UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA v. Criminal Action No. 21-181 (CKK) DANIEL RAY CALDWELL, Defendant

MEMORANDUM OPINION (May 21, 2021)

Defendant Daniel Ray Caldwell is charged with seven felony and misdemeanor offenses

arising from his participation in the events at the United States Capitol on January 6, 2021. After

his arrest in Texas on February 10, 2021, the Government moved for Defendant Caldwell to be

detained pending trial. Magistrate Judge Kimberly C. Priest Johnson of the United States District

Court for the Eastern District of Texas held a detention hearing and ordered that Defendant

Caldwell be detained pending trial.

Pending before the Court is Defendant Caldwell’s [21] Motion to Revoke or Amend

Magistrate’s Order of Pretrial Detention, in which he asks the Court to revoke the magistrate

judge’s detention order and place him on pretrial release with conditions. Upon careful

consideration of the pleadings, 1 the relevant legal authority, and the record before the Court, the

Court shall DENY Defendant Caldwell’s motion.

1 The Court’s consideration has focused on the following: • Defendant’s Motion to Revoke or Amend Magistrate’s Order of Pre-Trial Detention (“Def.’s Mot.”), ECF No. 21; • Government’s Opposition to Defendant’s Motion for Pre-Trial Release (“Gov.’s Opp’n”), ECF No. 22; and • Defendant’s Reply to the Government’s Opposition to Defendant’s Motion for Pre-Trial [Release] (“Def.’s Reply”), ECF No. 23.

1 I. BACKGROUND

Defendant Caldwell is charged by Indictment with seven felony and misdemeanor counts:

(1) Civil Disorder, in violation of

(a)(3); (2) Assaulting, Resisting, or Impeding

Certain Officers Using a Dangerous Weapon, in violation of

(a)(1) and (b); (3)

Entering and Remaining in a Restricted Building or Ground with a Deadly or Dangerous Weapon,

in violation of

(a)(1) and (b)(1)(A); (4) 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); (5) 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); (6) Disorderly Conduct in a Capitol Building, in violation of

(e)(2)(D);

and (7) Act of Physical Violence in the Capitol Grounds or Building, in violation of

(e)(2)(F). Indictment, ECF No. 5.

The facts discussed here are based upon the record presently before the Court, including

the Statement of Facts in support of the Criminal Complaint, the testimony of Special Agent Seth

D. Webb of the Federal Bureau of Investigation (“FBI”), Kambria Caldwell, and James Caldwell

during Defendant Caldwell’s detention hearing before the magistrate judge, and the evidence

proffered by the Government. In an exercise of its discretion, the Court declines to hear additional

evidence. See United States v. Sheffield,

(D.D.C. 2011) (“The Court is free

to use in its analysis any evidence or reasons relied on by the magistrate judge, but it may also hear

additional evidence and rely on its own reasons.” (internal citations and quotation marks omitted)).

The facts stated here do not represent the Court’s findings of fact on the merits of the case, which

are the province of the jury.

2 A. Factual Background

On January 6, 2021, a joint session of the United States Congress convened to certify the

vote count of the Electoral College of the 2020 Presidential Election, which had taken place on

November 3, 2020. See Compl., Stmt. of Facts (“SOF”) at 1, ECF No. 1-1. The joint session

began at approximately 1:00 p.m., with then-Vice President Michael R. Pence presiding.

By

1:30 p.m., the United States House of Representatives and the United States Senate adjourned to

separate chambers within the Capitol to resolve an objection raised in the joint session.

Vice

President Pence continued to preside in the Senate chamber.

As the House and Senate

proceedings took place, a large crowd of protesters gathered outside the Capitol.

“[T]emporary

and permanent barricades were in place around the exterior of the . . . building, and United States

Capitol Police were present and attempting to keep the crowd away from the Capitol building and

the proceedings underway inside.”

Shortly after 2:00 p.m., “individuals in the crowd forced entry into the Capitol building,

including by breaking windows and by assaulting members of the Capitol Police, as others in the

crowd encouraged and assisted those acts.”

These violent acts caused members of the Senate

and House of Representatives to evacuate the chambers of the Capitol and suspend the certification

process of the presidential election results.

Defendant Caldwell drove from The Colony, Texas to Washington, D.C. to “protest”

Congress’s certification of the presidential election results. See Def.’s Reply at 3. Videos from

the Capitol Police, including body-worn camera videos, and from an “independent YouTube

vlogger” show Defendant Caldwell on the lower west terrace outside of the Capitol at

approximately 2:05 p.m., walking up the steps towards a group of law enforcement officers

forming a “human shield.” Gov.’s Opp’n at 3–5. Caldwell was wearing an “olive drab in color

3 hoodie, dark glasses . . . , a camouflage hat, camouflage assault pack, and camouflage trousers.”

Id. at 3. According to Agent Webb, the dark glasses were “military-style issued eye pro or eye

protection” glasses, which “wrap around the eye” and “protect the eye from liquids or objects from

getting poked in the eye[.]” Def.’s Mot. Ex. A, Hr’g. Tr. (Feb. 22, 2021) at 13:15–23, 40:16–22,

ECF No. 21-1.

The videos capture Defendant Caldwell spraying an orange-yellow chemical spray at the

line of police officers, some of whom were equipped with riot shields. The chemical spray is thick

enough to be visible in surveillance videos:

Gov.’s Opp’n at 4, Figure 1; see also id. at 3–4, Figures 2–4. Additional videos show Defendant

Caldwell at the front of a crowd confronting police officers, “flipping off” police officers, and

spraying “a mist of pepper spray/mace while moving his hand from left to right in an attempt to

get the entire line of officers.” Gov.’s Opp’n at 6–7, Figures 5–7. Defendant Caldwell was also

captured on video using a Baofeng radio:

4 Gov.’s Opp’n at 7, Figure 8.

In a later video, recorded at 4:54 pm on January 6, 2021 and uploaded to ProPublica,

Defendant Caldwell spoke to off-camera interviewers about his participation in the events at the

Capitol. Id. at 8; see also SOF at 3–4. Defendant Caldwell was wearing the same hoodie,

backpack, dark-tinted glasses, and camouflage-print cap as in the videos of him at the Capitol,

with the addition of a red sticker that reads “Guns SAVE Lives.” Gov.’s Opp’n at 8. The video

was recorded at the Renaissance Hotel in Arlington, Virginia. Id. Records obtained from that

hotel indicate that Defendant Caldwell stayed there on January 5, 2021. SOF at 4.

Defendant Caldwell stated in the ProPublica video that ten minutes after “storming the

Capitol,” a large fight broke out and a female was “hit in the neck.” Id. Caldwell then said that

police began spraying mace towards the crowd, and Caldwell told the police that if they continued,

he would return spray. Id. He stated that he then sprayed toward the police officers, and believed

that he sprayed about fifteen of them. Id. Agent Webb testified that he believed Defendant

Caldwell’s statements in the ProPublica video indicate that he was inside the Capitol building on

January 6, 2021, as he appeared to describe a fight that broke out inside the Capitol building, during

which a woman was shot by a police officer while she and others were attempting to breach a

5 barricaded door. See Hr.’g Tr. (Feb. 22, 2021) at 12:20–13:4 (“In the ProPublica video, he stated

after we started storming, a huge fight -- a large fight broke out and female was hit in the neck,

which I believe to be Ashli Babbitt, who was shot inside the Capitol.”). Agent Webb stated,

however, that at the time of the detention hearing, the FBI had not identified video of Defendant

Caldwell inside the Capitol building. Id. at 22:4–15. The Government’s opposition to Defendant

Caldwell’s motion does not include video or photographs of Defendant Caldwell inside the Capitol

building. Agent Webb also testified that based on his review of the video uploaded to ProPublica,

it did not appear that Defendant Caldwell was remorseful for his actions on January 6, 2021. Id.

at 15:17–24.

Agent Webb testified during the detention hearing that he had identified Defendant

Caldwell from a “black and colored patch with white bordering, which was later identified to be

an American Military Simulation patch.” Id. at 7:19–24. According to Agent Webb, American

Military Simulation sponsors “Airsoft events” during which individuals shoot plastic projectiles

at each other in military-style competition. Id. at 7:25–8:2. A confidential informant (“Witness

1”) identified that specific patch, and also indicated that he recognized Defendant Caldwell based

on screenshots from the January 6, 2021 videos and from being shown Defendant Caldwell’s

driver’s license photo. Id. at 9:7–23. Witness 1 said that he had seen Defendant Caldwell at

Military Simulation events, but did not know his name. Id. at 25:23–26:16. Agent Webb testified

that Witness 1 had described Defendant Caldwell as “a complete wacko” and believed him to be

a “white supremacist.” Id. at 10:5–8. Agent Webb later stated that this information was purely

the “speculation” of Witness 1, and that he had not corroborated these claims. Id. at 27:15–28:2.

Witness 1 also told Agent Webb that Defendant Caldwell came to Military Simulations with real

6 firearms, and had been admonished several times to return the “actual firearm” to his vehicle. Id.

at 10:18–25.

Defendant Caldwell was arrested on a warrant pursuant to a criminal complaint on

February 10, 2021. See Rule 5(c) Documents at 7, ECF No. 8. In a search incident to arrest, the

FBI seized an “olive drab in color hoodie.” Hr’g Tr. (Feb. 22, 2021) at 11:21–23. The FBI also

executed a search warrant of Defendant Caldwell’s residence, during which the FBI seized an

“assault pack,” as well as “several trousers and baseball hats with the multi cam, camouflage

pattern,” items which were “consistent” with the clothing Defendant Caldwell was wearing in the

videos from January 6, 2021. Id. at 11:24–12:4, 13:11–14. A black Baofeng radio was also seized

from Defendant Caldwell’s residence. Gov.’s Opp’n at 9. Dark-tinted sunglass were recovered

from Defendant Caldwell’s vehicle. Id.

After Defendant Caldwell was arrested, he indicated to the FBI that he had “12 to 13

firearms locked in a safe in his residence,” as well as “multiple Airsoft weapons” throughout the

residence. Hr’g Tr. (Feb. 22, 2021) at 14:4–13.

Defendant Caldwell’s ex-wife and current co-habitant, Ms. Kambria Caldwell, was present

during the execution of the search warrant. Id. at 12:5–13. She was shown a screenshot from the

ProPublica video and confirmed that the individual in the video was Defendant Caldwell. Id. at

12:12–23. She also told FBI agents that she knew Defendant Caldwell had driven to Washington,

D.C. Id. at 12:5–8, 16:3–8.

B. Procedural Background

The Government moved to detain Caldwell pending trial pursuant to

(f)(1). See Order of Detention Pending Trial (“Det. Order”) at 1, 3, ECF No. 8. A detention

hearing before Magistrate Judge Kimberly C. Priest Johnson of the U.S. District Court for the

7 Eastern District of Texas was held on February 22 and March 4, 2021.

On March 3, 2021, a

grand jury returned an Indictment charging Defendant Caldwell with the seven counts listed above.

During the detention hearing, Agent Webb testified regarding the investigation of

Defendant Caldwell. See supra Section I(A). He was also asked if he believed Defendant Caldwell

would be a danger to the community if released pending trial. He responded that he did believe

Defendant Caldwell would be a danger to the community, citing the defendant’s criminal history

and the fact that Defendant Caldwell brought an “unidentified propellant” to the United States

Capitol and used it against law enforcement officers. Hr’g Tr. (Feb. 22, 2021) at 18:11–19:8.

Agent Webb also testified that he believed that if Defendant Caldwell was released, he would not

appear in court in the District of Columbia, due to financial limitations and his lack of ties to this

jurisdiction. Id. at 19:11–24. He testified that Defendant Caldwell does not have a passport and

was most recently out of the country twelve years ago. Id. at 33:19–25. Defendant Caldwell was

fired from his job at Texas Instruments as a result of his arrest in this case. Id. at 49:25–50:2.

Ms. Kambria Caldwell testified during the detention hearing as a potential third-party

custodian. She and Defendant Caldwell were married for fourteen years and then divorced. Id. at

47:3–7. Although still divorced, they have lived together since approximately 2015 or 2016 and

have three children together, including two adult children and a son in high school. Id. at

47:8–25. Ms. Caldwell testified that she believes Defendant Caldwell would follow any conditions

of release and that she would contact the Court immediately if he did not follow any conditions of

release. Id. at 51:8–19. Ms. Caldwell also represented that the firearms that had previously been

stored in their house had been removed. Id. at 51:20–52:1.

During cross-examination, Ms. Caldwell was asked if she had ever heard her husband use

“racial comments.” Id. at 54:2–9. She stated that she had not. Id. Magistrate Judge Johnson

8 noted that Ms. Caldwell took a long pause before responding to that question, was reminded by

the Government that she was under oath, and then was re-asked the question, to which Ms.

Caldwell answered “no.” Det. Order at 5; see Hr’g Tr. (Feb. 22, 2021) at 54:2–9.

The Government also asked Ms. Caldwell about a domestic altercation between her and

Defendant Caldwell in February 2008. Ms. Caldwell testified, “Well, we had been going through

a lot of things—issues—so it was all coming to a point where we were both very heated. So, it

just escalated, and it was—so, I had to call 911 and there was a 911 interference and so by the time

they came, they were going to arrest both of us. But they arrested [Defendant Caldwell] for 911

interference.” Id. at 57:14–24. The Government then “read the police report’s comments” from

that incident, Det. Order at 6, which indicated that Defendant Caldwell “became very violent,”

“slammed” Ms. Caldwell on a table, and “straddled [her] so [she] couldn’t move.” Id. at 60:2–8.

He “yanked the phone out of the wall” when she tried to call 911. Id. at 60:9–14. Following this

incident, Ms. Caldwell sought a protective order and filed for divorce. Id. at 59:24–60:1,

66:6–12; see also Det. Order at 6. Defendant Caldwell was charged with disorderly conduct (a

misdemeanor) and assault causing bodily injury – family violence, but was not convicted of the

assault offense. See Def.’s Mot. at 5.

Magistrate Judge Johnson observed that Ms. Caldwell answered questions by defense

counsel “readily and quickly,” but “slowly and vaguely answered from the Government.” Det.

Order at 7. The court concluded that Ms. Caldwell’s “hesitancy and selective manner of answering

casts doubt on the credibility of her testimony.” Id.

Defendant Caldwell’s father, Mr. James Caldwell, also testified as a potential third-party

custodian. See Def.’s Mot. Ex. B, Hr’g Tr. (Mar. 4, 2021), ECF No. 21-2. Mr. Caldwell testified

that he is retired and lives with his wife and daughter. Id. at 4:24–25, 5:11–12. He stated that he

9 did not have any firearms or ammunition, or any alcohol in his home. Id. at 6:19–7:3. Mr.

Caldwell testified that he believed his son, if released, would comply with all terms and conditions,

and that Mr. Caldwell would report to the Court if he did not. Id. at 7:4–11. Mr. Caldwell was

also asked about the circumstances of Defendant Caldwell’s arrest for driving while intoxicated in

October 2013 in Denison, Texas. See id. at 7:9–19, 13:9–13; see also Def.’s Mot. at 5. According

to the Government, Defendant Caldwell had to be restrained when law enforcement tried to serve

a warrant for a blood draw because he “fought so much at the hospital, that he broke the hospital

bed.” Hr’g Tr. (Mar. 4, 2021) at 7:9–19, 9:17–19. Mr. Caldwell testified that he was unaware of

specific circumstances of this incident. Id. at 9:7–19.

Magistrate Judge Johnson concluded that neither Ms. Caldwell nor Mr. Caldwell would be

a suitable third-party custodian, noting a lack of confidence that either family member would

promptly and truthfully contact the court if Defendant Caldwell violated a condition of his release.

Det. Order at 7. The magistrate judge noted the following reasons for ordering Defendant Caldwell

to be detained pending trial: weight of evidence against the defendant is strong; subject to lengthy

period of incarceration if convicted; prior criminal history; history of violence or use of weapons;

history of alcohol or substance abuse; lack of stable employment; lack of significant community

or family ties to the charging district. Id. Based on these reasons, Magistrate Judge Johnson

concluded that the Government had proven by “clear and convincing evidence” that no condition

or combination of conditions will reasonably assure the appearance of the defendant and the safety

of the community and ordered Defendant Caldwell detained pending trial. Id. at 2–3.

10 II. LEGAL STANDARD

A defendant ordered detained by a magistrate judge may file “a motion for revocation or

amendment to the order” with “the court having original jurisdiction over the offense.”

(b). Although the United States Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”) has not ruled on the matter, every circuit to consider the issue has found

that a magistrate judge’s detention order is subject to de novo review. See United States v. Hunt,

(D.D.C. 2017) (identifying cases supporting this proposition from the

Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits). The

district court is “free to use in its analysis any evidence or reasons relied on by the magistrate

judge, but it may also hear additional evidence and rely on its own reasons.” Sheffield,

(quoting United States v. Hanson,

(D.D.C. 2009)). The

parties here agree that de novo review is appropriate. See Def.’s Mot. at 3; Gov’s Opp’n at 11.

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

United States v. Simpkins,

, 95–96 (D.C. Cir. 1987). A detention hearing must be held

only if a case involves any of an enumerated set of offenses, including a crime of violence or a

felony that involves the use of a dangerous weapon, § 3142(f)(1), or if the defendant poses a serious

risk of flight or of trying to obstruct justice or threaten, injure, or intimidate a witness or juror, id.

§ 3142(f)(2)(A)–(B).

The question for the Court is whether any “condition or combination of conditions will

reasonably assure the appearance of the person as required and the safety of any other person and

the community.”

(e). “In common parlance, the relevant inquiry is whether the

defendant is a ‘flight risk’ or a ‘danger to the community.’” United States v. Vasquez-Benitez,

(D.C. Cir. 2019). In determining whether a defendant should be detained pending

11 trial, the Court must consider “the available information” concerning four enumerated factors: (1)

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

defendant; (3) the history and characteristics of the defendant; and (4) the nature and seriousness

of the danger to any person or the community that would be posed by the defendant's release.

§ 3142(g).

“To justify detention on the basis of dangerousness, the government must prove by ‘clear

and convincing evidence’ that ‘no condition or combination of conditions will reasonably assure

the safety of any other person and the community.’” United States v. Munchel,

,

1279–80 (D.C. Cir. 2021) (quoting § 3142(f)). That standard requires the Government to establish

that the defendant “poses a concrete, prospective threat to public safety” that cannot be sufficiently

mitigated by release conditions. Id. at 1280; see also United States v. Salerno,

(1987) (requiring the government to “prove[ ] by clear and convincing evidence that an arrestee

presents an identified and articulable threat to an individual or the community”). “Detention

cannot be based on a finding that defendant is unlikely to comply with conditions of release absent

the requisite finding of dangerousness or risk of flight; otherwise the scope of detention would

extend beyond the limits set by Congress.” Munchel,

.

III. DISCUSSION

Defendant Caldwell does not dispute that he is eligible for pre-trial detention pursuant to

§ 3142(f)(1)(A) for having been indicted for a “crime of violence,” specifically for assaulting,

resisting, or impeding certain officers using a dangerous weapon, in violation of

(a)(1) and (b) (Count Two). See Gov’s Opp’n at 11; see United States v. Sabol, Crim.

Action No. 21-35-1 (EGS),

, at *6–7 (D.D.C. Apr. 14, 2021) (holding that a

defendant charged with a violation of

(a)(1) and (b) is charged with a crime of

12 violence); United States v. Klein, Crim. No. 21-236 (JDB),

, at *6 (D.D.C. Apr.

12, 2021) (“The D.C. Circuit has not weighed in, but every circuit to address the issue has . . .

conclude[ed] that § 111(b) does constitute a crime of violence.” (internal citations omitted)). 2

Accordingly, the Court’s inquiry is whether any “condition or combination of conditions

will reasonably assure the appearance of [Defendant Caldwell] as required and the safety of any

other person and the community.” § 3142(e)(1). With respect to the danger Defendant Caldwell

presents to the community, the Court must “identify an articulable threat posed by [him],” based

upon a “factbound inquiry” including the “context” of the charged offenses. Sabol, 2021

WL1405945, at *7 (citing Munchel,

) (additional citations and quotation marks

omitted). Defendant Caldwell and the Government agree that in determining whether Defendant

Caldwell 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 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.” § 3142(g). Def.’s Mot. at 4; Gov.’s Opp’n at 11.

The Court shall consider these factors based upon the present record without holding an

additional hearing with the same witnesses, which would not aid the Court’s analysis. See

2 In addition, under § 3142(f)(1)(E), detention is permitted if a case involves “any felony . . . that involves the possession or use of a dangerous weapon.” Munchel,

(quoting § 3142(f)(1)(E)). Three additional charges in the Indictment appear to meet this description: Count Three (entering and remaining in a restricted building or grounds with a deadly or dangerous weapon, in violation of

(a)(1) and (b)(1)(A)), Count Four (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)), and Count Five (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)). Indictment at 2–4; see e.g., Munchel,

(concluding that defendants charged under §§ 1752(a)(1) and (a)(2) involving a “deadly or dangerous weapon” are eligible for pre-trial detention under § 3142(f)(1)(E)).

13 Sheffield,

(permitting district court to use in its analysis the evidence relied

on by the magistrate judge); see also United States v. Anderson,

(D.D.C.

2005) (taking into consideration the indictment, “the briefs and other papers submitted by the

parties, the proceedings before [the magistrate judge], the [magistrate’s] findings of fact and

conclusions of law, and the evidence and proffers before [the court]”). Based on the current record,

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 Defendant Caldwell remain detained pending trial. See § 3142(e)(1).

A. Nature and Circumstances of the Offense Charged

The Court first considers the “nature and circumstances of the offense charged” including

“whether the offense is a crime of violence.” § 3142(g)(1).

Despite the “serious and chilling nature” of the events that took place at the U.S. Capitol

on January 6, the D.C. Circuit has made clear that detention is not appropriate in all cases involving

“Capitol Riot” defendants. Sabol,

, at *10 (citing Munchel,

);

see also Munchel,

(“In our view, those who actually assaulted police officers and

broke through windows, doors, and barricades, and those who aided, conspired with, planned, or

coordinated such actions, are in a different category of dangerousness than those who cheered on

the violence or entered the Capitol after others cleared the way.”). Rather, the Court must consider

the specific offenses with which Defendant Caldwell is charged and the conduct underlying those

offenses. United States v. Chrestman, Case No. 21-mj-218,

, at *7 (D.D.C. Feb.

26, 2021). In so doing, the Court must “adequately demonstrate[ ] that it considered whether

[Defendant Caldwell] pose[s] an articulable threat to the community in view of [his] conduct on

January 6, and the particular circumstances of January 6.” Munchel,

.

14 To aid in this consideration, Chief Judge Beryl A. Howell has articulated six “guideposts”

for assessing “the comparative culpability of a given defendant in relation to fellow rioters”: (1)

whether the defendant has been charged with felony or misdemeanor offenses; (2) the extent of

the defendant’s prior planning, “for example, by obtaining weapons or tactical gear”; (3) whether

the defendant used or carried a dangerous weapon; (4) evidence of coordination with other

protesters before, during, or after the riot; (5) whether the defendant played a leadership role in the

events of January 6, 2021; and (6) the defendant's “words and movements during the riot”—e.g.,

whether the defendant “remained only on the grounds surrounding the Capitol” or stormed into

the Capitol interior, or whether the defendant “injured, attempted to injure, or threatened to injure

others.” Chrestman,

, at *7–8. As with other courts in this jurisdiction, the Court

finds these Chrestman guideposts persuasive for the purpose of differentiating among Capitol Riot

defendants. See, e.g., United States v. DeGrave, Criminal No. 21-0090 (PLF),

,

at *10 (D.D.C. May 14, 2021); United States v. Whitton, Crim. Action No. 21-35-5 (EGS),

, at *7 (D.D.C. Apr. 20, 2021); Sabol,

, at *10; Klein,

, at *7; United States v. Pezzola, Criminal Action No. 21-52-1 (TJK),

,

at *6 (D.D.C. Mar. 16, 2021). Applied to Defendant Caldwell’s conduct on January 6, 2021, these

“guideposts” weigh in favor of continued pre-trial detention.

As to the first Chrestman factor, the Indictment charges Defendant Caldwell with five

felony offenses and two misdemeanor offenses. “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. In addition, § 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—

15 using a dangerous weapon while assaulting, resisting, or impeding certain officers, in violation of

(a)(1) and (b), see Indictment, Count Two—is a crime of violence. See Sabol,

, at *6–7; Whitton, 2021 Wl1546931, at *5. This offense carries a penalty of

up to 20 years of imprisonment. § 111(b). Defendant Caldwell is also charged with three felony

offenses under § 1752(a) (Counts Three, Four, and Five) while “us[ing] or carr[ying] a dangerous

weapon, § 1752(b)(1), which carries a penalty of imprisonment for “not more than 10 years,”

§ 1752(b)(1). The gravity of these offenses is undeniable, and weighs heavily in favor continued

pre-trial detention

The second and third Chrestman factors—the extent of the defendant’s prior planning, “for

example, by obtaining weapons or tactical gear” and whether the defendant used or carried a

dangerous weapon—also heavily weigh in favor of pre-trial detention. Evidence offered by the

Government shows that Defendant Caldwell carried and used a chemical spray on law enforcement

officers donned in riot gear. That he brought this weapon with him to the Capitol, while also

wearing glasses designed to prevent spray from penetrating his own eyes, suggests that Defendant

Caldwell arrived at the Capitol with the intent to use the weapon—not, as he contends, merely to

“express his opinion to the current political climate.” Def.’s Reply at 3. Defendant Caldwell does

not dispute that he carried a dangerous weapon, and concedes that there “is limited information

that the defendant made prior planning in this case that he would pursue.” Id. at 2. That he brought

weapons and specialized gear with him to the Capitol shows that he “came to Washington, D.C.

with the intention of causing mayhem and disrupting the democratic process[.]” Sabol,

(quoting Chrestman,

, at *2). This evidence of his prior planning and

use of a dangerous weapon weighs in favor of detention.

16 The Court also finds that the sixth Chrestman factor, the defendant’s “words and

movements” during the riot, weighs strongly in favor of pre-trial detention, as they demonstrate

that he acted “deliberately and dangerously.” Whitton,

, at *8. Specifically,

according to Defendant Caldwell’s own description of his actions in the ProPublica video, he

“sprayed” approximately fifteen police officers as those officers were attempting to prevent rioters

from reaching lawmakers. Gov.’s Opp’n at 8. Rather than complying with their directives,

Defendant Caldwell told the officers that he would return spray and then did spray, according to

him, approximately fifteen police officers.

These actions, as described by Defendant Caldwell

himself, show a blatant disrespect for the role of law enforcement and their efforts to maintain the

safety of the Capitol and the lawmakers inside. Defendant Caldwell, however, contends that this

factor does not weigh in favor of detention because he did not “storm” the Capitol building. Def.’s

Reply at 2. It is not clear to the Court whether Defendant Caldwell contends that he did not enter

the building at all, or whether he is carefully selecting his words to suggest that he did not enter by

force. Although there is presently no photographic or video evidence on the record showing

Defendant Caldwell inside the Capitol building, the photographic and video evidence of his efforts

to break up a barricaded line of police officers outside the building—who were attempting to

prevent the rioters from breaking into the Capitol—by spraying them with a chemical spray, see

supra Section I(A), as well as his own description of his actions during the day’s events weigh in

favor of detention.

The evidence regarding the fourth and fifth Chrestman factors is less clear-cut, but tilts in

favor of detention. Although Defendant Caldwell contends that there is “zero evidence” that he

“coordinated with other protestors before, during, or after the riot,” he fails to address the

photograph offered by the Government showing him using a Baofeng radio during the riot. See

17 Gov.’s Opp’n at 7, Figure 8. The Government argues that his use of a radio demonstrates

“coordination” with other individuals during the riot, which weighs in favor of continued pre-trial

detention under the fourth Chrestman factor. Gov.’s Opp’n at 13. In his reply, Defendant Caldwell

does not address this argument at all. The evidence offered by the Government supports an

inference that Defendant Caldwell was coordinating with other rioters, which is not controverted

by Defendant Caldwell.

The Government also points to the photographs of Defendant Caldwell at the front of a

crowd confronting a line of police officers, suggesting that he was a leader in dispersing the

officers protecting the Capitol, in order to allow the rioters to breach the building. See Gov.’s

Opp’n at 6–7, Figures 5–7. Defendant Caldwell again argues that there is “zero evidence” that he

“held a leadership role in the planning or execution” of that day’s events, but he does not

meaningfully address the Government’s argument. The evidence proffered by the Government

that these photographs demonstrate that he was at the forefront of a crowd confronting police

officers, “flipping them off,” and spraying them with chemical spray suggests he played a

significant role in the efforts to disperse law enforcement officers who were protecting the Capitol,

allowing rioters to break in to the building.

Considering these facts together, the Court concludes that the “nature and circumstances”

of the offenses for which Defendant Caldwell is charged demonstrate a disregard for the law and

a willingness to act violently—including against law enforcement officers. 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), 3142(g)(1). Additionally, in view of “the substantial term of imprisonment” to which

Defendant Caldwell is exposed for his offenses, this factor also weighs in favor of his continued

18 pre-trial detention, on the basis that no condition or combination of conditions will reasonably

assure Defendant Caldwell’s appearance as required. Sabol,

, at *13 (citing

(e)(1), 3142(g)(1)); see also United States v. Chansley, Case No. 21-cr-3 (RCL),

, at *14 (D.D.C. Mar. 8, 2021))

B. Weight of the Evidence

The weight of the evidence against Defendant Caldwell also favors continued pre-trial

detention. § 3142(g)(2). Multiple videos depict Defendant Caldwell spraying a visible chemical

spray at law enforcement officers. Defendant Caldwell also admitted in the ProPublica video, in

his own words, that he sprayed fifteen law enforcement officers. See, e.g., United States v. Cua,

Criminal Action No. 21-107 (RDM),

, at *4 (D.D.C. Mar. 10, 2021) (concluding

that the second factor weighs in favor of detention based on the government’s “video and

photographic evidence, as well as social media posts by Cua in which he admits to breaching the

Capitol on January 6”).

Defendant Caldwell “cannot reasonably dispute” that he took these actions, United States

v. Fairlamb, Case No. 21-cr-120-RCL,

, at *7 (D.D.C. Apr. 26, 2021), and he

makes no attempt to do so in his pleadings. For example, he notes that the “government made the

accusation through the photos that he used/carried a dangerous a weapon,” without making any

effort to rebut that charge. Def.’s Reply at 2. In light of the strength of the Government’s evidence

against Defendant Caldwell, the second factor weighs against granting Caldwell’s request for

release, on the basis that no condition or combination of conditions will reasonably assure the

safety of the community.

19 C. History and Characteristics of the Defendant

Under the third section 3142(g) factor, the Court must consider Defendant Caldwell’s

“history and characteristics,” including his “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 “whether, at the time of the current offense or arrest, [the

defendant] was on probation, on parole, or on other release.” § 3142(g)(3). The Court has

carefully considered the information presented by both parties, and concludes that—although a

close call—on balance, Defendant Caldwell’s history and characteristics indicate that no condition

or combination of conditions would reasonably assure the safety of the community.

Here, there are a number of factors that the Court will weigh. Defendant Caldwell is a

former United States Marine, who was honorably discharged after five years of service. Def.’s

Mot. at 5. He worked in the semiconductor industry for 25 years, including most recently at Texas

Instruments for 12 years, id. at 5, but was fired from that position as a result of his arrest in this

case.

Although Defendant Caldwell and Ms. Caldwell are divorced, they have lived together

since approximately 2015 or 2016 and have three children together, including a teenaged-son who

lives with them. He speaks to his father regularly. Hr’g Tr. (Feb. 22, 2021) at 19:3–16.

Defendant Caldwell’s previous criminal history includes convictions for driving while

intoxicated in 2006, disorderly conduct in 2008, and driving while intoxicated and resisting arrest

in 2014. Def.’s Mot. at 5; Gov.’s Opp’n at 15. Defendant argues that this criminal history does

not support a finding that he is a danger to the community, noting, for example, that he “has never

been charged with a firearms offense or a crime of violence.” Def.’s Mot. at 5. In response to

20 concerns noted by the magistrate judge regarding the incident between Defendant Caldwell and

Ms. Caldwell which caused him to be arrested and charged with assault causing bodily injury,

Defendant Caldwell notes that he and his ex-wife “have lived together for the past 5 years raising

their children without incident” and that he was not convicted of assault stemming from this

encounter. Def.’s Mot. at 5–6, Def.’s Reply at 3. He further indicates that he has appeared for all

past court proceedings and complied with terms of probation based on his previous misdemeanor

convictions. Def.’s Reply at 3.

The Government contends that Defendant Caldwell’s past charges evince violent

tendencies, specifically discussing his violent altercation with Ms. Caldwell leading to his arrest

for assault causing bodily injury, during which he ripped the phone out of the wall to prevent her

from calling 911. Gov.’s Opp’n at 16 (“[T]he police detailed that the Defendant slammed Ms.

Caldwell’s on a table, straddled her, picked her back up, sat her back down and picked her up

again.”). The Government provides as an additional example of Defendant Caldwell’s violent

tendencies his charge for resisting arrest in connection with a driving while intoxicated offense, in

which he “physically resisted officers” and “broke the hospital bed.” Id.

Although the Court recognizes that Defendant Caldwell has only been convicted of

misdemeanor offenses, it is nonetheless troubled by the circumstances surrounding these offenses,

particularly by Defendant Caldwell’s acts of aggression in response to law enforcement

intervention. His history is even more concerning in light of his actions on January 6, 2021 and

his “extreme disregard” for the safety of law enforcement officers, evidenced by the photographs

provided by the Government and by Defendant Caldwell’s own words in the ProPublica video that

he sprayed approximately fifteen officers as they attempted to control the crowd. Whitton,

, at *10.

21 Consideration of whether Defendant Caldwell’s history and characteristics weigh in favor

of or against pre-trial detention is a close call. On balance, however, the Court finds the third

§ 3142(g) factor weighs against pretrial release on the basis that no condition or combination of

conditions will reasonably assure the safety of the community.

D. The Nature and Seriousness of the Danger Posed by Defendant’s Release

The final factor that the Court must consider is “the nature and seriousness of the danger

to any person or the community that would be posed by the person’s release.” § 3142(g)(4).

“Consideration of this factor encompasses much of the analysis set forth above, but it is broader

in scope,” as it requires the Court to engage in an “open-ended assessment of the ‘seriousness’ of

the risk to public safety.” Cua,

, 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 safety of any other

person and the community,’

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

Whitton,

, at *11 (quoting Cua,

, at *5).

As the D.C. Circuit recently explained in Munchel, the threat that an individual poses to

the community must “be considered in context” and “whether a defendant poses a particular threat

depends on the nature of the threat identified and the resources and capabilities of the

defendant.”

. Accordingly, to the extent the Court’s determination of the

defendant’s dangerousness relies on past political violence, the court must consider whether “the

specific circumstances that made it possible” for that violence to arise are likely to manifest

themselves again.

. This, in turn, requires the Court to consider whether the risk that a

defendant poses can be mitigated by supervisory conditions, such as home detention or the

presence of a third-party custodian. See Klein,

, at *13.

22 As discussed above, Defendant Caldwell’s conduct on January 6 evinces a clear disregard

for the safety of others—and for law enforcement officers in particular. See supra Section III(A).

The Government has shown by clear and convincing evidence that he employed chemical spray

against multiple police officers. See, e.g., Fairlamb,

, at *8 (“[T]he defendant's

willingness to assault a police officer on January 6—in the full view of other officers, scores of

bystanders, and many cameras—confirms that, when enraged, he poses a danger to the

community.”). And the Government has also established that Defendant Caldwell came to the

Capitol prepared to engage in such behavior both by bringing the weapon itself and by wearing

eyewear to protect himself from its effects. See, e.g., Munchel,

(“[T]hose who

actually assaulted police officers . . . are in a different category of dangerousness than those who

cheered on the violence[.]”).

Moreover, photographs show Defendant Caldwell at the front of a crowd, directly

confronting a line of police officers. See Gov.’s Opp’n at 4–7, Figures 1–8. This evidence suggests

that Defendant Caldwell was not a passive observer, but an active aggressor. And, in the

ProPublica video, Defendant Caldwell stated himself that he discharged chemical spray against

fifteen police officers after the police had discharged spray in a clear effort to control the rioters.

Defendant Caldwell’s actions against police officers are deeply troubling, and plainly weigh

in favor of the Court finding that he poses a serious danger to his community. See Fairlamb,

, at *5 (“[I]f any crime establishes danger to the community and a disregard for the

rule of law, assaulting a riot-clad police officer does.”); Chrestman,

, at * 8

(“Grave concerns are implicated if a defendant actively threatened or confronted federal officials

or law enforcement” because such conduct demonstrates “disregard for the institutions of

government and the rule of law[.]”).

23 Although Defendant Caldwell acknowledges that he is charged with “serious” offenses, he

nonetheless contends that “the mere fact that he disagreed with the current political climate on

January 6, 2021, does not make him a danger to the community.” Def.’s Reply at 4. But Defendant

Caldwell did not merely “disagree” or, as he otherwise puts it, engage in “protected speech.”

. Rather—as the defendant himself described—he sprayed a chemical agent at law

enforcement officers attempting to keep the Capitol building secure. The Court finds unpersuasive

Defendant Caldwell’s contention that it is “reasonable to assume that [he] is not an ongoing danger

of similar alleged activity.”

.

Consistent with other courts in this jurisdiction, the Court is unpersuaded by the argument

that he does not present prospective danger to the community because the precise circumstances

of January 6 may not recur. See, e.g., Sabol,

, at *18 (“While the circumstances

of January 6, 2021 were unique, and the day has passed, it cannot be said that every Capitol Riot

defendant is no longer a danger because those exact circumstances are unlikely to arise

again.”). As the court articulated in Whitton, “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

[the defendant] committed that day are serious enough on their own to militate against pretrial

release under this first Section 3142(g) factor.”

, at *9. The same is true with

respect to Defendant Caldwell. See Munchel, 991 F.2d at 1284 (observing that Capitol Riot

defendants who acted violently are in a different category of dangerousness than those who did

not).

Defendant Caldwell argues that imposing conditions on his release would assure the safety

of the community and his appearance for court hearings. Def.’s Mot. at 7. Defendant offers the

following conditions as examples: “the surrender of his passport; GPS monitoring; being released

24 into the custody of a third-party custodian; restrictions on internet usage and communications;

home confinement; alcohol and substance abuse counseling, and any other conditions the Court

thinks necessary to ensure Mr. Caldwell’s compliance.” Id. at 7. Based upon information provided

by the Probation Office, the Eastern District of Texas does not have GPS monitoring capability,

which means Defendant Caldwell’s location cannot be monitored if he were to leave his residence.

The Eastern District of Texas uses only radio frequency (“RF”) monitoring. Unlike GPS, RF can

only monitor when a person is in his residence; it cannot track the person’s whereabouts when he

is out of his residence.

Moreover, the Court agrees with Magistrate Judge Johnson’s conclusion that Defendant

Caldwell has not identified a suitable third-party custodian. The Court has taken into consideration

Defendant Caldwell’s proposed third-party custodians, and recognizes that either Ms. Caldwell or

Mr. Caldwell would offer him a place to live if he were released. However, the Court would not

rely on either potential custodian to report potential violations, given the difficulty of relying on

family members to report any violations of conditions—especially in light of the past violent

interactions between Defendant Caldwell and Ms. Caldwell. The family members may also not

have a means to know his whereabouts or activities to be able to report any violations. Although

Defendant Caldwell might still be able to convince the Court that “appropriate conditions,

including a suitable third-party custodian, would mitigate the risk to community safety that his

release poses,” he has not made that substantial showing here. Klein, 2021 WL1751056, at *7.

In consideration of § 3142(g), 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,

, the Court is persuaded that Defendant Caldwell poses a

25 danger to the community 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.

IV. CONCLUSION

For the foregoing reasons, upon careful consideration of Defendant Caldwell’s motion for

revocation of the detention order, the Government’s opposition, and Defendant Caldwell’s reply,

the evidence proffered by both parties, the entire record, and the factors set forth in

(g), the Court finds that all four statutory factors favor pretrial detention. The Government

has met its burden of establishing, by clear and convincing evidence, that no condition or

combination of conditions can be imposed that would reasonably assure the safety of the

community if Defendant Caldwell were released pending trial.

(e)(1). The Court

will therefore DENY Defendant Caldwell’s motion. An appropriate Order accompanies this

Memorandum Opinion.

Dated: May 21, 2021 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

26