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

(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

(a)(1) and (b); (2) Assaulting,

Resisting, or Impeding Certain Officers, in violation of

(a)(1); (3) Civil Disorder, in violation of

(a)(3); (4) a second count of Civil Disorder, in

violation of

(a)(3); (5) Entering and Remaining

in a Restricted Building or Grounds with a Deadly or Dangerous

Weapon, in violation of

(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

(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

(a)(4) and

(b)(1)(A); and (8) Act of Physical Violence in the Capitol

Grounds or Buildings, in violation of

(e)(2)(F).

.

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,

(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

(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,

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.

(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.

(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.”

§ 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,

, at *4 (D.C. Cir. Mar. 26, 2021) (quoting United

10 States v. Vasquez-Benitez,

(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.

(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.

(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.

(g); see also Munchel,

, 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.”

(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.”

(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,

, at *5;

courts in this district have held that such detention decisions

are reviewed de novo. See United States v. Hunt,

(D.D.C. 2017); United States v. Chrestman, No. 21-

mj-218 (ZMF),

, 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

(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

(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

(f)(1)(A)-(B), (f)(2);

United States v. Singleton,

(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,

(1987))).

Mr. Whitton is charged under

(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

(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,

(2d

Cir. 2020); United States v. Kendall,

(10th

Cir. 2017); United States v. Taylor,

(1st

Cir. 2017); United States v. Juvenile Female,

(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

(f)(1)(A). 5

5 The government also argues that Mr. Whitton is eligible for detention pursuant to

(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.”

(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,

, at *7

(quoting United States v. King,

, 487 n.2 (11th Cir.

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

“[t]he inquiry is factbound.”

(citing United States v.

Tortora,

(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

(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

(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.”

(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

(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.”

(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.”

. 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.”

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

(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

§

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),

, 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.”

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,

, 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,

, at *8. Accordingly, the Court considers the nature and

circumstances of the specific offenses and underlying conduct

with which each defendant is charged. Chrestman,

,

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,

, 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,

, 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.”

These factors, “[t]aken together, as applied

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

circumstances of the offense charged,’

(g)(1),

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

to the fourth Section 3142(g) factor.

.

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,

, 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,

, 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.

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.

.

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,

, at *8. This action “enhances the defendant’s

responsibility for the destabilizing events of January 6 and

thus the seriousness of his conduct.”

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,

, 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,

,

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,

, 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,

, 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,

, 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

(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.

(e)(1);

(g)(1).

2. Weight of the Evidence Against the Defendant

The second factor the Court must consider is the weight of

the evidence against Mr. Whitton.

(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,

, 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.

(e)(1) and (g)(2). In consideration of weight of

the evidence against Mr. Whitton, the Court finds that the

second

(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,

, at

*10.

3. The History and Characteristics of the Defendant

Under the third factor, the Court must consider Mr.

Whitton’s history and characteristics.

(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,”

(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,

§ 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.”

, 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,

(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,

, 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,

, 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

(g). See

Chrestman,

, 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.”

(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,

, at *5 (quoting United States v. Taylor,

, (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,’

(e), it bears heavily on the Court’s analysis.”

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,

, 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,

, 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,

, 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,

(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,

, 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,

, 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,

, 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,

, at *16.

38 IV. Conclusion

After considering the factors set forth in

(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.

(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