.
McKeever, 824 F.3d 1113, 1119 (D.C. Cir. 2016). We review
the sentence’s substantive reasonableness for an abuse of
discretion. Id.
III
Webster raises three challenges to his convictions. First,
he argues that the jury was not impartial. Second, he contends
that the district court wrongly denied him his right to
effectively cross-examine Officer Rathbun. Third, he objects
to how the district court instructed the jury on his Section
111(b) charge. Each of those objections fails.

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A
The Sixth Amendment guarantees criminal defendants an
“impartial jury of the State and district wherein the crime shall
have been committed[.]” U.S. CONST. Amend. VI. So when
“extraordinary local prejudice” prevents impartiality, courts
must transfer the trial to a location where an impartial jury can
be drawn. Skilling v. United States, 561 U.S. 358, 378 (2010).
The Sixth Amendment’s requirement of a local trial cannot
“impede” the right to a fair one. Id.
Webster first argues that the District’s entire jury pool was
presumptively prejudiced against him, and so the district court
should have transferred his case to a different venue before the
start of the jury-selection process (known as voir dire). He also
argues that the voir dire process was flawed and produced a
biased jury. He is incorrect on both fronts.
1
Prejudice across an entire jury pool can be presumed “only
[in] the extreme case[,]” Skilling, 561 U.S. at 381, where
“prejudicial publicity so poisoned the proceedings that it was
impossible for the accused to receive a fair trial by an impartial
jury[,]” United States v. Capo, 595 F.2d 1086, 1090 (5th Cir.
1979); see Skilling, 561 U.S. at 380. The Supreme Court has
found presumptive prejudice in only the rare case where a jury
pool was so “pervasively exposed” to prejudicial pretrial
publicity about the defendant and the case that “[a]ny
subsequent court proceedings in [that] community * * *
[w]ould be but a hollow formality.” Rideau v. Louisiana, 373
U.S. 723, 726 (1963).
Webster does not clear that very high bar.

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First, nothing in the record suggests that the District’s jury
pool had any preconceived notions about Webster or his guilt
or innocence, or even knew who he was. The record lacks any
evidence of pervasive (or much of any) media coverage aimed
at Webster and his conduct.
Webster points to two newspaper articles that name him
and describe his January 6th conduct. Webster Opening Br.
24–25 & nn.5–6; see Jonah E. Bromwich, Retired N.Y.P.D.
Officer Who Guarded City Hall Charged in Capitol Riot, N.Y.
TIMES (Feb. 23, 2021, 1:16 PM), https://perma.cc/V6PC-
QET6; Nina Golgowski, Ex-NYPD Cop Charged with
Assaulting Washington Officer with Pole During Riot,
HUFFPOST (Feb. 24, 2021, 3:19 PM), https://perma.cc/N92B-
C4QV. Webster also claims that “[a] Google search using the
terms ‘Thomas Webster Capitol’ garnered 4,690,000 search
results at the time of the motion to change venue.” Webster
Opening Br. 25.
That evidence comes up short. To begin, neither of the
newspaper articles contain the type of “vivid, unforgettable
information” of the “smoking-gun variety” that is necessary to
trigger presumptive prejudice concerns—that is, information
that not only “invite[s]” jurors to prejudge the defendant’s
culpability, but also makes it nearly impossible for them not to.
Skilling, 561 U.S. at 383–384. Instead, the articles provide
“straightforward, unemotional factual accounts of events and
of the progress of official * * * investigations.” United States
v. Haldeman, 559 F.2d 31, 61 (D.C. Cir. 1976) (en banc) (per
curiam) (footnote omitted). Both simply recite the facts of the
allegations confronting Webster, his surrender to authorities,
and the details of his bond hearing. They also include a
counternarrative from Webster’s defense attorney. See
Golgowski, supra; Bromwich, supra. True, one article notes
that some on social media have called Webster the “eye

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gouger[,]” Golgowski, supra, and they both mention that
Webster’s prosecutor referred to Webster as a “junkyard
dog[,]” id.; Bromwich, supra. But those articles do not endorse
either label. Without more, such routine and objective press
coverage of a criminal prosecution does not trench upon the
defendant’s right to a fair trial.
As for Webster’s Google search, Webster has not shown
how many of the results actually referred to him as opposed to
other Thomases or Websters. Neither does Webster claim that
all—or even most—of the search results pertained to his
activity at the Capitol rather than to some unrelated event
Google’s algorithm saw fit to include. He likewise offers no
evidence as to how many readers actually engaged with any of
these results, let alone that members of the District’s jury pool
were more exposed to those search results than were people
living elsewhere.
Webster also relies on a poll purporting to gauge the
sentiments of the District’s jury pool. The poll surveyed 400
individuals registered to vote in the District and concluded that
they had a “decidedly negative impression of individuals
arrested in conjunction with the activities of January 6, 2021.”
Webster Opening Br. 20 (quoting J.A. 31).
But Webster’s focus on the jury pool’s opinion of January
6th and its perpetrators misses the point. We expect jurors to
view significant criminal events in their hometown with an
unapproving eye, whether it is the January 6th attack on the
Capitol, a murder, or an armed robbery spree. Generalized
disapproval of criminal conduct—even the specific conduct at
issue in a defendant’s case—says nothing about a juror’s ability
to be impartial in deciding whether a particular individual
committed a crime or not. What the Constitution forbids is for
a juror to hold a firmly entrenched view about an individual

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defendant’s guilt or innocence before the trial starts. See
Skilling, 561 U.S. at 384 n.17, 391–392 (emphasizing
prejudicial impact of media coverage aimed at defendant over
coverage of the criminal event); United States v. Malmay, 671
F.2d 869, 875–876 (5th Cir. 1982) (finding jury sufficiently
impartial despite jurors’ broad familiarity with alleged local
vote-buying scheme because jury was relatively unfamiliar
with defendant). Webster’s poll, in other words, does not
answer the essential question: Can the District’s potential
jurors “lay aside [their] impression or opinion” of Webster or
events on January 6th and “render a verdict based on the
evidence presented in court”? United States v. Nassif, 628 F.
Supp. 3d 169, 187 (D.D.C. 2022) (quoting Irvin v. Dowd, 366
U.S. 717, 723 (1961)), aff’d, 97 F.4th 968 (D.C. Cir. 2024) .
Second, Webster has not shown that the District’s jury
pool is structurally incapable of producing fair juries for
January 6th defendants. The District’s size is no impediment
to producing a fair jury. It consists of more than 600,000
individuals. Contrast Rideau, 373 U.S. at 724 (presuming
prejudice when news coverage blanketed community of
150,000). “Given this large, diverse pool of potential jurors,”
there is no basis to conclude “12 impartial individuals could
not be empaneled[.]” Skilling, 561 U.S. at 382 (citing Gentile
v. State Bar of Nev., 501 U.S. 1030, 1044 (1991) (plurality
opinion), for the proposition that there is a “reduced likelihood
of prejudice where venire [i]s drawn from a pool of over
600,000 individuals”); Mu’Min v. Virginia, 500 U.S. 415, 429
(1991) (potential for prejudice mitigated by the size of the
“metropolitan Washington [, D.C.] statistical area, which has a
population of over 3 million”).
Webster asserts that the District overwhelmingly voted for
President Biden and historically votes for Democratic
candidates. Webster Opening Br. 22–23. That may be. But

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the political inclinations of a populace writ large say nothing
about an individual’s ability to serve impartially in adjudicating
the criminal conduct of an individual. See Connors v. United
States, 158 U.S. 408, 414 (1895) (“The law assumes that every
citizen is equally interested in the enforcement of the [law]
* * * and that his political opinions or affiliations will not stand
in the way of an honest discharge of his duty as a juror[.]”).
Indeed, we have held that District juries could impartially
adjudicate other criminal cases arising out of political matters,
including Watergate. See Haldeman, 559 F.2d at 59–64
(holding that a District jury could try President Nixon’s aides
for attempting to cover up Watergate).
Webster’s own data illustrates the point. For example,
when asked how they were “likely to vote if [they were] on a
jury for a defendant charged with crimes for his or her activities
on January 6th[,]” 46% of respondents either “[v]olunteered”
that they did not know how they would vote or that their vote
“[d]epend[ed]” on other factors, or “refused” to speculate about
how they would decide such a case. J.A. 36.
Webster’s last argument for presuming prejudice is that
the timing of his trial, approximately twelve months after
January 6th, was too soon for all the media attention about the
riot to dissipate. Webster puts the cart before the horse: He
must first show prejudice before arguing that the prejudice did
not dissipate. He has failed to do so.
2
Webster’s second tack—arguing that the “voir dire in this
case was inadequate” and so failed to secure an impartial
jury—also fails. Webster Opening Br. 29.

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Demonstrating actual prejudice in the jury is an arduous
task. “The test is whether the nature and strength of the opinion
formed” by a juror before trial “necessarily” shows her to be
partial. Irvin, 366 U.S. at 723 (quotation marks omitted). It is
not enough to establish that a juror was familiar with the facts
of the case because the law does not require that jurors be
“totally ignorant of the facts and issues involved.” Id. at 722;
see Skilling, 561 U.S. at 398 (Jurors “need not enter the box
with empty heads in order to determine the facts impartially.”).
As long as jurors can “lay aside their impressions or opinions
and render a verdict” fairly and objectively based on the
evidence, they are not prejudiced. Irvin, 366 U.S. at 723
(formatting modified).
In determining whether a defendant has shown actual
prejudice on the part of a juror, the voir dire process is often
critical. “No hard-and-fast formula dictates the necessary
depth or breadth of voir dire.” Skilling, 561 U.S. at 386; see
Mu’Min, 500 U.S. at 427 (“Particularly with respect to pretrial
publicity, we think * * * primary reliance on the judgment of
the trial court [in conducting voir dire] makes good sense.”).
What matters is that the defendant be given “a full and fair
opportunity” to expose any partiality in potential jurors. United
States v. West, 458 F.3d 1, 6 (D.C. Cir. 2006) (quoting United
States v. Orenuga, 430 F.3d 1158, 1163 (D.C. Cir. 2005)). To
do so, we examine whether the voir dire process was searching
enough to smoke out bias. See id. at 7; Skilling, 561 U.S. at
386–395. We also look to see if a juror’s answers during voir
dire reveal any “partiality or hostility against the defendant that
cannot be laid aside[.]” Hayes v. Ayers, 632 F.3d 500, 508 (9th
Cir. 2011) (formatting modified).
Webster’s jury-selection process involved an exacting
search. The court first screened the potential jurors with 21
questions largely agreed upon by the defense and prosecution.

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The questions probed (i) any relationship to the case, parties,
attorneys, witnesses, or court personnel; (ii) any association
with the U.S. Capitol, knowledge about the January 6th attack,
or familiarity with Webster’s role in the attack; (iii) feelings
and opinions about January 6th, former-President Trump, or
former-President Trump’s supporters that could impact the
ability to be impartial; (iv) relationships with or opinions about
law enforcement officers; (v) the ability to follow and respect
the rules of the trial including the presumption of innocence,
privilege against self-incrimination, legal instructions, and
instructions about avoiding media; and (vi) any unique
hardships serving on a jury could pose.
Next, the district court brought prospective jurors into the
courtroom one by one, sat them in the jury box, and asked them
additional questions under oath. See Skilling, 561 U.S. at 389
(commending the district court for being “aware of the greater-
than-normal need, due to pretrial publicity, to ensure against
jury bias” by “examin[ing] each prospective juror
individually”); United States v. Edmond, 52 F.3d 1080, 1095
(D.C. Cir. 1995) (endorsing the view that potential jurors
should be questioned individually if possibly exposed to
potentially prejudicial information). If the potential juror felt
uncomfortable answering, the court offered to use a white-
noise device known as a “husher” so the potential juror could
relay sensitive information in a manner heard only by the court
and the parties. See Skilling, 561 U.S. at 389 (steps that
“encourage candor” strengthen the voir dire process). Unless
the court had already resolved to dismiss a prospective juror for
cause, it allowed the parties to follow up with additional
questions. See id. (noting that the parties “were accorded an
opportunity to ask followup questions of every prospective
juror brought to the bench for colloquy”).

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Despite that searching inquiry, Webster raises four
objections, none of which succeeds.
First, he criticizes the length of the process, suggesting it
was truncated. But Webster’s full-day voir dire is on par with
what has passed constitutional muster in other cases. See
Skilling, 561 U.S. at 388–389 (five-hour voir dire with
questionnaire found to be constitutionally sufficient). And in
evaluating the sufficiency of a particular voir dire, we generally
focus on its substance, rather than its length, asking whether, in
light of “the facts and circumstances of the particular case[,]”
necessary questions were asked. West, 458 F.3d at 7–8.
Webster tellingly cannot identify how the district court’s
timing or questioning prejudiced his defense, nor what
questions should have been but were not asked. Neither does
he assert that the court rushed his counsel or denied him
adequate time to investigate or to evaluate the prospective
jurors. The Constitution does not require courts to take more
time just for more time’s sake.
Second, Webster contends both that “each juror had seen
at least some coverage [of January 6th] and only one had not
seen any videos in the last year,” and that several “had strong
feelings about the events and/or President Trump[.]” Webster
Opening Br. 29. Yet to demonstrate partiality, Webster needs
to show that a juror was unable to judge Webster “solely on the
basis of the evidence presented at trial.” Mu’Min, 500 U.S. at
428. Webster’s contentions reveal nothing about that metric.
Webster highlights Jurors 3, 8, and 13 as evidence of
individual bias. Jurors 3 and 8 generally expressed negative
views of former-President Trump and his supporters. J.A. 302
(Juror 3 explaining “I certainly don’t have a high opinion of
former-President Donald Trump, and by extension, I don’t
think his supporters are particularly smart for supporting him”);

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J.A. 344–345 (Juror 8 relaying that “I wasn’t a fan of Trump
* * * . So his supporters, I mean, you know * * * some of them
do get a little chaotic, and they’re not fun to be around when
they’re being wild around the streets”). Juror 13 shared that,
as “a black woman, at that period of [Trump] being President,
I just felt unsafe.” J.A. 458.
Nothing in those jurors’ statements suggests that they had
prejudged Webster’s guilt or were incapable of deciding the
case objectively based on the evidence. Webster’s counsel, in
fact, was so unconcerned that he did not move to strike any of
them. He also declined the offer to question Juror 8 further.
J.A. 346. As for Juror 3, Webster’s counsel asked only if
Webster was “at a disadvantage with” him. J.A. 304. When
Juror 3 said no, counsel responded, “[N]o? Okay[,]” and
moved on. J.A. 304. Similarly, counsel questioned Juror 13
only to clarify whether her feelings of unsafety were related to
January 6th or the Trump presidency. When she told him it
was the latter, he responded: “Then I’m going to sit down.”
J.A. 460. Counsel’s reactions and the absence of any motion
to strike are “strong evidence” that he “was convinced the
jurors were not biased and had not formed any opinions as to
[Webster’s] guilt.” Beck v. Washington, 369 U.S. 541, 558
(1962).
Third, Webster points to two instances where the district
court denied his motion to strike potential jurors for cause.
Webster’s counsel asked potential juror 0974 if, as a
government employee, she saw herself “more aligned with the
attorneys who are here representing the government as opposed
to [Webster’s counsel.]” J.A. 372. She replied “I do. I feel
more aligned with them.” J.A. 373. Webster’s counsel also
asked potential juror 1156 whether his support of President
Biden “put [Webster] at a disadvantage[.]” J.A. 328–329. The

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potential juror said yes. The district court denied counsel’s
motion to strike both jurors for cause.
Pointing to those two potential jurors’ answers does not
help Webster’s case for the simple reason that neither one sat
on his jury. See Skilling, 561 U.S. at 389 n.24 (“Statements by
nonjurors do not themselves call into question the adequacy of
the jury-selection process.”). Beyond that, Webster does not
connect the district court’s failure to strike those potential
jurors to any asserted deeper flaw in the voir dire process that
could have led to the seating of a biased juror. And the
Supreme Court has rejected the proposition that “a defendant’s
peremptory challenge right is impaired when he peremptorily
challenges a potential juror whom the district court erroneously
refused to excuse for cause[.]” United States v. Martinez-
Salazar, 528 U.S. 304, 310 (2000).
Having said that, and to be clear, the district court should
have struck at least potential juror 1156 for cause. That juror
said that he did not view the trial as “a zero-zero game to start”
and, when asked if he could abide by the presumption of
innocence, candidly responded, “I really, I honestly don’t think
so.” J.A. 330–331. A district court should never allow a juror
to sit after he admits he cannot presume the defendant innocent.
Full stop. Still, that single error in a lengthy voir dire process
does not indict the process itself given the absence of any
prejudice tied to the jurors who actually decided Webster’s
case.
Fourth, Webster argues that the district court wrongfully
prohibited his counsel from asking prospective jurors if
Webster would be “disadvantaged” in their eyes. Webster
Opening Br. 33. The court reasoned that the term
“disadvantaged” was unclear and asked Webster’s counsel to
focus his questioning on the “presumptions and burdens and

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the like; you know, would you presume this person would have
done something wrong, et cetera[.]” J.A. 338–339. Webster
did not object to the district court’s ruling. Yet Webster now
asks this court to hold that the district court’s rephrasing
“caused counsel to not question any subsequent jurors in the
same way, likely not uncovering similar biases[.]” Webster
Reply Br. 5.
Because Webster raises this argument for the first time on
appeal, we review it for only plain error. United States v. Pole,
741 F.3d 120, 124 (D.C. Cir. 2013); FED. R. CRIM. P. 52(b).
We find no error, let alone plain error. Webster points to no
case—and we are aware of none—holding that a court cannot
avert juror confusion and focus voir dire questioning more
directly on what matters: the ability of a potential juror to
objectively follow the law and fairly adjudge the defendant’s
guilt. A district court, after all, has wide latitude to sculpt
questioning to “cover the substance of the appropriate areas of
concern by framing its own questions in its own words.”
United States v. Delgado-Marrero, 744 F.3d 167, 201 (1st Cir.
2014) (formatting modified) (quoting Real v. Hogan, 828 F.2d
58, 62 (1st Cir. 1987)); Darbin v. Nourse, 664 F.2d 1109, 1113
(9th Cir. 1981) (“The court need not use the question in the
precise form suggested by counsel.”). Besides, even if it were
an error to modify counsel’s question, Webster offers no
evidence—beyond his own speculation—of prejudice that
resulted from the district court’s ruling. See Pole, 741 F.3d at
124.
B
Webster separately argues that the district court abridged
his Sixth Amendment right to confront the witnesses against
him “by excluding all evidence of the investigation into
[Officer] Rathbun’s conduct” for an unrelated and ultimately

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unsubstantiated use-of-force claim. Webster Opening Br. 34.
Webster did not preserve this argument below, and he cannot
pass plain-error review now.
1
Five months after the riot at the Capitol, Officer
Rathbun—the officer whom Webster assaulted at the Capitol—
used force while responding to an alleged kidnapping. The
United States Attorney’s Office for the District of Columbia
reviewed the incident and declined to prosecute Officer
Rathbun. The Metropolitan Police Department opened its own
administrative investigation, which was still pending at the
time the voir dire process began.
The government moved to bar Webster from cross-
examining Officer Rathbun about the Metropolitan Police
Department investigation. The district court promised to
“discuss with the parties the scope of such cross-examination
at the pretrial conference.” J.A. 159.
At that conference, Webster’s counsel questioned whether
Officer Rathbun’s “role as an important witness” for the U.S.
Attorney’s Office “c[a]me into play in their ultimate decision
in clearing him” during their review. J.A. 226. He noted the
pending Metropolitan Police Department investigation and
proposed that the district court delay Webster’s trial until that
investigation closed in case it uncovered any dishonesty or
wrongdoing. He then informed the district court about the type
of questioning he wished to pursue: “[I]sn’t it true, sir, that
there’s a pending investigation against you regarding your use
of force as a police officer[?]” J.A. 232.
The district court ruled that Webster could not cross-
examine Officer Rathbun about “the substance and the nature

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of the investigation” because that would be “highly prejudicial”
and “inflammatory[.]” J.A. 230. But the district court agreed
that cross-examination about “the fact of a pending
investigation” was “certainly fair game.” J.A. 230; see J.A.
234 (“So the existence of the investigation is okay. And, you
know—and I don’t know whether you’re going [to] follow up
with that in terms of bias, et cetera, but I think that’s about it.
And if there’s more, you’ll let me know, though.”).
Several days later, the government announced that the
Metropolitan Police Department had found Officer Rathbun’s
use of force justified and closed its investigation. The
government then renewed its request to bar Webster from
asking Officer Rathbun about “any pending investigations, as
there no longer [wa]s a pending investigation.” J.A. 824.
Webster’s counsel responded that “the government’s position
is right[,]” and that, while he would “certainly like to delve into
it,” he agreed that he no longer could ask about the
investigation since it had closed in favor of Officer Rathbun.
J.A. 824. The district court simply responded, “[a]ll right.”
J.A. 824. No one brought the issue up again, and Webster’s
counsel chose not to ask Officer Rathbun about any use-of-
force investigation at trial.
2
The Confrontation Clause of the Sixth Amendment
guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right * * * to be confronted with the witnesses
against him[.]” U.S. CONST. Amend. VI. The Clause demands
that a defendant have “a realistic opportunity to ferret out a
potential source of bias.” Wilson, 605 F.3d at 1003 (quoting
United States v. Davis, 127 F.3d 68, 70 (D.C. Cir. 1997)). A
Confrontation Clause violation occurs if the court impaired
counsel’s ability to show “bias on the part of the witness,” id.,

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such that “a reasonable jury might have received a significantly
different impression of the witness’s credibility had defense
counsel been permitted to pursue his proposed line of cross-
examination,” Davis, 127 F.3d at 70–71 (formatting modified)
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)).
At the same time, no violation occurs when the district court
blocks “only marginally relevant” questioning unlikely to
move the jury, id. at 71, or when the district court imposes
“reasonable limits” meant to curtail ills like “harassment,
prejudice, confusion of the issues, [or] the witness’[s] safety,”
United States v. Derr, 990 F.2d 1330, 1334 (D.C. Cir. 1993)
(quoting Van Arsdall, 475 U.S. at 679).
3
Webster forfeited any objection to the district court’s
initial restrictions on questioning Officer Rathbun about the
use-of-force investigations.
Webster’s counsel initially asked the district court to allow
him to question Officer Rathbun about the then-pending
investigation. The district court agreed that he could do so, as
long as he did not delve into the merits of the investigation
itself.
Once the investigation closed in Officer Rathbun’s favor,
the government argued that the court should not allow any
inquiry into the existence of the closed investigation.
Webster’s counsel then expressly agreed that such
impeachment was off the table. Counsel stated that he thought
“the government’s position [wa]s right[,]” even though it was
“a detriment to the defense[.]” J.A. 824. With the parties
apparently having resolved the matter themselves, the district
court responded with only an “[a]ll right.” J.A. 824. At no
time in that hearing did the district court expressly or implicitly

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forbid Webster from cross-examining Officer Rathbun about
the prior investigation. It was Webster’s counsel who, of his
own accord, dropped the subject. And when Officer Rathbun
testified at trial, Webster’s counsel neither attempted to
question the officer about the investigation nor expressed any
interest in doing so.
This appeal is the first time any court has had notice that
Webster disagrees with the district court’s approach to the
cross-examination of Officer Rathbun about the closed
investigation. We need not decide whether Webster waived
this argument because he at least forfeited it. See United States
v. Olano, 507 U.S. 725, 733 (1993) (“[F]orfeiture is the failure
to make the timely assertion of a right[.]”); United States v.
Miller, 890 F.3d 317, 326 (D.C. Cir. 2018) (same). To preserve
an objection, a party must “first make his objection known to
the trial-court judge.” Holguin-Hernandez v. United States,
140 S. Ct. 762, 764 (2020). A party makes their objection
known only by informing the court of either “the action the
party wishes the court to take, or the party’s objection to the
court’s action and the grounds for that objection.” FED. R.
CRIM. P. 51(b). Webster did neither.
Because the objection was not made to the district court,
we review Webster’s argument for only plain error. See Derr,
990 F.2d at 1333 n.2; United States v. Law, 528 F.3d 888, 912
(D.C. Cir. 2008). To prevail, Webster must show not only that
the district court plainly erred, but also that the error impacted
his “substantial rights” and “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Long
v. Howard Univ., 550 F.3d 21, 25 (D.C. Cir. 2008) (quoting
Muldrow ex rel. Estate of Muldrow v. Re–Direct, Inc., 493 F.3d
160, 169 (D.C. Cir. 2007)).

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Webster’s argument stumbles at the starting gate. There is
no ruling by the district court that he can even label error. The
court’s first ruling allowed Webster to cross-examine the
officer about the existence of the investigation, not its
substance. Webster makes no objection to that decision on
appeal. At the second hearing after the investigation closed,
the district court made no ruling at all. It simply acknowledged
with an “all right” Webster’s own decision to forgo questioning
on the topic. The court never stopped Webster from pursuing
investigation-related questions when Officer Rathbun testified.
Instead, Webster’s counsel sua sponte stopped himself. Cf.
United States v. Celis, 608 F.3d 818, 839 (D.C. Cir. 2010) (“It
is simply not the case * * * that the court prevented [the
defendant] from pursuing this line of questioning.”).
Nor, in any event, could Webster show prejudice. Given
the overwhelming evidence against him—including at least
four videos of the assault—there is no “reasonable probability”
that the jury would have acquitted him even if he had asked
Officer Rathbun about a closed investigation that involved an
entirely different incident occurring five months after
Webster’s offenses and that was resolved in the officer’s
favor. United States v. Long, 997 F.3d 342, 359 (D.C. Cir.
2021).
For the same reason, Webster’s argument that counsel was
ineffective for failing to obtain permission to cross-examine
Officer Rathbun about the investigation fails. Counsel did
obtain permission to cross-examine Officer Rathbun about the
investigation and, in any event, any such error would not have
prejudiced Webster’s defense. See Strickland v. Washington,
466 U.S. 668, 691–692 (1984); Porter v. McCollum, 558 U.S.
30, 38–39 (2009).

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C
Webster also challenges his conviction on the ground that
the district court improperly instructed the jury on the elements
of an 18 U.S.C. § 111(b) violation. Because Webster did not
object to the instruction at the time, we review for only plain
error. We find none.
1
Webster was charged with, and convicted of, violating 18
U.S.C. § 111(b). That statute punishes anyone who (1)
“forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with” a designated federal officer “while [the officer
is] engaged in or on account of the performance of official
duties,” 18 U.S.C. § 111(a)(1), and, in doing so, (2) “uses a
deadly or dangerous weapon * * * or inflicts bodily injury,” id.
§ 111(b).
When instructing the jury on this charge, the district court
included as an element of the Section 111(b) offense that the
defendant “made physical contact with a person who was
assisting officers of the United States who were then engaged
in the performance of their official duties, or acted with the
intent to commit another felony.” J.A. 1341. The court
specified that the only other felony the jury could find that
Webster intended to commit was the second count with which
he was charged: civil disorder.
Webster argues that the court erred because Section 111(b)
can be violated without a defendant making “physical contact”
with the victim or acting “with the intent to commit another
felony.” J.A. 1341.
We need not decide whether the district court mistakenly
added two additional elements to the Section 111(b) offense.

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Any such mistake would have helped, rather than hurt, Webster
by making it harder for the jury to convict him. Webster, after
all, does not dispute that the jury was properly instructed on
and found each of the necessary elements for his offense. So
removing any surplus elements from the jury instructions
would only have made it easier for the jury to convict. The jury
still found Webster committed every true element of the crime.
See Musacchio v. United States, 577 U.S. 237, 243 (2016)
(“When a jury finds guilt after being instructed on all elements
of the charged crime plus one more element, the jury has made
all the findings that due process requires.”). And without any
basis to find prejudice from the asserted misstep, Webster
cannot demonstrate that plain error occurred. See United States
v. Marcus, 560 U.S. 258, 262–263 (2010).
Webster counters that the district court’s allegedly
erroneous instruction had the effect of constructively amending
his indictment, creating a risk that the jury convicted him for
uncharged conduct. Specifically, Webster notes that his
indictment alleged that he “forcibly assault[ed] * * * an officer
and employee of the United States” “using a deadly or
dangerous weapon, that is, a metal flagpole,” and that the
assault “involve[d] physical contact with the victim and the
intent to commit another felony.” J.A. 162. Webster objects
that he never hit Officer Rathbun with the flagpole, and that
Officer Rathbun took the flagpole before Webster tackled him.
Webster further reasons that, because the district court
instructed the jury to find whether Webster made physical
contact with Officer Rathbun with a deadly weapon, the jury
must have convicted him for his actions after he lost the
flagpole. From that, Webster concludes that the district court’s
added element constructively amended his indictment, which
charged conduct that occurred only when he had the flagpole.

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That multi-tiered argument fails. An impermissible
“constructive amendment” of an indictment occurs when “the
evidence presented at trial and the instructions given to the jury
so modify the elements of the offense charged that the
defendant may have been convicted on a ground not alleged by
the grand jury’s indictment.” Sayan, 968 F.2d at 59–60
(formatting modified).
No such constructive amendment occurred in this case. To
convict for the conduct charged in the indictment, the jury must
have found that Webster either made “physical contact with”
Officer Rathbun while using a deadly weapon or “acted with
the intent to commit another felony” while using a deadly or
dangerous weapon. J.A. 1341 (jury instructions) (emphasis
added). The indictment charged him with both types of
conduct. J.A. 162 (indictment). And the jury instructions
allowed conviction under either theory. J.A. 1341 (jury
instructions); see United States v. Brown, 504 F.3d 99, 104
(D.C. Cir. 2007). The court specifically instructed the jury that
Webster could be found guilty of violating Section 111(b) if it
found that he assaulted Officer Rathbun with the intent to
commit civil disorder—a felony that the jury convicted
Webster of—in violation of 18 U.S.C. § 231(a)(3). See J.A.
1341. That instruction fell within the four corners of the
indictment. See J.A. 162. We presume the jury followed the
court’s instructions. United States v. Tucker, 12 F.4th 804, 826
(D.C. Cir. 2021) (“We presume that juries follow the court’s
instructions when * * * there is no evidence to the contrary.”).
The jury instructions, at worst, made it harder for the jury
to convict Webster, and never took the jury beyond the scope
of the indictment. That is not plain error.

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IV
Turning to Webster’s sentence, he challenges the district
court’s inclusion of a four-level, use-of-body-armor
enhancement. He also argues that the length of his sentence
was substantively unreasonable as compared to other January
6th defendants. Neither of those arguments succeeds.
A
Webster’s first objection to his sentence is to the district
court’s imposition of an enhancement for “us[ing] body armor
during the commission of the offense[.]” U.S. SENT’G
GUIDELINES MANUAL § 3B1.5(2)(B) (U.S. SENT’G COMM’N
2021).1 Under the relevant Guideline, “[u]se” means “active
employment in a manner to protect the person from gunfire[,]”
or “as a means of bartering.” Id. § 3B1.5 cmt. n.1. It does not
mean “mere possession[,]” such as if “the body armor was
found in the trunk of the car but not used actively as
protection[.]” Id.
Webster used body armor while committing his assault.
See U.S.S.G. § 3B1.5(2)(B). He put it on that morning, in part,
for protection. He wore it throughout the day, including as he
attacked Officer Rathbun. Given those facts, the district court
correctly applied the enhancement. See United States v.
Shamah, 624 F.3d 449, 459 (7th Cir. 2010); United States v.
Barrett, 552 F.3d 724, 727–728 (8th Cir. 2009).
Webster does not dispute that he wore body armor while
participating in the Capitol riot. Instead, he argues that the
1 All citations in this opinion are to the 2021 version of the
Guidelines, which were in effect when the district court sentenced
Webster.

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enhancement applies only when the body armor is donned with
the intent to commit a crime of violence. He insists that he
wore the body armor only for “warmth and possible protection
in the crowd[.]” Webster Opening Br. 49. He also argues, in
the alternative, that the enhancement applies only when a
defendant wears body armor during a crime that involves the
“usage, or threatened usage of firearms[.]” Webster Opening
Br. 49.
Webster’s proposed intent requirement has no anchor in
Section 3B1.5’s text. The provision requires only simple “use”
of the body armor. It contains no mens rea requirement. The
Guidelines commentary likewise defines “use” not in terms of
intent, but as “active employment in a manner to protect the
person from gunfire[.]” U.S.S.G. § 3B1.5, cmt. n.1 (emphasis
added); see Long, 997 F.3d at 355 (“[T]he commentary to the
Guidelines, unless it is inconsistent with the Guidelines’ plain
text[,] * * * is authoritative.”) (citing Stinson v. United States,
508 U.S. 36, 38 (1993)). 2 “Manner” refers to the way
something is performed; it is about objective process, actions,
and methodology, not subjective intent. Manner, WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 1376 (1993) (“[A]
characteristic or customary mode of acting[.]”); id. (“[T]he
mode or method in which something is done or happens : a
mode of procedure or way of acting[.]”).
Notably, the definition of “use” hinges on protection from
violence, not the commission of a crime. See U.S.S.G. § 3B1.5
cmt. n.1 (explaining that mere possession of body armor would
not trigger the enhancement as long as it was “not used actively
2 The Sentencing Commission promulgated this Guideline and its
commentary through notice-and-comment rulemaking. 68 Fed. Reg.
2615, 2623–2624 (January 17, 2003). It also submitted both texts to
Congress for review. 68 Fed. Reg. 26960, 26975 (May 16, 2003).

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as protection”). So even if “use” of body armor required some
level of intent, it would be an intent to avoid injury, not intent
to commit a crime of violence. Webster had that intent: He
admits he wore the body armor in part for “possible protection”
from the crowd while attacking the Capitol. Webster Opening
Br. 49.
As for Webster’s alternative argument, we need not decide
whether the enhancement applies only when there is a risk of
gun violence because that limitation would be of no help to
Webster. He assaulted a police line set up to protect Congress
from an angry mob. As Webster himself recognized, that act
carried with it the risk that officers would use armed force to
protect members of Congress, their staffs, and themselves. See
J.A. 1171. Since Webster’s conduct would satisfy even his
proposed interpretation of Section 3B1.5, there was no error in
the district court’s application of the enhancement.
B
In imposing a criminal sentence, a district court must
consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct[.]” 18 U.S.C. § 3553(a)(6). Webster
argues that the district court failed that task because his 120-
month sentence is disproportionate to ten January 6th–related
cases in which the defendants received sentences ranging from
33–90 months.
That is a false comparison. There are material differences
between Webster’s case and each of those he cites. See United
States v. Alford, 89 F.4th 943, 953–954 (D.C. Cir. 2024). For
example, seven of the ten sentences Webster references

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resulted from plea agreements rather than trials.3 Defendants
who go to trial are not “similarly situated” to those who plead
guilty, and therefore “the disparity in their treatment” is
generally permissible. United States v. Otunyo, 63 F.4th 948,
960 (D.C. Cir. 2023); see Alford, 89 F.4th at 954.
The remaining sentences Webster cites are equally
incomparable. Unlike the defendants in those cases, (i)
Webster violently assaulted a police officer, (ii) received a
four-level enhancement for using body armor, and (iii) was
found to be an instigator in the January 6th crowd. J.A. 1908
(“It’s not until you arrive, Mr. Webster, that all hell broke
loose. It was your actions that, at least on that part of the police
line, opened up the police line and allowed thousands of people
through, many of whom ended up inside that Capitol
building[.]”). That trifecta meaningfully differentiates his
conduct from that of the defendants in United States v. Reffitt,
Case No. 1:21-cr-00032, and United States v. Robertson, Case
No. 1:21-cr-00034. The district court found, and Webster does
not contest, that neither defendant in those cases was charged
with “touch[ing] a police officer” or was subject to the body-
armor enhancement. J.A. 1912; Webster Opening Br. 53–55.
While the defendant in United States v. McCaughey, No. 1:21-
cr-00040, did assault a law enforcement officer, he did not
receive a body-armor enhancement. See Webster Opening Br.
54.
In short, the district court properly exercised its discretion
after comparing other sentences to Webster’s individual
3 See United States v. Richardson, Case No. 1:21-cr-00721; United
States v. Khater, Case No. 1:21-cr-00222; United States v.
Albuquerque Cosper Head, Case No. 1:21-cr-00291; United States
v. Fairlamb, Case No. 1:21-cr-00120; United States v. Rubenacker,
Case No. 1:21-cr-00193; United States v. Miller, No. 1:21-cr-00119;
United States v. Coffman, Case No. 1:21-cr-00614.

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conduct, the full circumstances of his offense, and the other
Section 3553(a) factors. See Alford, 89 F.4th at 953–955. That
is all the law required.
V
For the foregoing reasons, we affirm Webster’s
convictions and sentence.
So ordered.

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