United States v. Klein

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 21-237 (RDM)

MATTHEW LELAND KLEIN,

Defendant.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant Matthew Leland Klein’s Motion for Bond

and Institution of Conditions of Pretrial Release. Dkt. 13. Klein was arrested on March 23, 2021

for his role in events at the United States Capitol on January 6, 2021. He was ordered detained

pending trial by Magistrate Judge John V. Acosta of the United States District Court for the

District of Oregon and now moves for an order releasing him to the supervision of a third-party

custodian, subject to certain conditions including location monitoring.

For the reasons that follow, the Court will DENY without prejudice Klein’s Motion for

Bond and Institution of Conditions of Pretrial Release.

I. BACKGROUND

The following background is taken from the government’s charging instruments, the

parties’ briefing, and the exhibits tendered to the Court thus far. It does not represent the Court’s

findings of fact on the merits of the case, which are the province of the jury.

In December 2020, plans to protest Congress’ certification of the Electoral College vote

in the 2020 election began to form. Dkt. 1 at 3 (Indictment ¶ 8). In late December, Klein and his

brother—co-defendant JonathanPeter Allen Klein—“obtained airline tickets to travel from

1 Portland, Oregon, to Philadelphia, Pennsylvania, on January 4, 2021.” Id. (Indictment ¶ 10); see

also Dkt. 14 at 8. By January 6, 2021, the pair had travelled from Philadelphia to Washington,

D.C., and, on the afternoon of January 6 itself, they joined “a large crowd [that] began to gather

outside the Capitol perimeter.” Dkt. 1 at 4 (Indictment ¶ 13). That same afternoon, “[c]rowd

members, including [the Klein brothers] eventually forced their way through, up, and over

additional Capitol Police barricades and advanced to the [Capitol] building’s exterior façade.”

Id. (Indictment ¶ 18). Although “Capitol Police officers attempted to maintain order and stop the

crowd from entering the Capitol building,” “crowd members had begun to force entry into the

Capitol building by breaking windows and forcing open doors.” Id. (Indictment ¶ 19).

“At 2:11 p.m., [Klein began] assist[ing] members of the crowd, who had breached the

Capitol’s restricted grounds, with using a police barricade to climb a wall and gain access to an

external stairwell leading to the Upper West Terrace of the Capitol.” Id. at 7 (Indictment ¶ 28).

Seven minutes later, “[a]t 2:18 p.m., [Klein] entered the Capitol building [using a] . . . door on

the northwest side of the Capitol.” Id. (Indictment ¶ 30). Klein and his brother remained in the

Capitol building for roughly ten minutes and then exited. Id. (Indictment ¶ 32); see also Dkt. 14

at 5–6. “After exiting the Capitol, [Klein and his brother] worked in coordination to forcibly

open a secured door on the Capitol’s north side.” Dkt. 1 at 7 (Indictment ¶ 32). Behind that door

were a host of federal law enforcement officers, visible to the Klein brothers as they attempted

their breach. Id. Klein and his brother succeeded in wrenching open the secured door. Id. Law

enforcement responded to the breach by deploying what appears to be pepper spray, 1 but Klein,

after donning protective goggles, id. (Indictment ¶ 33), “advanced toward the law enforcement

1 On April 20, 2021, the government submitted via email to the Court and defense counsel a series of short videos depicting these events. 2 officers and used a Gadsden flag affixed to a flagpole to interfere with efforts by law

enforcement to disperse the crowd,” id. (Indictment ¶ 34); see also Dkt. 14 at 7.

Over one month later, on March 19, 2021, Klein and co-defendant JonathanPeter Allen

Klein (Klein’s brother) were indicted by a grand jury on six counts: conspiracy to violate 18

U.S.C. § 1512(c)(2) (obstruction of an official proceeding) and § 231(a)(3) (obstruction of law

enforcement during a civil disorder), in violation of 18 U.S.C. § 371; obstruction of an official

proceeding and aiding and abetting, in violation of 18 U.S.C. §§ 1512(c)(2); obstruction of law

enforcement during civil disorder and aiding and abetting, in violation of 18 U.S.C. § 231(a)(3);

destruction of government property and aiding and abetting, in violation of 18 U.S.C. §§ 1361,

62; entering and remaining in a restricted building or grounds, in violation of 18 U.S.C.

§ 1752(a)(1); and disorderly and disruptive conduct in a restricted building, in violation of 18

U.S.C. § 1752(a)(2). Dkt. 1 at 5–10 (Indictment ¶¶ 23, 35–44).

Four days after he was indicted, Klein was arrested in the District of Oregon and

appeared before Magistrate Judge John V. Acosta, who ordered that the defendant be detained as

both a risk of flight and a danger to the community. On March 26, 2021, Klein had an initial

appearance in this district before Magistrate Judge Zia M. Faruqui who, among other things,

granted Klein’s motion to appoint counsel. See Minute Entry (Mar. 26, 2021). On April 1,

2021, Klein and his brother appeared before the undersigned and were arraigned, pleading not

guilty to all counts. See Minute Entry (Apr. 1, 2021). Eight days later, on April 9, 2021, Klein

filed the instant Motion for Bond and Institution of Conditions of Pretrial Release, Dkt. 13. The

government responded to the motion, Dkt. 14, and Klein filed his reply, Dkt. 17. On April 20,

2021, the Court held a hearing on Klein’s motion. See Minute Entry (Apr. 20, 2021). The

following day, Klein submitted proposed conditions of his release which included, most

3 saliently, a request that Klein’s parents serve “as third-party custodians throughout the duration

of the proceedings.” Dkt. 19 at 2. The government filed its opposition to Klein’s proposed

conditions, arguing that “the defendant’s parents [were] ill-suited to be” third-party custodians

because they “were aware if not supportive of at least [Klein’s brother’s] unlawful entry to the

U.S. Capitol Building on January 6, 2021”; because they had “warned [Klein’s brother] to not

discuss such conduct with anyone to avoid being “caught”; and because Klein’s mother had

advised Klein’s brother “to delete his phone’s data”—that is, in the government’s view, to

“destroy potential evidence.” Dkt. 22 at 1. In response, Klein filed two supplemental briefs

advising the Court of at least six other potential third-party custodians. Dkt. 23; Dkt. 24. Klein’s

counsel had not cleared any of these third-party custodians with Pretrial Services, however.

At this point, Klein’s Motion for Bond and Institution of Conditions of Pretrial Release,

Dkt. 13, is ripe for decision.

II. LEGAL STANDARD

Under 18 U.S.C. § 3145(b), a defendant ordered detained by a magistrate judge may file

“a motion for revocation or amendment to the order” with “a court having original jurisdiction

over the offense.” 18 U.S.C. § 3145(b). Although the D.C. Circuit has yet to opine on the

question, see United States v. Munchel, 991 F.3d 1273, 1280 (D.C. Cir. 2021), substantial

precedent supports the view that a magistrate judge’s detention order is subject to de novo review

by the district court, see United States v. Hunt, 240 F. Supp. 3d 128, 132–33 (D.D.C. 2017)

(identifying cases supporting this proposition from the Second, Third, Fourth, Fifth, Sixth,

4 Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits), and this Court has adopted that view,

United States v. Taylor, 289 F. Supp. 3d 55, 66 (D.D.C. 2018).

The Bail Reform Act permits pretrial detention in only “carefully defined circumstances.”

United States v. Simpkins, 826 F.2d 94, 95–96 (D.C. Cir. 1987). The question for the Court is

whether any “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.” 18 U.S.C.

§ 3142(e). If not, the Court “shall order the detention of the [defendant] before trial.” Id. In

determining whether Klein should be detained, the Court must consider: (1) the nature and

circumstances of the offense charged; (2) the weight of the evidence against the defendant;

(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. Id.

§ 3142(g). “The facts the judicial officer uses to support a finding . . . that no condition or

combination of conditions will reasonably assure the safety of any other person and the

community [must] be supported by clear and convincing evidence,” and the government bears

the burden of proof as to that evidence. Id. § 3142(f)(2)(B). That is because “[i]n our society

liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

United States v. Salerno, 481 U.S. 739, 755 (1987); see also Taylor, 289 F. Supp. 3d at 62 (“The

default position of the law . . . is that a defendant should be released pending trial.”) (internal

quotation marks and citation omitted).

With this said, the default rule “is modified . . . for certain[] particularly dangerous

defendants.” Id. (internal quotation marks and citation omitted). In particular, the Bail Reform

Act creates a rebuttable presumption “that no condition or combination of conditions will

reasonably assure the appearance of the person as required and the safety of the community if . . .

5 there is probable cause to believe that the person committed” one of an enumerated list of

crimes, including, as relevant here, “an offense listed in [18 U.S.C. § 2332b(g)(5)(B)] for which

a maximum term of imprisonment of 10 years or more is prescribed.” 18 U.S.C. § 3142(e)(3).

For purposes of making that determination, “[a] grand jury indictment, by itself, establishes

probable cause to believe that a defendant committed the crime with which he is charged.”

United States v. Stone, 608 F.3d 939, 945 (6th Cir. 2010); see also United States v. Smith, 79

F.3d 1208, 1210 (D.C. Cir. 1996) (“[T]he indictment alone would have been enough to raise the

rebuttable presumption that no condition would reasonably assure the safety of the

community.”).

Once triggered, “the presumption operate[s] . . . to impose a burden of production on the

defendant to offer some credible evidence contrary to the statutory presumption.” 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. Stone, 608 F.3d at 945–46

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

Bess, 678 F. Supp. 929, 934 (D.D.C. 1988) (finding that the presumption “represents Congress’s

general factual view about the special flight risks and the special risks of danger to the

community presented by defendants who commit the crimes to which it attaches”). The

defendant’s burden, moreover, is just a burden of production; the burden of persuasion remains

with the government throughout the proceeding. United States v. Mercedes, 254 F.3d 433, 436

(2d Cir. 2001); see also Alatishe, 768 F.2d at 371 n.14 (citing Jessup, 757 F.2d 378, but not

deciding the question).

6 As then-Judge Breyer explained in an opinion that the D.C. Circuit has described as

“scholarly” and “extremely compelling it its rationale,” Alatishe, 768 F.2d at 371 n.14, the

presumption is not a “bursting bubble” that becomes devoid of all force once a defendant has met

his burden of production, Jessup, 757 F.2d at 382. The presumption does “not vanish upon the

introduction of contradicting evidence,” nor does the burden of persuasion shift to the defendant.

Id. at 383 (citation omitted). Rather, even after a defendant carries his burden of production, the

judicial officer must “keep in mind the fact that Congress has found that” those charged with the

specified offenses are likely to pose a danger to the community. Id. at 384. In short, “the

presumption favoring detention does not disappear entirely, but remains a factor to be considered

among those weighed by the district court.” Mercedes, 254 F.3d at 436.

III. ANALYSIS

A. Probable Cause and Presumption

As an initial matter, the Court agrees with the government’s contention that the

presumption that no pretrial release conditions will reasonably assure the safety of the

community was triggered by Klein’s indictment. Recall that, as relevant here, the presumption is

triggered if “there is probable cause to believe that the person committed . . . an offense listed in

[18 U.S.C. § 2332b(g)(5)(B)] for which a maximum term of imprisonment of 10 years or more is

prescribed.” 18 U.S.C. § 3142(e)(3). Here, Count Four of the indictment charges Klein with

destruction of government property valued at $1,000 or more, in violation of 18 U.S.C. § 1361.

Section 1361, in turn, is listed as an offense in § 2332b(g)(5)(B). In addition, § 1361 provides

that “[i]f the damage or attempted damage to such property exceeds the sum of $1,000,” any

person convicted under § 1361 “shall be punished . . . by a fine under this title or imprisonment

for not more than ten years.” The presumption criteria in § 3142(e)(3)(C) are thus met—Count 4

7 is “an offense listed in [18 U.S.C. § 2332b(g)(5)(B)] for which a maximum term of

imprisonment of 10 years . . . is prescribed.” Because the indictment is sufficient to establish the

last requirement for purposes of invoking the presumption—probable cause that Klein

committed the predicate offense—Smith, 79 F.3d at 1210, the Court concludes that the

presumption that no pretrial release conditions will reasonably assure the safety of the

community applies here.

But that said, the Court finds that Klein has come forward with sufficient evidence to

meet his burden of production, overcoming but not “bursting” the presumption. Klein stresses,

for example, that he has lived away from home at college “for three years with no incidents of

bad conduct;” that he has never previously been convicted of any crime; that he did not brandish

or carry a weapon of any kind on January 6; and that he did not assault or cause physical harm to

any person on January 6. Dkt. 13 at 2–3. The Court concludes that Klein has met his modest

burden of production and that, as a result, “the Court must . . . consider all of the factors set forth

in section 3142(g)” to determine whether detention is warranted. Hunt, 240 F. Supp. 3d at 133.

B. Nature and Circumstances of the Offense

The Court first turns to the nature and circumstances of Klein’s alleged offenses, which

weigh in favor of his detention. Klein, along with hundreds of others, took over the United

States Capitol; caused the Vice President of the United States, the Congress, and their staffs to

flee the Senate and House Chambers; and delayed the solemn process of certifying a presidential

election. Klein is charged with conspiring “to corruptly stop, delay, or hinder Congress’s

certification of the Electoral College vote” and “to obstruct and interfere with law enforcement

officers engaged in their official duties to protect the Capitol and its occupants from those who

had unlawfully advanced onto Capitol grounds.” Dkt. 1 at 6 (Indictment ¶ 25). “This was a

8 singular and chilling event in U.S. history, raising legitimate concern about the security—not

only of the Capitol building—but of our democracy itself.” United States v. Cua, No. 21-cr-107,

2021 WL 918255, at *3 (D.D.C. Mar. 10, 2021).

By wrenching open a secured door to the Capitol building, moreover, Klein placed the

law enforcement officers who stood behind it at grave risk. As video footage of the events

reveals, moments after Klein forced the door open, the crowd erupted in screams. In the now-

open doorway, one man menacingly shook a black baton, while another crept toward the police

bellowing “traitor, traitor.” Two men then tried to rip the door off its hinges. Klein, too, was not

done. When law enforcement finally emerged from the building, he donned protective goggles,

stood intrusively in the doorway with a Gadsden flag raised, and tried to frustrate their attempt to

restore order. And, even if Klein had no intention of personally assaulting the officers, he

breached the one barrier that separated them from a hostile mob. And those officers, in turn,

were there to protect the Congress and the democratic process from violent attack. Cf. Munchel,

991 F.3d at 1284–85 (“It cannot be gainsaid that the violent breach of the Capitol on January 6

was a grave danger to our democracy . . . .”).

To be sure, there is no evidence at this time that other rioters used the door that Klein

broke open to enter the Capitol building or that Klein’s actions precipitated specific acts of

violence or the death or injury of any person. But that is more a product of fortune than fate.

Klein’s alleged crimes were undoubtedly serious, and his actions posed an acute risk to the well-

being of many innocent people. Klein and other rioters, moreover, succeeded in their efforts of

using brute force to delay (if not stop) the most revered of democratic processes from

proceeding. This was not an exercise of free speech but, to the contrary, an effort to quash the

collective voice of the American electorate. The nature and circumstances of Klein’s offense,

9 accordingly, weigh in favor of pretrial detention. Cf. Salerno, 481 U.S. at 748 (“[I]n times of

war or insurrection, when society’s interest is at its peak, the Government may detain individuals

whom the government believes to be dangerous.”).

C. Weight of Evidence Against the Defendant

The second factor—the weight of evidence against the defendant—also weighs in favor

of detention. The government’s evidence of Klein’s guilt involves “videos and images of his

conduct on January 6th, travel records, and items from the defendant and his co-defendant’s

online [social media] accounts.” Dkt. 14 at 19. In light of the strength of the government’s

evidence against Klein, the second factor also weighs against his release.

D. History and Characteristics of the Defendant

The third factor—the history and characteristics of the defendant—poses a closer

question. In considering Klein’s history and characteristics, the Court must “take into account

the available information concerning” Klein’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.” 18 U.S.C. § 3142(g)(3)(A).

Here, Klein has strong ties to his “close-knit family,” attends a local college, has

previously maintained steady employment, has no evident history of drug or alcohol abuse, and,

apart from pending misdemeanor citations for unlawful possession of a loaded firearm in public

(two counts) and unlawful possession of firearms, has no criminal history of which the Court is

aware. Dkt. 13 at 2–3, 5; see also Dkt. 14 at 15.

But that is far from the end of the matter. As the government explains, “there is also

evidence that [Klein] has participated in at least two Proud Boys event[s] during which he was,

10 at the very least, prepared to engage in violent conduct.” Dkt. 14 at 11. Most troublingly, on

September 7, 2020, Klein brought and brandished a baseball bat at an alleged Proud Boys rally.

Id. at 13. Certain individuals at the rally later “clashed with approximately 20 Black Lives

Matters Supporters,” although there is no evidence that Klein was involved in the altercation. Id.

at 11. Then, on September 26, 2020, Klein attended yet another rally, this time bringing with

him a Smith & Wesson, 9-millimeter handgun, as well as a paintball gun. Id. at 13–14. The

firearm appeared to be unloaded (or, at the least, the magazine was not in the gun) while Klein

was at the rally itself, but, as Klein was leaving the rally and the truck in which he was travelling

was stopped by law enforcement, the firearm was found loaded in the glove compartment of the

vehicle, with the slide locked back. Id. at 14. At that time, Klein was, moreover, sitting in the

bed of truck, armed with a paintball gun and shield. Id. at 13. Based on the observations of the

officer who stopped the truck, “the occupants in the bed of the truck were not positioned in a

reactive or defensive posture, but were looking to initiate a response from and/or acting violently

towards those they perceived to be counter to their ideals.” Id. “As a result of the September

26th traffic stop, the defendant received misdemeanor citations for unlawful possession of a

loaded firearm in public (two counts) and unlawful possession of firearms. The two possession

of a loaded firearm in public counts remain pending in Multnomah County, Oregon, and were

pending at the time the defendant engaged in the January 6th attack upon the Capitol.” Id. at 15.

Klein’s decision to bring multiple dangerous weapons to political rallies is disconcerting,

particularly in the context of this case—a political gathering turned violent. But, at the same

time, the Court is unaware of any evidence that Klein attacked or violently confronted anyone

during the rallies; that he used or attempted to use the weapons against any person or property; or

that he has ever been involved in any altercations, violent or not, with other individuals. That

11 provides some comfort, but not complete comfort. At a minimum, for example, Klein’s

prominent display of these weapons was seemingly designed to inspire fear in his political

opponents—to convey a threat of violence, if not the actualization of that violence. The

contention by Klein’s counsel that Klein carried these weapons for his own protection, Dkt. 27 at

29–30, is difficult to square with photographic images, which depict someone who appears to be

looking for, and not seeking to avoid, a fight. But, even accepting counsel’s characterization, the

Court is left to ponder what Klein would have done—and what he might do in the future—if he

perceived that a political foe posed a threat to his safety.

As explained further below, the Court concludes that these concerns are best considered

in the context of the fourth factor, danger to the community; that on the current record they

weigh in favor of pretrial detention; but that the Court’s concerns might potentially be assuaged

through appropriate conditions on release (including home detention) and the appointment of a

suitable, third-party custodian.

E. Danger to the Community

The final factor that the Court must consider is “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). “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.” Taylor, 289 F. Supp. 3d at 70. In making that assessment, the Court may

consider all relevant indicia of risk to the community, including evidence that would not be

admissible at trial. Id. Because this factor substantially overlaps with the ultimate question

whether any conditions of release “will reasonably assure . . . the safety of any other person and

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

12 this case, the Court concludes that—at least on the present record—Klein’s release would pose

an unacceptable risk to community safety.

Starting in December 2020, Klein engaged in a pattern of troubling activity, bringing

dangerous weapons to two political rallies and, then, allegedly committing federal crimes while

at a third. As explained above, Klein’s actions at the Capitol exposed the police officers, who

stood beyond the door that he and his brother wrenched open, to imminent danger, and he

exposed all those in the Capitol to danger by opening another avenue of entry for a hostile mob.

The Court cannot, however, base its dangerousness determination on those grounds alone. As

the D.C. Circuit has explained, the threat that an individual poses to the community must “be

considered in context” and “whether a defendant poses a particular threat depends on the nature

of the threat identified and the resources and capabilities of the defendant.” Munchel, 991 F.3d

at 1283. Accordingly, to the extent that a court bases its dangerous determination on past

political violence, the court should analyze whether “the specific circumstances that made it

possible” for that violence to arise are likely to manifest themselves again. Id. at 1284. This, in

turn, requires the Court to consider whether the risk that a defendant poses can be mitigated by

supervisory conditions, such as home detention or the presence of a third-party custodian. See

United States v. Klein, 21-cr-236, 2021 WL 1377128, at *13 (D.D.C. Apr. 12, 2021); Munchel,

991 F.3d at 1283–84.

Here, the Court concludes that, despite the serious concerns raised by Klein’s conduct on

and prior to January 6, it is possible that appropriate conditions on Klein’s release might provide

sufficient assurances of community safety. These include, by way of example, (1) appointment

of a suitable third-party custodian; (2) home detention; (3) GPS monitoring; (4) appropriate

social media restrictions; and (5) an enforceable ban on access to any firearm or other weapon.

13 This is not to say that the circumstances undergirding the January 6 and Proud Boys rallies have

entirely passed. But the Court does recognize that strict conditions may address the risk that

Klein will participate in violent or threatening political activity while on pretrial release. See

Munchel, 991 F.3d at 1284. And “in the absence of a concrete, prospective threat to public

safety that cannot be mitigated by strict conditions, th[e] Court must apply ‘the default rule

favoring liberty.’” Klein, 2021 WL 1377128, at *13 (quoting Cua, 2021 WL 918255, at *8).

The difficulty for Klein right now, however, is that he has failed to identify a suitable

third-party custodian. Klein’s first attempt in this regard was to proffer his parents as third-party

custodians, albeit without having first contacted Pretrial Services to assess their suitability to

serve in that capacity. Klein’s counsel averred during the hearing on Klein’s motion:

If released, Mr. Klein would live with his parents who live in Baker City, Oregon, which is . . . 4.5 to 6.5 hours [driving] . . . from Portland. And, again, . . . I would reiterate that his parents are deeply[,] deeply religious people. . . . His parents are very responsible people. They own their home, and, again, they will provide whatever supervision is deemed necessary and appropriate for Mr. Klein.

Dkt. 27 at 29; see also id. at 4–5. The government, however, subsequently offered evidence that

Klein’s parents are not suitable third-party custodians. See generally Dkt. 14. That evidence, the

authenticity of which is not challenged, shows that Klein’s mother texted Klein’s brother that

“braggers get caught” and that he should therefore avoiding “tell[ing] people [that he was] in the

capit[o]l,” Dkt. 22 at 2; warned him that his “phone is not encrypted,” that he should “[b]e

careful what [he] say[s],” and that he should “clear [his] phone” or that he should “[p]ull a

Hillary and use a hammer” and “bleach” to destroy the phone, id. at 3, 5; and reminded him that

a certain individual known to the Klein family “was thrown in jail because he deleted underage

girl photos instead of throwing the phone in the lake” and stressed that “[n]othing is ever

14 deleted,” id. at 6. Klein’s father, similarly, reminded Klein’s brother that “b[r]aggers get

caught.” Id.

To be sure, hours after the government alerted the Court to the reasons why Klein’s

parents are not suitable third-party custodians, Klein filed two, short “supplements” with the

Court, cataloging a half-dozen other individuals that he believes might serve as a third-party

custodian. Dkt. 23; Dkt. 24. But Klein has not asked Pretrial Services to vet any of these

individuals; he has not offered declarations or testimony from any of them; and he has not

performed any of the additional work necessary to present the Court with a well-developed and

persuasive release plan. Pretrial Services’ role in the process is critical. The fact that the prior

custodians who Klein identified without input from Pretrial Services turned out be unsuitable

custodians highlights the point well.

At bottom, although Klein might still be able to convince the Court that appropriate

conditions, including a suitable third-party custodian, would mitigate the risk to community

safety that his release poses, he has not made that substantial showing here. Because the

propriety of Klein’s pretrial release turns, in large part, on where he will live and who will take

responsibility for ensuring that he complies with the terms of his (possible) release, and because

Klein has failed to provide Pretrial Services or the Court with a well-developed proposal, the

Court must deny his motion for pretrial release, Dkt. 13, without prejudice. Klein may renew his

motion for pretrial release if he has a good-faith basis for doing so, which includes an

identification of (1) appropriate conditions of his release; (2) a suitable place to live; and (3) a

suitable third-party custodian that Pretrial Services vetted.

15 CONCLUSION

For the foregoing reasons, Defendant Matthew Leland Klein’s Motion for Bond and

Institution of Conditions of Pretrial Release, Dkt. 13, is DENIED without prejudice.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: May 3, 2021