United States v. Whitton ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Crim. Action No. 21-35-5 (EGS)
JACK WADE WHITTON,
Defendant.
MEMORANDUM OPINION
Defendant Jack Wade Whitton (“Mr. Whitton”) has been
charged in a federal indictment with eight serious misdemeanor
and felony offenses arising from his participation in the events
at the U.S. Capitol on January 6, 2021. See Superseding
Indictment, ECF No. 23. He was arrested on these charges on
April 1, 2021, and at his initial appearance before Magistrate
Judge Regina D. Cannon on the United States District Court for
the Northern District of Georgia, the government moved for Mr.
Whitton to be detained without bond pending trial. See Rule
5(c)(3) Documents, ECF No. 38 at 14-16. 1 On April 2, 2021, after
holding a detention hearing, Magistrate Judge Cannon denied the
government’s motion and ordered Mr. Whitton released. See id. at
18-20. Upon the government’s oral request, Magistrate Judge
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
Cannon granted a stay of the release pending the government’s
appeal, and on April 5, 2021, the government filed its pending
motion in this Court, seeking: (1) the stay of Mr. Whitton’s
release to remain in place while this Court reviewed Magistrate
Judge Cannon’s release order; and (2) this Court’s review and
revocation of the release order pursuant to 18 U.S.C. §
3145(a)(1). See Gov’t’s Mot. for Emergency Stay and Review and
Revocation of Release Order (“Gov’t’s Mot.”), ECF No. 35. The
Court granted the government’s request for an emergency stay.
See Min. Order (Apr. 5, 2021). Now pending before the Court is
the government’s request for review and revocation of Magistrate
Judge Cannon’s release order. Gov’t’s Mot., ECF No. 35. The
Court held a hearing on the government’s motion on April 12,
2021. See Min. Entry (Apr. 12, 2021).
Upon careful consideration of the motion, opposition, and
reply thereto, the arguments set forth at the April 12, 2021
hearing, the applicable law, and the entire record herein, the
government’s motion is GRANTED.
I. Background
Mr. Whitton and four co-defendants are alleged to have
forcibly assaulted, resisted, opposed, impeded, intimidated, or
interfered with Metropolitan Police Department (“MPD”) officers
while they were attempting to help the U.S. Capitol Police
maintain the security of the U.S. Capitol on January 6, 2021.
2
See Superseding Indictment, ECF No. 23 at 1-4. The sixteen-count
superseding indictment, filed March 12, 2021, charges Mr.
Whitton with the following offenses: (1) Assaulting, Resisting,
or Impeding Certain Officers Using a Dangerous Weapon, in
violation of 18 U.S.C. §§ 111(a)(1) and (b); (2) Assaulting,
Resisting, or Impeding Certain Officers, in violation of 18
U.S.C. § 111(a)(1); (3) Civil Disorder, in violation of 18
U.S.C. § 231(a)(3); (4) a second count of Civil Disorder, in
violation of 18 U.S.C. § 231(a)(3); (5) Entering and Remaining
in a Restricted Building or Grounds with a Deadly or Dangerous
Weapon, in violation of 18 U.S.C. §§ 1752(a)(1) and (b)(1)(A);
(6) Disorderly and Disruptive Conduct in a Restricted Building
or Grounds with a Deadly or Dangerous Weapon, in violation of 18
U.S.C. §§ 1752(a)(2) and (b)(1)(A); (7) Engaging in Physical
Violence in a Restricted Building or Grounds with a Deadly or
Dangerous Weapon, in violation of 18 U.S.C. §§ 1752(a)(4) and
(b)(1)(A); and (8) Act of Physical Violence in the Capitol
Grounds or Buildings, in violation of 40 U.S.C. § 5104(e)(2)(F).
Id. at 2, 4, 5, 6, 7, 9.
The Court sets out below the evidence proffered by the
government in support of its motion 2 as well as a brief overview
2 At a detention hearing, the government may present evidence by
way of a proffer. See United States v. Smith, 79 F.3d 1208,
1209-10 (D.C. Cir. 1996).
3
of the procedural history of this case.
A. Mr. Whitton’s Conduct on January 6, 2021
In the afternoon of January 6, 2021, Mr. Whitton was
present at the U.S. Capitol when protestors stormed the building
and attacked U.S. Capitol Police and MPD officers during the
riot that disrupted the joint session of the U.S. Congress that
had convened to certify the vote count of the Electoral College
of the 2020 Presidential Election. Gov’t’s Mot., ECF No. 35 at
2-3. At around 2:20 p.m., members of the U.S. House of
Representatives and U.S. Senate, including the Vice President of
the United States, were forced to evacuate the chambers of
Congress after rioters had forced entry into the building. Id.
at 3-4.
While some rioters entered the U.S. Capitol interior,
hundreds of other rioters remained gathered around the perimeter
of the building into the late afternoon. At approximately 4:20
p.m., MPD officers assumed a post in an archway at the access
point of the U.S. Capitol’s lower western terrace to maintain
the security of the building. Id. at 4. Among the MPD officers
at that post were Officer A.W., Officer B.M., and Officer C.M.
Id. at 4-5. Shortly after assuming the post, all three officers
were “brutally” assaulted by members of the mob who were
gathered outside of the U.S. Capitol, including Mr. Whitton. Id.
Video footage provided by the government displays the violent
4
attacks that left the officers wounded and in need of medical
care. See Exs. 1, 2, and 3 to Gov’t’s Mot. As a result of the
attacks, Officer A.W. sustained a laceration that caused him to
bleed from the head and required staples to close, and Officer
B.M. sustained an abrasion to his nose and right cheek and minor
bruising to his left shoulder. Gov’t’s Mot., ECF No. 35 at 6.
The government alleges Mr. Whitton participated in, and in
fact instigated, the violent assaults of Officer A.W. and
Officer B.M. The government proffers that at approximately 4:27
p.m., an unknown individual charged at Officer A.W., who was
posted in the lower western terrace archway, grabbed his face,
and knocked him to the ground. Id. at 5. As Officer A.W. lay on
the ground, Mr. Whitton began striking at the group of officers
with a metal crutch, and at Officer B.M. in particular. Id. As
the MPD officers attempted to defend themselves against the
members of the mob who were converging on them with various
weapons, Mr. Whitton climbed over a railing, kicked at Officer
A.W. while standing overtop of him, grabbed Officer B.M. by the
head and helmet, pulled him over Officer A.W., and dragged him
face-first down the U.S. Capitol steps into the violent mob with
the assistance of co-defendant Jeffrey Sabol. Id. at 5, 6
(citing Storyful 3 Video Footage, Ex. 1 to Gov’t’s Mot.), 8
3 According to its website, Storyful is a “news and intelligence
agency” owned by News Corp. that was founded as “the first
5
(citing Officer A.W.’s Body Worn Camera (“BWC”) Footage, Ex. 2
to Gov’t’s Mot.), 10 (citing Officer C.M.’s BWC Footage, Ex. 3
to Gov’t’s Mot.). Once Mr. Whitton and others had pulled Officer
B.M. into the crowd, and as Officer B.M. lay on his stomach
surrounded by rioters, co-defendant Peter Stager began to beat
Officer B.M. with an American flag pole, and other rioters
repeatedly struck him with different objects. Id. Officer B.M.
recalls being struck in the helmet multiple times with objects,
and he believes the rioters had attempted to take him as deep
into the crowd as possible. Id. at 6. Similarly, Officer A.W.
recalls being dragged into the crowd after Mr. Whitton first
pulled Officer B.M. down the steps. Id. Rioters ripped off
Officer A.W.’s helmet; stripped him of his police baton, MPD-
issued cellular phone, and gas mask; maced him; kicked him;
struck him with poles; and stomped on him. Id.
Approximately twenty minutes after the attacks on Officers
A.W. and B.M., the government alleges Mr. Whitton engaged in
another round of assaults against MPD officers. See Gov’t’s
Reply, ECF No. 48 at 2. According to the government, BWC footage
and U.S. Capitol surveillance footage confirms that at around
4:48 p.m., Mr. Whitton walked up to a police line, was
social media newswire . . . to break the news faster and utilize
social content to add context to reporting.” See About Storyful,
Storyful, https://storyful.com/about/ (last visited Apr. 20,
2021).
6
confronted by a protestor who told him and others to stop,
retreated, but then ran back to the line of officers, kicked
them, and yelled “you’re going to die tonight.” Id.
B. The Government’s Investigation of Mr. Whitton
On January 17, 2021, a confidential source (“CS-1”), who
has known Mr. Whitton since high school and attended the same
CrossFit gym with Mr. Whitton and his girlfriend, submitted a
tip to the FBI, identifying Mr. Whitton as one of the
individuals who attacked Officer B.M. on the lower western
terrace of the U.S. Capitol on January 6, 2021. Gov’t’s Mot.,
ECF No. 35 at 12, 14. The FBI interviewed CS-1, who identified
Mr. Whitton and his girlfriend in photographs obtained from
video footage showing attendees of a “Stop the Steal” rally the
day before the storming of the U.S. Capitol. Id. at 13. CS-1
also identified Mr. Whitton in a photograph of the lower western
terrace of the U.S. Capitol on January 6, 2021. Id.
On February 25, 2021, law enforcement interviewed the
manager of the CrossFit gym, who also identified Mr. Whitton in
one of the photographs from the “Stop the Steal” rally on
January 5, 2021, and a photograph from the U.S. Capitol on
January 6, 2021. Id. at 14.
The government also obtained numerous text messages between
Mr. Whitton and acquaintances regarding the events of January 6.
From CS-1, the FBI obtained a photograph of a text message that
7
Mr. Whitton sent to a mutual acquaintance that included a photo
of a bloody and bruised right hand and these messages: (1) “This
is from a bad cop” and (2) “Yea I fed him to the people. Idk his
status. And don’t care tbh.” Id. at 13-14. After additional
investigation revealed that Mr. Whitton had used his cellphone
to text with other individuals about the events of January 6,
law enforcement obtained text messages in which he stated as
follows: (1) “I’m banned for 3 days from social media so I can’t
upload any photos or videos or tell anyone what happened,” Id.
at 15; (2) “The police answered to that . . . and bad,” id.; (3)
“I didn’t actually get in the building but everything else I was
in the middle of so I can let you know,” Gov’t’s Reply, ECF No.
48 at 3; (4) “I didn’t see weapons. Only organic sh** like 2x4
and pots and sh**. On our side,” id.; (5) he watched “the cops”
use weapons such as tear gas and rubber bullets, “one girl got
shot,” and “I saw them carrying her out. Again, we got wild. But
not until we got attached [sic] for a couple hours,” id.; (6)
“Hey anything you want to know call me anytime. I’m gonna stay
of [sic] social media for a minute,” id.; (7) “When I got there,
they already had the building back and were guarding the doors
and entrance ways and fighting people back,” and “We didn’t know
until we got back to the hotel people actually go inside. None
of the crowd did there did,” id.at 4.
8
C. Procedural Background
On April 1, 2021, Mr. Whitton was arrested in his home
State of Georgia for the charges in the Superseding Indictment.
Arrest Warrant, ECF No. 33. Mr. Whitton had an initial
appearance in the United States District Court for the Northern
District of Georgia before Magistrate Judge Cannon, at which
time the government moved for Mr. Whitton to be detained pending
trial. See Rule 5(c)(3) Documents, ECF No. 38 at 14-16.
Magistrate Judge Cannon held a detention hearing the next day,
on April 2, 2021, and she ordered Mr. Whitton released. See id.
at 18-20. The government thereafter made an oral motion to stay
Mr. Whitton’s release pending its appeal of the release order.
See Gov’t’s Mot., ECF No. 35 at 2. Magistrate Judge Cannon
granted that request, staying Mr. Whitton’s release pending the
government’s appeal. Id.
On April 5, 2021, the government filed its pending motion
in this Court, seeking: (1) the stay of Mr. Whitton’s release to
remain in place while this Court reviewed Magistrate Judge
Cannon’s release order; and (2) this Court’s review and
revocation of the release order pursuant to 18 U.S.C. §
3145(a)(1). See Gov’t’s Mot., ECF No. 35 at 2. That same day,
the Court granted the government’s request for an emergency stay
of the order releasing Mr. Whitton pretrial. See Min. Order
(Apr. 5, 2021). On the Court’s order, Mr. Whitton filed a
9
response to the government’s motion for revocation of the
release order on April 8, 2021, and the government filed a reply
on April 10, 2021.
II. Legal Standard
The Bail Reform Act, 18 U.S.C. § 3141 et seq., provides
that a hearing shall be held to determine whether a defendant
should be detained pretrial upon a motion by the government if
the defendant is charged with an offense falling in one of five
enumerated categories. 18 U.S.C. § 3142(f)(1)(A)-(E). As
relevant here, a detention hearing shall be held pursuant to
Section 3142(f)(1)(A) if a defendant is charged with a “crime of
violence,” or pursuant to Section 3142(f)(1)(E) if a defendant
is charged with any felony that is not otherwise a crime of
violence that involves the possession or use of any dangerous
weapon. 18 U.S.C. § 3142(f).
If a detention hearing is held pursuant to Section 3142(f),
a judicial officer may detain a defendant pending trial if the
judicial officer determines that “no condition or combination of
conditions will reasonably assure the appearance of the person
as required and the safety of any other person and the
community.” Id. § 3142(e). “In common parlance, the relevant
inquiry is whether the defendant is a ‘flight risk’ or a ‘danger
to the community.’” United States v. Munchel, No. 21-3010, 2021
WL 1149196, at *4 (D.C. Cir. Mar. 26, 2021) (quoting United
10
States v. Vasquez-Benitez, 919 F.3d 546, 550 (D.C. Cir. 2019)).
When the basis for pretrial detention is the defendant’s danger
to the community, the government is required to demonstrate the
appropriateness of detention pursuant to subsection (e) by clear
and convincing evidence. 18 U.S.C. § 3142(f).
Certain conditions and charged offenses trigger a
rebuttable presumption that no condition or combination of
conditions will reasonably assure the safety of any person and
the community. 18 U.S.C. § 3142(e)(2)-(3) (providing that a
rebuttable presumption arises pursuant to subsection (e)(2) if
the defendant committed a “crime of violence” while on release
pending trial for another offense and not more than five years
after the date of conviction or the release of the person from
imprisonment for that offense, or pursuant to subsection (e)(3)
if there is probable cause to believe the defendant committed
one of a subset of offenses listed in that section). 4
In cases that do not involve the conditions and charged
offenses that trigger a rebuttable presumption of detention, the
4 The subset of offenses triggering a rebuttable presumption
under subsection (e)(3) include the following: “(A) an offense
for which a maximum term of imprisonment of ten years or more is
prescribed in the Controlled Substances Act . . . the Controlled
Substances Import and Export Act . . . , or chapter 705 of title
46; (B) an offense under section 924(c), 956(a), or 2332b of
this title; (C) an offense listed in section 2332b(g)(5)(B) of
title 18, United States Code, for which a maximum term of
imprisonment of 10 years or more is prescribed; (D) an offense
under chapter 77 of this title for which a maximum term of
11
Court considers the following factors to determine whether
detention is required to ensure the appearance of the person and
the safety of any other person and the community:
1. The nature and circumstances of the offense
charged, including whether the offense is a
crime of violence;
2. The weight of the evidence;
3. The history and characteristics of the
person, including
A. The person’s character, physical
and mental condition, family
ties, employment, financial
resources, length of residence in
the community, community ties,
past conduct, history relating to
drug or alcohol abuse, criminal
history, and record concerning
appearance at court proceedings;
and
B. Whether, at the time of the
current offense or arrest, the
person was on probation, on
parole, or on other release; and
4. The nature and seriousness of the danger to
any person or the community that would be
posed by the person’s release.
18 U.S.C. § 3142(g); see also Munchel, 2021 WL 1149196, at *4.
If a magistrate judge orders a defendant released, the
government “may file, with the court having original
jurisdiction over the offense, a motion for revocation or
amendment of the order.” 18 U.S.C. § 3145(a). Although the Court
imprisonment of 20 years or more is prescribed; or (E) an
offense involving a minor victim under section 1201, 1591, 2241,
2244(a)(1), 2245, 2251, 2251A, 2252(a)(1), 2252(a)(2),
2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4),
2260, 2421, 2422, 2423, or 2425 of this title.” 18 U.S.C. §
3142(e)(3)(A)-(E).
12
of Appeals for the District of Columbia Circuit (the “D.C.
Circuit”) has not squarely decided the issue of what standard of
review a district court should apply to review of a magistrate’s
detention or release order, see Munchel, 2021 WL 1149196, at *5;
courts in this district have held that such detention decisions
are reviewed de novo. See United States v. Hunt, 240 F. Supp. 3d
128, 132-33 (D.D.C. 2017); United States v. Chrestman, No. 21-
mj-218 (ZMF), 2021 WL 765662, at *5-*6 (D.D.C. Feb. 26, 2021).
Accordingly, the Court will review the decision to detain Mr.
Whitton de novo.
III. Analysis
A. Mr. Whitton is Eligible for Pretrial Detention Pursuant
to 18 U.S.C. § 3142(f)(1)(A)
As a threshold matter, the government correctly argues, and
Mr. Whitton does not dispute, that Mr. Whitton is eligible for
pretrial detention pursuant to 18 U.S.C. § 3142(f)(1)(A). See
Gov’t’s Mot., ECF No. 35 at 15, 17. Under the Bail Reform Act,
unless a defendant poses a serious risk of flight or of
attempting to obstruct justice, he is only eligible for pretrial
detention if he is charged with an offense listed in one of the
five enumerated categories of Section 3142(f)(1)—i.e., “the most
serious” crimes. See 18 U.S.C. § 3142(f)(1)(A)-(B), (f)(2);
United States v. Singleton, 182 F.3d 7, 13 (D.C. Cir. 1999)
(“Congress limited pretrial detention of persons who are
13
presumed innocent to a subset of defendants charged with crimes
that are ‘the most serious’ compared to other federal offenses.”
(quoting United States v. Salerno, 481 U.S. 739, 747 (1987))).
Mr. Whitton is charged under 18 U.S.C. §§ 111(a) and (b)
with Assaulting, Resisting, or Impeding Certain Officers Using a
Dangerous Weapon. See Superseding Indictment, ECF No. 23 at 2.
For the reasons the Court recently set out in its Memorandum
Opinion regarding Mr. Sabol’s request for pretrial release, a
defendant charged under 18 U.S.C. §§ 111(a)(1) and (b) is
charged with a crime of violence. See Mem. Op., ECF No. 56 at
15-20 (citing Gray v. United States, 980 F.3d 264, 266-67 (2d
Cir. 2020); United States v. Kendall, 876 F.3d 1264, 1270 (10th
Cir. 2017); United States v. Taylor, 848 F.3d 476, 492-493 (1st
Cir. 2017); United States v. Juvenile Female, 566 F.3d 943, 948
(9th Cir. 2009)). Accordingly, because using a deadly or
dangerous weapon while assaulting a federal officer (or, in this
case, an MPD officer assisting a federal officer) is a crime of
violence, Mr. Whitton is eligible for pretrial detention under
18 U.S.C. § 3142(f)(1)(A). 5
5 The government also argues that Mr. Whitton is eligible for
detention pursuant to 18 U.S.C. § 3142(f)(1)(E), which permits
detention for a defendant charged with “any felony that is not
otherwise a crime of violence that involves the possession or
use of . . . any other dangerous weapon.” The Court need not
address Section 3142(f)(1)(E) as a basis for Mr. Whitton’s
eligibility for pretrial detention because the Court finds that
14
B. No Condition or Combination of Conditions Will Reasonably
Assure the Safety of Any Other Person and the Community
Having found that Mr. Whitton is eligible for pretrial
detention, the Court must determine whether any “condition or
combination of conditions will reasonably assure the appearance
of [Mr. Whitton] as required and the safety of any other person
and the community.” 18 U.S.C. § 3142(e)(1). The government does
not argue that Mr. Whitton is a flight risk, so the Court will
focus its inquiry on whether Mr. Whitton is a danger to any
other person or the community. For this inquiry, the Court “must
identify an articulable threat posed by the defendant to an
individual or the community,” though “[t]he threat need not be
of physical violence, and may extend to ‘non-physical harms such
as corrupting a union.’” Munchel, 2021 WL 1149196, at *7
(quoting United States v. King, 849 F.2d 485, 487 n.2 (11th Cir.
1988)). “The threat must also be considered in context,” and
“[t]he inquiry is factbound.” Id. (citing United States v.
Tortora, 922 F.2d 880, 888 (1st Cir. 1990)). Mr. Whitton and the
government agree that in determining whether Mr. Whitton is a
danger to the community, the Court considers the 18 U.S.C. §
3142(g) factors including: (1) “the nature and circumstances of
the offense charged”; (2) “the weight of the evidence”; (3) “the
he is eligible for detention pursuant to 18 U.S.C. §
3142(f)(1)(A) for a “crime of violence.”
15
history and characteristics” of the defendant; and (4) “the
nature and seriousness of the danger to any person or the
community that would be posed by the [defendant’s] release.” 18
U.S.C. § 3142(g); see Gov’t’s Mot., ECF No. 35 at 17; Def.’s
Opp’n, ECF No. 45 at 2-3.
In consideration of these requisite factors, as set forth
below, the Court concludes that clear and convincing evidence
supports a finding that no condition or combination of
conditions will reasonably assure the safety of the community.
Accordingly, the Court orders that Mr. Whitton be detained
pending trial. See 18 U.S.C. § 3142(e)(1).
1. Nature and Circumstances of the Offense
The first factor the Court must consider is the nature and
circumstances of the offense charged, “including whether the
offense is a crime of violence.” 18 U.S.C. § 3142(g)(1).
The government asks the Court to weigh the serious offenses
with which Mr. Whitton is charged as well as the violent conduct
underlying those offenses when determining whether he presents a
danger to the community. The government emphasizes that during
the “siege of the U.S. Capitol, multiple law enforcement
officers were assaulted by an enormous mob, which included
numerous individuals with weapons, bulletproof vests, and pepper
spray who were targeting the officers protecting the Capitol.”
Gov’t’s Reply, ECF No. 48 at 7. The government asserts that Mr.
16
Whitton “was involved in some of the most violent assaults on
law enforcement that occurred” that day, and for his active
participation in the riots and the attacks on MPD officers, he
“is facing charges of violating 18 U.S.C. 111(a)(1) and (b);
111(a)(1); and 18 U.S.C. 231(a)(3), which are serious felony
offenses.” Id. at 8. In fact, the government contends, Mr.
Whitton was not just a participant, “he himself was the
instigator” of the attacks on the MPD officers at the U.S.
Capitol’s lower western terrace at around 4:30 p.m. on January
6, 2021. Hr’g Tr., ECF No. 52 at 12:2-12. “[W]hen he climbed
over that railing with the metal crutch in his hand, [that] is
very much the reason why all these assaults were able to happen,
and happened in quick succession.” Id. The government also
discovered additional evidence that places Mr. Whitton at a
second confrontation with law enforcement about twenty minutes
after the first series of attacks for which Mr. Whitton has been
charged. Gov’t’s Reply, ECF No. 48 at 2-3. The government argues
the first violent series of attacks and the second confrontation
with law enforcement, combined with text message evidence that
shows “the defendant’s continued state of mind and continued
callous disregard for officers’ lives, is why he should be
detained, as he poses a clear threat and danger to the
community.” Hr’g Tr., ECF No. 52 at 4:9-23.
17
Mr. Whitton acknowledges that the charges against him “are
serious,” but he argues that “they are not continuing in nature
or even likely to be repeated in the future.” Def.’s Opp’n, ECF
No. 45 at 3. Mr. Whitton frames the issue as whether “the very
serious allegations against [him] render him ineligible for a
bond just in and of themselves, because there’s nothing in Mr.
Whitton’s background or history to suggest that he’s presently,
today, . . . a danger to the community or to any individual.”
Hr’g Tr., ECF No. 52 at 21:19-25. He points out that there is no
evidence that he was “part of any militia or militant group
intent on overthrowing the government or harming government
officials,” or that he “espoused violence against law
enforcement officials on social media, or in any other format,
either before January 6, 2021 or afterwards.” Def.’s Opp’n, ECF
No. 45 at 3. He also notes, with respect to the events of
January 6, 2021, that he did not carry any type of tactical gear
like helmets, body armor or zip ties. Hr’g Tr., ECF No. 52 at
22:7-13.
Mr. Whitton’s arguments concerning the weighing of the
nature of the offense versus his history and characteristics are
best suited for consideration under the last 3142(g) factor. See
18 U.S.C. § 3142(g)(4) (“the nature and seriousness of the
danger to any person or the community that would be posed by the
person’s release”). The Court discusses those arguments infra
18
Section III, Part B.4. Here, the Court considers just the
“nature and circumstances of the offense charged,” see id. §
3142(g)(1), and easily finds that this factor weighs against Mr.
Whitton’s release pending trial.
On January 6, 2021, while the U.S. Congress was convened at
the seat of our nation’s democracy, Mr. Whitton and “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; engaged in violent
attacks on law enforcement officers charged with protecting the
Capitol; and delayed the solemn process of certifying a
presidential election.” United States v. Cua, No. 21-107 (RDM),
2021 WL 918255, at *3 (D.D.C. Mar. 10, 2021). As Judge Randolph
Moss articulated, “[t]his was a 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.” Id.And as the D.C. Circuit explained, “[i]t cannot be gainsaid that
the violent breach of the [U.S.] Capitol on January 6 was a
grave danger to our democracy, and that those who participated
could rightly be subject to detention to safeguard the
community.” See Munchel, 2021 WL 1149196, at *8.
Nonetheless, and despite the serious and unsettling nature
of the events that transpired at the U.S. Capitol on January 6,
2021, the D.C. Circuit has made clear that detention is not
19
appropriate in all cases involving defendants who participated
in the events (“Capitol Riot defendants”). See Munchel, 2021 WL
1149196, at *8. Accordingly, the Court considers the nature and
circumstances of the specific offenses and underlying conduct
with which each defendant is charged. Chrestman, 2021 WL 765662,
at *7. The Court must “adequately demonstrate that it considered
whether [Mr. Whitton] pose[s] an articulable threat to the
community in view of [his] conduct on January 6, and the
particular circumstances of January 6.” Munchel, 2021 WL
1149196, at *8. To aid in this consideration, Chief Judge Howell
has articulated “guideposts” for assessing “the comparative
culpability of a given defendant in relation to fellow rioters.”
Chrestman, 2021 WL 765662, at *7-*8. The Court finds these
guideposts persuasive for the purpose of differentiating among
Capitol Riot defendants: (1) whether the defendant has been
charged with felony or misdemeanor offenses; (2) the extent of
the defendant’s prior planning; (3) whether the defendant used
or carried a dangerous weapon; (4) evidence of coordination with
other protestors before, during, or after the riot; (5) whether
the defendant assumed a formal or de facto leadership role in
the events of January 6, 2021, for example “by encouraging other
rioters’ misconduct” such as “to confront law enforcement”; and
(6) the defendant’s “words and movements during the riot”—e.g.,
whether the defendant “remained only on the grounds surrounding
20
the Capitol” or stormed into the Capitol interior, or whether
the defendant “injured, attempted to injure, or threatened to
injure others.” Id. These factors, “[t]aken together, as applied
to a given defendant, . . . are probative of ‘the nature and
circumstances of the offense charged,’ 18 U.S.C. § 3142(g)(1),
and, in turn, of the danger posed by the defendant,” as relevant
to the fourth Section 3142(g) factor. Id. at *9.
At least four of the six Chrestman factors strongly support
a finding that Mr. Whitton’s comparative culpability in relation
to his fellow rioters is high. First, Mr. Whitton has been
charged with multiple felonies. See Superseding Indictment, ECF
No. 23. “Felony charges are by definition more serious than
misdemeanor charges; the nature of a felony offense is therefore
substantially more likely to weigh in favor of pretrial
detention than the nature of a misdemeanor offense.” Chrestman,
2021 WL 765662, at *7. Moreover, Section 3142(g)(1) specifically
directs the Court to consider whether a defendant has been
charged with a crime of violence, and at least one of the
charged felonies—using a deadly weapon while assaulting an MPD
officer who was assisting federal officials protect the U.S.
Capitol—is a crime of violence. See supra Section III, Part A.
Second, Mr. Whitton carried and used a metal crutch as a
dangerous weapon during the riot. It is not clear where Mr.
Whitton acquired the crutch, and he may not have come to the
21
U.S. Capitol armed with the crutch as a weapon, but as he
explained in a text message to an acquaintance, rioters
improvised by using “organic” weapons during the attacks. See
Gov’t’s Reply, ECF No. 48 at 15. His willingness to seek out an
“organic” weapon, which video evidence shows he used in a
chilling assault on MPD officers, speaks to the gravity of the
offenses with which he has been charged, as well as the danger
he poses not just to his community, but to the American public
as a whole. See Chrestman, 2021 WL 765662, at *8.
Third, in the Court’s view, Mr. Whitton assumed a de facto
leadership role in the assaults on MPD officers on the lower
western terrace. As the government correctly points out, Mr.
Whitton was “unlike others, who joined in the assaults after
they began.” Gov’t’s Reply, ECF No. 48 at 8. Instead, he was the
instigator. Id.; see Storyful Video, Ex. 1 Gov’t’s Mot. (showing
Mr. Whitton—wearing a green jacket, grey backpack, and white
hat, and wielding a metal crutch—jumped a barrier at 00:08-00:10
and then dragged Officer B.M. from the archway and exposed him
to the crowd on the steps at 00:15-00:22). He led the assault on
Officer B.M., as he was the first to pull the officer away from
his post and into the crowd. Id. In the seconds that followed,
the situation on the lower western terrace went from dangerous
to potentially life-threatening for the MPD Officers: Officer
B.M. sustained beatings from the angry mob surrounding him on
22
the Capitol steps; Officer A.W. was then also dragged into the
crowd, following the lead Mr. Whitton had set in dragging
Officer B.M. down the steps; and Officer C.M. was also attacked
as he tried to assist the other officers. Id. at 00:14-00:47.
Mr. Whitton bragged in a text message to an acquaintance that he
“fed [Officer B.M.] to the people.” Gov’t’s Mot., ECF No. 35 at
13-14. By leading his co-defendants in dragging Officer B.M.
into the violent and angry mob, he effectively “urg[ed] rioters
. . . to confront law enforcement,” which undoubtedly “inspired
further criminal conduct on the part of others.” See Chrestman,
2021 WL 765662, at *8. This action “enhances the defendant’s
responsibility for the destabilizing events of January 6 and
thus the seriousness of his conduct.” Id.Fourth, Mr. Whitton’s words and movements during the riot
indicate he acted deliberately and dangerously. Ample video,
photographic, and text message evidence proffered by the
government confirms Mr. Whitton’s violent acts, which are among
some of the most violent acts that took place that day according
to the government. See Gov’t’s Reply, ECF No. 48 at 8. For
purposes of evaluating a Capitol riot defendant’s dangerousness,
the D.C. Circuit has said that “those [rioters] who actually
assaulted police officers and . . . those who aided, conspired
with, planned, or coordinated such actions, are in a different
category of dangerousness than those who cheered on the violence
23
or entered the Capitol after others cleared the way.” Munchel,
2021 WL 1149196, at *8. “Grave concerns” are implicated by Mr.
Whitton’s conduct, which included (1) using a metal crutch to
strike MPD officers, see Storyful Video, Ex. 1 to Gov’t’s Mot.
at 00:01-00:07; Officer A.W. BWC Footage, Ex. 2 to Gov’t’s Mot.
at 00:30-00:33; (2) kicking Officer A.W. while he was lying on
the ground, see Officer A.W. BWC Footage, Ex. 2 to Gov’t’s Mot.
at 00:33, 00:37-00:39; (3) dragging Officer B.M. into the
violent mob of rioters on the steps of the U.S. Capitol, see
Storyful Video, Ex. 1 to Gov’t’s Mot. at 00:15-00:20; Officer
A.W. BWC Footage, Ex. 2 to Gov’t’s Mot. at 00:41; Officer C.M.
BWC Footage, Ex. 3 to Gov’t’s Mot. at 00:41-00:45; and (4) later
kicking at officers in a second and separate confrontation with
law enforcement, see Surveillance Footage, Ex. 5 to Gov’t’s Mot.
at 00:14-00:16, 00:40-00:42; see also Chrestman, 2021 WL 765662,
at *8. Mr. Whitton’s words are likewise extremely troubling and
reflective of the serious nature of his conduct and related
dangerousness: Mr. Whitton admitted that he “fed [Officer B.M.]
to the people” and was unconcerned about his status after the
attack, see Gov’t’s Reply, ECF No. 48 at 8-9; and he threatened
another set of officers during the second confrontation, telling
them, chillingly, “You’re going to die tonight,” see Officer
24
D.P. BWC Footage, Ex. 4 to Gov’t’s Mot. at 00:30-00:32. 6 In
short, Mr. Whitton’s actions and words on January 6 were violent
and callous. And according to the government, they were among
the most violent that occurred at the U.S. Capitol that day. See
Gov’t’s Reply, ECF No. 48 at 8. His actions and words reflect a
contempt for the rule of law and law enforcement, a disturbing
disregard for the safety of others, and a willingness to engage
in violence. These are qualities that bear on the seriousness of
the offense conduct and the ultimate inquiry of whether Mr.
Whitton will comply with conditions of release meant to ensure
the safety of the community. See Chrestman, 2021 WL 765662, at
*8.
The two remaining Chrestman factors are not strongly
implicated in this case. Those factors are evidence of
coordination with other rioters and evidence of prior planning.
See Chrestman, 2021 WL 765662, at *7-*8. As Mr. Whitton points
out, “[t]here is no evidence that [he] is part of any militia or
militant group intent on overthrowing the government or harming
government officials,” Def.’s Opp’n, ECF No. 45 at 3; and the
government has not presented evidence of any coordination with
6 The Court notes that it was difficult to hear the utterance
during the April 12, 2021 hearing; however, upon the Court’s
independent review of the BWC footage, the utterance “You’re
going to die tonight” was clear and appears to have been made by
Mr. Whitton.
25
any other rioters. There is also no evidence that Mr. Whitton
brought tactical gear to the U.S. Capitol, as other rioters,
including his co-defendant Mr. Sabol, did. See Hr’g Tr., ECF No.
52 at 22:7-13. While the presence of these other factors would
enhance the seriousness of the nature and circumstances of Mr.
Whitton’s already serious offense, they are not necessary to
find that this Section 3142(g) factor weighs in favor of
pretrial detention based on Mr. Whitton’s danger to the
community. In view of the many serious concerns raised by the
other considerations outlined above, the Court is convinced that
the nature and circumstances of Mr. Whitton’s offenses indicate
that he poses a danger to the community. See Chrestman, 2021 WL
765662, at *9.
Mr. Whitton’s remaining arguments regarding the nature and
circumstances of the offense charged are unconvincing: (1) even
if the exact circumstances of the January 6 attacks are not
“continuing in nature” or “likely to be repeated in the future,”
the violent offenses Mr. Whitton committed that day are serious
enough on their own to militate against pretrial release under
this first Section 3142(g) factor; and (2) Mr. Whitton’s text
message correspondence with associates after the January 6
attacks belie his claim that “[t]here is no evidence that Mr.
Whitton has espoused violence against law enforcement on social
26
media, or in any other format, either before January 6, 2021 or
afterwards.” See Def.’s Opp’n, ECF No. 45 at 3.
Accordingly, the first 18 U.S.C. § 3142(g) factor weighs
heavily in favor of detention on the basis that no condition or
combination of conditions will reasonably assure the safety of
the community. 18 U.S.C. § 3142(e)(1); 18 U.S.C. § 3142(g)(1).
2. Weight of the Evidence Against the Defendant
The second factor the Court must consider is the weight of
the evidence against Mr. Whitton. 18 U.S.C. § 3142(g)(2).
The government has proffered a substantial amount of
evidence that, at this stage, supports the charges against Mr.
Whitton and favors Mr. Whitton’s detention pending trial. The
evidence presented to the Court at this point includes BWC video
footage from multiple MPD officers, video footage from publicly
available sources, U.S. Capitol surveillance images,
photographic evidence, and text messages between Mr. Whitton and
acquaintances regarding the January 6, 2021 events and Mr.
Whitton’s state of mind. See Gov’t’s Mot., ECF No 35 at 4-15;
Gov’t’s Reply, ECF No. 48 at 2-6, 9-10.
The government describes the video evidence against Mr.
Whitton as “objective and unwavering,” see Gov’t’s Reply, ECF
No. 48 at 9; and the Court agrees. The video evidence clearly
shows Mr. Whitton not only attacked MPD officers with a crutch,
but also that he was the first member of the mob on the lower
27
western terrace to drag an MPD officer from his post under the
archway into the crowd, which kicked off terrifying assaults on
both Officer B.M. and Officer A.W., resulting in injury to both.
See Storyful Video Footage, Ex. 1 to Gov’t’s Mot., ECF No. 35;
Officer A.W.’s Body Worn Camera (“BWC”) Footage, Ex. 2 to
Gov’t’s Mot., ECF No. 35; Officer C.M.’s BWC Footage, Ex. 3 to
Gov’t’s Mot., ECF No. 35. Additional photographic evidence shows
that Mr. Whitton participated in a second attack against law
enforcement twenty minutes after the first. Gov’t’s Reply, ECF
No. 48 at 2-3. A confidential informant and another witness have
identified the individual seen in certain still photographs at
the U.S. Capitol and a “Stop the Steal” rally the day before as
Mr. Whitton. Gov’t’s Mot., ECF No. 35 at 11-14. And Mr. Whitton
confirmed his participation in the events, including the brutal
attack on Officer B.M., with text messages to an acquaintance
wherein he: (1) displayed a bloodied hand and said he “fed”
Officer B.M. “to the people”; (2) said he did not know Officer
B.M.’s “status” and “d[id]n’t care [to be honest]”; (3) said he
did not go inside the U.S. Capitol “but everything else [he] was
in the middle of”; (4) said that although he “didn’t see
weapons,” he saw “organic sh**” among rioters “on our side”; and
28
(5) said he and other rioters “got wild.” Gov’t’s Mot., ECF No.
35 at 13-14; Gov’t’s Reply, ECF No. 48 at 3-4.
Mr. Whitton has not presented any video or photographic
evidence that counters what has been proffered by the
government. His only arguments under this Section 3142(g) factor
are that it is “impossible to comment o[n] the weight of
evidence against Mr. Whitton” because counsel has only received
“limited discovery” from the government, and Mr. Whitton is
presumed innocent of the charges against him until there is a
conviction in this case. See Def.’s Opp’n, ECF No. 45 at 3.
Neither argument is persuasive for purposes of the instant
motion. First, Mr. Whitton has the same evidence the Court has,
which the Court just described. Having evaluated that evidence,
the Court finds that it is not “impossible to comment o[n]” its
weight, but rather it is quite possible to conclude, as Chief
Judge Howell did when confronted with a similar volume and
quality of evidence in Chrestman, that the weight of that
evidence is “overwhelming” and “strongly favors detention.”
Chrestman, 2021 WL 765662, at *10. Second, Mr. Whitton’s
argument that he is presumed innocent of the charges before he
is convicted is misplaced. The Court is not making a final
determination as to whether the evidence supports a conviction
beyond a reasonable doubt; rather, the Court is evaluating the
evidence—as all courts must do when determining whether a
29
defendant must be held in custody pending trial pursuant to 18
U.S.C. § 3142—to determine if clear and convincing evidence
supports a finding that no condition or combination of
conditions will reasonably assure the safety of any other person
and the community were Mr. Whitton to be released pending trial.
18 U.S.C. § 3142(e)(1) and (g)(2). In consideration of weight of
the evidence against Mr. Whitton, the Court finds that the
second 18 U.S.C. § 3142(g) factor weighs against Mr. Whitton and
in favor of his continued pretrial detention on the basis that
no condition or combination of conditions will reasonably assure
the safety of the community. See Chrestman, 2021 WL 765662, at
*10.
3. The History and Characteristics of the Defendant
Under the third factor, the Court must consider Mr.
Whitton’s history and characteristics. 18 U.S.C. § 3142(g)(3).
The Court considers Mr. Whitton’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); and “whether, at the time of the
current offense or arrest, [Mr. Whitton] was on probation, on
parole, or on other release, id. § 3142(g)(3)(B).
30
Here, there are factors to Mr. Whitton’s credit, including
the support he has received from friends and family and his
employment history. Thirty-three individuals signed a form
affidavit on Mr. Whitton’s behalf, attesting that based on their
personal knowledge of Mr. Whitton, he does not pose any risk of
flight, failing to appear, committing a criminal offense,
intimidating witnesses, or otherwise obstructing justice if
released. See Character Letters, Ex. 1 to Def.’s Opp’n, ECF No.
45-1. The affiants also attested that the allegations against
Mr. Whitton are “a complete shock” and “completely out of
character for Mr. Whitton.” Id. Nine of those individuals also
wrote personalized letters. From those letters, the Court can
gleam that Mr. Whitton’s friends and family believe he is a
hardworking man with a “high moral code,” and his assaultive
conduct on January 6 was surprising and out of character. See,
e.g., ECF No. 45-1 at 58. Mr. Whitton also points out that he
“owns and operates a successful local business with over five
employees,” Def.’s Opp’n, ECF No. 45 at 4; and many of the
individuals who wrote character letters emphasized his success
in starting and growing his business and his dedicated to it,
see, e.g., ECF No. 45-1 at 5.
The Court also acknowledges that Mr. Whitton was willing to
speak with law enforcement for nearly two months before his
arrest. See Def.’s Opp’n, ECF No. 45 at 4. Mr. Whitton’s
31
cooperation with law enforcement helps assuage the concerns
raised by Mr. Whitton’s past criminal record about his ability
to comply with legal orders. See Gov’t’s Reply, ECF No. 48 at 10
n.1 (noting Mr. Whitton has a 2018 conviction for criminal
trespass and a 2020 conviction for driving with a suspended or
revoked license and driving without a license). But as was true
in Chansley, his “willingness to speak to law enforcement
officers . . . does not persuade the Court that he appreciates
the gravity of the allegations against him or that he will not
break the law again.” 2021 WL 861079, at *13. In light of the
extreme disregard Mr. Whitton showed for the lives of law
enforcement on January 6, 2021, and his lack of remorse in a
later text-message conversation with an acquaintance, his
cooperation with law enforcement, while positive, does not
demonstrate that the character he displayed at the U.S. Capitol
was fleeting and no longer of concern. Furthermore, that the
government did not immediately arrest Mr. Whitton does not
affect the Court’s detention analysis. Gov’t’s Reply, ECF No. 48
at 10-11 (citing United States v. Little, 235 F. Supp. 3d 272,
279 (D.D.C. 2017)).
Thus, while the Court credits Mr. Whitton for cooperating
with law enforcement and credits the character letters sent on
his behalf to the extent they speak to his relationships with
friends and family, and his professional life, the Court
32
ultimately concludes that the callous disregard Mr. Whitton
displayed for the safety of others on January 6, 2021, and in
text messages describing the events that transpired that day,
speaks volumes about the danger he may pose to the community
despite these other positive displays of character. Like Chief
Judge Howell determined in Chrestman with respect to the history
and characteristics of another violent Capitol Riot defendant,
“the extent of [Mr. Whitton’s] involvement in the mob clearly
poses a danger.” Chrestman, 2021 WL 765662, at *15. Like Mr.
Chrestman, Mr. Whitton has not demonstrated any remorse for his
actions. The Court is particularly troubled by Mr. Whitton’s
text message to an associate displaying his bloodied hand and
stating he “fed him to the people” and he did not know or care
about Officer B.M.’s condition following the violent attack.
Gov’t’s Mot., ECF No. 35 at 13-14. That message suggests Mr.
Whitton remained proud of his actions after the fact, and the
Court finds that “there is no evidentiary basis to assume that
defendant will refrain from similar activities, if instructed,
in the future.” See Chrestman, 2021 WL 765662, at *15.
For these reasons, the Court finds that the third Section
3142(g) factor also weighs against pretrial release on the basis
that no condition or combination of conditions will reasonably
assure the safety of the community. See 18 U.S.C. § 3142(g). See
Chrestman, 2021 WL 765662, at *15.
33
4. The Nature and Seriousness of the Danger Posed by
Defendant’s Release
The final factor the Court must consider is the “nature and
seriousness of the danger to any person or the community that
would be posed by the person’s release.” 18 U.S.C. § 3142(g)(4).
For many of the reasons already addressed above, the Court
finds that this factor also weighs against Mr. Whitton and in
favor of his continued pretrial detention. “Consideration of
this factor encompasses much of the analysis set forth above,
but it is broader in scope,” requiring an “open-ended assessment
of the ‘seriousness’ of the risk to public safety.” Cua, 2021 WL
918255, at *5 (quoting United States v. Taylor, 289 F. Supp. 3d
55, (D.D.C. 2018)). “Because this factor substantially overlaps
with the ultimate question whether any conditions of release
‘will reasonably assure [the appearance of the person as
required] and the safety of any other person and the community,’
18 U.S.C. § 3142(e), it bears heavily on the Court’s analysis.”
Id.As discussed in detail above, the nature and circumstances
of Mr. Whitton’s offenses evince a clear disregard for the
safety of others and law enforcement in particular. See supra
Section III, Part B.1; see also Chrestman, 2021 WL 765662, at
*9. On January 6, 2021, Mr. Whitton’s actions resulted in two
MPD officers being wounded. Mr. Whitton not only participated in
34
the attacks; he instigated them and gave others an opportunity
to commit further crimes. He also demonstrated an alarming lack
of remorse for the violence he inflicted on Officer B.M. when he
dragged him into a violent mob, later telling his acquaintance
that he “fed [the officer] to the people.” While the Court does
acknowledge that Mr. Whitton has no violent criminal record, and
that the character letters sent on Mr. Whitton’s behalf suggest
his friends and family believe he has a “strong moral code,”
that history and moral code did not prevent him from committing
horrifying acts of violence, and they do little to dissuade the
Court from finding that Mr. Whitton poses a serious danger to
his community.
The Court reaches this conclusion having considered, as it
did in Mr. Sabol’s case and as it must here as well, whether the
danger Mr. Whitton poses to the community is concrete and
continuing. See Mem. Op., ECF No. 56 at 57-62; see also Munchel,
2021 WL 1149196, at *4. (“[A] defendant’s detention based on
dangerousness accords with due process only insofar as the
district court determines that the defendant’s history,
characteristics, and alleged criminal conduct make clear that he
or she poses a concrete, prospective threat to public safety.”).
The Court disagrees with Mr. Whitton’s contention that “there is
nothing in [his] background or history to suggest that he’s
presently, today, . . . a danger to the community or to any
35
individual” and that his actions on January 6, 2021, do not
render him ineligible for pretrial release in and of themselves.
See Hr’g Tr., ECF No. 52 at 21:19-25. Mr. Whitton’s and his co-
defendant’s conduct on January 6, 2021, was among some of the
most violent conduct that took place that day, and the Court
cannot ignore that reality when evaluating his character and the
potential threat he continues to pose to the community. Nor has
the D.C. Circuit said that Court must turn a blind eye to Mr.
Whitton’s violent conduct when determining whether he poses a
danger that warrants pretrial detention to safeguard the
community. See Munchel, 2021 WL 1149196, at *4 (observing that
Capitol Riot defendants who acted violently are in a different
category of dangerousness than those who did not, and only
holding that for two defendants who did not engage in violence,
the presence of the group at the U.S. Capitol on January 6,
2021, was critical to their ability to obstruct the vote and
cause danger to the community).
While the certification of the 2020 Presidential Election
is now complete, and President Biden has taken office, the Court
is not convinced that dissatisfaction and concern about the
legitimacy of the election results has dissipated for all
Americans. Former President Donald J. Trump continues to make
forceful public comments about the “stolen election,” chastising
individuals who did not reject the supposedly illegitimate
36
results that put the current administration in place. See Mark
Niquette, Trump Rips Into Mitch McConnell in Speech to Party
Donors, Bloomberg (Apr. 10, 2021),
https://www.bloomberg.com/news/articles/2021-04-10/trump-touts-
appeal-to-new-voters-as-path-for-gop-return-to-power (reporting
that former President Trump repeated false claims about the 2020
Presidential Election being stolen and criticized former Vice
President Michael R. Pence for not rejecting the certification
of the election results); David Jackson, “Radical Left CRAZIES:”
Trump issues Easter greetings by attacking political rivals,
griping about election loss, USA Today (Apr. 4, 2021) (reporting
on a written statement issued by former President Trump that
stated, “Happy Easter to ALL, including the Radical Left CRAZIES
who rigged our Presidential Election, and want to destroy our
Country!”). 7 As was true in Mr. Sabol’s case, such comments
reflect the continued threat posed by individuals like Mr.
Whitton, who has demonstrated that he is willing and able to
engage in extreme and terrifying levels of violence against law
enforcement with a chilling disregard for the rule of law and
7 The Court takes judicial notice of the existence of news
articles. See Washington Post v. Robinson, 935 F.2d 282, 291
(D.C. Cir. 1991) (“[A] court may take judicial notice of the
existence of newspaper articles in the Washington, D.C., area
that publicized [certain facts].”); Agee v. Muskie, 629 F.2d 80,
81 n.1, 90 (D.C. Cir. 1980) (taking judicial notice of facts
generally known as a result of newspaper articles).
37
the lives of law enforcement, seemingly based on mistaken
beliefs about the illegitimacy of the current administration. In
this regard, Mr. Whitton, like Mr. Sabol, is distinguishable
from other Capitol Riot defendants who displayed a dangerous
distain for democracy and the rule of law on January 6, 2021,
but who did not engage in violence, see, e.g., Munchel, 2021 WL
1149196, at *8, or who did not direct their “forceful conduct”
toward inflicting injury, see United States v. Klein, No. CR 21-
236 (JDB), ECF No. 29 at 24 (D.D.C. Apr. 12, 2021).
In consideration of these factors and noting the D.C.
Circuit’s observation that “[i]t cannot be gainsaid that the
violent breach of the [U.S.] Capitol on January 6 was a grave
danger to our democracy, and that those who participated could
rightly be subject to detention to safeguard the community,”
Munchel, 2021 WL 1149196, at *8; the Court is persuaded that Mr.
Whitton poses a danger to his community and the broader
community of American citizens if he were to be released pending
trial, and he “cannot be trusted to abide by any conditions of
release that might be imposed instead of pretrial detention.”
Chrestman, 2021 WL 765662, at *16.
38
IV. Conclusion
After considering the factors set forth in 18 U.S.C. §
3142(g), the Court finds, by clear and convincing evidence, that
no condition or combination of conditions will reasonably assure
the safety of any other person and the community were Mr.
Whitton to be released pending trial. 18 U.S.C. § 3142(e)(1).
Accordingly, the government’s motion for revocation of
Magistrate Judge Cannon’s release order is GRANTED. Mr. Whitton
shall be detained pending trial. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: _ /s/
Emmet G. Sullivan
United States District Judge
April 20, 2021
39