UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Crim. Action No. 21-35-7 (EGS)

RONALD COLTON MCABEE,

Defendant.

MEMORANDUM OPINION

Mr. Ronald Colton McAbee (“Mr. McAbee” or “Defendant”) has

been charged in a federal indictment with seven serious offenses

arising from his participation in the events at the U.S. Capitol

on January 6, 2021. See Mem. Op., ECF No. 166; Redacted Third

Superseding Indictment, ECF No. 154. Shortly after his arrest in

his home state of Tennessee, Magistrate Judge Jeffrey S.

Frensley issued an order for Mr. McAbee’s release to home

detention with certain conditions. See Mem. Op., ECF No. 166 at

12.1 The Government filed an emergency motion to review the

Magistrate Judge’s Release Order and stay that decision pending

resolution of the appeal. See id. at 13. The Court granted the

stay and, following extensive briefing and a motion hearing,

granted the Government’s motion to detain Mr. McAbee pending

trial. See id. at 13, 41.

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 1 Now pending before the Court is Mr. McAbee’s Motion for

Reconsideration of the Detention Order. See Def.’s Mot. Recons.

Detention Order (“Def.’s Mot.”), ECF No. 191. Upon careful

consideration of the motion, opposition, and reply thereto, the

applicable law, and the entire record herein, Mr. McAbee’s

motion is DENIED.

I. Background

The Third Superseding Indictment charges Mr. McAbee with

the following offenses: (1) one count of Inflicting Bodily

Injury on Certain Officers or Employees and Aiding and Abetting,

in violation of

(a)(1) and (b) and 2; (2) one

count of Assaulting, Resisting, or Impeding Certain Officers or

Employees, in violation of

(a)(1); (3) one count

of Civil Disorder, in violation of

(a)(3); (4)

one count of Entering or Remaining in any Restricted Building or

Grounds with a Deadly or Dangerous Weapon, in violation of

(a)(1) and (b)(1)(A); (5) one count of Disorderly

and Disruptive Conduct in any Restricted Building or Grounds

with a Deadly or Dangerous Weapon, in violation of

(a)(2) and (b)(1)(A); (6) one count of Engaging in Physical

Violence in any Restricted Building or Grounds with a Deadly or

Dangerous Weapon, in violation of

(a)(4) and

(b)(1)(A); and (7) one count of Act of Physical Violence in the

2 Capitol Grounds or Buildings, in violation of 5104(e)(2)(F). See

Redacted Third Superseding Indictment, ECF No. 154 at 5-12.

The Court sets forth below a brief summary of the factual

evidence proffered by the Parties.2 The Court previously

discussed many of the following facts in its December 21, 2021

Memorandum Opinion granting the Government’s motion for review

of the Release Order. See Mem. Op., ECF No. 166 at 3-11.

A. Factual

Mr. McAbee is a 28-year-old who lived in Tennessee before

his detention in this case. See

. He previously served

in law enforcement, having worked as a sheriff’s deputy at the

Cherokee County, Georgia Sheriff’s Office until November 2020

and then the Williamson County, Tennessee Sheriff’s Office until

March 2021.

In December 2020, Mr. McAbee started to exchange text

messages with another person (Associate-1).

The pair

discussed plans to travel to Washington, D.C. on January 6,

2021, the date on which Congress was scheduled to convene and

certify the Electoral College vote count for the 2020

Presidential Election.

They coordinated travel logistics and

discussed what items they would bring with them to Washington,

2 At a detention hearing, both parties may present evidence by way of a proffer. See

(f); United States v. Smith,

(D.C. Cir. 1996). 3 D.C. Id. at 4. Among the items discussed were a firearm

magazine, a knife, brass knuckles, and a t-handle tire puncture.

Id. at 4-5. At Mr. McAbee’s request, Associate-1 purchased for

him an item called “Steel Outdoor Reinforced Brass Knuckle

Motorcycle Motorbike Powersports Racing Textile Safety Gloves”

through Amazon. Id. at 5.

At around the same time, in December 2020, Mr. McAbee

underwent a medical examination for a shoulder injury he

sustained in a car accident. Id. at 4 & n.4. Because of that

examination, he was excused from work at the Williamson County

Sheriff’s Office for the period from December 30, 2020 to

January 14, 2021, which included the day he participated in the

riot at the U.S. Capitol. Id. at 4 n.4. On January 14, 2021, he

was cleared to return to work. Id.

Meanwhile, Mr. McAbee and Associate-1 prepared themselves

for January 6. Associate-1 told Mr. McAbee that he would have

the previously-discussed metal-knuckled gloves and extra knives

for him. See id. at 5-6. They also talked about the possibility

of violence on January 6. See id. at 6. For instance, Mr. McAbee

stated that he did not want certain people to travel with them

because he did not think they “should be subject to violence,”

4 and violence “w[ould] be there.” Id. (internal quotation marks

omitted).

The Government’s evidence establishes that on January 6,

2021, Mr. McAbee was at the U.S. Capitol. Id. He was wearing

black gloves with hard, metal knuckles and a black tactical vest

with one patch that read “SHERIFF” and another patch with

insignia associated with the “Three Percenters,” which is “a

loosely organized collection of individuals and militia group

members.” Id. at 6 & n.5. Video and photographic evidence also

show him wearing a red “Make America Great Again” baseball hat,

a red face scarf, white sunglasses, and a black shirt with white

lettering that read “DIFFERENT GENERATION.” Id. at 7.

More than two hours after rioters forced entry into the

U.S. Capitol, Mr. McAbee was part of “a mob of hundreds of

rioters” close to the archway and stairs at the U.S. Capitol

building’s Lower Western Terrace. Id. Video footage from

approximately 4:27 p.m. shows rioters, including Mr. McAbee,

near the archway leading to the Lower Western Terrace. Id. at 7-

8. These rioters were “engaged in brutal assaults on at least

three MPD Officers—Officers A.W., B.M., and C.M.,” during which

rioters threw objects at the officers, struck them with weapons,

5 knocked them to the ground, and dragged them down the stairs.

Id. at 8 (alterations and internal quotation marks omitted).

Mr. McAbee was present at this assault. Id. Throughout, he

was wearing his metal-knuckled gloves, and he briefly carried a

black police baton. See id. Video footage shows that after other

rioters (including two of Mr. McAbee’s co-defendants) knocked

Officer A.W. to the ground and took his police baton, Mr. McAbee

grabbed the Officer by his left leg and torso. Id. Another co-

defendant grabbed the Officer’s right leg, and together they

dragged the Officer toward the stairs and the mob. Id. Mr.

McAbee stood over Officer A.W., yelling at the other officers as

they tried to help the officers and rioters who had been knocked

to the ground. Id. at 9. When Officer C.M. pushed and hit him

with a police baton, Mr. McAbee stood up straight, swung his

arms at the Officer, and screamed profanities. Id. A co-

defendant then stepped in and assaulted Officer C.M. See id.

Officer A.W. remained on the ground. Id. Mr. McAbee stood

over him and then grabbed him by his torso. Id. Mr. McAbee

dragged the Officer out of the archway, causing the two of them

to tumble together down the stairs and into the mob. Id. Mr.

McAbee remained on top of Officer A.W., who was lying on his

back, for the next twenty-five seconds. Id. Officer A.W. endured

further violence from the mob at the bottom of the stairs: he

“was kicked, struck with poles, and stomped on by several

6 individuals, his helmet was ripped off, he was stripped of his

baton and his MPD-issued cell phone, and he was maced while his

helmet was off.” Id. at 10. The Officer suffered a laceration on

his head, which was later treated with two staples. Id.

The riot continued for hours as more rioters entered the

U.S. Capitol and physically engaged with law enforcement

officers. Id. at 7. As for Mr. McAbee, the record evidence shows

that he and other rioters attempted to provide medical

assistance to a rioter in medical distress. Id. at 10. While he

was helping that rioter, Mr. McAbee was pushed into the side of

the archway by the mob, which aggravated his shoulder injury.

See id. He then tried to get out of the riot and through the

police line by pointing to the “SHERIFF” on his vest. See id.

After January 6, 2021, Mr. McAbee communicated with

Associate-1 and another individual (“Associate-2”) about what

transpired. See id. at 11. He sent Associate-1 and Associate-2 a

picture of himself smiling and holding a newspaper with the

headline “INSURRECTION.” Id. He messaged Associate-1 that he

“call[s] for secession.” Id. (internal quotation marks omitted).

Mr. McAbee also sent Associate-2 photographs of a bloodied

baseball hat and a head injury, as well as a text message that

read: “I’ve shed blood for my country. By the hands of the

swamp. I will shed more in the days to come. But I will not

7 forget the Oath I swore years ago to protect the America I once

knew.” Id.

Law enforcement officers later identified Mr. McAbee as a

participant in the January 6, 2021 insurrection at the U.S.

Capitol. Id.

B. Procedural History

On August 17, 2021, Mr. McAbee was arrested in his home

state of Tennessee pursuant to an arrest warrant issued from the

U.S. District Court for the District of Columbia by Magistrate

Judge Robin M. Meriweather. See Arrest Warrant Returned

Executed, ECF No. 99. After briefing and a detention hearing,

Magistrate Judge Frensley of the U.S. District Court for the

Eastern District of Tennessee ordered Mr. McAbee released to

home detention, which restricted him to his residence at all

times except for employment; education; religious services;

medical, substance abuse, or mental health treatment; attorney

visits; court appearances; court-ordered obligations; or other

activities approved in advance by the pretrial services office.

See Release Order, ECF No. 116-1 at 2. The Release Order also

required that Mr. McAbee: (1) not travel to the District except

for case-related obligations; (2) not travel outside of

Tennessee without approval from the pretrial services office;

(3) not contact anyone who may be a victim or witness in this

8 case; (4) not possess a firearm; and (5) refrain from social

media or websites regarding insurrection activity. Id.

The Government orally moved for a stay of Mr. McAbee’s

release pending appeal of the Release Order, which Magistrate

Judge Frensley granted. See Mem. Op., ECF No. 166 at 13. The

Government filed an emergency motion with this Court to review

and stay the Release Order pending review. Id. After further

briefing and a motion hearing, the Court granted the

Government’s motion and ordered that Mr. McAbee be detained

pending trial. Id. at 41. The Court concluded “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. McAbee to be released pending trial.”

Id.

On May 9, 2022, Mr. McAbee moved for reconsideration of the

Court’s Detention Order. See generally Def.’s Mot., ECF No. 191.

The Government filed a response in opposition, see generally

Gov’t’s Opp’n Def.’s Mot. Recons. Detention Order (“Gov’t’s

Opp’n”), ECF No. 194; and Mr. McAbee filed a reply, see Def.’s

Reply Opp’n Mot. Recons. Detention Order (“Def.’s Reply”), ECF

No. 195. The motion is ripe and ready for the Court’s

consideration.

9 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).3 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,

(D.C. Cir. 2021) (quoting United States v. Vasquez-Benitez,

(D.C. Cir. 2019)).

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

3 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). 10 the community.

(e)(2)-(3).4 Where there is no

rebuttable presumption of detention, the 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.

4 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 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). 11

(g); see also Munchel,

.

Where, as here, the Government argues that 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), in consideration of the

Subsection (g) factors, by clear and convincing evidence.

(f).

Pursuant to the Bail Reform Act, the Court may reconsider

its pretrial detention decision if it “finds that information

exists that was not known to the movant at the time of the

hearing and that has a material bearing on the issue whether

there are conditions of release that will reasonably assure the

appearance of such person as required and the safety of any

other person and the community.”

(f)(2)(B); see

also United States v. Bikundi,

(D.D.C.

2014). “New and material information . . . must consist of truly

changed circumstances, something unexpected, or a significant

event,” United States v. Lee,

, 5 (D.D.C. 2020)

(quoting United States v. Esposito,

(S.D.N.Y. 2019) (internal quotation marks omitted); and “must

relate in some significant or essential way to the decision

whether to detain,” United States v. Worrell, No. 1:21-CR-00292-

RCL,

, at *9 (D.D.C. June 9, 2021), appeal

12 dismissed, No. 21-3040,

(D.C. Cir. Sept. 15,

2021) (citation omitted).

III. Analysis

A. The Nature and Circumstances of the Offense Charged

In its December 2021 Memorandum Opinion, the Court first

considered “the nature and circumstances of the offense charged,

including whether the offense is a crime of violence.”

(g)(1). The Court reviewed “the specific offenses and

underlying conduct with which Mr. McAbee is charged,” Mem. Op.,

ECF No. 166 at 19 (citing United States v. Chrestman,

, 25-26 (D.D.C. 2021)); in order to “‘adequately

demonstrate that it considered whether [Mr. McAbee] pose[s] an

articulable threat to the community in view of [his] conduct on

January 6, and the particular circumstances of January 6,’”

(quoting Munchel,

).

To make this determination and “contextualize the nature

and circumstances of offenses committed at the U.S. Capitol on

January 6, 2021,” Chrestman, 525 F. Supp. 3d at 27; the Court

considered the record using the six-factor framework set forth

in Chrestman:

(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

13 formal or de facto leadership role in the events of January 6, 2021, for example “by encouraging other rioters’ misconduct” “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 the Capitol” or stormed into the Capitol interior, or whether the defendant “injured, attempted to injure, or threatened to injure others.”

Mem. Op., ECF No. 166 at 19-20 (quoting Chrestman, 525 F. Supp.

3d at 26-27).

Mr. McAbee objects to the Court’s conclusion that at least

four of the Chrestman factors support the detention order. See

Def.’s Mot., ECF No. 191 at 8-17. The Court considers each of

Mr. McAbee’s arguments in turn.

1. Mr. McAbee is Charged with At Least One Felony

Mr. McAbee concedes, as he must, that he has been charged

with at least one felony. Def.’s Mot., ECF No. 191 at 8-9.

Indeed, he faces several serious felony charges at this time.

See Redacted Third Superseding Indictment, ECF No. 154.

Mr. McAbee also concedes that he has been charged with at

least one “crime of violence.” Def.’s Mot., ECF No. 191 at 9.

The Court determines the same, having concluded in its December

2021 Memorandum Opinion that “assaulting and inflicting bodily

injury on a MPD officer who was tasked with protecting the U.S.

Capitol” and “engaging in physical violence with a deadly or

dangerous weapon on restricted grounds” are both crimes of

14 violence. Mem. Op., ECF No. 166 at 21 (citing Redacted Third

Superseding Indictment, ECF No. 154 at 5, 9).

Although the above clearly meets the standard set out in

the Bail Reform Act, see

(g)(1) (“The judicial

officer shall . . . take into account . . . the nature and

circumstances of the offense charged, including whether the

offense is a crime of violence.”); Mr. McAbee contends that the

Court overstepped by “mak[ing] repeated references to alleged

political motivations behind his actions on January 6,” Def.’s

Mot., ECF No. 191 at 9. Not so. The Court reviewed the

Government’s proffer, considering evidence that “Mr. McAbee

observ[ed] and then join[ed] his codefendants and other rioters

in violent assaults against MPD officers positioned at the

entrance of the archway on the Lower Western Terrace of the U.S.

Capitol on January 6, 2021” and that he “forcibly dragg[ed] a

MPD officer into a violent mob of rioters who ultimately

punched, kicked, and hit him, causing a head laceration and

other injuries.” Mem. Op., ECF No. 166 at 21. The Court made no

comment on any possible political motivation—and rightly so,

because neither Section 3142(g)(1) nor the first Chrestman

factor direct the Court to make that consideration.

Mr. McAbee has presented no new and material information as

to the first Chrestman factor. Rather, his Motion for

Reconsideration underscores the “gravity” of his offenses, and

15 so this factor therefore “‘weighs heavily in favor’ of pretrial

detention.”

(quoting United States v. Brown, CR No. 21-mj-

565 (ZMF)(RC),

, at *4 (D.D.C. Sept. 3, 2021)

(quoting United States v. Caldwell, CR No. 21-181 (CKK),

, at *7 (D.D.C. May 21, 2021)), aff’d, No. 21-3063,

(D.C. Cir. Nov. 17, 2021)).

2. Mr. McAbee Engaged in Planning Prior to January 6

Mr. McAbee next argues that there was no factual basis to

support a finding that the second Chrestman factor weighs in

favor of pretrial detention. Again, he presents no argument that

there is new and material information bearing on this factor.

See generally Def.’s Mot., ECF No. 191 at 9-13. Instead, he

contends that: (1) any acts of prior planning are not linked “to

a motive or intent to interfere with the Congressional action

scheduled for January 6”; and (2) the facts regarding Mr.

McAbee’s offenses are distinguishable from those regarding Mr.

Chrestman’s offenses. Id.5

In Chrestman, Chief Judge Howell explained:

[A]ny indication that a defendant engaged in prior planning before arriving at the Capitol, for example, by obtaining weapons or tactical gear, suggests that he was not just caught up in the frenzy of the crowd, but instead came to Washington, D.C. with the intention of

5 Mr. McAbee makes additional arguments that confuse the second and third Chrestman factors. See Def.’s Mot., ECF No. 191 at 9- 13. The Court more appropriately considers those other arguments in its discussion below of the third factor. 16 causing mayhem and disrupting the democratic process, mandated under the U.S. Constitution, of counting and certifying Electoral College votes.

Chrestman, 525 F. Supp. 3d at 26 (citing U.S. Const. art. II, §

1, cl. 3.). In other words, the Court should consider

information that Mr. McAbee obtained weapons or tactical gear or

otherwise engaged in prior planning. See id. That information

supports an inference of an “intention of causing mayhem and

disrupting the democratic process.” Id.

Mr. McAbee concedes that he obtained dangerous weapons

before arriving at the U.S. Capitol on January 6. See Def.’s

Mot., ECF No. 191 at 10-11 (discussing metal-knuckled gloves6 and

“other items”). Still, he argues that this factor cannot weigh

in favor of pretrial detention because he “is not charged with

having come to Washington DC to disrupt the political process”

and “[t]here is no evidence in this case that Mr. McAbee had any

intention to do so.” Id. at 10. The first point is not relevant

to the second Chrestman factor, which asks whether the defendant

engaged in prior planning—not whether the defendant has been

indicted on a particular charge. See Chrestman,

Mr. McAbee quibbles with this characterization of his gloves, see Def.’s Mot., ECF No. 191 at 16; but the gloves are called “Steel Outdoor Reinforced Brass Knuckle Motorcycle Motorbike Powersports Racing Textile Safety Gloves” on Amazon, which is where the gloves were purchased, Mem. Op., ECF No. 166 at 5 (emphasis added). 17 at 26. Indeed, and to the second point, Mr. McAbee’s Motion for

Reconsideration is rife with information that he engaged in

prior planning before arriving at the U.S. Capitol. He concedes

that he obtained metal-knuckled gloves, a ballistic vest, and

“other items” that are dangerous. See Def.’s Mot., ECF No. 191

at 10-11. He also concedes that he coordinated and communicated

the procurement of these dangerous weapons with Associate-1

before January 6. See

Chrestman makes clear that this information is sufficient

to support an inference that he intended to cause mayhem and

disrupt the democratic process, see Chrestman, 525 F. Supp. 3d

at 26; but Mr. McAbee contends that this inference is

inappropriate as applied to him, see Def.’s Mot., ECF No. 191 at

10-13. His argument fails. Courts have repeatedly held that such

an inference is reasonable. See, e.g., Chrestman, 525 F. Supp.

3d at 26; United States v. Sabol,

, 73 (D.D.C.

2021) (rejecting defendant’s “argument that he did not plan to

commit violence” when he “brought tactical gear, including a

helmet, steel-toe boots, zip ties, a radio and an ear piece” to

the rally); United States v. DeGrave,

, 202

(D.D.C. 2021) (finding that the defendant’s decision to wear

“bullet proof clothing,” as he described it when planning for

January 6, 2021, “made clear that he was dressed in anticipation

of confronting and engaging in violence”). Moreover, Mr. McAbee

18 himself proffers evidence that he intended to cause some measure

of mayhem on January 6. See Def.’s Mot., ECF No. 191 at 11

(explaining that he procured weapons and planned with Associate

1 how to meet counter-protester attacks with violence); see also

Gov’t’s Opp’n, ECF No. 194 at 7 (“That he asserts that he

intended to use these items against counter-protestors, as

opposed to law enforcement or members of Congress, does little

to undercut the fact that he and Associate-1 were prepared to

encounter and use violence.”). As with other defendants, the

fact that there might not be “a single line of communication” in

his text messages with Associate-1 about “an intention to

interfere with the planned Congressional” action does not change

the inference. Def.’s Mot., ECF No. 191 at 11.7

Mr. McAbee’s arguments about Mr. Chrestman and other

defendants facing charges from their conduct on January 6 are

also unavailing. He argues that other defendants brought other

items with them to the U.S. Capitol, see Def.’s Mot., ECF No.

191 at 10; but the inquiry at the second Chrestman factor is

only whether the defendant obtained dangerous weapons or

tactical gear, see Chrestman, 525 F. Supp. 3d at 26. Mr. McAbee

does not dispute that he obtained such items. See generally

7 Moreover, Mr. McAbee’s text messages with Associate-1 and Associate-2 after January 6 call this argument into question. See Mem. Op., ECF No. 166 at 11. 19 Def.’s Mot., ECF No. 191 at 9-13. He also argues that he “was

not a member of any national organization,” that “he came to

Washington D.C. with only one other person to attend a political

protest rally,” and that “[h]is decision was not in response to

any invitation from a national organization announced for the

purpose of interfering with Congress.” Id. at 12. Although a

response to an invitation from a national organization planning

to interfere with the democratic process is evidence of prior

planning, so too is the procurement of dangerous weapons. See

Chrestman, 525 F. Supp. 3d at 26. In any event, whether the

defendant is a member of an organization such as the Proud Boys

goes to the fourth Chrestman factor, see id.; which the Court

held weighs against pretrial detention here, see Mem. Op., ECF

No. 161 at 25-26.

Accordingly, the Court confirms its determination that the

second Chrestman factor weighs in favor of pretrial detention.

3. Mr. McAbee Carried a Dangerous Weapon

With respect to the third Chrestman factor, Mr. McAbee

again fails to present new and material information and instead

rehashes the same arguments already considered by the Court. See

Def.’s Mot., ECF No. 191 at 11-15; Mem. Op., ECF No. 166 at 23-

25. He concedes that he carried metal-knuckled gloves and

(albeit briefly) a black police baton. See Def.’s Mot., ECF No.

191 at 13-15. He argues that because “he had multiple

20 opportunities to employ both the gloves and the baton against

the law enforcement officers . . . but never did,” id. at 13;

the third factor ought to weigh against detention.

In Chrestman, Chief Judge Howell explained that evidence of

prior planning, such as “a defendant’s carrying or use during

the riot . . . indicates at least some degree of preparation for

the attack and an expectation that the need to engage in

violence against law enforcement or, indeed, the Legislative

branch, might arise.” Chrestman, 525 F. Supp. 3d at 26 (emphasis

added). Put differently, carrying a dangerous weapon alone

supports an inference that the defendant prepared for the

attack. See id. In considering this factor, courts have made

clear that “wielding [a dangerous weapon] would be serious by

itself.” Brown,

, at *5; see also United States

v. Fairlamb,

, 41 (D.D.C. 2021). That Mr.

McAbee may never have used the metal-knuckled gloves or baton

does not minimize his carrying those weapons during the

insurrection.

Mr. McAbee also argues that his choice during the riot to

not use any of the weapons he carried cuts against any

conclusion that he “deliberately joined in an ongoing attack on

law enforcement officers[] and [that] his actions were that of

an aggressor.” Def.’s Mot., ECF No. 191 at 14. The Government’s

proffer contradicts this argument. Text message communications

21 between Mr. McAbee and Associate-1 and video evidence establish

that Mr. McAbee was prepared to engage in violence at the U.S.

Capitol. See Mem. Op., ECF No. 166 at 22 (messages discussed

weapons Mr. McAbee might bring on January 6, including a t-

handle tire puncture, knives, brass knuckles, a magazine, and

metal-knuckled gloves);

(describing that Mr. McAbee

wore the metal-knuckled gloves when he entered the violence

between the rioters and MPD officers); Def.’s Mot., ECF No. 191

at 11. Video evidence further establishes that Mr. McAbee chose

to join in on the violent attack at the U.S. Capitol: “while

[Mr. McAbee] had a clear view of his co-defendants and others

assaulting uniformed police officers at the entrance to an

archway on the Lower Western Terrace of the Capitol building

(‘Archway’), [he] moved towards the Archway and joined the

attack.” Mem. Op., ECF No. 166 at 27 (quoting the Government’s

reply brief). The record evidence demonstrates that his

preparation for and his role in the attack were deliberate.

Consequently, the Court again finds that the third

Chrestman factor weighs in favor of pretrial detention.

4. Mr. McAbee’s Words and Movements Strongly Support Detention

The sixth Chrestman factor examines the “defendant’s words

and movements during the riot[, which] reflect the egregiousness

of his conduct.” Chrestman, 525 F. Supp. 3d at 27. A finding of

22 egregiousness is warranted for “defendant[s] who breached the

interior of the Capitol building” as well as for those “who

injured, attempted to injure, or threatened to injure others, or

who damaged or attempted to damage federal property.” Id.

Significant here, “[g]rave concerns are implicated if a

defendant actively threatened or confronted federal officials or

law enforcement.” Id.

Mr. McAbee argues that the Court erred in determining that

the sixth Chrestman factor weighs against him. See Def.’s Mot.,

ECF No. 191 at 15-17. In his briefing, he lists 158 additional

facts, which he claims are “incontrovertibly true” and “simply

ignored” in the December 2021 Memorandum Opinion. Id. Only the

final six points are relevant to the sixth Chrestman factor.

Moreover, the Court need not consider any of these points at

greater length because: (1) they do not present new and material

information; and (2) they merely rehash arguments presented

before the Court issued its 2021 detention order.

In the December 2021 Memorandum Opinion, the Court noted

that the parties had submitted “differing descriptions of Mr.

McAbee’s conduct on January 6, 2021.” Mem. Op., ECF No. 166 at

26. The Court considered Mr. McAbee’s argument that “he ‘did not

engage in any actual assault.’” Id. at 27 (quoting Mr. McAbee’s

8 The list in Mr. McAbee’s Motion for Reconsideration omits the number 14. See Def.’s Mot., ECF No. 191 at 15-17. 23 opposition briefing); see Def.’s Mot., ECF No. 191 at 16-17. The

Court reviewed the record to determine whether Mr. McAbee “took

offensive conduct” and whether he was “in the area during the

assaults on the MPD officers to provide aid and assistance to

individuals he saw who were in peril.” Mem. Op., ECF No. 166 at

28 (citation and internal quotation marks omitted) (considering

evidence also before Magistrate Judge Frensley). After reviewing

the “multiple angles” of what transpired at the Lower Western

Terrace, id. at 28; the Court made the following findings: (1)

Mr. McAbee moved to the center of the fight “[a]fter one MPD

officer had already been knocked down, beaten, and dragged into

the massive mob of rioters”; (2) “Mr. McAbee placed his hands on

Officer A.W.’s legs and torso as the officer was lying on the

ground”; (3) “Officer C.M pushed Mr. McAbee with his police

baton” in an “attempt[] to prevent Mr. McAbee from continuing to

physically assault Officer A.W.”; (4) “Mr. McAbee st[ood] to

confront Officer C.M.,” “swinging his arms and hitting the

officer”; and (5) Mr. McAbee “stood over [Officer A.W.], grabbed

him by the chest, and pulled him toward the stairs, causing them

to tumble together into the mob.” Id. at 29-30. The Court

declined to make factual findings as to “the period after Mr.

McAbee and Officer A.W. tumbled down the stairs” because the

video evidence did “not make clear whether Mr. McAbee was

pinning the officer to the ground in an aggressive way or in a

24 way meant to shield the officer from other rioters.” Id. at 30.

In his Motion for Reconsideration, Mr. McAbee merely offers

another explanation of events—one that the Court considered and

largely rejected in its earlier detention order. Compare Def.’s

Mot., ECF No. 191 at 15-17, with Mem. Op., ECF No. 166 at 26-32.

Moreover, and as the Court explained in December 2021, “even if

Mr. McAbee had a change of heart” at some point, he still

“engaged in a number of aggressive, offensive, and violent

actions,” none of which were “aimed at helping any of the law

enforcement officers who were being beaten.” Id. at 30-31. The

video evidence shows that at several points, Mr. McAbee engaged

in offensive action toward law enforcement officials. His Motion

for Reconsideration restates “facts” that have already been

controverted, and therefore the Court determines again that the

sixth Chrestman factor weighs in favor of pretrial detention.

Accordingly, and after considering the Chrestman factors to

aid in its consideration, the Court holds again that the nature

and circumstances of Mr. McAbee’s specific offenses and

underlying conduct strongly favor detention.

B. The Weight of the Evidence

Mr. McAbee next disputes that the weight of the evidence

against him favors detention. See Def.’s Mot., ECF No. 191 at

18-20. He does not offer new and material information to support

his argument. Rather, he argues that the Court’s reasoning on

25 this point “is tantamount to a pre-trial determination of Mr.

McAbee’s guilt,” which “is expressly prohibited under the Bail

Reform Act.” Id. at 18 (citing United States v. Alston,

(D.C. Cir. 1969)). He further explains that “[t]his

case involves real disputes over what events are depicted in the

video” and that he “intends to testify” to offer his

“alternative interpretation of all the events on the videos.”

Contrary to Mr. McAbee’s suggestions, the Court made no

determination of his guilt in considering the weight of the

evidence. The Court instead reviewed the “indisputabl[e]”

evidence and found the following all weighed against Mr. McAbee:

(1) video footage and photographs show that he was present at

the U.S. Capitol on January 6; (2) former co-workers have

identified Mr. McAbee as the person captured in that evidence;

(3) Mr. McAbee’s text messages corroborate that he planned to

and actually participated in the insurrection; (4) video footage

shows that he wore a ballistic vest and metal-knuckled gloves;

(5) video footage shows that Mr. McAbee entered the riot in the

Lower Western Terrace; (6) video footage shows he physically

engaged with two MPD officers; and (7) law enforcement later

recovered items from his home. See id. at 32-33. These findings

do not exclude the possibility of a meritorious defense. Indeed,

recognizing that Mr. McAbee has an alternative explanation of

26 the video footage, the Court explained that he “will have the

opportunity to refute the government’s evidence and present

additional evidence in his defense at trial.” Id. at 33. In

other words, although the weight of the evidence favors pretrial

detention, the Court acknowledged that such a finding is

distinguishable from a prediction or conclusion that Mr. McAbee

is guilty of the charged offenses.

The Court’s reasoning aligns with that of other district

court decisions considering the pretrial detention of January 6

defendants. See, e.g., United States v. Gieswein, No. CR 21-24

(EGS),

, at *12 (D.D.C. July 27, 2021), aff’d,

No. 21-3052,

(D.C. Cir. Oct. 19, 2021)

(considering videos and photographs); Brown,

, at

*6 (videos and photographs); Fairlamb, 535 F. Supp. 3d at 41

(videos).

Mr. McAbee also suggests that the weight of the evidence is

relevant only in cases where the Government seeks detention

based on flight risk. See Def.’s Mot., ECF No. 191 at 19 & n.2.

Binding precedent from the U.S. Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”) makes clear that

courts must consider the weight of the evidence in all cases,

including those where the Government seeks detention based only

on dangerousness. See Munchel,

.

27 Accordingly, Section 3142(g)(2) weighs slightly9 in favor of

pretrial detention.

C. The History and Characteristics of Mr. McAbee

Mr. McAbee also disputes the application of the third

Section 3142(g) factor. In its December 2021 Memorandum Opinion,

the Court found that several factors weighed in Mr. McAbee’s

favor—namely, his age, lack of criminal history, lack of prior

dangerousness or violence, and strong ties to the community.

Mem. Op., ECF No. 166 at 34. Mr. McAbee argues, though, that the

Court’s finding that he was a law enforcement officer should not

count against him because he chose to not attack Officer A.W. or

Officer C.M. in particular ways at particular times on January

6. See Def.’s Mot., ECF No. 191 at 20-21.

Mr. McAbee misunderstands the Court’s prior Memorandum

Opinion. There, the Court explained that his law enforcement

background weighed against him because he had a “responsibility

to uphold and enforce the law” and “an understanding of what

constitutes a violation of that law.” Mem. Op., ECF No. 166 at

35. Even if he disputes the physical altercations with Officers

A.W. and C.M., Mr. McAbee cannot seriously dispute that the

video evidence demonstrates that he breached the interior of the

9 The Court again notes that the weight of the evidence “is the least important” factor. United States v. Padilla, No. CR 21-214 (JDB),

, at *7 (D.D.C. May 4, 2021) (quoting United States v. Gebro,

(9th Cir. 1991)). 28 Capitol building, that he was carrying a weapon inside the

building, and that he had some sort of physical and violent

engagement with law enforcement officers. As a law enforcement

officer, he should understand the gravity and egregiousness of

such conduct—but nevertheless, he chose to act in this manner.

It is no “Catch-22” that the Court takes seriously charges that

someone tasked with enforcing the law has shirked that

responsibility.

However, Mr. McAbee offers some new and material

information bearing on Section 3142(g)(3). Specifically, he has

an employment offer from NEURO TOUR Physical Therapy, Inc,

located in Marietta, Georgia. Def.’s Mot., ECF No. 191 at 24. He

explains that he may work remotely in this position while under

home detention with GPS monitoring. Id. at 25. The Bail Reform

Act specifically instructs the Court to consider a defendant’s

employment situation in consideration of Section 3142(g)(3), see

(g)(3)(A); and the D.C. Circuit has recently

affirmed that an offer of employment if released is “some

credible evidence contrary to the statutory presumption,” United

States v. Gamble,

, 8 (D.C. Cir. 2020).

Because the Government does not offer any further evidence

regarding Mr. McAbee’s dangerousness as to this factor, see

generally Gov’t’s Opp’n, ECF No. 194; see also

(f); the Court re-weighs this factor and determines that

29 Section 3142(g)(3) weighs neither in favor nor against

detention.

D. The Nature and Seriousness of the Danger to Any Person or the Community

Finally, Mr. McAbee contends that the Court erred in its

consideration of Section 3142(g)(4). He argues that: (1) the

Court made its determination by pronouncing his factual guilt;

and (2) the Court sidestepped certain “uncontroverted video

evidence.” The Court rejects both arguments.

The Court made no determination as to Mr. McAbee’s guilt or

innocence. Instead, as explained supra, the Court considered the

multiple videos, photographs, co-worker identifications, and

physical evidence that law enforcement obtained. See Mem. Op.,

ECF No. 166 at 32-33. The Court recognized that several facts

are uncontroverted based on this evidence, such as Mr. McAbee’s

presence in the Lower Western Terrace of the U.S. Capitol and

his carrying of the metal-knuckled gloves while physically

engaging with MPD officers. See id. The Court also recognized

that there are ambiguities that it could not resolve, such as

what occurred after Mr. McAbee and Officer A.W. tumbled down the

staircase. See id. at 30.

Moreover, the “uncontroverted” points that Mr. McAbee

offers in his Motion for Reconsideration were all already

considered and addressed by the Court. Compare Def.’s Mot., ECF

30 No. 191 at 23-24, with Mem. Op., ECF No. 166 at 23-24 (baton),

and id. at 29 (“Mr. McAbee placed his hands on Officer A.W.’s

legs and torso as the officer was lying on the ground.”), and

id. at 30 (“Mr. McAbee stands to confront Officer C.M. and

begins swinging his arms and hitting the officer.”). Far from

determining Mr. McAbee’s guilt, the Court fairly considered what

the evidence does and does not show at this time.

Therefore, the Court determines that this final Section

3142(g) factor weighs against Mr. McAbee and in favor of his

continued pretrial detention.

IV. Conclusion

After examining Mr. McAbee’s arguments to reconsider the

December 2021 Memorandum Opinion, the Court finds, by clear and

convincing evidence, that the Section 3142(g) factors weigh in

favor of pretrial detention and that no condition or combination

of conditions will reasonably assure the safety of any other

person and the community were Mr. McAbee to be released pending

trial. Accordingly, Mr. McAbee’s motion is DENIED. Mr. McAbee

shall remain detained pending trial.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 3, 2022

31