United States v. Gieswein

• Court: District Court, District of Columbia
• Decided: July 27, 2021
• Docket: Criminal No. 2021-0024
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Crim. Action No. 21-24 (EGS)

ROBERT GIESWEIN,

Defendant.

MEMORANDUM OPINION

Defendant Robert Gieswein (“Mr. Gieswein”) has been charged

in a federal indictment with six serious felony offenses arising

from his participation in the events at the U.S. Capitol on

January 6, 2021. See Indictment, ECF No. 3. 1 Following Mr.

Gieswein’s arrest in Colorado, a magistrate judge in the

District of Colorado ordered Mr. Gieswein detained pending

trial, and he was transported to this District. See Rule 5(c)(3)

Documents, ECF No. 5 at 21; see also Ex. 1 to Gov’t’s Opp’n to

Def.’s Mot. Hearing & Revocation Detention Order (“Gov’t’s

Opp’n”), ECF No. 19-1. Pending before the Court is Mr.

Gieswein’s Motion for Hearing and Revocation of Detention Order,

which seeks his release from detention to the custody of a

third-party custodian in Oklahoma. See Mot. Hearing & Revocation

Order (“Def.’s Mot.”), ECF No. 18. Upon careful consideration of

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 1 the motion, opposition, reply, and surreply thereto, the

arguments set forth at the July 1, 2021 hearing, the applicable

law, and the entire record herein, Mr. Gieswein’s motion is

DENIED.

I. Background

Mr. Gieswein is alleged to have forcibly assaulted,

resisted, opposed, impeded, intimidated, or interfered with U.S.

Capitol Police officers attempting to maintain the security of

the U.S. Capitol on January 6, 2021. See Indictment, ECF No. 3

at 2-3. The six-count indictment, filed January 27, 2021,

charges Mr. Gieswein with the following offenses: (1)

Obstruction of an Official Proceeding, in violation of 18 U.S.C.

§ 1512(c)(2); (2) three counts of Assaulting, Resisting, or

Impeding Certain Officers Using a Dangerous Weapon, in violation

of 18 U.S.C. § 111(a)(1) and (b); (3) Destruction of Government

Property, in violation of 18 U.S.C. §§ 1361, 2; and (4) Entering

and Remaining in a Restricted Building or Grounds with a Deadly

or Dangerous Weapon, in violation of 18 U.SC. § 1752(a)(1) and

(b)(1)(A). Indictment, ECF No. 3 at 1-4.

2 The Court sets out below the evidence proffered by the

parties in support of their briefing, 2 as well as an overview of

the procedural history of this case.

A. Mr. Gieswein’s Conduct on January 6, 2021

In the days leading up to January 6, 2021, Mr. Gieswein

traveled alone to Washington, D.C. to attend the demonstrations

in support of then-President Donald J. Trump. See Def.’s Mot.,

ECF No. 18 at 2. Mr. Gieswein is a 24-year-old resident of

Woodland Park, Colorado, and has no criminal record. See id. at

1, 3. According to letters submitted by Mr. Gieswein’s family

and friends, although they were aware that Mr. Gieswein

supported then-President Trump, Mr. Gieswein never indicated to

them that he intended to engage in any violence or illegal

activity during his trip to Washington. Id. at 2. However,

regardless of Mr. Gieswein’s stated intentions regarding his

plans in Washington, video and photographic evidence submitted

by the government show that Mr. Gieswein’s conduct on January 6,

2021 involved violent acts against U.S. Capitol Police during

the riot that disrupted the joint session of the U.S. Congress,

which was convening to certify the vote count of the Electoral

2 At a detention hearing, both parties may present evidence by way of a proffer. See 18 U.S.C. § 3142(f); United States v. Smith, 79 F.3d 1208, 1209-10 (D.C. Cir. 1996). 3 College of the 2020 Presidential Election. See Gov’t’s Opp’n,

ECF No. 19 at 3-11.

On January 5, 2021, Mr. Gieswein joined supporters of then-

President Trump at Freedom Plaza in Washington, D.C. Def.’s

Mot., ECF No. 18 at 2. According to Mr. Gieswein, “[h]e had just

smoked a significant amount of marijuana, and his intoxication

[was] palpable in his dilated pupils and grin, and in the

rambling comments that ensued.” Id. An individual approached Mr.

Gieswein and proceeded to ask him questions regarding his

presence at the rally. Id. During the interview, Mr. Gieswein

stated that he was there “to keep President Trump in,” though he

described no plans to do so, and that he wished for “both sides

[to] stay peaceful.” Id. at 2-3. In addition, Mr. Gieswein

stated that he believed that “politicians, including President

Biden and Vice President Harris, ha[d] ‘completely destroyed our

country and sold them to the Rothschilds and the Rockefellers.’” 3

Gov’t’s Opp’n, ECF No. 19 at 27; see also Aff. Supp. Crim.

Compl. (“Aff.”), ECF No. 1-1 at 11 (describing Mr. Gieswein as

saying that his message to Congress was “[t]hat they need to get

the corrupt politicians out of office. Pelosi, the Clintons, all

of . . . every single one of them, Biden, Kamala . . . they have

3 According to the government, “online and anti-Semitic conspiracy theories hold that shadow forces, including the Rothschild family, secretly control global currency.” Gov’t’s Opp’n, ECF No. 19 at 27 n.11. 4 completely destroyed our country and sold them to the

Rothschilds and Rockefellers”). The Federal Bureau of

Investigation (“FBI”) affidavit attached to the criminal

complaint filed January 16, 2021, further asserts that the same

video evidence shows Mr. Gieswein stating: “What we need to do,

is we need to get the corrupt politicians that have been in

office for 50-60 years, that have been destroying our country

and selling it to the Middle East and Israel out of office and

they need to be imprisoned.” Aff., ECF No. 1-1 at 11.

The following day, on January 6, 2021, Mr. Gieswein arrived

on the Capitol grounds wearing camouflage fatigues, a tactical

vest, and a helmet. Gov’t’s Opp’n, ECF No. 19 at 3. Photographic

and video evidence proffered by the government also capture Mr.

Gieswein with goggles and carrying a baseball bat and an aerosol

spray can containing unknown chemicals. See id. at 3-9; see also

id. at 3, Figure 1; id. at 21, Figure 10.

After participating in a march with members of the Proud

Boys 4 that morning, 5 photographic evidence places Mr. Gieswein in

4 The government describes the Proud Boys as “an organization that bills itself as ‘Western chauvinist’ and ‘nationalist,’” and notes that “multiple [members] have been charged in conspiracy indictments that allege a conspiracy that predates January 6.” Gov’t’s Opp’n, ECF No. 19 at 4. 5 According to the government, “the investigation to date has

uncovered no evidence of [Mr. Gieswein’s] affiliation with the Proud Boys prior to January 6.” Gov’t’s Opp’n, ECF No. 19 at 22; see also id. at 26. 5 the plaza to the west of the Capitol building (“West Plaza”)

shortly before 1:00 p.m., while then-President Trump was still

speaking to supporters from the Ellipse, near the White House.

Id. at 4. According to the government, at this point in the day,

rioters had already breached two sets of police barricades—one

at a pedestrian entrance near the Peace Monument, and another

set closer to the Capitol—resulting in hundreds of rioters,

including Mr. Gieswein, flowing into the West Plaza. Id. Mr.

Gieswein then positioned himself close to the front line of the

rioters standing in front of the line of law enforcement

officers. Id. at 4-5. At approximately 1:34 p.m., body-camera

footage submitted by the government shows Mr. Gieswein, along

with other rioters, forcefully pushing a metal police barricade

directly into the bodies of law enforcement officers attempting

to keep the rioters from reaching the Capitol, as other law

enforcement officers throw tear gas into the mob. See Hr’g Video

Ex. 3, at 01:25 to 01:45; Hr’g Video Ex. 4, at 00:06 to 00:15,

01:07 to 01:11.

At approximately 1:48 p.m., rioters and Capitol Police

guarding a set of stairs that led from underneath the

Inauguration scaffolding and up to the Capitol itself engaged in

a violent fight, in which both sides deployed pepper spray

against each other and used the metal police barriers as

weapons. Gov’t’s Opp’n, ECF No. 19 at 5. Approximately one

6 flight of stairs above that fight, Mr. Gieswein stood among

other rioters facing another line of Capitol Police officers.

Id. at 6. Video evidence shows rioters pulling a police

barricade down the staircase, which other rioters and Mr.

Gieswein, with baseball bat in hand, then grabbed and began to

push forward again up toward the officers. See Hr’g Video Ex. 1,

at 00:01 to 00:43. With the barricade largely dividing the

rioters from law enforcement at the top of the staircase, the

video shows Mr. Gieswein deploying his aerosol spray can in the

direction of the law enforcement officers. Gov’t’s Opp’n, ECF

No. 19 at 6-7, 19, Figure 5; see also Hr’g Video Ex. 1 at 02:19

to 02:25; 03:15 to 03:20. Despite law enforcement officers

deploying pepper spray and using their batons against the

rioters, the rioters continued attempting to push law

enforcement out of the way with the metal barricade. Id. at

03:50 to 04:20. It is unclear whether the rioters were

successful in pushing the barricade through the makeshift

doorframe at the top of the staircase or whether law enforcement

chose to stand back, but the barricade was eventually pushed up

and to the side and law enforcement fell back, which allowed

rioters to continue to make their way toward the Capitol

building. Id. As rioters slowly moved up the staircase and out

toward the Capitol building, video evidence shows Mr. Gieswein

raising his fist and yelling. Id. at 04:45 to 04:50.

7 Mr. Gieswein is then captured on video running toward the

Capitol building, with a baseball bat in one hand and aerosol

spray can in the other. Gov’t’s Opp’n, ECF No. 19 at 7; see also

Hr’g Video Ex. 2 at 00:01 to 00:10. Once he reached the

building, he began banging on one of the windows with his hand.

Id. at 00:12 to 00:15. He then moved to another window in the

same alcove where another rioter was using a long wooden board

to smash through the window. Id. at 00:23 to 00:28. As the

rioters were in the process of breaking that window, Mr.

Gieswein got the attention of others attempting to kick open a

door to the Capitol, and he pointed back toward the window. Id.

at 00:38 to 00:40. After he pointed to the window, two rioters

moved toward the window, and one of those rioters grabbed the

long wooden board and smashed it through the window. Id. 00:40

to 00:50. The government alleges that once the windows were

broken, Mr. Gieswein was either the second or third rioter to

enter the Capitol building at approximately 2:14 p.m. Id. at

00:56 to 01:12; Gov’t’s Opp’n, ECF No. 19 at 7.

Once inside the building, the government alleges that Mr.

Gieswein and other rioters began walking up the internal

staircase toward the still-occupied Senate Chamber. Gov’t’s

Opp’n, ECF No. 19 at 8. Photographic evidence shows that Mr.

Gieswein continued to carry the baseball bat and aerosol spray

while inside the Capitol. Id. at 7-8.

8 By approximately 2:29 p.m., Mr. Gieswein was in the Capitol

crypt on the lower level of the building, where the government

asserts that multiple fights between law enforcement and rioters

had broken out. Id. at 8. Video footage from surveillance

cameras capture Capitol Police officers running away from the

crypt toward a set of metal doors—which could be rolled down

from the ceiling to the floor—in the Capitol tunnels. Id.

According to the government, rioters began placing chairs and

trash cans under the doors to stop them from closing to the

ground, and, once the doors stopped closing, the rioters began

throwing those same chairs and trash cans toward the officers.

Id. at 9. During this incident, video surveillance footage

captures Mr. Gieswein deploying his aerosol spray can in the

direction of officers. Id.; see also id., Figure 7. The

government asserts that video footage also shows Mr. Gieswein

waving his arm to encourage other rioters to join the advance on

police. Id.; see also id., Figure 8.

Mr. Gieswein next made his way to the Capitol Visitor

Center. Id. at 10. Although there is no video evidence of Mr.

Gieswein’s actions within the Capitol Visitor Center, the

government alleges that a rioter fitting Mr. Gieswein’s

description 6 sprayed a group of officers with his aerosol spray

6 The Capitol Police officer described the individual as follows: “White male; approximately 5’8 or a little taller, in his 30’s 9 can, which one of the officers described as an “oleoresin

capsicum (OC) type spray” that caused eye irritation. Id. at 10;

Ex. 2 to Gov’t’s Opp’n, ECF No. 19-2 at 2. According to the

government, when law enforcement grabbed Mr. Gieswein to arrest

him, Mr. Gieswein resisted arrest and tried to punch a U.S.

Capitol Police officer. 7 Gov’t’s Opp’n, ECF No. 19 at 10; Ex. 2

to Gov’t’s Opp’n, ECF No. 19-2 at 2. After the officers and Mr.

Gieswein fell to the ground during the struggle to arrest him,

the surrounding crowd grabbed Mr. Gieswein and pulled him free

of the officers. Gov’t’s Opp’n, ECF No. 19 at 10; Ex. 2 to

Gov’t’s Opp’n, ECF No. 19-2 at 2. Mr. Gieswein then fled the

area. Gov’t’s Opp’n, ECF No. 19 at 10; Ex. 2 to Gov’t’s Opp’n,

ECF No. 19-2 at 2. During this struggle, Mr. Gieswein’s baseball

bat was stored in his backpack, though it was visible to others.

Ex. 2 to Gov’t’s Opp’n, ECF No. 19-2 at 2 (reporting that the

law enforcement officer in the Capitol Visitor Center noticed

the baseball bat in the backpack, and was “concerned” about Mr.

Gieswein using it). According to the government, a portion of

[sic], wearing goggles, a green in color newer style military helmet with a rail system on the front, wearing full military ‘garb’, and had a ceramic like breast plate on with an unknown object near the bottom of the vest or stomach area.” Ex. 2 to Gov’t’s Opp’n, ECF No. 19-2 at 2. The officer also stated that the individual had a baseball bat in his backpack, which “stuck out because he was concerned about [the individual] using the bat.” Id. 7 Mr. Gieswein has not been charged with an offense in connection

with the alleged attempt to punch an officer or resist arrest. 10 this incident is captured on surveillance video, including video

showing Mr. Gieswein and Capitol Police officers on the ground

and Mr. Gieswein subsequently fleeing the area. Gov’t’s Opp’n,

ECF No. 19 at 10; Ex. 2 to Gov’t’s Opp’n, ECF No. 19-2 at 2.

B. Mr. Gieswein’s Conduct Between January 6, 2021 and His Self-Surrender on January 18, 2021

Mr. Gieswein returned home to Woodland Park, Colorado

following the events of January 6, 2021. Def.’s Mot., ECF No. 18

at 3.

On January 16, 2021, the FBI executed a search warrant at

Mr. Gieswein’s residence. Gov’t’s Opp’n, ECF No. 19 at 10. Mr.

Gieswein was not present at the time of the search. Id. During

the search, FBI agents did not locate the items of clothing Mr.

Gieswein wore on January 6, 2021, nor the baseball bat he

carried that day. Id. The FBI also did not locate Mr. Gieswein’s

phone during that search or the subsequent search incident to

arrest. Id. at 10-11. According to AT&T phone records, however,

Mr. Gieswein’s phone had been in use up to and including January

16, 2021. Id.

Mr. Gieswein voluntarily turned himself in to local

authorities on January 18, 2021. Def.’s Mot., ECF No. 18 at 3.

Because he invoked his right to counsel, he was not interviewed

about the events of January 6, 2021. Gov’t’s Opp’n, ECF No. 19

at 11. However, according to the government, he made unsolicited

11 statements to the agents transporting him to Denver for his

initial appearance in the District of Colorado, including that,

“although he was present at the Capitol on January 6, he did

nothing wrong, and that is why he turned himself in.” Id. In

addition, the government alleges that he “described himself as a

‘constitutionalist’ who wants the military to take back over the

country and restore the Constitution.” Id.

C. Procedural History

Mr. Gieswein was first charged by criminal complaint on

January 16, 2021. See Criminal Compl., ECF No. 1. Mr. Gieswein

turned himself in to the Teller County Jail on January 18, 2021,

and he had his initial appearance before a magistrate judge on

the United States District Court for the District of Colorado.

See Rule 5(c)(3) Documents, ECF No. 5. On January 22, 2021, the

magistrate judge ordered Mr. Gieswein detained pending trial and

transported to this District. See Ex. 1 to Gov’t’s Opp’n, ECF

No. 19-1. Mr. Gieswein made his initial appearance in this

District on March 29, 2021. See Min. Entry (Mar. 29, 2021).

On June 8, 2021, Mr. Gieswein filed a motion for release

from custody. See Def.’s Mot., ECF No. 18. The government filed

its response on June 15, 2021, see Gov’t’s Opp’n, ECF No. 19;

and Mr. Gieswein filed his reply on June 22, 2021, see Def.’s

Reply, ECF No. 21. In response to an Order from the Court, see

Min. Order (June 23, 2021); the government filed a surreply on

12 June 25, 2021, see Gov’t’s Surreply, ECF No. 22. The Court held

a hearing on Mr. Gieswein’s motion on July 1, 2021. See Min.

Entry (July 1, 2021). For the hearing and after the completion

of briefing on Mr. Gieswein’s motion, the government submitted

four videoclips as additional exhibits. See Notice, ECF No. 24.

Mr. Gieswein’s motion is now ripe for adjudication.

II. Legal Standard

The Bail Reform Act, 18 U.S.C. § 3141 et seq., provides

that a hearing shall be held to determine whether a defendant

should be detained pretrial upon a motion by the government if

the defendant is charged with an offense falling in one of five

enumerated categories. 18 U.S.C. § 3142(f)(1)(A)-(E). As

relevant here, a detention hearing shall be held pursuant to

Section 3142(f)(1)(A) if a defendant is charged with a “crime of

violence,” or pursuant to Section 3142(f)(1)(E) if a defendant

is charged with any felony that is not otherwise a crime of

violence that involves the possession or use of any dangerous

weapon. 18 U.S.C. § 3142(f).

If a detention hearing is held pursuant to Section 3142(f),

a judicial officer may detain a defendant pending trial if the

judicial officer determines that “no condition or combination of

conditions will reasonably assure the appearance of the person

as required and the safety of any other person and the

community.” Id. § 3142(e). “In common parlance, the relevant

13 inquiry is whether the defendant is a ‘flight risk’ or a ‘danger

to the community.’” United States v. Munchel, 991 F.3d 1273,

1279 (D.C. Cir. 2021) (quoting United States v. Vasquez-Benitez,

919 F.3d 546, 550 (D.C. Cir. 2019)). When the basis for pretrial

detention is the defendant’s danger to the community, the

government is required to demonstrate the appropriateness of

detention pursuant to subsection (e) by clear and convincing

evidence. 18 U.S.C. § 3142(f).

Certain conditions and charged offenses trigger a

rebuttable presumption that no condition or combination of

conditions will reasonably assure the safety of any person and

the community. 18 U.S.C. § 3142(e)(2)-(3). As relevant here, “it

shall be presumed that no condition or combination of conditions

will reasonably assure the appearance of the person as required

and the safety of the community if the judicial officer finds

that there is probable cause to believe that the person

committed” an “an offense listed in section 2332b(g)(5)(B) of

title 18, United States Code, for which a maximum term of

imprisonment of 10 years or more is prescribed.” Id. §

3142(e)(3)(C). 8

8 The full subset of offenses triggering a rebuttable presumption under subsection (e)(3) include the following: “(A) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act . . . the Controlled Substances Import and Export Act . . ., or chapter 705 of title 46; (B) an offense under section 924(c), 956(a), or 2332b of 14 Once this presumption is triggered, “it imposes a burden of

production on the defendant ‘to offer some credible evidence

contrary to the statutory presumption.’” United States v.

Cherry, 221 F. Supp. 3d 26, 32 (D.D.C. 2016) (quoting United

States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985)). “While

the burden of production may not be heavy,” United States v.

Lee, 195 F. Supp. 3d 120, 125 (D.D.C. 2016) (citations omitted);

the defendant must proffer “at least some evidence” or basis to

conclude that the case falls “outside ‘the congressional

paradigm’” giving rise to the presumption. United States v.

Stone, 608 F.3d 939, 945-46 (6th Cir. 2020) (quoting United

States v. Jessup, 757 F.2d 378, 387 (1st Cir. 1985)); see also

United States v. Klein, No. 21-23 (RDM), 2021 WL 1751056, at *3

(D.D.C. May 4, 2021). In other words, to rebut the presumption,

the defendant must “offer some credible evidence” that he will

not endanger the community or flee if released. Id. at 32. If

the defendant meets his burden of production, the presumption

“does not disappear entirely, but remains a factor to be

this title; (C) an offense listed in section 2332b(g)(5)(B) of title 18, United States Code, for which a maximum term of imprisonment of 10 years or more is prescribed; (D) an offense under chapter 77 of this title for which a maximum term of imprisonment of 20 years or more is prescribed; or (E) an offense involving a minor victim under section 1201, 1591, 2241, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1), 2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of this title.” 18 U.S.C. § 3142(e)(3)(A)-(E). 15 considered among those weighed by the district court.” United

States v. Hunt, 240 F. Supp. 3d 128, 132-33 (D.D.C. 2017)

(citing United States v. Ali, 793 F. Supp. 2d 386, 388 (D.D.C.

2001)). Although the burden of production may shift, the burden

of persuasion remains with the government throughout. Cherry,

221 F. Supp. 3d at 32.

In cases that do not involve the conditions and charged

offenses that trigger a rebuttable presumption of detention, the

Court considers the following factors to determine whether

detention is required to ensure the appearance of the person and

the safety of any other person and the community:

1. The nature and circumstances of the offense charged, including whether the offense is a crime of violence; 2. The weight of the evidence; 3. The history and characteristics of the person, including A. The person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and B. Whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release; and 4. The nature and seriousness of the danger to any person or the community that would be posed by the person’s release.

18 U.S.C. § 3142(g); see also Munchel, 991 F.3d at 1279-80.

16 Although the Court of Appeals for the District of Columbia

Circuit (the “D.C. Circuit”) has not squarely decided the issue

of what standard of review a district court should apply to

review of a magistrate’s detention or release order, see

Munchel, 991 F.3d at 1280-81; courts in this District have held

that such detention decisions are reviewed de novo. See Hunt,

240 F. Supp. 3d at 132-33; United States v. Chrestman, No. 21-

mj-218 (ZMF), 2021 WL 765662, at *5-6 (D.D.C. Feb. 26, 2021).

Accordingly, the Court will review the decision to detain Mr.

Gieswein de novo.

III. Analysis

A. Mr. Gieswein Has Rebutted Any Presumption in Favor of Detention

Pursuant to the Bail Reform Act, if there is probable cause

to believe the defendant has committed an offense for which a

maximum term of imprisonment of ten years or more is prescribed

under an offense listed in 18 U.S.C. § 2332b(g)(5)(B), a

rebuttable presumption arises that no pretrial release condition

or combination of conditions may be imposed to reasonably assure

the appearance of the person or the safety of the community if

he were released. See 18 U.S.C. § 3142(e)(3). Here, the

government contends that the rebuttable presumption applies

because Mr. Gieswein is charged with Destruction of Government

Property, in violation of 18 U.S.C. § 1361, which is

17 specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B) and

carries a maximum sentence of ten years in prison. Gov’t’s

Opp’n, ECF No. 19 at 12-13. The Court agrees.

First, the D.C. Circuit has explained that an “indictment

alone [is] enough to raise the rebuttable presumption that no

condition would reasonably assure the safety of the community.”

United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996); see

also United States v. Little, 235 F. Supp. 3d 272, 277 (D.D.C.

2017). Here, a grand jury found probable cause to believe that

Mr. Gieswein committed the offense of Destruction of Government

Property, in violation of 18 U.S.C. §§ 1361, 2. See Indictment,

ECF No. 3 at 2. This charge carries a maximum sentence of 10

years. See 18 U.S.C. § 1361. And given the evidence proffered by

the government, as described below in Section III, Part C.2, the

Court has no reason to second guess the grand jury’s

determination. Thus, based on the indictment, the Court would

have cause to find that a rebuttal presumption applies in this

case.

Second, although there is not a wealth of case law on the

issue within this Circuit, other courts interpreting a different

section of the Bail Reform Act have concluded that “a conspiracy

to commit a crime of violence is itself a crime of violence,”

United States v. Mitchell, 23 F.3d 1, 3 (1st Cir. 1994); and

that the Bail Reform Act “does not require that the defendant

18 himself commit acts of physical violence as a condition

precedent to a detention order,” United States v. Ciccone, 312

F.3d 535, 542 (2d Cir. 2002). Another court in this District has

relied upon such case law in addressing whether the presumption

of dangerousness attaches when there is probable cause to

believe the defendant was an aider and abettor or co-conspirator

for an alleged violation of Section 924(c). See United States v.

Lee, 195 F. Supp. 3d 120, 128 (D.D.C. 2016). In Lee, the court

found the out-of-Circuit case law persuasive, and concluded that

“[b]ecause the government ha[d] established probable cause to

believe that the defendant violated [S]ection 924(c) by aiding

and abetting or conspiring to commit that offense,” the court

“could find that the rebuttable presumption prescribed in §

3142(e)(3)(B) applie[d] in th[e] case.” Id. This Court similarly

finds the out-of-Circuit cases to be persuasive, particularly in

view of the well-established precedent explaining that “[u]nder

[18 U.S.C. § 2], the acts of the perpetrator become the acts of

the aider and abettor and the latter can be charged with having

done the acts himself.” United States v. Kegler, 724 F.2d 190,

200-01 (D.C. Cir. 1983); see also Rosemond v. United States, 572

U.S. 65, 71 (2014); In re Colon, 826 F.3d 1301, 1305 (11th Cir.

2016). And indeed, here, Mr. Gieswein has been charged with

violating Section 1361. See Indictment, ECF No. 3 at 2.

19 Third, the Court is not persuaded by Mr. Gieswein’s

argument that the text of the statute supports a finding that a

rebuttable presumption cannot apply in this case. Mr. Gieswein

argues that the text of Section 3142(e)(3) is narrower than the

language used in neighboring Sections 3142(e)(1)-(2) and

3142(f)(1)(A), (E). Def.’s Mot., ECF No. 21 at 4. In those

subsections, a presumption is created where a defendant is

“involved” in certain conduct, which could include an aiding and

abetting claim. Id. However, the Court finds that this language

merely indicates that a broader range of activity as a whole is

contemplated, such as all “crimes of violence” or any offense

for which the maximum sentence is life imprisonment or death. 18

U.S.C. § 3142(f)(1). Section 3142(e)(3), on the other hand,

refers to specific offenses, as listed within the U.S. Code.

Thus, based on the above, the Court could presume that no

condition or combination of conditions of release will

reasonably assure Mr. Gieswein’s appearance as required or the

safety of the community. See 18 U.S.C. § 3142(e)(3). To rebut

this presumption, Mr. Gieswein must “offer some credible

evidence” that he will not endanger the community or flee if

released. Cherry, 221 F. Supp. 3d at 32. Here, Mr. Gieswein is

24 years old and does not have a criminal record. Def.’s Mot.,

ECF No. 18 at 29. He also appears to have strong ties to his

community, as he received supportive letters and signed

20 declarations from family and friends who largely describe him as

loving, honest, and hardworking. Furthermore, Mr. Gieswein has

had steady employment since he was 14 years old, until he

recently lost his job in the fall of 2020 for reasons related to

the COVID-19 pandemic. Def.’s Mot., ECF No. 18 at 29.

Assuming that Mr. Gieswein has come forward with some

credible evidence to counter the presumption, the Court next

must consider all of the factors set forth in Section 3142(g).

See Hunt, 240 F. Supp. 3d at 132-33.

B. Mr. Gieswein Is Eligible for Pretrial Detention Pursuant to 18 U.S.C. § 3142(f)(1)(A)

Even if the rebuttable presumption in favor of detention

does not apply in this case, Mr. Gieswein is eligible for

pretrial detention pursuant to 18 U.S.C. § 3142(f)(1)(A). Under

the Bail Reform Act, unless a defendant poses a serious risk of

flight or of attempting to obstruct justice, he is only eligible

for pretrial detention if he is charged with an offense listed

in one of the five enumerated categories of Section 3142(f)(1)—

i.e., “the most serious” crimes. See 18 U.S.C. § 3142(f)(1)(A)-

(B), (f)(2); United States v. Singleton, 182 F.3d 7, 13 (D.C.

Cir. 1999) (“Congress limited pretrial detention of persons who

are presumed innocent to a subset of defendants charged with

crimes that are ‘the most serious’ compared to other federal

21 offenses.” (quoting United States v. Salerno, 481 U.S. 739, 747

(1987))).

Mr. Gieswein is charged under 18 U.S.C. § 111(a)(1) and (b)

with Assaulting, Resisting, or Impeding Certain Officers Using a

Dangerous Weapon. See Indictment, ECF No. 3 at 2-3. For the

reasons the Court set out in its Memorandum Opinion regarding

Mr. Jeffrey Sabol’s request for pretrial release, United States

v. Sabol, No. 21-35-1 (EGS), 2021 WL 1405945, at *6-7 (D.D.C.

Apr. 14, 2021); a defendant charged under 18 U.S.C. § 111(a)(1)

and (b) is charged with a crime of violence, see United States

v. Kendall, 876 F.3d 1264, 1270 (10th Cir. 2017); United States

v. Taylor, 848 F.3d 476, 492-493 (1st Cir. 2017); United States

v. Juvenile Female, 566 F.3d 943, 948 (9th Cir. 2009). Moreover,

the D.C. Circuit, in an unpublished order, recently affirmed

that a defendant charged with violating 18 U.S.C. § 111(b) is

charged with a crime of violence. J. at 2, United States v.

Quaglin, No. 21-3028 (D.C. Cir. June 24, 2021) (unpublished).

Because using a deadly or dangerous weapon while assaulting a

federal officer is a crime of violence, Mr. Gieswein is eligible

for pretrial detention under 18 U.S.C. § 3142(f)(1)(A). 9

9 The government also argues that Mr. Gieswein is eligible for detention because Felony Destruction of Property, in violation of 18 U.S.C. § 1361, is both a crime of terrorism and a crime of violence. Gov’t’s Opp’n, ECF No. 19 at 13-14. The Court need not address this argument because the Court finds that Mr. Gieswein 22 C. No Condition or Combination of Conditions Will Reasonably Assure the Safety of Any Other Person and the Community

Having found both that Mr. Gieswein is eligible for

pretrial detention under 18 U.S.C. § 3142(f)(1)(A) and that he

has met his burden of production if a rebuttable presumption

applies, the Court must determine whether any “condition or

combination of conditions will reasonably assure the appearance

of [Mr. Gieswein] as required and the safety of any other person

and the community.” 18 U.S.C. § 3142(e)(1). The government does

not argue that Mr. Gieswein is a flight risk, so the Court will

focus its inquiry on whether Mr. Gieswein is a danger to any

other person and the community. For this inquiry, the Court

“must identify an articulable threat posed by the defendant to

an individual or the community,” though “[t]he threat need not

be of physical violence, and may extend to ‘non-physical harms

such as corrupting a union.’” Munchel, 2021 WL 1149196, at *7

(quoting United States v. King, 849 F.2d 485, 487 n.2 (11th Cir.

1988)). “The threat must also be considered in context,” and

“[t]he inquiry is factbound.” Id. (citing United States v.

Tortora, 922 F.2d 880, 888 (1st Cir. 1990)).

In determining whether Mr. Gieswein is a danger to the

community, the Court considers the 18 U.S.C. § 3142(g) factors,

is eligible for detention pursuant to 18 U.S.C. § 3142(f)(1)(A) for a “crime of violence.” 23 including: (1) “the nature and circumstances of the offense

charged”; (2) “the weight of the evidence”; (3) “the history and

characteristics” of the defendant; and (4) “the nature and

seriousness of the danger to any person or the community that

would be posed by the [defendant’s] release.” 18 U.S.C. §

3142(g).

In consideration of these requisite factors, as set forth

below, the Court concludes that clear and convincing evidence

supports a finding that no condition or combination of

conditions, including those proposed by Mr. Gieswein, will

reasonably assure the safety of the community. Accordingly, the

Court orders that Mr. Gieswein remain detained pending trial.

1. Nature and Circumstances of the Offense

The first factor the Court must consider is the nature and

circumstances of the offense charged, “including whether the

offense is a crime of violence.” 18 U.S.C. § 3142(g)(1).

Despite the serious and unsettling nature of the events

that transpired at the U.S. Capitol on January 6, 2021, the D.C.

Circuit has made clear that detention is not appropriate in all

cases involving defendants who participated in the events

(“Capitol Riot defendants”). See Munchel, 2021 WL 1149196, at

*8. The Court therefore considers the nature and circumstances

of the specific offenses and underlying conduct with which each

defendant is charged. Chrestman, 2021 WL 765662, at *7. The

24 Court must “adequately demonstrate that it considered whether

[Mr. Gieswein] pose[s] an articulable threat to the community in

view of [his] conduct on January 6, and the particular

circumstances of January 6.” Munchel, 2021 WL 1149196, at *8.

To aid in this consideration, Chief Judge Howell has

articulated “guideposts” for assessing “the comparative

culpability of a given defendant in relation to fellow rioters.”

Chrestman, 2021 WL 765662, at *7-8. The Court finds these

guideposts persuasive for the purpose of differentiating among

Capitol Riot defendants: (1) whether the defendant has been

charged with felony or misdemeanor offenses; (2) the extent of

the defendant’s prior planning; (3) whether the defendant used

or carried a dangerous weapon; (4) evidence of coordination with

other protestors before, during, or after the riot; (5) whether

the defendant assumed a formal or de facto leadership role in

the events of January 6, 2021, for example “by encouraging other

rioters’ misconduct” “to confront law enforcement”; and (6) the

defendant’s “words and movements during the riot”—e.g., whether

the defendant “remained only on the grounds surrounding the

Capitol” or stormed into the Capitol interior, or whether the

defendant “injured, attempted to injure, or threatened to injure

others.” Id. These factors, “[t]aken together, as applied to a

given defendant, . . . are probative of ‘the nature and

circumstances of the offense charged,’ 18 U.S.C. § 3142(g)(1),

25 and, in turn, of the danger posed by the defendant,” as relevant

to the fourth Section 3142(g) factor. Id. at *9.

At least four of the six Chrestman factors strongly support

a finding that Mr. Gieswein’s comparative culpability in

relation to his fellow rioters is high.

First, regarding whether the defendant has been charged

with felony or misdemeanor offenses, Mr. Gieswein has been

charged with multiple felonies. See Indictment, ECF No. 3.

“Felony charges are by definition more serious than misdemeanor

charges; the nature of a felony offense is therefore

substantially more likely to weigh in favor of pretrial

detention than the nature of a misdemeanor offense.” Chrestman,

2021 WL 765662, at *7. Moreover, Section 3142(g)(1) specifically

directs the Court to consider whether a defendant has been

charged with a crime of violence, and at least three of the

charged felonies—using a deadly weapon while assaulting federal

officers protecting the U.S. Capitol—are crimes of violence. See

supra Section III, Part B.

The second Chrestman factor—the extent of the defendant’s

prior planning, “for example, by obtaining weapons or tactical

gear,” Chrestman, 2021 WL 765662, at *2—also weighs in favor of

continued pretrial detention. On the one hand, the government

has not proffered any evidence suggesting that Mr. Gieswein

privately or publicly expressed any prior intent to attack or

26 engage in violence at the Capitol building. See Def.’s Mot., ECF

No. 18 at 23-24. And while Mr. Gieswein was recorded on January

5, 2021 as stating that, among other things, “we need to get the

corrupt politicians . . . out of office and they need to be

imprisoned,” he also stated that he wished for “both sides [to]

stay peaceful.” Id. at 2-3, 22.

On the other hand, however, Mr. Gieswein arrived at the

Capitol on January 6, 2021 wearing camouflage fatigues, a

tactical vest, and a helmet. Gov’t’s Opp’n, ECF No. 19 at 17.

And though Mr. Gieswein attempts to characterize this gear as

“defensive” in nature, Def.’s Reply, ECF No. 21 at 14-15; Mr.

Gieswein also prepared by arming himself with a baseball bat and

a chemical spray, while also wearing goggles designed to prevent

the spray from harming his own eyes. Id. Even if Mr. Gieswein

did not purchase such items until he arrived in Washington, his

decision to arrive at the Capitol on January 6, 2021 wearing

specialized gear and carrying weapons “suggests that he was not

just caught up in the frenzy of the crowd, but instead came to

Washington, D.C. with the intention of causing mayhem and

disrupting the democratic process.” Chrestman, 2021 WL 765662,

at *8; see also Sabol, 2021 WL 1405945, at *10 (rejecting

defendant’s “argument that he did not plan to commit violence”

when he “brought tactical gear, including a helmet, steel-toe

boots, zip ties, a radio and an ear piece” to the rally); United

27 States v. Caldwell, 2021 WL 2036667, at *7 (D.D.C. May 21, 2021)

(finding that the defendant’s decision to carry and use a

chemical spray on “law enforcement officers donned in riot gear”

was evidence of prior planning).

Mr. Gieswein argues, however, that the baseball bat and

chemical spray were “defensive, not aggressive” weapons. Def.’s

Mot., ECF No. 18 at 23. He further contends that his comments to

the interviewer on January 5 “are consistent with an expectation

that those who opposed the former President”—such as Antifa or

“other leftwing counter-protestors”—“could be violent” and that

he “hope[d] that his presence would help deter violence.” Id.

Moreover, he states that he had previously worn the same

tactical gear on January 5 without incident, and letters from

friends in support of his release noted that “he often wore his

plate carrier, even around his hometown.” Id. at 23-25. The

Court is not persuaded. The government’s evidence captures Mr.

Gieswein, with a baseball bat and an aerosol spray can in his

hands, forcefully advancing on law enforcement officers—who were

greatly outnumbered by rioters and clearly in a defensive

position—at multiple moments on January 6, 2021. See, e.g.,

Gov’t’s Opp’n, ECF No. 19 at 6-10. Among other things, the

government has proffered evidence that Mr. Gieswein deployed his

chemical spray in the direction of officers on three separate

occasions, and that he joined other rioters in shoving a metal

28 police barricade against officers in an apparent effort to

breach the police line guarding the Capitol. Id.; see also Hr’g

Video Ex. 3, at 01:25 to 01:45; Hr’g Video Ex. 4, at 00:06 to

00:15. In view of this evidence, the Court is not persuaded that

Mr. Gieswein brought the tactical gear and weapons in a hope to

“deter violence and avoid injury at the hands of others.” Def.’s

Reply, ECF No. 21 at 16 n.11. Rather, Mr. Gieswein’s actions

“indicate[] at least some degree of preparation for the attack

and an expectation that the need to engage in violence against

law enforcement or, indeed, the Legislative branch, might

arise.” Chrestman, 2021 WL 765662, at *2.

The third Chrestman factor—whether the defendant used a

dangerous weapon—also weighs in favor of pretrial detention.

Evidence proffered by the government shows that, in the middle

of a violent riot against law enforcement officers struggling to

protect the Capitol building, Mr. Gieswein openly carried a

baseball bat and carried and used a chemical spray on law

enforcement officers. See Gov’t’s Opp’n, ECF No. 19 at 3-10; see

also United States v. Padilla, 2021 WL 1751054, at *6 (D.D.C.

May 4, 2021) (finding that the nature and circumstances of the

offense weighed in favor of detention where, among other things,

defendant threw a pole at police officers and “forcefully pushed

a metal barricade—designed to protect police officers—directly

into their bodies, and, then, minutes later, helped to

29 successfully knock down that barricade with a large metal

sign”); Sabol, 2021 WL 1405945, at *11 (finding that, though

defendant did not use a police baton he took from an officer on

January 6, 2021, “the fact that he took the weapon from a

vulnerable MPD officer and subsequently wielded it while helping

drag another officer into the violent mob” was sufficient to

find that the third Chrestman factor weighed in favor of

detention).

The fourth Chrestman factor—evidence of coordination with

other protestors before, during, or after the riot—is not

strongly implicated in this case. Although the government’s

evidence captures Mr. Gieswein marching with the Proud Boys on

the morning of January 6, 2021, the government concedes that

there is no evidence that he was affiliated with the group prior

to that date or was in radio communication with anyone on

January 6, 2021. Gov’t’s Opp’n, ECF No. 19 at 22. Mr. Gieswein

also has not been charged with any conspiracy offense. Id.

Further, the government does not argue that Mr. Gieswein’s

affiliation with a group called the Woodland Wild Dogs—which Mr.

Gieswein described on January 5 as a “militia,” but described in

his motion briefing as a “group of friends who like to shoot

guns, pretend to be in battles, and go camping to practice

survival skills”—had anything to do with his decision to travel

to Washington, D.C. See Def.’s Mot., ECF No. 18 at 18. And, as

30 Mr. Gieswein points out, his connection with the Three

Percenters 10 had ended long before the events of January 6. Id.

at 25.

The fifth Chrestman factor—whether the defendant assumed a

formal or de facto leadership role in the events of January 6,

2021—is a close call, but on balance weighs in favor of Mr.

Gieswein’s release. The government argues that evidence shows

Mr. Gieswein on the “front line” of the fight between rioters

and police on the West Plaza, and that he was either “the second

or third rioter through the window” of the Capitol building.

Gov’t’s Opp’n, ECF No. 19 at 22. Furthermore, video evidence

proffered by the government appears to capture Mr. Gieswein

encouraging rioters to enter through the Capitol window by

pointing to others attempting to break through, and then later

appearing to urge the mob to advance on retreating law

enforcement officers near the Capitol crypt by waving his arms

forward. Id. But despite these actions, Mr. Gieswein does not

appear to have been an instigator. To be sure, Mr. Gieswein does

appear to encourage other rioters to act, but viewed in context,

10The Three Percenters are “a domestic militia that advocates for resistance to the U.S. federal government polic[i]es it considers to infringe on personal, local, and gun ownership rights. This group is loosely allied with the Oath Keepers, another anti-government militia, and has provided security services for various right-wing protests and movements.” Aff. Supp. Criminal Compl., ECF No. 1-1 at 5. 31 such actions do not establish that he was a formal or de facto

leader of the mob. See Sabol, 2021 WL 1405945, at *13 (finding

that seeking to be on the “front line of the ‘battle’” was not

sufficient evidence of leadership).

Finally, the sixth Chrestman factor weighs strongly in

favor of continued detention. Mr. Gieswein’s words and movements

during the riot indicate he acted deliberately and dangerously.

For purposes of evaluating a Capitol Riot defendant’s

dangerousness, the D.C. Circuit has said that “those [rioters]

who actually assaulted police officers and . . . those who

aided, conspired with, planned, or coordinated such actions, are

in a different category of dangerousness than those who cheered

on the violence or entered the Capitol after others cleared the

way.” Munchel, 991 F.3d at 1284. Here, grave concerns are

implicated by Mr. Gieswein’s conduct, which included: (1)

forcefully pushing a metal police barricade against a line of

law enforcement officers attempting to keep rioters from

advancing on the Capitol, Hr’g Video Ex. 3, at 01:25 to 01:45;

Hr’g Video Ex. 4, at 00:06 to 00:15; (2) spraying an aerosol

spray in the direction of law enforcement officers—and in the

midst of a large crowd of other rioters—at the top of a

staircase leading toward the Capitol, Gov’t’s Opp’n, ECF No. 19

at 6-7, 19, Figure 5; Hr’g Video Ex. 1 at 02:19 to 02:25; 03:15

to 03:20; (3) banging on a window of the Capitol building and

32 appearing to encourage other rioters to break or enter through a

window, before he enters the Capitol himself through a smashed

window, Hr’g Video Ex. 2 at 00:12 to 00:15, 00:38 to 01:12; (4)

spraying a chemical spray in the direction of law enforcement

officers while inside the Capitol building and surrounded by

other rioters, Gov’t’s Opp’n, ECF No. 19 at 9; (5) spraying a

chemical spray while inside the Capitol building, which

allegedly hit an officer in the eyes, id. at 10; and (6)

actively resisting arrest, 11 id.; see also Chrestman, 2021 WL

765662, at *8 (“Grave concerns are implicated if a defendant

actively threatened or confronted federal officials or law

enforcement” because such conduct demonstrates “disregard for

the institutions of government and the rule of law[.]”). His

actions and words reflect a contempt for the rule of law and law

enforcement, a disturbing disregard for the safety of others,

and a willingness to engage in violence. These are qualities

that bear on the seriousness of the offensive conduct and the

ultimate inquiry of whether Mr. Gieswein will comply with

conditions of release meant to ensure the safety of the

community. See Chrestman, 2021 WL 765662, at *8.

11While the government argues that Mr. Gieswein actively resisted arrest by taking swings at an officer, the Court notes that the government has conceded that Capitol surveillance video only shows “the defendant and Capitol police on the ground, and the defendant fleeing.” Gov’t’s Opp’n, ECF No. 19 at 10. 33 Thus, the first 18 U.S.C. § 3142(g) factor weighs heavily

in favor of detention on the basis that no condition or

combination of conditions will reasonably assure the safety of

the community. 18 U.S.C. § 3142(e)(1), (g)(1).

2. Weight of the Evidence Against the Defendant

The second factor the Court must consider is the weight of

the evidence against Mr. Gieswein. 18 U.S.C. § 3142(g)(2).

The Court finds that the weight of the evidence against Mr.

Gieswein tips slightly in favor of continued detention. Mr.

Gieswein was indisputably present at the U.S. Capitol on January

6, 2021, and videoclips and photographs from the day show Mr.

Gieswein, in his distinctive outfit, carrying a baseball bat and

a chemical spray on the Capitol grounds and inside the Capitol

building itself. See Def.’s Mot., ECF No. 18 at 13; Gov’t’s

Opp’n, ECF No. 19 at 3-10. Evidence further places Mr. Gieswein,

in the midst of an angry crowd gathered on a staircase, spraying

a chemical spray in the direction of law enforcement officers

and raising his fist and yelling as rioters advanced past the

officers and made their way toward the Capitol. See Hr’g Video

Ex. 1, at 02:19 to 02:25, 03:15 to 03:20, 04:45 to 04:50;

Gov’t’s Opp’n, ECF No. 19 at 6-7. Mr. Gieswein is captured on

video running toward the Capitol, banging on a Capitol window

with his fist, and then appearing to encourage other rioters to

go toward a window that was in the process of being smashed

34 open. Gov’t’s Opp’n, ECF No. 19 at 7; see also Hr’g Video Ex. 2

at 00:01 to 00:10, 00:38 to 01:12. Once he entered the Capitol

through the broken window, evidence also shows that Mr. Gieswein

deployed his chemical spray in the direction of law enforcement

a second time while near the Capitol crypt, and appeared to wave

his arms to encourage others to continue to advance on the

officers. See Gov’t’s Opp’n, ECF No. 19 at 9. While there is no

video or photographic evidence of the third incident in which

the government alleges Mr. Gieswein sprayed and hit an officer

with his chemical spray while in the Capitol Visitor Center, the

government provides as evidence a U.S. Capitol Police officer’s

statement to the FBI, and represents that video surveillance

captures the “aftermath” of the incident. Id. at 10.

Though Mr. Gieswein does not dispute that he took the

actions shown in the video and photographic evidence, he

nonetheless argues that the government’s evidence on each charge

is weak.

First, regarding Count One—Obstruction of an Official

Proceeding, in violation of 18 U.S.C. § 1512(c)(2)—Mr. Gieswein

argues that the government likely will not be able to show that

the Electoral College vote certification constitutes an

“official proceeding” within the meaning of the statute. Def.’s

Mot., ECF No. 18 at 11. Under Section 1512(c)(2), whoever

“obstructs, influences or impedes any official proceeding, or

35 attempts to do so, shall be fined under this title or imprisoned

not more than 20 years, or both.” 18 U.S.C. § 1512(c)(2)

(emphasis added). Section 1515 then defines “official

proceeding” as, among other things, “a proceeding before the

Congress.” Id. § 1515(a)(1). Mr. Gieswein contends that, under

these definitions, he is “not aware of any case in which” the

phrase “official proceeding” has been “interpreted” to include a

session such as the “ceremonial certification of the Electoral

College vote.” Def.’s Mot., ECF No. 18 at 11-12. Thus, in Mr.

Gieswein’s view, it is “far from clear that the government can

prove this charge.” Def.’s Mot., ECF No. 18 at 11-12.

The Court does not doubt that the case law regarding the

parameters of the definition of “official proceeding” is sparse.

However, this argument has not been fully briefed by the

parties, and Mr. Gieswein offers no substantive argument or any

citations regarding why the Joint Session of Congress convening

to certify the Electoral College vote would not constitute a

“proceeding before Congress” and, therefore, an “official

proceeding” under Section 1512(c)(2). See id. at 11-12.

Accordingly, the Court is not convinced at this stage of the

litigation that the government’s evidence underlying the charge

is weak, particularly in view of the plain language of the

statute.

36 Second, Mr. Gieswein argues that the government likely

cannot meet its burden of proving that the baseball bat and

chemical spray qualify as a “dangerous weapon” with regard to

Counts Two through Four and Count Six—Assaulting, Resisting, or

Impeding Certain Officers Using a Dangerous Weapon, in violation

of 18 U.S.C. § 111(a)(1) and (b); and Entering and Remaining in

a Restricted Building or Grounds with a Deadly or Dangerous

Weapon, in violation of 18 U.S.C. § 1752(a)(1) and (b)(1)(A).

Def.’s Mot., ECF No. 18 at 12-14, 25.

To violate Section 111(b), a defendant “must have committed

one of the acts described in § 111(a), i.e., ‘forcibly

assault[ed], resist[ed], oppose[d], impede[d], intimidate[d], or

interfere[d] with’ a [federal officer] in specified

circumstances;” and “in committing the act,” either (1) “use[d]

a deadly or dangerous weapon” or (2) “inflict[ed] bodily

injury.” United States v. Klein, No. 21-236 (JDB), 2021 WL

1377128, at *6 (D.D.C. Apr. 12, 2021) (citation omitted). A

“deadly or dangerous weapon” is “any object which, as used or

attempted to be used, may endanger the life of or inflict great

bodily harm on a person.” United States v. Sanchez, 914 F.2d

1355, 1358 (9th Cir. 1990); see also United States v. Chansley,

No. 21-cr-3 (RCL), 2021 WL 861079, at *7 (D.D.C. Mar. 8, 2021)

(defining “dangerous weapon” as “an object that is either

inherently dangerous or is used in a way that is likely to

37 endanger life or inflict great bodily harm”). “Whether something

is a ‘dangerous’ weapon depends on how it is used.” Gray v.

United States, 980 F.3d 264, 267 (2d Cir. 2020). Thus, “‘objects

that have perfectly peaceful purposes may be turned into

dangerous weapons’ when used in a manner likely to cause bodily

harm.” Chansley, 2021 WL 861079, at *7 (quoting United States v.

Smith, 561 F.3d 934, 939 (9th Cir. 2009) (en banc)).

“A defendant who acts forcibly using a deadly or dangerous

weapon under § 111(b) must have used force by making physical

contact with the federal employee, or at least threatened the

employee, with an object that, as used, is capable of causing

great bodily harm.” Gray, 980 F.3d at 266-67 (citation omitted);

see United States v. Taylor, 848 F.3d 476, 492-93 (1st Cir.

2017) (same); United States v. Bullock, 970 F.3d 210, 215 (3d

Cir. 2020) (same); United States v. Duran, 96 F.3d 1495, 1509-11

(D.C. Cir. 1996). “Th[e] first means of violating § 111(b)

therefore necessarily requires the use or threat of force

capable of causing physical pain or injury to another.” Klein,

2021 WL 1377128, at *6 (quoting Taylor, 848 F.3d at 494)

(quotation marks omitted). “The second scenario under § 111(b)

is even more straightforward given that a defendant who acts

‘forcibly’ and actually ‘inflicts bodily injury’ by definition

uses ‘force capable of causing . . . injury’ to another.” Id.

38 (citing Bullock, 970 F.3d at 216; Gray, 980 F.3d at 267; Taylor,

848 F.3d at 494).

Mr. Gieswein argues that neither the aerosol spray nor the

baseball bat is a dangerous weapon because (1) there is no

evidence that the aerosol spray can was designed to cause great

bodily injury or that it in fact caused great bodily injury; and

(2) Mr. Gieswein merely held the baseball bat throughout the

day, and did not brandish it or use it. Def.’s Mot., ECF 18 at

13. Mr. Gieswein further asks the Court to adopt a definition of

“bodily injury” that he asserts the government “agreed” to use

in a different case. Id. According to Mr. Gieswein, based on the

government’s position in the other case, “to prove that a non-

inherently dangerous object is a dangerous weapon, the

government must prove that it was likely to endanger life or

inflict an injury” that meets the definition of “serious bodily

injury” provided in 18 U.S.C. § 1365(h)(3), which defines the

term as used in 18 U.S.C. § 113(b)(2). Def.’s Reply, ECF No. 21

at 10. Section 1365(h)(3) defines “serious bodily injury” as

bodily injury that involves: “(A) a substantial risk of death;

(B) extreme physical pain; (C) protracted and obvious

disfigurement; or (D) protracted loss or impairment of the

function of a bodily member, organ, or mental faculty.” 18

U.S.C. § 1365(h)(3).

39 Here, the strength of the evidence as to whether the

chemical spray and baseball bat are dangerous weapons is mixed.

Regarding the chemical spray, the government’s evidence includes

photos and video footage clearly showing Mr. Gieswein deploying

the spray in the direction of law enforcement officers on two

separate occasions. See Gov’t’s Opp’n, ECF No. 19 at 6-8, 19;

Hr’g Video Ex. 1 at 02:19 to 02:25; 03:15 to 03:20. And contrary

to Mr. Gieswein’s argument, there is no requirement in 18 U.S.C.

§ 111(b) that the defendant’s use of a dangerous weapon must

actually injure another person. See 18 U.S.C. § 111(b)

(increasing the maximum penalty for anyone who “uses a deadly or

dangerous weapon . . . or inflicts bodily injury” (emphasis

added)). It is enough that Mr. Gieswein forcefully used the

chemical spray in a manner that was threatening to a federal

officer. See Duran, 96 F.3d 1495, 1509-11 (D.C. Cir. 1996)

(holding that “the act of using a deadly weapon with the purpose

of causing Secret Service agents to fear imminent serious bodily

injury” constituted a crime under § 111(b)). Furthermore,

according to the government’s evidence, one of the officers that

Mr. Gieswein allegedly sprayed within the Capitol Visitor Center

likened the chemical to an OC spray, Gov’t’s Opp’n, ECF No. 19

at 10; which is generally understood to be capable of causing

“extreme physical pain” and “protracted” impairment of a bodily

organ, such as coughing, choking, burning sensations of the eyes

40 and nose, and exacerbation of pre-existing conditions such as

asthma. See, e.g., United States v. Neill, 166 F.3d 943, 949-50

(9th Cir. 1999); United States v. Bartolotta, 153 F.3d 875, 879

(8th Cir. 1998); cf. Munchel, 991 F.3d at 1281 n.5 (“While the

record contains no evidence or proffer as to how Munchel’s taser

operates, a taser is commonly understood as a device designed to

expel a projectile capable of causing injury to individuals. . .

. Thus, at this stage, the evidence sufficiently demonstrates

that Munchel’s taser is a dangerous weapon under the statute.”).

Thus, even under the heightened definition of “serious bodily

injury” that Mr. Gieswein proposes the Court use, there is

evidence that would support a finding that the chemical spray

was “dangerous.” See Aff., ECF No. 19-1 at 2 (describing the

spray as causing watering eyes, coughing, and a burning

sensation). To be sure, the weight of the government’s evidence

is mitigated by the lack of information regarding the specific

type of chemical spray at issue. But while Mr. Gieswein argues

that the chemical spray only caused “mild symptoms,” the Court

is not convinced that the fortuitous fact that the officer was

not more seriously injured makes a chemical spray any less a

dangerous weapon. See United States v. Loman, 551 F.2d 164, 169

(7th Cir. 1977) (finding that a walking stick that the defendant

brought down on the victim’s head constituted a dangerous

weapon, though the stick did not cause serious injury).

41 The evidence regarding whether the baseball bat is a

dangerous weapon is relatively weaker, however. As stated above,

what constitutes a dangerous weapon depends not on the nature of

the object itself but on its capacity, given the manner of its

use, to “endanger the life of or inflict great bodily harm on a

person.” Taylor, 848 F.3d at 494. “[T]he ‘use’ of a dangerous

weapon in the course of a § 111(b) assault or battery

constitutes the ‘use, attempted use, or threatened use of

physical force against the person . . . of another,’” Gray, 980

F.3d at 267. In addition, “[a] defendant who acts ‘forcibly’

using a deadly or dangerous weapon under § 111(b) must have used

force by making physical contact with the federal employee, or

at least threatened the employee,” with the dangerous weapon.

Id. Here, the government’s evidence captures Mr. Gieswein openly

holding a baseball bat on Capitol grounds and within the Capitol

building itself. Gov’t’s Opp’n, ECF No. 19 at 3. The parties do

not dispute that a baseball bat is capable of causing death or

serious bodily injury when used violently against another

person. Moreover, the Court does not doubt that a baseball bat

in the hands of a rioter in the midst of a violent mob, in which

“many people injured and threatened to injure the police,”

Gov’t’s Opp’n, ECF No. 19 at 20, incites fear in others. But, as

Mr. Gieswein points out, the government has not provided

evidence of Mr. Gieswein “‘brandishing’ it in front of officers”

42 in a threatening manner, let alone swinging it at or hitting

others with it. Def.’s Mot., ECF No. 18 at 14. And though a U.S.

Capitol Police Officer reported being “concerned” about Mr.

Gieswein “using the bat” while they were allegedly engaged in a

struggle in the Capitol Visitor Center, the officer also noted

that the bat was in Mr. Gieswein’s backpack at the time. Aff.,

ECF No. 19-1 at 2. Thus, though there is evidence of Mr.

Gieswein holding the baseball bat and storing it in his

backpack, the government has not provided evidence that Mr.

Gieswein used, attempted to use, or threatened to use the

baseball bat against another during the events of January 6,

2021.

Finally, regarding Count Five—Destruction of Government

Property, in violation of 18 U.S.C. §§ 1361, 2—Mr. Gieswein

argues that the government’s evidence is weak. Def.’s Mot., ECF

No. 18 at 14-15. He argues that the affidavit attached to the

criminal complaint “fails to specify how Mr. Gieswein

encourage[d] others” to break the Capitol window, and that

“though there are voices seeming to encourage those actually

working to break the window, the government has offered no

evidence that Mr. Gieswein is among them.” Id.

The Court agrees that it is unclear whether the voice on

the videoclip yelling words to the effect of “guys, it’s busted

over here, get through” and “boys, boys, look at this” belongs

43 to Mr. Gieswein. See Hr’g Video Ex. 2, at 00:32 to 00:35, 00:38

to 00:41. In addition, beyond banging on one of the windows with

his fist, Mr. Gieswein does not directly attempt to break the

second window in the alcove himself. However, the videoclip does

capture Mr. Gieswein getting the attention of other rioters

attempting to break in a set of doors in the alcove; pointing

them in the direction of a window in the process of being

smashed in; and then one of those rioters moves over to the

window, grabs a wooden beam, and smashes the window open. Id. at

00:38 to 00:54. Mr. Gieswein then enters the Capitol building

through that same window. Id. at 01:04 to 01:11. These actions

are consistent with the grand jury’s determination that Mr.

Gieswein aided and abetted the destruction of federal property.

Thus, in consideration of the strength of the government’s

evidence against Mr. Gieswein, the Court finds that the second

18 U.S.C. § 3142(g) factor weighs slightly in favor of his

continued pretrial detention, although it “is the least

important” factor. Padilla, 2021 WL 175054, at *7 (quoting

United States v. Gebro, 948 F.2d 1118, 1121-22 (9th Cir. 1991)).

3. History and Characteristics of the Defendant

Under the third factor, the Court must consider Mr.

Gieswein’s history and characteristics. 18 U.S.C. § 3142(g)(3).

The Court considers Mr. Gieswein’s “character, physical and

mental condition, family ties, employment, financial resources,

44 length of residence in the community, community ties, past

conduct, history relating to drug or alcohol abuse, criminal

history, and record concerning appearance at court proceedings,”

id. § 3142(g)(3)(A); and “whether, at the time of the current

offense or arrest, [Mr. Gieswein] was on probation, on parole,

or on other release,” id. § 3142(g)(3)(B).

Here, there are several factors in Mr. Gieswein’s favor. He

is 24 years old and has no criminal history. Def.’s Mot., ECF

No. 18 at 29. He has also received support from friends and

family, who have either sent in letters or have signed

declarations under penalty of perjury on Mr. Gieswein’s behalf.

See Rockel Decl., ECF No. 18-1; Fellhauer Decl., ECF No. 18-2;

Character Letters, ECF No. 18-4. The letters and declarations

describe Mr. Gieswein as a nonviolent supporter of law

enforcement and the military, see Rockel Decl., ECF No. 18-1 at

2; Fellhauer Decl., ECF No. 18-2 at 2; who is “loving, honest,

caring, and hard[-]working,” Character Letters, ECF No. 18-4 at

1; see also id. at 6-7; and who acts as a mentor figure to his

younger sister, see id. at 4. Mr. Gieswein has also had steady

employment since he was 14, until he recently lost his job in

the fall of 2020 for reasons related to the COVID-19 pandemic.

Def.’s Mot., ECF No. 18 at 29.

The government acknowledges that Mr. Gieswein does not have

a criminal history and that he voluntarily turned himself in to

45 local authorities in connection with this case. Gov’t’s Opp’n,

ECF No. 19 at 26. The government also acknowledges that there is

no evidence indicating that Mr. Gieswein is connected with the

Proud Boys or Oath Keepers. Id. But the government returns to

Mr. Gieswein’s actions on January 6, 2021, which resulted in Mr.

Gieswein being charged with what the government characterizes as

“three separate counts of a crime classified by Congress as

crimes of violence and one classified by that same body as a

federal crime of terrorism.” Id. In the government’s view,

“[w]hatever motivated the defendant on January 6, it was strong

enough to overcome the respect he appears to have had for law

enforcement prior to traveling to Washington, D.C., and to cause

him to chemically assault officers who were trying to prevent a

mob from taking over the Capitol.” Id. at 27. The government

also points out that according to an FBI report of an interview

with a “character witness,” Mr. Gieswein subscribes to the QAnon

conspiracy theory, which includes a belief that “a cabal of

Satanic, cannibalistic pedophiles run a global sex trafficking

ring, and that President Trump was planning to have many members

of the cabal arrested.” Id. In addition, the government argues

that Mr. Gieswein’s statements on January 5—including that he

believed that certain politicians have “completely destroyed our

country and sold them to the Rothschilds and the Rockefellers”—

indicated a belief in an “anti-Semitic conspiracy theor[y] . . .

46 that shadow forces . . . secretly control global currency.” Id.

at 27 & n.11.

The Court agrees that Mr. Gieswein’s decisions on January

6, 2021 “show that he is willing to allow his own personal

beliefs to override the rule of law, which reflects poorly on

his character.” Klein, 2021 WL 1377128, at *10 (quotation

omitted); see also Sabol, 2021 WL 1405945, at *15 (“That [the

defendant] acted violently against law enforcement protecting

the peaceful transition of power based on a belief that the 2020

Presidential Election was stolen is also very alarming [and]

indeed raises concerns about [his] character and the danger [he]

may present to the community if he were released.”). In

addition, Mr. Gieswein’s alleged belief in conspiracy theories

is concerning when considered in the context of this case—a

political protest that turned into a violent riot at the

Capitol. However, the Court ultimately finds that Mr. Gieswein’s

history and characteristics reflect an ability to abide by the

law. It is true that Mr. Gieswein’s actions on January 6, 2021

stand in direct conflict with his history and the substance of

the letters submitted on his behalf. But Mr. Gieswein’s age,

lack of criminal history, family and community ties, and history

of steady employment overall weigh in favor of his pretrial

release. See United States v. Cua, No. 21-107 (RDM), 2021 WL

918255, at *4-5 (D.D.C. Mar. 10, 2021) (finding that, despite

47 the defendant’s criminal history, his “young age, family and

community ties, expressed remorse, and lack of a significant

criminal history weigh in favor of his pretrial release”).

4. Nature and Seriousness of the Danger Posed by the Defendant’s Release

The final factor the Court must consider is the “nature and

seriousness of the danger to any person or the community that

would be posed by the person’s release.” 18 U.S.C. § 3142(g)(4).

For many of the reasons already addressed above, the Court

finds that this factor also weighs against Mr. Gieswein and in

favor of his continued pretrial detention. “Consideration of

this factor encompasses much of the analysis set forth above,

but it is broader in scope,” requiring an “open-ended assessment

of the ‘seriousness’ of the risk to public safety.” Cua, 2021 WL

918255, at *5 (quoting United States v. Taylor, 289 F. Supp. 3d

55, 70 (D.D.C. 2018)). “Because this factor substantially

overlaps with the ultimate question whether any conditions of

release ‘will reasonably assure [the appearance of the person as

required] and the safety of any other person and the community,’

18 U.S.C. § 3142(e), it bears heavily on the Court’s analysis.”

Id.

As discussed above, the nature and circumstances of Mr.

Gieswein’s offenses evince a clear disregard for the safety of

others, and of law enforcement in particular. See supra Section

48 III, Part C.1; see also Chrestman, 2021 WL 765662, at *9. The

government has shown that Mr. Gieswein intentionally deployed

chemical spray against multiple Capitol Police officers

throughout the day on January 6, 2021. And though Mr. Gieswein

argues that deploying a chemical spray does not “indicate actual

intent to cause lasting pain and injury [or] an especially high

tolerance for risk,” Def.’s Reply, ECF No. 21 at 13 (citing

cases); the Court disagrees, see Fairlamb, 2021 WL 1614821, at

*8 (“[T]he defendant’s willingness to assault a police officer

on January 6—in the full view of other officers, scores of

bystanders, and many cameras—confirms that, when enraged, he

poses a danger to the community.”). As another judge in this

District has put it, “[p]epper spray would hardly serve its

purpose if it did not cause the sprayee pain.” United States v.

Moore, 149 F. Supp. 3d 177, 182 (D.D.C. 2016). Furthermore,

during at least one of the instances in which Mr. Gieswein

deployed his chemical spray in the direction of law enforcement

officers, Mr. Gieswein was surrounded by individuals—including

one person with red, watery eyes, calling out for water—clearly

in distress after being hit with a chemical spray. See Hr’g

Video Ex. 1 at 02:30 to 02:57. The Court also is not persuaded

that choosing to spray a chemical substance directly at police

does not show a “high tolerance for risk.” Def.’s Reply, ECF No.

21 at 13. There is evidence that, rather than being carried away

49 in the excitement of the moment, Mr. Gieswein instead arrived at

the Capitol on January 6, 2021 prepared to engage in such

behavior by bringing the chemical spray with him, along with

goggles to keep the spray from getting into his own eyes. See

Gov’t’s Opp’n, ECF No. 19 at 3, Figure 1; id. at 21, Figure 10.

Mr. Gieswein was also equipped with a baseball bat, helmet,

tactical vest, and camouflage fatigues, and is pictured standing

near the front line of protestors confronting police officers

both on the West Plaza and on the staircase leading up to the

Capitol. Id. at 4-5. Videoclips capture Mr. Gieswein using his

body to shove a metal police barricade against police officers

who were trying to keep the rioters at bay, Hr’g Video Ex. 3, at

01:25 to 01:45; Hr’g Video Ex. 4, at 00:06 to 00:15; and he is

one of the first rioters to enter the Capitol through a smashed

window, with the baseball bat and chemical spray, after

appearing to encourage others to enter the Capitol through the

same window, Hr’g Video Ex. 2, at 00:56 to 01:12; Gov’t’s Opp’n,

ECF No. 19 at 7. Altogether, “[t]his evidence suggests that [Mr.

Geiswein] was not a passive observer, but an active aggressor.”

United States v. Caldwell, No. 21-181, 2021 WL 2036667, at *10

(D.D.C. May 21, 2021).

Mr. Gieswein’s statements also demonstrate that a

willingness to “take matters into his own hands to defend the

country against perceived corruption in democratic

50 institutions.” United States v. DeGrave, No. 21-90, 2021 WL

1940536, at *17 (D.D.C. May 14, 2021). On January 5, 2021, the

government represents that Mr. Gieswein is recorded as saying

that Congress “need[ed] to get the corrupt politicians out of

office. Pelosi, the Clintons, all of . . . every single one of

them, Biden, Kamala . . . they have completely destroyed our

country and sold them to the Rothschilds and Rockefellers.”

Gov’t’s Opp’n, ECF No. 19 at 27; see also Aff., ECF No. 1-1 at

11. He is also reported as saying: “What we need to do, is we

need to get the corrupt politicians that have been in office for

50-60 years, that have been destroying our country and selling

it to the Middle East and Israel out of office and they need to

be imprisoned.” Aff., ECF No. 1-1 at 11. And, as described

above, Mr. Gieswein “did not simply hold these misguided

beliefs; he acted on them.” Sabol, 2021 WL 1405945, at *17. The

Court does acknowledge Mr. Gieswein’s lack of a criminal record

and the supportive letters friends and family submitted on his

behalf. Def.’s Mot., ECF No. 18 at 29; See Rockel Decl., ECF No.

18-1; Fellhauer Decl., ECF No. 18-2; Character Letters, ECF No.

18-4. The Court also acknowledges Mr. Gieswein’s statement on

January 5 that he wished for “both sides [to] stay peaceful.”

Id. at 2-3. Nonetheless, his history and wish for peace did not

prevent him from committing acts of violence against police

officers, nor from actively resisting arrest and fleeing the

51 scene, 12 and they do little to dissuade the Court from finding

that Mr. Gieswein poses a serious danger to his community.

The Court is similarly unpersuaded by Mr. Gieswein’s

argument that he does not pose a danger to anyone in the

community because there have not been any similar events carried

out by former President Trump supporters since January 6, 2021.

Def.’s Mot., ECF No. 18 at 31. “While the circumstances of

January 6, 2021 were unique, and the day has passed, it cannot

be said that every Capitol Riot defendant is no longer a danger

because those exact circumstances are unlikely to arise again.”

Sabol, 2021 WL 1405945, at *18. And as this Court stated in

Whitton, “even if the exact circumstances of the January 6

attacks are not ‘continuing in nature’ or ‘likely to be repeated

in the future,’ the violent offenses [the defendant] committed

that day are serious enough on their own to militate against

pretrial release.” Whitton, 2021 WL 1546931, at *9. The Court is

further troubled by Mr. Gieswein’s unsolicited statement to

police—made several days after the events of January 6, 2021

unfolded—that he had turned himself in because he believed he

“did nothing wrong.” Gov’t’s Opp’n, ECF No. 19 at 11; see also

12As stated above, while the entire incident within the Capitol Visitor Center is not captured on video or photographic evidence, the government has represented that video surveillance shows Mr. Gieswein and officers on the ground, and Mr. Gieswein “fleeing.” Gov’t’s Opp’n, ECF No. 19 at 10. 52 id. (alleging that Mr. Gieswein “described himself as a

‘constitutionalist’ who wants the military to take back over the

country and restore the Constitution”). Like Mr. Whitton, Mr.

Gieswein is thus “distinguishable from other Capitol Riot

defendants who displayed a dangerous distain for democracy and

the rule of law on January 6, 2021, but who did not engage in

violence, see, e.g., Munchel, 991 F.3d at 1283-84, or who did

not direct their ‘forceful conduct’ toward inflicting injury,

see United States v. Klein, No. CR 21-236 (JDB), ECF No. 29 at

24, (D.D.C. Apr. 12, 2021).” Whitton, 2021 WL 1546931, at *12.

In consideration of these factors and noting the D.C.

Circuit’s observation that “[i]t cannot be gainsaid that the

violent breach of the [U.S.] Capitol on January 6 was a grave

danger to our democracy, and that those who participated could

rightly be subject to detention to safeguard the community,”

Munchel, 991 F.3d at 1284-85; the Court is persuaded that Mr.

Gieswein poses a danger to his community and the broader

community of American citizens if he were to be released pending

trial, and he “cannot be trusted to abide by any conditions of

release that might be imposed instead of pretrial detention.”

Chrestman, 2021 WL 765662, at *16.

IV. Conclusion

After considering the factors set forth in 18 U.S.C. §

3142(g), the Court finds, by clear and convincing evidence, that

53 no condition or combination of conditions will reasonably assure

the safety of any other person and the community were Mr.

Gieswein to be released pending trial. 18 U.S.C. § 3142(e)(1).

Accordingly, Mr. Gieswein’s motion is DENIED. Mr. Gieswein shall

be detained pending trial. An appropriate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge July 27, 2021