UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

v. No. 21-cr-00538 (DLF)

JACOB TRAVIS CLARK,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is the defendant’s Motion for Pretrial Release, Dkt. 108, and the

government’s Motion for Pretrial Detention, Dkt. 111. 1 For the reasons below, the Court will grant

the defendant’s motion and deny the government’s motion.

I. BACKGROUND

On January 30, 2024, Clark was convicted of felony obstruction, see

(c)(2), and five misdemeanor offenses for his actions at the U.S. Capitol on January 6, 2021.

Dkt. 70. The Court sentenced Clark to 33 months’ imprisonment—12 months above the high end

of the guidelines range of 15 to 21 months. Dkt. 71. The Court varied upward due to the

defendant’s “highly aggressive” and obstructive conduct in and around the Capitol building. See

Sentencing Tr. at 150–51. Clark reported to the Bureau of Prisons on December 4, 2023. He later

appealed his § 1512(c)(2) conviction to the D.C. Circuit. Dkt. 72.

While his appeal was pending, Clark filed three separate motions for release, Dkts. 78, 90,

93, which the Court denied. On each occasion, the Court explained that appeal was unlikely to

1 At the October 17, 2024, hearing, the government orally moved to have the defendant recommitted to BOP, and thus, it filed a memorandum in support of its earlier motion, Dkt. 111. result in a “reduced sentence to a term of imprisonment less than the total of the time [Clark had]

already served.” Minute Order (4/30/2024); see Minute Order (7/26/2024) (citing

(b)(1)); Minute Order (2/13/2024). The Court further explained that “[s]hould the

defendant’s felony obstruction conviction be dismissed on appeal . . ., the Court will consider at

any future resentencing the same aggravating and mitigating factors it took into account at

sentencing, as well as the defendant’s post-sentencing conduct.” Minute Order (7/26/2024).

Finally, it stated it would likely impose sentences at or near the statutory maximum of 12 months’

imprisonment and would not take into account his early release credits.

On September 9, 2024, on a joint motion by the parties, the D.C. Circuit vacated Clark’s

§ 1512(c)(2) conviction and remanded the case for further proceedings. Dkt. 97. The next day,

the Court directed the parties to submit a joint status report “proposing a schedule for further

proceedings.” Minute Order (9/10/2024).

On September 11, Eugene Ohm, lead counsel for the defendant, emailed Chambers staff

ex parte and requested that staff fax the D.C. Circuit’s order to the Bureau of Prisons. Before

doing so, the law clerk reminded Ohm that the D.C. Circuit’s order “vacated only the defendant’s

conviction under

(c)(2) . . . [and did] not imply [Clark] is entitled to release at

this moment.” The law clerk also inquired whether BOP still required a faxed copy under such

circumstances. Counsel Ohm represented in a reply email that BOP “needs the paperwork so they

can properly process [Clark’s] release date and his reentry. I didn’t mean to imply that he was

supposed to be released at this moment.”

Despite the Court’s explicit orders—denying Clark’s early release and directing the parties

to propose a schedule for further proceedings, see Minute Order (9/10/2024); Minute Order

2 (4/30/2024); Minute Order (7/26/2024); Minute Order (2/13/2024)—on September 16, co-counsel,

cc’ing Ohm, emailed BOP without the Court’s knowledge, requesting Clark’s immediate release:

Jacob Clark . . . had one of his convictions vacated on appeal. The court order is attached, as well as the original judgment entered by the district court before the appeal. . . . My understanding is that, counting FSA earned time credit, he has over 12 months of time and so should be released ASAP. Can someone please help me get this information to his unit team.

Dkt. 106-1 (emphasis added). Defense counsel did not notify government counsel of their request.

Nor did they inform BOP of the Court’s previous denials of release or explain that the Court had

not yet ordered Clark’s release. Misled by defense counsel, BOP erroneously released Clark from

custody on September 17, 2024. See Dkt. 102. At that point, Clark had served only 9.5 months

of imprisonment.

Neither the Court nor government counsel was informed of Clark’s release.

Thereafter, on September 23, the government informed defense counsel that it intended to

file a superseding indictment. See October 17, 2024 Hearing Tr. at 9. On September 24 and 25,

the parties filed status reports requesting an arraignment on the forthcoming indictment. Dkts. 98,

99. The defense report made no mention of the fact that Clark had already been released by BOP.

Dkt. 99. Government counsel did not learn of Clark’s release until nearly three weeks later, on

October 11, when BOP alerted government counsel that Clark was no longer in custody.

That same day, government counsel notified the Court that Clark had been released as a

result of defense counsel’s request. Dkt. 102 at 2. Thereafter, defense counsel filed a response

vigorously denying having made such a request. Dkt. 104 at 1. Instead, they claimed that they

had contacted BOP only to recalculate Clark’s release date and had emailed Chambers ex parte

only to “pass [BOP’s] directions along.”

Defense counsel described the September 16 email,

which had cc’d Ohm and requested Clark’s release “ASAP,” as a mere “follow up email”

addressing BOP’s own earlier directions.

Counsel boldly demanded that “[t]he government

3 should apologize for insinuating that defense counsel’s actions to prevent Mr. Clark’s

overincarceration were somehow inappropriate.”

.

On October 17, 2024, the Court arraigned the defendant on the superseding indictment,

which charges Clark with ten counts, including violations of

(a)(3) and 111(a)(1)

and (b). See Dkt. 100. The government explained that the charges in the superseding indictment

reflected new evidence related to the assault charges, including video of Clark throwing a helmet

at Capitol police inside the Crypt, and testimony from a victim officer that further strengthened

the government’s evidence that Clark had assaulted the officer with a 2-by-4 wooden plank. See

October 17, 2024 Hearing Tr. at 23.

During the October 17 hearing, the Court questioned defense counsel about Clark’s early

release. Initially, lead counsel Ohm and his co-counsel denied having requested that BOP release

Clark. Specifically, co-counsel claimed that the defense had no intention of “subverting or going

around anybody’s back” and that counsel had emailed BOP and Chambers only to seek the

recalculation of Clark’s early release credits.

. But after government counsel read to the

Court counsel’s September 16 email to BOP, Ohm and his co-counsel acknowledged that they had

in fact requested Clark’s release.

at 22–24. Ohm, for his part, acknowledged that he was cc’d

on the September 16 email, but denied ever reading it, despite having told the Court just moments

before that he had “scour[ed] all of the BOP communications” over the relevant time period and

that defense counsel had never “asked for or said [Clark’s] supposed to be released or he needs to

be released.”

.

On that record, the Court found that defense counsel had intentionally circumvented the

judicial process by misleading the Court and BOP, without notice to government counsel.

. The Court’s previous orders denying Clark’s release, Chambers staff’s explicit

4 communications with Ohm, and legal precedent all pointed in one direction: The next step

following the Fischer remand was to return to Court for a resentencing hearing, or, at the very

least, to file a motion for release. See United States v. Weeks, No. 21-cr-247 (JDB), Dkt. 118

(imposing amended judgment after post-Fischer resentencing proceedings); United States v.

Weyer, No. 22-cr-40 (JEB), Dkt. 80 (same); United States v. Adams, No. 21-cr-354 (APM), Status

Conference of October 8, 2024 (directing resentencing proceedings post-Fischer). At any

resentencing hearing, the Court could have exercised its authority to release Clark, or it could have

imposed consecutive sentences for some or all of Clark’s misdemeanor convictions, resulting in a

maximum possible sentence of four years’ imprisonment. See United States v. Blackson,

(D.C. Cir. 2013) (explaining that after partial vacatur of a conviction, a district court may

consider whether its original sentence was influenced by a vacated conviction and may

“reconfigure the sentencing plan” to “effectuate its sentencing intent”); United States v. Bru, No.

21-cr-352 (JEB), Sentencing Tr. of January 24, 2024 (explaining that even if the defendant’s

§ 1512(c)(2) conviction was overturned, his sentence would be the same because the court would

impose consecutive sentences on the other counts of conviction to achieve the same period of

imprisonment). Instead of filing a motion for release or requesting a resentencing, however,

defense counsel contacted BOP and requested Clark’s immediate release, misleading both BOP

and the Court in the process. See October 17, 2024 Hearing Tr. at 20, 28.

On the government’s motion to remand Clark to BOP custody, the Court ordered Clark to

self-surrender to BOP on October 31, 2024. See October 17, 2024 Hearing Tr. at 39. The Court

later stayed the order to give the parties adequate time to brief whether Clark should remain on

release or be detained. See Minute Order (10/28/2024); Dkts. 108, 109, 110, 111. On November

6, 2024, the Court held a hearing on the parties’ motions.

5 II. LEGAL STANDARD

The parties argue that the Court should assess Clark’s release under the Bail Reform Act,

, see Dkt. 108 at 3; Dkt. 111 at 1, even though BOP mistakenly released Clark

from prison before the Court had an opportunity to resentence Clark on the original indictment.

The sole argument the government advances in its briefs is that Clark should be detained because

he is charged with a crime of violence, § 3142(f)(1)(A), and is a danger to the community, §

3142(f)(1)(E). Dkts. 109; 111. Clark does not dispute that

(b) qualifies as a “crime

of violence.”

(f)(1)(A); see also United States v. Klein, 533 F. Supp.3d 1, 9-11

(D.D.C 2021). Consistent with the arguments raised by the parties in their briefs, the Court will

assess Clark’s dangerousness under

.

To determine whether there are conditions that will reasonably assure the safety of the

community under § 3142(f), the Court must weigh the familiar § 3142(g) factors: (1) “the nature

and circumstances of the offense charged,” (2) “the weight of the evidence against the person,” (3)

“the history and characteristics of the person,” and (4) “the nature and seriousness of the danger to

any person or the community that would be posed by the person’s release.”

(g).

Under the Bail Reform Act, the Government may proceed by way of proffer, see United States v.

Smith,

(D.C. Cir. 1996), and must meet its burden by clear and convincing

evidence, United States v. Munchel,

(D.C. Cir. 2021).

III. ANALYSIS

The first of the § 3142(g) factors—the nature and circumstances of Clark’s offense—

weighs in favor of detention.

(g)(1). Although none of offenses with which

Clark is charged give rise to a rebuttable presumption of dangerousness under the Bail Reform

Act, see

(e)(3)(A), they are undoubtedly serious. The superseding indictment

6 charges Clark with multiple felonies, including assault with a dangerous weapon which has a

statutory maximum of twenty years in prison. See

(b). As set forth in the stipulated

statement of offense, Dkt. 43, and the Presentence Investigation Report (PSR), Dkt. 48, which the

Court adopted at sentencing without objection as to its findings of fact, see Sentencing Tr. at 6–7,

Clark stormed the Capitol building on January 6, 2021 with the intent to disrupt the certification

of the electoral college vote. See PSR at 6–7; see also

at 7 ¶ 17 (texting before 2:00 p.m., “We

are trying to storm the capital”);

at 7 ¶ 19 (texting minutes later, “We stormed it and busted the

door down”). Once inside the Capitol, Clark was violent. He threatened law enforcement officers,

yelled at them to “stand down,” and encouraged other rioters forward. See Dkt. 43 at 7–13; PSR

at 4–8; Sentencing Tr. at 146–149. He also assaulted law enforcement officers on two occasions:

once by lobbing a helmet at a group of officers and in another instance by hitting an officer in the

groin with a 2-by-4 plank. See Sentencing Tr. at 146–149; Dkt. 111 at 5–9. Both the nature and

the circumstances of the charged offenses weigh in favor of the detention.

The second § 3142(g) factor—the weight of the evidence—also favors detention.

(g)(2). At sentencing, the Court found that the bench trial stipulation, the PSR, and

the additional evidence proved that Clark had committed all of the violent conduct described,

except for the alleged assaults. See Sentencing Tr. at 148–149. Since then, the government has

proffered new evidence—including new video footage and testimony from the victim officer who

was assaulted with the 2-by-4 plank. See Dkt. 111 at 3, 7-11. The defense questions the victim

officer’s identification of Clark, see Dkt. 115, but does not contest that Clark threw the helmet at

a group of officers inside the Crypt, see generally Dkt. 110. Considering the evidence produced

at sentencing, the video footage the Court reviewed for the November 6 hearing, see Dkt. 111 at

7-11, and the competing proffers, the Court finds that Clark assaulted federal officers with a helmet

7 and a 2-by-4 plank. Although the strength of the evidence is the least important of the § 3142(g)

factors, it “weighs firmly in favor of detention.” Klein, 533 F. Supp. 3d at 15.

While the first two factors favor of detention, the remaining factors, see

(g)(3), (g)(4), do not. With respect to the third factor—the defendant’s history and

characteristics—the same mitigating characteristics that the Court considered at sentencing,

including Clark’s lack of a significant prior record, see PSR at 11-17, and Clark’s familial

obligations, see Sentencing Tr. at 128, weigh in favor of Clark’s continued release. Notably, the

government did not move to detain Clark at the outset of this case. See Minute Entry (4/28/2021).

Further, since being placed on supervision, Clark has performed well, both before and since his

incarceration, cooperating with Pretrial Services and complying with his conditions of release. See

Dkts. 58, 61. He self-surrendered without incident. And while incarcerated, Clark made admirable

use of his time. See Dkt. 96 at 1. He completed non-residential drug treatment, paid down his

financial assessment, completed three rounds of money management classes, and took several

educational courses.

Finally, since his mistaken release on September 17, 2024, Clark has

remained compliant with his conditions of supervision. See Dkt. 108 at 5.

The Court’s determination as to factor four—whether the defendant poses a danger to any

person or the community—also weighs in favor of release. “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.” Klein, 533

F.Supp.3d at 17 (citations and quotation marks omitted). As the D.C. Circuit made clear in United

States v. Munchel, to detain a defendant on dangerousness grounds, the government must show

that the defendant “poses a concrete, prospective threat to public safety”—in other words, an

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

(citation

8 and quotation marks omitted). The government cannot meet this burden. Other than Clark’s

violent conduct on January 6, the Court is unaware of any other threats or violence in Clark’s

background. See generally PSR. And Clark has not violated his conditions of release during the

pendency of this case. See Dkts. 58, 108. For these reasons, the Court finds that any potential

threat to the community can be addressed effectively through conditions imposed on his release.

In sum, after evaluating the § 3142(g) factors, the Court concludes that the government has

not met its burden of establishing, by clear and convincing evidence, that no condition or

conditions of release will reasonably assure the safety of the community. Accordingly, the Court

will allow Clark to remain on release pending trial on the superseding indictment. To reasonably

assure his appearance and the safety of the community, the Court will reinstate his original

conditions of pretrial release, see Dkts. 11, 20.

(c). The Probation or Pretrial

Services Officer is directed to review these conditions with Clark, see

(h). If

Clark violates his conditions of his release or if new evidence comes to light regarding his

compliance to date, the Court will consider a petition or motion to amend or revoke his conditions

of release.

Accordingly, it is

ORDERED that the defendant’s Motion for Release, Dkt. 108, is GRANTED, and the

government’s Motion for Pretrial Detention, Dkt. 111, is DENIED. It is further

ORDERED that the Court’s October 17 Order for the defendant to self-surrender to the

Bureau of Prisons is VACATED. It is further

ORDERED that the defendant’s original conditions of pretrial release are reimposed.

SO ORDERED by Judge Dabney L. Friedrich on December 5, 2024.

9 ________________________ DABNEY L. FRIEDRICH December 5, 2024 United States District Judge

10