United States v. KleinUnited States v. Klein
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, 481 U.S. 739, 755 (1987), and the government‘s burden is thus a heavy one. The Court concludes on the evidence presented that the government has not met its burden. For the following reasons, then, the Court will order Klein‘s release from custody pending trial subject to strict conditions. The Court will also grant a thirty-day continuance and exclude the intervening time under the Speedy Trial Act in the interests
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.“) 28:22–24.1
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
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
On March 19, 2021, Klein was indicted by a grand jury on eight counts: Civil Disorder, in violation of
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
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.3 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
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.”
Under the Bail Reform Act (“BRA“),
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.”
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
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.”
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.”
The first question then is whether
(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.
At least six circuits have held that
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, 980 F.3d at 265; Bullock, 970 F.3d at 217; United States v. Bates, 960 F.3d 1278, 1287 (11th Cir. 2020); United States v. Kendall, 876 F.3d 1264, 1270 (10th Cir. 2017); United States v. Taylor, 848 F.3d 476, 494 (1st Cir. 2017); United States v. Rafidi, 829 F.3d 437, 445–46 (6th Cir. 2016); United States v. Hernandez-Hernandez, 817 F.3d 207, 217 (5th Cir. 2016).5 This Court agrees.
As several courts have observed, to violate § 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.‘” Gray, 980 F.3d at 266 (quoting
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, 863 F.3d 679 (7th Cir. 2017), is instructive” because there the court concluded that “Indiana‘s resisting law enforcement statute“—which is similarly worded to § 111(b)—did not qualify as a “crime of
Because Klein is eligible for pretrial detention due to the fact that he has been charged under
i. Nature and Circumstances of the Offense
The Court first considers “the nature and circumstances of the offense charged.”
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
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
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
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, 2021 WL 1026125, at *9 (Kelly, J.) (ordering pretrial detention for defendant “engaged in planning and coordination with other Proud Boys, including by arranging concealed means of communicating by radio during the riot“); Chrestman, 2021 WL 765662, at *2–3(ordering pretrial detention for defendant who marched with the Proud Boys to the Capitol, urged the crowd to “take” the Capitol, and then “led his [four] co-conspirators in deliberate efforts to prevent Capitol Police from closing the barriers“). Therefore, although Klein occasionally worked in tandem with the mob and contributed to its overall efforts, the Court respectfully disagrees with Magistrate Judge Faruqui that Klein played any real leadership role within the tunnel.
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
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
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.9 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.
ii. The Weight of the Evidence
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
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, 948 F.2d 1118, 1121–22 (9th Cir. 1991).
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.”
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
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
Ultimately, Klein‘s history—including his ability to obtain a top-level security clearance—
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.”
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
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, 2021 WL 1149196, at *8. Klein‘s actions may place in him in the former category, but just barely—his conduct does not approach the high end of the spectrum of violence that occurred and was threatened that day.
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
Of course, any determination of dangerousness must rest on the specific circumstances of each defendant. See Munchel, 2021 WL 1149196, at *7 (“[W]hether a defendant poses a particular threat depends on the nature of the threat identified and the resources and capabilities of the defendant.“). But where so much of the proffered justification for Klein‘s detention relies on the type of force he employed, the Court sees some relevance in the fact that several defendants who also face charges under
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, 2021 WL 1149196, at *4 (quoting Salerno, 481 U.S. at 751). As part of that analysis, the D.C. Circuit advised the district court to consider “the specific circumstances that made it possible, on January 6, for [the defendant] to threaten the peaceful transfer of power.” Id. at *8. In this respect, this Court finds that “the presence of the group” somewhat impacted Klein‘s “ability to obstruct the vote and to cause danger to the community.” Id. His most forceful conduct was directed to advancing and maintaining the mob‘s position in the tunnel, not toward inflicting injury, and outside that context, the nature of his actions and the force that he employed would not have had the same effect.
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, 2021 WL 1149196, at *10 (Katsas, J., concurring in part and dissenting in part); see id. at *8 (Wilkins, J.) (explaining that defendants’
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, 2021 WL 1026125, at *9 (similar). He will be prohibited from entering the Capitol grounds, attending any type of political protest, contacting other participants in the events of January 6, and possessing firearms or other weapons. And his compliance with these conditions will be ensured through GPS monitoring.
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
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, 2021 WL 918255, at *8; see also Salerno, 481 U.S. at 755 (“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.“). Hence, the Court will order Klein released pending trial, subject to the conditions set forth in Attachment A of the accompanying Order issued on this date.
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
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
Hence, under
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