United States v. Klein
Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA,
v. Crim. No. 21-236 (JDB) FEDERICO GUILLERMO KLEIN,
also known as “Freddie Klein,”
Defendant. MEMORANDUM OPINION
Defendant Federico Guillermo Klein, a former employee at the U.S. State Department, is charged via indictment with three felony and five misdemeanor offenses based on his participation in the events at the United States Capitol on January 6, 2021. Following his arrest on March 4, 2021, Magistrate Judge Faruqui ordered Klein detained pending trial. Klein now asks this Court to revoke that order of detention and place him on pretrial release. The government also requests, over Klein’s objection, to continue this matter and exclude time under the Speedy Trial Act for sixty days.
The detention issue here is close, and this Court respects Magistrate Judge Faruqui’s
thoughtful assessment. Subsequent guidance from the D.C. Circuit, however, impacts the analysis
of whether the government has established, by clear and convincing evidence, that Klein presents
an articulable prospective threat to the safety of the community. Pretrial detention is the exception,
not the norm, under the Bail Reform Act, see United States v. Salerno,
Background
Klein is a forty-two-year-old resident of Annandale, Virginia who served as a political appointee at the U.S. State Department under President Trump and held a “top secret” security clearance in that role. Statement of Facts (“SOF”) [ECF No. 1-1] at 3. On January 6, 2021, Klein actively participated in the attempt to gain entry into the Capitol Building through the Lower West Terrace doorway while the U.S. Congress was meeting inside to certify the vote count of the Electoral College for the 2020 presidential election. Id. at 2, 5–14. Video footage depicts Klein entering the tunnel from the Lower West Terrace at 2:43 p.m., where a mob of individuals had already gathered to confront the line of police officers protecting the entrance to the Capitol. Id. at 5. Klein remained inside the tunnel for approximately thirty-eight minutes—until 3:21 p.m.— when officers were able to expel the first wave of rioters out of the tunnel and back onto the Terrace. Id. at 10.
While inside the tunnel, Klein repeatedly placed himself at the front of the mob and used force against several officers in an effort to breach the Capitol entrance and maintain the mob’s position. Id. at 5–10. He ignored several verbal commands by officers to “back up” and “[l]et it go now.” Id. at 6. And twice he can be heard calling to the crowd behind him: “We need fresh people, we need fresh people.” Id. at 8. Around 2:55 p.m., Klein bent down to pick up a flagpole, which lay at the foot of the police line, and passed it back to other rioters. Id. at 6; Rough Tr. of Hr’g (Apr. 9, 2021) (“Hr’g Tr.”) 28:22–24.
Sometime between 2:55 p.m. and 3:00 p.m., Klein came into the possession of a plastic riot shield, which had been taken from the police. SOF at 6. Body-worn camera (“BWC”) footage *3 from the Metropolitan Police Department (“MPD”) captures Klein and another unidentified individual wedging the shield between the doors to the Capitol at approximately 3:00 p.m. in an apparent effort to prevent the officers from closing the doors. Id. at 6–7; Hr’g Tr. 33:17–20. At 3:15 p.m., another BWC video shows Klein pushing the shield into an officer’s body in an attempt to break the police line. SOF at 7. A publicly-sourced video posted to YouTube also depicts Klein shoving the shield against an unidentified officer’s body and against the shields of two MPD officers. Id. at 9–10.
At around 3:21 p.m., officers successfully drove the rioters, including Klein, out of the tunnel and back onto the Terrace. Id. at 10. But Klein still lingered near the tunnel entrance. Shortly thereafter, police realized that an MPD officer had been dragged into the crowd. Another officer seeking to rescue his fallen colleague asked Klein to move aside, to which Klein responded, “no way.” Id. at 13. Moments later, however, Klein is briefly seen helping to shepherd the fallen officer—who by then had begun extricating himself from the crowd—back toward the police line. Id. at 13–14. To the government’s knowledge, Klein is not captured on any footage thereafter, though attempts to breach the tunnel entrance persisted until approximately 5:15 p.m. See Gov’t’s Opp’n to Def.’s Mot. for Review & Revocation of Detention Order & Reply to Def.’s Opp’n to Mot. for Exclusion of Time (“Gov’t’s Br.”) [ECF No. 25] at 4–5.
On March 4, 2021, Klein was arrested pursuant to a criminal complaint. Arrest Warrant [ECF No. 6]. He appeared before Magistrate Judge Faruqui the following day and was temporarily detained at the government’s request. Min. Entry (Mar. 5, 2021). Judge Faruqui held a detention hearing on March 9, 2021 and ordered that Klein be detained pending trial, finding that the government had shown by clear and convincing evidence that no condition or combination of *4 conditions of release could reasonably assure the safety of any other person and the community. Min. Entry (Mar. 9, 2021); Order of Detention Pending Trial (Mar. 16, 2021) [ECF No. 11]. Judge Faruqui also excluded the time between March 9, 2021 and March 22, 2021 under the Speedy Trial Act in the interests of justice, despite Klein’s objection. Min. Entry (Mar. 9, 2021).
On March 19, 2021, Klein was indicted by a grand jury on eight counts: Civil Disorder, in violation of 18 U.S.C. § 231(a)(3); Obstruction of an Official Proceeding (Aiding and Abetting), in violation of 18 U.S.C. §§ 1512(c)(2) and 2; Assaulting, Resisting, or Impeding Certain Officers Using a Dangerous Weapon, in violation of 18 U.S.C. §§ 111(a)(1) and (b); Entering or Remaining in any Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1); Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2); Engaging in Physical Violence in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(4); Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D); and Act of Physical Violence in the Capitol Grounds or Buildings, in violation of 40 U.S.C. § 5104(e)(2)(F). Indictment [ECF No. 12]. The first three counts are felonies; the last five are misdemeanors.
Klein was arraigned on the Indictment on March 25, 2021 and entered a plea of not guilty on all counts. Min. Entry (Mar. 25, 2021). That same day, the government filed a motion to continue and exclude time for sixty days under the Speedy Trial Act. Gov’t’s Mot. to Continue & to Exclude Time Under the Speedy Trial Act (“Continuance Mot.”) [ECF No. 15]. Based on defense counsel’s stated intention to file a motion to revoke Magistrate Judge Faruqui’s detention order, this Court scheduled a hearing for April 9, 2021 and set a combined briefing schedule on Klein’s motion to revoke and the government’s motion to continue. Min. Entry (Mar. 25, 2021). The Court also entered a written order granting a limited continuance and excluding the time *5 between March 22, 2021 and April 9, 2021 under the Speedy Trial Act in the interests of justice and in light of Klein’s forthcoming motion. Order (Mar. 26, 2021) [ECF No. 18].
Briefing on the motions concluded on April 7, 2021, and the Court conducted a hearing on April 9 at which the government presented some additional evidence of Klein’s conduct at the Capitol. Both motions are now ripe for decision.
Discussion
I. Defendant’s Motion to Revoke Detention Order
Klein has moved to revoke Magistrate Judge Faruqui’s detention order, asserting that he is not eligible for pretrial detention based on the offenses charged, that he does not pose a danger to any person or his community if released, and—in the alternative—that any danger he does pose can be mitigated by a combination of conditions. See Def.’s Mot. for Review & Revocation of Detention Order & Opp’n to Mot. for Exclusion of Time (“Def.’s Br.”) [ECF No. 22] at 4–5. The Court finds that Klein is eligible for pretrial detention because he is charged in Count 3 of the Indictment with a “crime of violence.” See 18 U.S.C. § 3142(f)(1)(A). However, because there is not clear and convincing evidence that Klein poses a concrete, prospective threat to public safety that cannot be mitigated by pretrial supervision, the Court will order him released on strict conditions pending trial.
A. Legal Standard
A defendant ordered detained by a magistrate judge may file “a motion for revocation or
amendment to the order” with “the court having original jurisdiction over the offense.” 18 U.S.C.
*6
§ 3145(b). Although the D.C. Circuit has not ruled on the matter, every circuit to consider the
issue has found that a magistrate judge’s detention order is subject to de novo review. See United
States v. Hunt,
Under the Bail Reform Act (“BRA”), 18 U.S.C. §§ 3141–3156, “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 offenses.” United States v. Singleton, 182
F.3d 7, 13 (D.C. Cir. 1999) (quoting Salerno,
If a defendant is eligible for a detention hearing, the BRA provides that the court “shall”
order pretrial detention if it “finds 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 inquiry is whether the defendant
is a ‘flight risk’ or a ‘danger to the community.’” United States v. Vasquez-Benitez,
To assess a defendant’s dangerousness, the court must “take into account the available
information” concerning four statutory factors: (1) “the nature and circumstances of the offense
*7
charged,” (2) “the weight of the evidence against the person,” (3) “the history and characteristics
of the person,” 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)(1)–(4). As the D.C. Circuit
recently stated in United States v. Munchel, “[t]o justify detention on the basis of dangerousness,
the government must prove by ‘clear and convincing evidence’ that ‘no condition or combination
of conditions will reasonably assure the safety of any other person and the community.’” 2021
WL 1149196, at *4 (D.C. Cir. Mar. 26, 2021) (quoting 18 U.S.C. § 3142(f)). That requires the
government to establish that the defendant poses a continued “articulable threat to an individual or
the community” that cannot be sufficiently mitigated by release conditions. Id. (quoting Salerno,
B. Detention Eligibility Analysis
At the outset, the parties dispute whether Klein is eligible for pretrial detention based on the offenses charged. As relevant here, the BRA authorizes pretrial detention “in a case that involves . . . a crime of violence” or “any felony that is not otherwise a crime of violence that involves . . . the possession or use of a firearm or destructive device . . . or any other dangerous weapon.” 18 U.S.C. § 3142(f)(1)(A), (E).
The government argues that Klein is subject to pretrial detention “because he has been charged with both a crime of violence as well as two additional felonies that were committed using a dangerous weapon.” Gov’t’s Br. at 8. Specifically, the government contends that Count 3 of the Indictment—charging Klein with “using a deadly or dangerous weapon, that is, a riot shield,” to “forcibly assault, resist, oppose, impede, intimidate, and interfere with an officer and employee of the United States,” in violation of 18 U.S.C. §§ 111(a)(1) and (b)—qualifies as a “crime of violence.” Id. (quoting Indictment at 2). The government also asserts that Counts 1 and 2— charging Klein with civil disorder, in violation of 18 U.S.C. § 231(a)(3), and obstruction of an official proceeding, in violation of 18 U.S.C. §§ 1512(c)(2) and 2—qualify as felonies involving the use of a dangerous weapon. Id. Klein disputes this analysis wholesale, arguing that Count 3 is not a “crime of violence” and that the riot shield was not used as a dangerous weapon. See Def.’s Br. at 4.
The Court finds that Klein is eligible for pretrial detention based on Count 3. Under the
BRA, a “crime of violence” includes “an offense that has as an element of the offense the use,
attempted use, or threatened use of physical force against the person or property of another.” 18
U.S.C. § 3156(a)(4)(A). The Supreme Court in Johnson v. United States defined “physical force”
as “force capable of causing physical pain or injury to another person.”
The first question then is whether 18 U.S.C. § 111 is divisible. That statute provides: (a) In general.—Whoever—
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated [as a federal officer] while engaged in or on account of the performance of official duties; or
(2) forcibly assaults or intimidates any person who formerly served [as a federal officer] on account of the performance of official duties during such person's term of service,
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.
(b) Enhanced penalty.—Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon . . . or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.
18 U.S.C. § 111.
At least six circuits have held that 18 U.S.C. § 111 is divisible and “creates three separate
offenses.” United States v. Bullock,
The D.C. Circuit has not yet weighed in, but every circuit to address the issue has answered
that question in the negative, concluding that § 111(b) does constitute a “crime of violence.” See
Gray,
must prove to sustain a conviction” and “what the jury must find beyond a reasonable doubt to convict the defendant”
at trial) (quotation omitted). Klein offers this Court no reason to believe that Congress intended to apply a different
definition of an offense “element” when analyzing a crime of violence under the BRA, and therefore the Court finds
no merit in the distinction between an “enhanced penalty” and separate “offense” that Klein seeks to draw.
Some of these cases addressed the issue in the context of 18 U.S.C. § 924(c)(3), which likewise defines a
“crime of violence” to include any offense that “has as an element the use, attempted use, or threatened use of physical
force against the person or property of another.” Others “did so in the context of the substantively similar provisions
in the Sentencing Guidelines.” Gray,
For starters, a “deadly or dangerous weapon” means “any object which, as used or
attempted to be used, may endanger the life of or inflict great bodily harm on a person.” Bullock,
970 F.3d at 215 (quotation omitted). This Court agrees with the weight of authority that “[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 [officer], or at least threatened the [officer], with
an object that, as used, is capable of causing great bodily harm.” Taylor,
Klein does not offer a compelling reason to question this clear consensus view. Indeed, he
devotes a substantial portion of his brief to arguing that § 111(a) is not a crime of violence, Def.’s
Br. at 8–10, which as explained above is irrelevant because the statute is divisible, and Klein was
charged with the more serious violation of the statute in § 111(b). Furthermore, the primary case
on which Klein relies to argue that § 111(b) is not a “crime of violence” is readily distinguishable.
Klein states that “[t]he Seventh Circuit’s decision in United States v. Bennett,
Because Klein is eligible for pretrial detention due to the fact that he has been charged under 18 U.S.C. § 111(b) with a “crime of violence,” see 18 U.S.C. § 3142(f)(1)(A), the Court need not resolve the parties’ dispute over whether Klein is also subject to pretrial detention under 18 U.S.C. § 3142(f)(1)(E) because he has been charged with two felonies that “involve[] . . . the possession or use of a . . . dangerous weapon.” Hence, the Court will proceed directly to analyzing the § 3142(g) factors.
*13 C. Section 3142(g) Factors
i. Nature and Circumstances of the Offense
The Court first considers “the nature and circumstances of the offense charged.” 18 U.S.C.
§ 3142(g)(1). Chief Judge Howell has set forth a number of considerations, which this Court finds
helpful, to differentiate the severity of the conduct of the hundreds of defendants connected to the
events of January 6. See United States v. Chrestman, -- F. Supp. 3d --,
Klein is charged with three felony and five misdemeanor offenses. None of the offenses gives rise to a rebuttable presumption of dangerousness under the BRA. But the crimes alleged are serious, and both Counts 2 and 3—which charge Klein with obstructing an official proceeding and assaulting, resisting, or impeding certain officers using a dangerous weapon—carry a statutory maximum of twenty years in prison. See 18 U.S.C. §§ 1512(c), 111(b).
The next few considerations, however, weigh against detention. Any evidence that Klein
planned his conduct before arriving at the Capitol is noticeably absent. See Chrestman, 2021 WL
765662, at *8 (“[S]teps taken in anticipation of an attack on Congress speak volumes to both the
*14
gravity of the charged offense, as a premeditated component of an attempt to halt the operation of
our democratic process, and the danger a defendant poses.”). A former romantic partner of Klein’s
told the government that Klein had plans to attend the “Stop the Steal” rally outside the White
House earlier that day. Gov’t’s Br. at 18 & n.8. But that witness was “not aware that Klein had
any plans for violence,” id., and the government has proffered no evidence that Klein’s prolonged
confrontation with law enforcement or even his attempt to breach the Capitol building were
premeditated. Furthermore, although the parties vehemently dispute whether Klein used a
dangerous weapon during the riot—i.e., the stolen riot shield—there is no suggestion that he
brought a weapon with him to the Capitol or carried any items that evinced an “expectation that
the need to engage in violence against law enforcement or . . . the Legislative branch, might arise.”
See Chrestman,
There is also no evidence that Klein coordinated with other participants before, during, or after the riot, or assumed any meaningful leadership role during the events of January 6. To be sure, Klein did try to encourage other rioters to hold the mob’s position in the tunnel by shouting “We need fresh people, we need fresh people,” on two separate occasions. See SOF at 8. Those are, however, the only words of encouragement that he is alleged to have spoken; and viewed in context, those chants—though reprehensible—hardly establish that Klein was a de facto leader of the mob. The first chant, for instance, echoes a similar call for “fresh patriots at the front” made by an adjacent rioter seconds before. See Scenes Captured Inside US Capitol as Crowd Challenges Police, YouTube (Jan. 7, 2021) https://www.youtube.com/watch?v=qc0U755-uiM&t=636s (Mins. 10:29–10:42). And countless other words of incitement can be heard throughout the tunnel *15 during the time that Klein was inside.
The government does assert that Klein engaged in a coordinated effort when he and another
unidentified rioter wedged the riot shield between the Capitol doors to enable a third rioter to push
open the closing door. See Hr’g Tr. 55:13–22. But this type of ad hoc, spur-of-the-moment
collaboration—while troubling—does not generate nearly the same kind of coordination concerns
as other cases. See, e.g., United States v. Pezzola,
The government’s contention that Klein engaged in “what can only be described as hand- to-hand combat” for “approximately thirty minutes” also overstates what occurred. See Gov’t’s Br. at 6. Klein consistently positioned himself face-to-face with multiple officers and also repeatedly pressed a stolen riot shield against their bodies and shields. His objective, as far as the Court can tell, however, appeared to be to advance, or at times maintain, the mob’s position in the tunnel, and not to inflict injury. He is not charged with injuring anyone and, unlike with other *16 defendants, the government does not submit that Klein intended to injure officers. Compare Hr’g Tr. 57:12–18 (government conceding that the evidence does not establish Klein intended to injure anyone, only that “there was a disregard of care whether he would injure anyone or not” in his attempt to enter the Capitol ) , with Gov’t’s Opp’n to Def.’s Mot. to Reopen Detention Hearing & For Release on Conditions, ECF No. 30 (“Gov’t’s Opp’n to McCaughey’s Release”), United States v. McCaughey, III, 21-CR-040-1, at 11 (D.D.C. Apr. 7, 2021) (government emphasizing defendant’s “intent to injure” an officer who he had pinned against a door using a stolen riot shield as grounds for pretrial detention). And during the time period before Klein obtained the riot shield, he made no attempts to “battle” or “fight” the officers with his bare hands or other objects, such as the flagpole he retrieved. That does not mean that Klein could not have caused serious injury— particularly given the chaotic and cramped atmosphere inside the tunnel. But his actions are distinguishable from other detained defendants charged under § 111(b) who clearly sought to incapacitate and injure members of law enforcement by striking them with fists, batons, baseball bats, poles, or other dangerous weapons.
The record is also strikingly silent as to what—other than “we need fresh people” and “no way”—Klein actually said during his time at the Capitol. It is possible that his words are simply *17 inaudible given the noise inside the tunnel. But, in contrast to many others present that day, he is never shown verbally threatening any officers or even boasting about his confrontations with law enforcement after the fact.
Nonetheless, Klein did act on the front lines of the mob for a significant time period. He can be seen actively advancing himself to the very front of the tunnel on more than one occasion. And he demonstrated a clear and persistent willingness to use force against law enforcement to attempt to gain entry into the Capitol and to stop the certification of the election. That conduct is deeply troubling and reveals some propensity for violence, as well as a blatant disregard for the law. Furthermore, his suggestion that his conduct is somehow less egregious because he never actually entered the Capitol building is nonsensical because, as the government puts it, that “was not for his lack of trying.” See Gov’t’s Br. at 20; Def.’s Br. at 19.
All told then, the Court finds that the nature and circumstances of the charged offense weigh modestly in favor of detention. Klein’s conduct was forceful, relentless, and defiant, but his confrontations with law enforcement were considerably less violent than many others that day, and the record does not establish that he intended to injure others. The Weight of the Evidence
ii. There is strong evidence that Klein attempted to gain entry into the Capitol building on January 6 and employed force against multiple officers. Klein is captured on several cameras inside the Lower West Terrace tunnel, using a riot shield to wedge open the building doors and push back the officers protecting the tunnel entrance. Although Klein has not conceded that the *18 individual depicted on video is him, three separate witnesses—including a former colleague of two years at the State Department and a recent romantic partner—have identified him in the footage. See SOF at 3–4; Gov’t’s Br. at 23. Cell-site location information is consistent with Klein’s presence at the Capitol on January 6, see SOF at 4, and he told his former partner “that he had been pepper sprayed and assaulted” that day, see Gov’t’s Br. at 23. He also confirmed in a text message exchange with a reporter that he was caught on video at the Capitol on January 6. Hr’g Tr. 48:15– 23.
Klein attempts to cast doubt on the evidence against him by arguing that “the individual [the government] purport[s] to be Mr. Klein is apparently captured wearing two different hats” and other tipsters identified the individual in the footage as “someone other than Mr. Klein.” Def.’s Br. at 22. Neither argument is convincing. Klein did lose his original red MAGA hat at some point when he exited the tunnel, but he is soon captured on video placing a different red hat on his head. See SOF at 10–13. “The contention that the defendant’s hat switch” then somehow diminishes the government’s case against him “not only ignores [that] video evidence, but also disregards” the similarity of Klein’s “facial features, build, hairstyle, and clothing,” which also serve as a basis to identify him. Gov’t’s Br. at 22–23. Furthermore, the fact that the “FBI received tips during [its] investigation that did not identify Klein” as the individual captured on camera is even less persuasive. The FBI made thorough efforts to follow up on those tips, many of which were vague and none of which could be corroborated. And three separate witnesses—two of whom had extensive and recent interactions with Klein—have confirmed his identity. See SOF at 3–4; Gov’t’s Br. at 23.
In sum, this factor weighs firmly in favor of detention, although it “is the least important.”
See United States v. Gebro,
iii. History and Characteristics of the Defendant
Klein’s history and characteristics are mixed, but tilt slightly in favor of release. As part of this factor, the Court must consider 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).
Klein is 42 years old and has lived in the Washington, DC area for his entire life. Def.’s Br. at 23. He reports to be “a devout catholic and regular parishioner” at a church in Virginia, and has substantial family in the area, including his mother, step-mother, brother, and sister-in-law. Id. He served “honorably in the Iraq War” as a marine, id. at 24, and spent the past four years as a political appointee in the State Department during the Trump Administration, id. In that role, he possessed a “Top Secret” security clearance. SOF at 3. Klein resigned on January 19, 2021 with the change in administration, at which time he began actively seeking work and occasionally working as a landscaper until the time of his arrest. Def.’s Br. at 24; Hr’g Tr. 64:19–25, 65:1–5. His criminal history—which as far as the Court can tell, consists of one 1998 arrest for failing to appear, another unspecified arrest presumably associated with that charge, and no prior convictions—is very limited. See Pretrial Services Report [ECF No. 5]. And he has no known ties to any extremist groups. These characteristics are all to Klein’s credit.
The government nonetheless contends that “this factor weighs substantially in favor of detention” because Klein’s conduct on January 6 “demonstrates an utter disregard for the law and the legitimate functions of government.” Gov’t’s Br. at 24. This contention buttresses the government’s view that Klein would not comply with any conditions of release. See id. at 25. In light of the D.C. Circuit’s recent admonition in Munchel, the Court finds that this argument is best *20 considered in the subsequent section examining whether any condition or combination of conditions would reasonably assure the safety of the community. See Munchel, 2021 WL 1149196, at *7 (“Detention cannot be based on a finding that the defendant is unlikely to comply with conditions of release absent the requisite finding of dangerousness.”). Still, the Court does agree that Klein’s decisions on January 6 show that he is willing to allow “his own personal beliefs [to] override the rule of law” which “reflect[s] poorly on his character.” Gov’t’s Br. at 24, 25.
The government also argues that “Klein abdicated his responsibilities to the country and the Constitution” on January 6 by violating his oath of office as a federal employee to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Id. at 24–25 (quoting 5 U.S.C. § 3331). The fact that, as a federal employee, Klein actively participated in an assault on our democracy to thwart the peaceful transfer of power constitutes a substantial and deeply concerning breach of trust. More so, too, because he had been entrusted by this country to handle “top secret” classified information to protect the United States’ most sensitive interests. In light of his background, Klein had, as Magistrate Judge Faruqui put it, every “reason to know the acts he committed” on January 6 “were wrong,” and yet he took them anyway. Order of Detention Pending Trial at 4. Klein’s position as a federal employee thus may render him highly culpable for his conduct on January 6. But it is less clear that his now-former employment at the State Department heightens his “prospective” threat to the community. See Munchel, 2021 WL 1149196, at *4. Klein no longer works for or is affiliated with the federal government, and there is no suggestion that he might misuse previously obtained classified information to the detriment of the United States. Nor, importantly, is he alleged to have any contacts—past or present—with individuals who might wish to take action against this country.
Ultimately, Klein’s history—including his ability to obtain a top-level security clearance—
*21
shows his potential to live a law-abiding life. His actions on January 6, of course, stand in direct
conflict with that narrative. Klein has not—unlike some other defendants who have been released
pending trial for conduct in connection with the events of January 6—exhibited remorse for his
actions. See, e.g., United States v. Cua,
iv. Nature and Seriousness of the Danger
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)(4). “Consideration of this factor encompasses much of the analysis set forth above, but
it is broader in scope,” as it requires the Court to engage in an “open-ended assessment of the
‘seriousness’ of the risk to public safety.” Cua,
As stated above, Klein’s conduct on January 6 showed an obvious disregard for the safety of others and for the country. The government has shown by clear and convincing evidence that he employed persistent force against multiple officers, repeatedly pressing a stolen riot shield against them to gain entry into the Capitol building and stop the certification of the election. And *22 the government has likewise established that he chose to position himself at the front lines of the mob for over half an hour, without once appearing to reconsider the propriety or ramifications of his conduct even as officers commanded him to stop. There is no evidence, however, that he injured an officer or anyone else, or that he destroyed any federal property—or that he sought to do either. He also has not, to the government’s knowledge, ever verbally threatened others or advocated political violence either before or after January 6. Indeed, Klein’s life otherwise has been lawful, and the nearly two months he spent outside of jail between January 6 and his arrest on March 4, when the continued threat to our democracy loomed particularly large, apparently proceeded without incident.
The degree to which Klein’s behavior on January 6 appears, at least on paper, to be an
aberration in his life makes his dangerousness challenging to assess. So, too, does his lack of
planning. The D.C. Circuit recently remarked that “those who actually assaulted police officers
and broke through windows, doors, and barricades, 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,
The government seeks to analogize Klein’s behavior to that of another rioter alleged to have pressed a stolen riot shield against an officer in the tunnel. But that defendant, after “strik[ing] multiple officers with [a] stolen riot shield,” is allegedly depicted on video using the shield to pin an officer against a door for over ten seconds as the officer screams for help, his mouth dripping blood. See Gov’t’s Opp’n to McCaughey’s Release, McCaughey, III, at 3–5. During that incident, that defendant also says to the officer, “come on man, you are going to get *23 squished just go home.” Id. at 3. That type of force is of a different magnitude than Klein’s. Furthermore, the government decided not to appeal the release of a codefendant in that same case, who is alleged to have used a stolen riot shield in the tunnel “to push against the line of officers” and to have tried to take an officer’s baton. See Aff. in Supp. of Crim. Compl. & Arrest Warrant, ECF No. 1-1, United States v. Stevens, 21-CR-040-2, at 8–9, (D.D.C. Feb. 3, 2021); Hr’g Tr. 45:10–11. And the government is not aware of any other individual—besides McCaughey—who, like Klein, was on the front line of the mob in the tunnel and is still detained pending trial. See Hr’g Tr. 45:22–25, 46:1–10.
Of course, any determination of dangerousness must rest on the specific circumstances of
each defendant. See Munchel,
The broad divisions drawn in Munchel offer some parameters for differentiating among
participants at the January 6 events. But ultimately the D.C. Circuit’s primary holding there is that
a finding of dangerousness must be predicated on a concrete determination that the defendant poses
a continued, “identified and articulable threat to the community” or to another person. Munchel,
Although the government emphasizes Klein’s “choice to use violence as a means to his
ends” as evidence that he “poses a threat regardless of the unique circumstances of January 6,
2021,” see Gov’t’s Br. at 27, it does not articulate any concrete “end[]” or “threat,” now that “the
transition [of power] has come and gone.” See Munchel,
Therefore, although it is a close call, the Court ultimately does not find that Klein poses a substantial prospective threat to the community or any other person. He does not pose no continuing danger, as he contends, given his demonstrated willingness to use force to advance his personal beliefs over legitimate government objectives. But what future risk he does present can be mitigated with supervision and other strict conditions on his release.
Klein will, among other things, be restricted to his home—where he is not alleged to have
engaged in any unlawful or even threatening conduct before—except for employment, education,
religious services, medical treatment, attorney visits, court-ordered obligations, and other pre-
approved activities. Cf. Chrestman, 2021 WL 765662, at *16 (rejecting feasibility of home
detention where defendant had engaged in planning at his home, harbored weapons there, and
destroyed evidence of his involvement in the January 6 events); Pezzola,
The government disagrees that Klein can be trusted to follow any court orders in light of
his refusal to obey officers’ commands at the Capitol and his brazen disrespect for the rule of law
in full view of law enforcement. See Gov’t’s Br. at 24–25. Although certainly relevant to the
*26
Court’s analysis, those facts are not dispositive because the same rationale applies to virtually
every rioter within the tunnel and many other individuals who contributed to the threat at the
Capitol that day. And weighed against Klein’s lack of past criminal history, lack of efforts to
obstruct the FBI’s investigation, and law-abiding behavior for the period leading up to his arrest,
there is not “clear and convincing evidence” that Klein would violate this Court’s orders upon
release. See 18 U.S.C. § 3142(f); see also Munchel,
This decision is not an easy one, but, in the absence of a concrete, prospective threat to
public safety that cannot be mitigated by strict conditions, this Court must apply “the default rule
favoring liberty.” See Cua,
II. Government’s Motion to Continue and Exclude Time Under the Speedy Trial Act The Court’s decision to release Klein pending trial substantially alters the parameters of the parties’ dispute regarding the government’s request to exclude time under the Speedy Trial Act. The government had moved for a sixty-day continuance and exclusion of time based on the complexity associated with prosecuting the offenses related to the January 6 events and the need for adequate time to prepare. Continuance Mot. at 6. Klein objected to this request primarily, though not exclusively, on the ground that “the combination of insisting” on Klein’s indefinite *27 “pretrial detention while not being able [to] afford Mr. Klein a speedy trial constitutes a violation of his due process rights.” Def.’s Br. at 28. Those concerns have dissipated given that Klein will no longer be detained.
Nonetheless, the Court must still examine the propriety of continuing this matter and excluding time under the Speedy Trial Act. Klein takes issue with the fact that he has not received discovery and that the government “does not now know when it will be prepared for trial.” Def.’s Reply at 11 (emphasis omitted); see also Def.’s Br. at 29. Since the time of Klein’s initial filing, however, the Court understands that the government has produced “all of the BWC . . . upon which the government has based its case [against Mr. Klein] to date,” see Def.’s Reply at 5, and anticipates providing by April 19 all other “specific materials that the government relied on in charging Mr. Klein, as well as related materials such as the data extraction from his cell phone and the search of his vehicle,” see Gov’t’s Br. at 29. Those steps demonstrate substantial forward progress and satisfy this Court that a further continuance is appropriate. However, in light of Klein’s concerns about the discovery delays, the Court will continue this proceeding for only thirty days to further monitor what progress has been made and ensure that the interests of justice remain served.
In its prior Order addressing speedy trial issues in this case, the Court detailed the complexity associated with discovery and now incorporates those findings here. See Order (Mar. 26, 2021) at 1–2. The Court again finds that due to the number of individuals currently charged *28 in connection with the events of January 6, the scope of the ongoing investigation, the volume and nature of potentially discoverable materials, and the reasonable time necessary for effective preparation by all parties taking into account the exercise of due diligence, the failure to grant a continuance in this proceeding would likely make a continuation of this proceeding impossible, or result in a miscarriage of justice. For the same reasons, it is unreasonable to expect adequate preparation for pretrial proceedings or trial itself within the time limits established by the Speedy Trial Act.
Hence, under 18 U.S.C. §§ 3161(h)(7)(B)(i) and (ii), the ends of justice served by granting a thirty-day continuance from April 9, 2021 to May 10, 2021 outweigh the best interest of the public and the defendant in a speedy trial. The time between April 9, 2021 and the date of this Order is likewise excluded from the speedy trial computation under 18 U.S.C. § 3161(h)(1)(H).
Conclusion
For the reasons explained above, the Court will grant defendant’s motion to revoke his detention and order that he be released on conditions, as set forth in Attachment A of the accompanying Order issued on this date. The Court will also continue this matter for thirty days— until a status conference now set for May 10, 2021 at 10:00 a.m.—and exclude the intervening time in the interests of justice under the Speedy Trial Act.
/s/ JOHN D. BATES United States District Judge Dated: April 12, 2021
Notes
[1] Citations to the April 9, 2021 hearing transcript are to a rough draft of the transcript. When finalized, the transcript will be posted to the docket. Discrepancies between the rough and final transcripts may exist.
[2] The total amount of time that Klein spent pressing the riot shield against different officers is not clear, but the government proffered that at least one of these instances lasted approximately sixty seconds. Hr’g Tr. 37:8–10.
[3] The government presented several minutes of BWC footage and some text messages at the hearing. Due to technical difficulties, however, the government was not able to present all of the footage that it had intended to show the Court and instead proceeded by proffer to explain what the remaining footage would have depicted. Because, for the most part, Klein has not contested the accuracy of the government’s proffer—only the conclusions to be drawn from it—the Court finds that these technical difficulties did not prejudice the government. See Hr’g Tr. 69:5–10.
[4] Klein does argue briefly in a footnote that it is “not clear” that § 111(b) “is its own offense, as opposed to
providing for an ‘enhanced penalty’ as the title of the subjection [sic] provides.” Def.’s Br. at 10 n.8. Klein posits
that if “Congress [had] intended the Bail Reform Act to provide for pretrial detention in cases where penalty
enhancements apply, it could have so specified, but it did not,” and therefore, “[o]n this basis alone, Mr. Klein should
not be subject to pretrial detention. Id. Klein offers no authority for this theory and does not attempt to reconcile his
argument with any case law on the subject. The Supreme Court has made clear that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey,
[6] The Court has some doubts about whether Klein “used” the stolen riot shield as a dangerous weapon. The
BRA does not define the term, but at least for purposes of § 111(b), courts have held that a dangerous weapon is any
“object that is either inherently dangerous or is used in a way that is likely to endanger life or inflict great bodily
harm.” See United States v. Chansley, 2021 WL 861079, at *7 (D.D.C. Mar. 8, 2021) (Lamberth, J.) (collecting
cases). A plastic riot shield is not an “inherently dangerous” weapon, and therefore the question is whether Klein used
it in a way “that is likely to endanger life or inflict great bodily harm.” The standard riot shield “is approximately
forty-eight inches tall and twenty-four inches wide,” see Gov’t’s Br. at 13, and the Court disagrees with defense
counsel’s suggestion that a riot shield might never qualify as a dangerous weapon, even if swung at an officer’s head,
Hr’g Tr. 18:18–25, 19:1–11. See, e.g., United States v. Johnson,
[7] At the hearing, the government also referenced a video clip of Klein waving his hand in the air while he was standing on the Capitol grounds. In a text message exchange with a reporter, Klein later described his gesture as motioning for another person “to come here.” See Hr’g Tr. 49:4–8. Although the government offered this as further evidence of Klein’s role in encouraging others to participate in the riot, see id. at 49:19–24, the Court does not find this incriminating without further context.
[8] See, e.g., Statement of Facts, ECF No. 1-1 & Min. Entry (Apr. 1, 2021), United States v. Webster, 21-CR- 208 (D.D.C.) (defendant struck officer with flagpole multiple times, tackled officer, and pinned officer to ground while trying to remove officer’s shield and gas mask); Statement of Facts, ECF No. 1-1 & Min. Entry (Apr. 8, 2021), United States v. Sabol, 21-CR-35-1 (D.D.C.) (defendant took officer’s baton and dragged officer down steps); Statement of Facts, ECF No. 1-1 & Min. Entry (Apr. 5, 2021), United States v. McKellop, 21-CR-268 (D.D.C.) (defendant pushed officers back with his hands, threw a bottle at another officer, and shoved flagpole into officer’s face); Statement of Facts, ECF No. 1-1 & Min. Entry (Mar. 10, 2021), United States v. Stager, 21-CR-35-2 (D.D.C.) (defendant struck officer on the ground with flagpole); Statement of Facts, ECF No. 1-1 & Min. Entry (Mar. 15, 2021), United States v. Foy, 21-CR-108-1 (D.D.C.) (defendant lifted hockey stick above his head and struck an officer lying on the ground multiple times); Statement of Facts, ECF No. 1-1 & Rule 5(c)(3) Docs., ECF No. 6, United States v. Jenkins, 21-CR-245 (D.D.C.) (defendant threw nine items at officers, including three stick-like objects, a wooden dresser drawer, and a flagpole); Aff. in Supp. of Crim. Compl. & Arrest Warrant, ECF No. 1-1 & Min. Entry (Feb. 9, 2021), United States v. Lang, 21-CR-53 (D.D.C.) (defendant swung bat at officers’ shields); Statement of Facts, ECF No. 1-1 & Min. Entry (Mar. 9, 2021), United States v. Mellis, 21-CR-206 (D.D.C.) (defendant repeatedly struck or attempted to strike officers’ necks between their helmets and body armor).
[9] The Court finds completely unconvincing Klein’s assertion that he was a “protestor[] caught in the middle of the officers and the mob” who was unable to turn around or retreat. See Reply in Supp. of Def.’s Mot. for Review & Revocation of Detention Order (“Def.’s Reply”) [ECF No. 27] at 5. Even if Klein did find himself “trapped” for any limited moment in time, he remained in the tunnel for approximately thirty-eight minutes, and many other individuals exited the tunnel during that time. Thus, Klein failed to retreat despite ample opportunity to do so.
[10] Other defendants in this category have also been ordered released without further appeal thus far from the government. See, e.g., Statement of Facts (Jan. 13, 2021), ECF No. 1-1 & Min. Entry (Mar. 2, 2021), United States v. Sanford, 21-CR-86 (D.D.C.) (defendant hurled a fire extinguisher that struck one officer and ricocheted off two other officers’ helmets); Statement of Facts (Feb. 16, 2021), ECF No. 1-1 & Min. Entry (Apr. 9, 2021), United States v. Coffee, 21-MJ-236 (D.D.C.) (defendant pushed a crutch into an officer’s body at the archway to the tunnel and then charged at several officers in the tunnel with the crutch).
[11] The Court does not disagree that the speedy trial analysis would be quite different were Klein to remain
detained pretrial. But Klein’s specific due process argument is not persuasive. In Salerno, the Supreme Court held
that the BRA, which permits pretrial detention in certain “carefully limited exception[s],” facially comports with due
process because it serves a regulatory purpose, and is not punitive in nature.
[12] Moreover, as Klein recognizes, in light of the “exigent circumstances created by the COVID-19 pandemic,” Chief Judge Howell has entered a District-wide Standing Order excluding time through August 31, 2021 under 18 U.S.C. § 3161(h)(7)(B)(i) in all criminal cases “that cannot be tried consistent with [] health and safety protocols and limitations.” See Standing Order No. 21-10 (BAH) (Mar. 5, 2021); Def.’s Br. at 31 n.12.