UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA : : v. : Criminal Action No.: 21-687 (RC) : DAVID CHARLES RHINE, : Re Document No.: 124 : Defendant. :

MEMORANDUM OPINION

DENYING DEFENDANT’S MOTION FOR BOND PENDING APPEAL

I. INTRODUCTION

On April 24, 2023, a federal jury convicted David Charles Rhine on each of four counts

arising from his participation in the assault on the U.S. Capitol on January 6, 2021. In the wake

of the jury’s verdict, the Court sentenced Rhine to a four-month term of imprisonment on each of

the counts of conviction, with each term to run concurrently. Shortly thereafter, Rhine noticed

an appeal of his conviction to the D.C. Circuit. Rhine now moves for bond pending the

conclusion of that appeal. For the reasons described below, Rhine’s motion is denied.

II. BACKGROUND

On November 19, 2021, the Government filed an information charging Rhine with four

separate offenses arising from his participation in the January 6, 2021, riot at the U.S. Capitol.

Information, ECF No. 8. Rhine opted not to plead guilty, and instead proceeded to try his case to

a jury in April of 2023. After a five-day trial, the jury found Rhine guilty on each of the four

charged counts. See Verdict Form, ECF No. 102. Specifically, the jury found Rhine guilty of

four misdemeanor offenses: entering and remaining in a restricted building or grounds, in

violation of

(a)(1) (Count One); disorderly and disruptive conduct in a restricted building or grounds, in violation of

(a)(2) (Count Two); disorderly

conduct in a Capitol Building, in violation of

(e)(2)(D) (Count Three); and

parading, demonstrating, or picketing in a Capitol Building, in violation of

(e)(2)(G) (Count Four). Judgment at 1–2, ECF No. 120. This Court then sentenced Rhine

to four-month terms of imprisonment on each count of conviction, with the terms to run

concurrently.

. The Court also granted Rhine’s request to delay his self-surrender date to

March 1, 2024. See

.

On September 25, 2023, Rhine noticed an appeal of the judgment. See Notice of Appeal,

ECF No. 122. He subsequently filed the instant motion for bond pending appeal and for a stay of

execution of his sentence. Def.’s Mot. Bond Pending Appeal (“Def.’s Mot.”) at 1, ECF No. 124.

The Government opposed the motion, see Gov’t’s Opp’n Mot. Bond Pending Appeal (“Gov’t’s

Opp’n”), ECF No. 135, and the motion is now ripe for review, see Def.’s Reply Gov’t’s Opp’n

Mot. Bond Pending Appeal (“Def.’s Reply”), ECF No. 136.

III. ANALYSIS

A. Legal Standards

The Bail Reform Act provides, in relevant part, that a court “shall order . . . a person who

has been found guilty of an offense and sentenced to a term of imprisonment” to “be detained”

pending the resolution of an appeal unless the court finds that two conditions are met.

(b). First, the court must find “by clear and convincing evidence that the person is not

likely to flee or pose a danger to the safety of any other person or the community if released

under section 3142(b) or (c) of this title.”

§ 3143(b)(1)(A). And second, the court must find

both “that the appeal is not for the purpose of delay” and that the appeal “raises a substantial

question of law or fact likely to result in . . . (i) reversal, (ii) an order for a new trial, (iii) a

2 sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of

imprisonment less than the total of the time already served plus the expected duration of the

appeal process.” Id. § 3143(b)(1)(B).

B. Flight Risk or Danger to the Community

As an initial matter, the parties dispute whether Rhine has borne his burden of proving by

clear and convincing evidence that he is not a flight risk or danger to the community. For his

part, Rhine argues that he had no criminal history prior to this case. See Def.’s Mot. at 2; see

also Presentence Investigation Report (“PSR”) at 9, ECF No. 112. Rhine also notes his “strong

record of public service”—which includes his years of service in the Navy—“and [his] long

history as a contributing community member in Bremerton, Washington.” See Def.’s Mot. at 2–

3. Rhine further notes that he is employed as an accountant—a job he has held since 2006—and

that he has not violated any of the terms of his supervised release. See id. at 3.

The Government concedes that Rhine “appears to have been compliant with the terms of

his release.” See Gov’t’s Opp’n at 6. But the Government argues that Rhine nonetheless poses a

threat to the community. Id. at 5–7. In support, the Government emphasizes Rhine’s actions on

January 6, arguing that—although Rhine “did not himself engage in hands-on violence”—he

“ignored the obvious indications that his presence on the Capitol grounds was unauthorized” and

knowingly entered the Capitol with “two pocket knives and a container of pepper spray.” See id.

at 6. The Government also argues that Rhine “has not accepted responsibility for his conduct on

January 6.” See id. at 7. According to the Government, that fact, coupled with the “volatile

context of the upcoming election year,” serve as additional reasons to fear the danger Rhine

poses if he remains in the community. See id. at 5, 7.

3 Having considered the arguments of the parties and the available evidence—including the

facts detailed in the Presentence Investigation Report—the Court finds that Rhine has shown, by

clear and convincing evidence, that he poses neither a flight risk nor a risk to the broader

community. The Court agrees with Rhine that his compliance with the conditions of his

supervised release, his close ties to the community, and his longstanding employment suggest

that he is unlikely to flee or commit further offenses while his appeal is pending. See United

States v. Sheppard, No. 21-cr-203,

, at *2 (D.D.C. Nov. 3, 2023) (finding

defendant posed no flight risk and did not represent threat to community based on similar

factors). Accordingly, the Court finds that the requirements of section 3143(b)(1)(A) are

satisfied.

C. Substantial Questions of Law

Having concluded that Rhine has satisfied section 3143(b)(1)(A)’s requirements, the

Court must next consider whether Rhine’s appeal “raises a substantial question of law or fact

likely to result in . . . (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not

include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than

the total of the time already served plus the expected duration of the appeal process.”

(b)(1)(B). This requires the Court to answer two questions. First, “[d]oes the appeal raise

a substantial question?” United States v. Perholtz,

(D.C. Cir. 1987) (per

curiam). In this context, the D.C. Circuit has explained that “a substantial question is a ‘close’

question or one that very well could be decided the other way.”

(internal quotation marks

omitted); see

(explaining that this standard is “more demanding” than one that requires the

inquiry to be “fairly debatable,” “fairly doubtful,” or simply “not frivolous”). “In conducting

this inquiry, the Court presumes the defendant was validly convicted,” United States v.

4 Sheppard, No. 21-cr-203,

, at *2 (D.D.C. Jan. 11, 2024), and “the defendant

bears the burden of rebutting this presumption,” United States v. Libby,

(D.D.C. 2007). If the court answers the first question in the affirmative, it then must determine

whether “resolution of th[e] [substantial] question in the defendant’s favor [is] likely to lead to

reversal” or one of the other outcomes enumerated in section 3143(b)(1)(B)(ii)–(iv). Perholtz,

.

Rhine contends that his appeal raises not one, but rather three substantial questions of

law. Def.’s Mot. at 3. First, he argues that the Court’s instructions to the jury misstated the law

on Counts One and Two.

More specifically, he argues that the Court erred by instructing the

jury that they did not need to find that Rhine knew Vice President Mike Pence (or another Secret

Service protectee) was inside the Capitol in order to find Rhine guilty of violating

(a)(1) and (a)(2). See

at 3–16. Second, Rhine argues that the statutes underlying his

convictions on Counts Three and Four—40 U.S.C. § 5104(e)(2)(D) and (e)(2)(G), respectively—

violate the First Amendment both on their face and as-applied. See id. at 16–39. Finally, Rhine

contends that the Court’s sentence was impermissibly punitive because it was imposed as a

sanction for Rhine’s “exercise of his Sixth Amendment rights.” See id. at 3, 39–43.

1. Rhine’s Challenge to

(e)(2)(D) and (e)(2)(G)

For reasons that will become apparent, the Court begins with Rhine’s contention that his

challenge to the constitutionality of

(e)(2)(D) and (e)(2)(G) presents a

substantial question of law. As relevant here, section 5104(e)(2)(D) makes it a crime for “[a]n

individual or group of individuals [to] willfully and knowingly . . . utter loud, threatening, or

abusive language, or engage in disorderly or disruptive conduct, at any place in the Grounds or in

any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of

5 a session of Congress or either House of Congress.”

(e)(2)(D). And section

5104(e)(2)(G) prohibits “parad[ing], demonstrat[ing], or picket[ing] in any of the Capitol

Buildings.”

§ 5104(e)(2)(G).

Rhine argues that sections 5104(e)(2)(D) and (e)(2)(G) are both facially unconstitutional

and unconstitutional as applied to his conduct. See Def.’s Mot. at 16, 37. In arguing that the

statutes are facially unconstitutional, he contends that the statutes are overbroad, vague, and

impermissibly regulate speech based on viewpoint and content. See id. at 16–37. This is not the

first time that Rhine has made these arguments. To the contrary—and as he acknowledges—

Rhine raised the same arguments in a pre-trial motion to dismiss. See id. at 16 (“Prior to trial,

Mr. Rhine moved to dismiss Counts 3 and 4 on these grounds.”); see also Def.’s Mot. Dismiss,

ECF No. 47. The instant motion largely tracks the arguments raised earlier in this litigation.

For example, Rhine argues that sections 5104(e)(2)(D) and (e)(2)(G) are facially

unconstitutional because they are impermissibly vague. See Def.’s Mot. at 34–37. To that end,

Rhine argues that section 5104(e)(2)(D)’s prohibition on “disorderly or disruptive conduct” is

vague because the statute does not define what constitutes such conduct. See id. at 35–36. Rhine

made the same argument in his motion to dismiss, see Def.’s Mot. Dismiss at 7–10, and the

Court rejected it, United States v. Rhine,

, 61–62 (D.D.C. 2023). As for

section 5104(e)(2)(G), Rhine argues—like he did before—that that section is vague because it

does not “define or clarify” the terms “parading, demonstrating, and picketing.” See Def.’s Mot.

at 36; see also Def.’s Mot. Dismiss at 15–16. Again, the Court has already explained why that is

incorrect. See Rhine, 652 F. Supp. 3d at 62. Rhine’s present motion does not cite any binding or

persuasive authority issued since the Court’s prior opinion that causes the Court to doubt its

earlier analysis. See United States v. Abou-Khatwa, No. 18-cr-67,

, at *3

6 (D.D.C. Jan. 31, 2022) (“The court has already considered and rejected Defendant’s . . .

objections . . . , and Defendant does not present new arguments or intervening case law that

persuade this court that a ‘close question’ exists on appeal.”). Nor does he attempt to explain

why, despite the Court’s prior ruling, the vagueness question is particularly “close” such that it

“very well could be decided the other way.” See Perholtz,

(internal quotation

marks omitted).

Rhine separately argues that sections 5104(e)(2)(D) and (e)(2)(G) are facially

unconstitutional because they are overbroad. See Def.’s Mot. at 25–31. In resolving Rhine’s

motion to dismiss, the Court acknowledged that the question of whether sections 5104(e)(2)(D)

and (e)(2)(G) are overbroad “presents a closer question” than does the question of whether those

statutes are impermissibly vague. Rhine, 652 F. Supp. 3d at 62. Ultimately, however, the Court

explained that when, as here, a statute is “directed at speech,” the constitutionality of the statute

hinges on “whether the statute restricts a ‘substantial amount’ of protected speech in relation to

its ‘plainly legitimate sweep.’” Id. (quoting Virginia v. Hicks,

, 118–19 (2003)).

That analysis, in turn, “depends on an inquiry into the type of public property—the ‘forum’—

where the speech regulation applies.”

After surveying the standards applicable to traditional

public forums, designated public forums, and nonpublic forums, the Court (like many other

courts in this district) concluded that the Capitol is a nonpublic forum. Id. at 63. That being so,

the Court explained that sections 5104(e)(2)(D) and (e)(2)(G) would stand so long as they were

both “view-point neutral” and “reasonable in light of the purpose served by the forum.” Id. at

7 63–65 (quoting Cornelius v. NAACP Legal Def. and Educ. Fund, Inc.,

(1985)). The Court then explained in detail why both of the statutes passed that test. 1 See

Rhine’s motion disputes the Court’s ultimate conclusion (that the statutes are not

overbroad) and some of the conclusions reached along the way. For instance, Rhine argues that

“[l]arge portions of the Capitol Building” and the entirety of the “Capitol Grounds” are a

public—as opposed to nonpublic—forum. See Def.’s Mot. at 21. And he alternatively argues

that, even if the Capitol and its grounds are a nonpublic forum, the statutes at issue discriminate

based on viewpoint, see

at 31–33, and are unreasonable “in light of the purpose of the

Capitol,” see

at 33–34. In other words, Rhine’s motion is largely an attempt to relitigate

issues that the Court has already decided against him. Aside from arguing that the Court was

wrong, Rhine makes no effort to show why these issues are sufficiently “close” such that they

could be decided the other way. See Abou-Khatwa,

, at *3 (denying

defendant’s motion for bond pending appeal where court had “already considered and rejected”

defendant’s arguments).

Finally, Rhine argues that sections 5104(e)(2)(D) and (e)(2)(G) are unconstitutional as

applied to his conduct on January 6. “[T]o prevail on an as-applied First Amendment challenge,

[a defendant] must demonstrate that the statute is unconstitutional as applied to his particular

1 In resolving Rhine’s motion to dismiss, the Court also explained why sections 5104(e)(2)(D) and (e)(2)(G) are not content-based regulations on speech. See Rhine, 652 F. Supp. 3d at 65–66. To the extent Rhine disputes that holding, see Def.’s Mot. at 29–31, his arguments are unpersuasive. As the Court previously explained, “speech regulation is content- based only if it ‘targets speech based on its communicative content—that is, if it applies to particular speech because of the topic discussed or the idea or message expressed,’ but not if it is ‘agnostic as to content.’” Rhine, 652 F. Supp. 3d at 65 (quoting City of Austin v. Reagan Nat’l Advert. of Austin, LLC,

(2022)). And “[b]ecause [sections] 5104(e)(2)(D) and (e)(2)(G), by their plain text, are agnostic as to content, they are not content-based restrictions.”

8 expressive activity.” United States v. Caputo,

(D.D.C. 2016); United

States v. Nordean,

, 52 (D.D.C. 2021). Courts use a three-step analysis to

resolve such a challenge. See Green v. U.S. Dep’t of Just.,

, 745 (D.C. Cir. 2022).

First, courts “decide whether the [conduct or] activity at issue is speech protected by the First

Amendment.”

(internal brackets omitted) (quoting Cornelius,

); see also

Mahoney v. Doe,

(D.C. Cir. 2011). If it is not, the court’s analysis ends.

See Caputo,

. Conversely, if the defendant’s expressive activity is

protected by the First Amendment, the court must “determine whether the regulation at issue is

content based or content neutral.” Green, 54 F.4th at 745. This, in turn, “sets the level of

scrutiny [courts] apply at the third step: strict scrutiny for content-based statutes and intermediate

scrutiny for content-neutral statutes.” 2 Id.

Here, Rhine argues that his conduct on January 6 was both “plainly expressi[ve]” and

“protected by the First Amendment.” Def.’s Mot. at 38. In support, he argues that:

Evidence at trial indicated that, on January 6, 2021, Mr. Rhine attended a permitted political protest on the Capitol Grounds. He later walked into the Capitol Building, and around some of its hallways in or abutting areas that are generally publicly accessible, while carrying a large flag and cowbells. He uttered no threats, did no vandalism, and committed no acts of violence. He walked through the building with his flag for a matter of minutes before he was stopped by law enforcement, whom he obeyed completely.

2 This general framework has been described differently by various courts. For example, in Mahoney, the D.C. Circuit explained that, after a court determines “whether the First Amendment protects the speech at issue,” it must then “identify[] the nature of the forum” in which expression is being regulated.

. The nature of the forum determines “the requisite standard” the court must apply to assess “whether the [government’s] justifications for restricting [the defendant’s] speech” pass constitutional muster.

(internal quotation marks omitted); see also Frederick Douglass Found., Inc. v. District of Columbia,

, 329 (D.D.C. 2021) (applying this version of the test). The Court need not conclusively determine whether the test articulated in Mahoney or the test set forth in Green applies because Rhine’s as-applied challenge does not present a substantial question under either.

9

He also acknowledges a filmed “statement he made on the terrace of the Capitol” in which

he expressed that “he and others were there to ‘stop the steal.’”

For its part, the Government

does not meaningfully dispute the expressive nature of Rhine’s conduct, nor does the

Government meaningfully contend that such conduct falls outside the scope of the First

Amendment. See Gov’t’s Opp’n at 8–10. Thus, the Court will assume, favorably to Rhine, that

his actions on January 6 were expressive conduct protected by the First Amendment.

But Rhine falters at steps two and three of the analysis. That is because he argues that

section 5104 “employs content- and viewpoint-based restrictions on speech.” Def.’s Mot. at 39.

As discussed above and in the Court’s earlier opinion, it does not. See supra note 1; see also

Rhine, 652 F. Supp. 3d at 64–66. And because both sections 5104(e)(2)(D) and (e)(2)(G) are

content-neutral, Rhine, 652 F. Supp. 3d at 65, Rhine is also incorrect to the extent that he argues

that the Court must apply strict scrutiny to assess the constitutionality of those statutes, see

Def.’s Mot. at 39.

Instead, the Court need only ensure that sections 5104(e)(2)(D) and (e)(2)(G) satisfy

intermediate scrutiny. See Green, 54 F.4th at 745; Caputo,

. Under

intermediate scrutiny, a “statute is constitutional so long as it ‘furthers an important or

substantial government interest’ that is ‘unrelated to the suppression of free expression,’ any

incidental restriction on protected expressive activity is ‘no greater than is essential to the

furtherance of that interest,’ and it ‘leaves open ample alternative channels for communication.’”

Rhine, 652 F. Supp. 3d at 64 (quoting Edwards v. District of Columbia,

(D.C. Cir. 2014)); see also United States v. O’Brien,

(1968). This Court and

others have previously explained that section 5104(e)(2)(D) satisfies each element of this test,

Rhine, 652 F. Supp. 3d at 64–65; United States v. Baez, No. 21-cr-0507,

, at

10 *8 (D.D.C. June 2, 2023) (holding the same), and Rhine makes no attempt to contest that

conclusion here. Nor does he even feint at arguing that section 5104(e)(2)(G) fails to satisfy

intermediate scrutiny. For these reasons, the Court concludes that Rhine has not borne his

burden of showing that his as-applied challenge to the constitutionality of sections 5104(e)(2)(D)

and (e)(2)(G) presents a substantial or close question of law.

2. Rhine’s Challenge to the Constitutionality of His Sentence

Rhine separately contends that his appeal raises the substantial question of whether his

sentence is impermissibly punitive. He argues that the Court violated his due process rights by

increasing his sentence as punishment for his decision to “exercise[] his constitutional right to

trial by jury.” See Def.’s Mot. at 39–41. The Court disagrees, and the issue is not close.

As discussed above, the Court sentenced Rhine to four-months’ imprisonment on each of

the four counts of conviction. In reaching this result, the Court explained that the sentence it was

imposing was “sufficient but not greater than necessary to comply with the purposes set forth in”

. Tr. of Sentencing (“Sentencing Tr.”) at 19:7–8, ECF No. 132. The Court

further explained that, as required, it had considered “the nature and circumstances of the

offense,” “the history and characteristics of the defendant,” and that it was “impos[ing] a

sentence that reflect[ed] the seriousness of the offense, promote[d] respect for the law, and

provide[d] just punishment for the offense.”

at 19:9–13; see also

(a) (listing

these among the factors courts are to consider in imposing a sentence). The Court then

described—in detail—the factors illustrating the seriousness of Rhine’s offense, see Sentencing

Tr. at 19:14–21:15, such as a “videotaped interview in which [Rhine] made it clear that he was

[at the Capitol] to ‘Stop the Steal’” or “block[] . . . the certification [of the Electoral College] that

day,”

at 21:6–9. The Court also discussed other factors specific to Rhine, including his age,

11 his employment history, his history of service in the U.S. Navy, his community service, his lack

of a prior criminal history, his upbringing and family background, and the fact that he owned and

operated his own business. See

at 22:3–23:4.

One of the additional factors the Court considered—and the factor most relevant here—

was that Rhine had “never accepted responsibility for his actions.”

at 21:16–17. This put

Rhine in a materially different position than the “other [January 6] misdemeanants” the Court

had sentenced.

at 24:8–13; see also

at 21:16–24 (distinguishing Rhine’s case from the

case of “all” previous January 6 misdemeanants who had “pleaded guilty”). The Court

elaborated that, unlike all of the other defendants charged only with misdemeanors for their

conduct on January 6, Rhine “forc[ed] a rare misdemeanor jury trial . . . which [was] his right.”

at 21:17–18. That “required the government and the Court to expend significant resources

and required members of the public to take time out from their busy lives.”

at 21:18–20.

When Rhine’s counsel objected that the Court was “essentially . . . applying a trial penalty,”

at 28:10–11, the Court explained that that was not the case, see

(“I did not impose a

[trial] penalty”). Rather, the Court explained that a “central tenet of the [Sentencing]

[G]uidelines” is “that there’s a reward for acceptance of responsibility,” and that such acceptance

of responsibility “didn’t occur here.”

at 30:14–16. The Court also explained that it made its

decision “based on the comparators”—in other words, “other January 6th misdemeanants who

were convicted of the same crimes [as Rhine] after a jury trial.” See

at 26:5–7; 30:16–19.

In the instant motion, Rhine again contends that the Court levied a “trial penalty” by

imposing a sentence of incarceration as punishment for his decision to take the case to trial. See

Def.’s Mot. at 39, 41. Not so. The D.C. Circuit has made clear that one of the factors district

judges may properly consider at sentencing is whether the defendant has “accepted

12 responsibility” for his crimes. See United States v. Mejia,

(D.C. Cir. 2010)

(“Nor . . . is there anything out of the ordinary with the defendant’s acceptance of responsibility

factoring into the sentencing calculus.”). The Sentencing Guidelines, too, reflect the notion that

defendants who accept responsibility for their actions are generally to be sentenced more

leniently than those who do not. See U.S.S.G. § 3E1.1(a) (providing a two-level sentencing

reduction if the defendant “clearly demonstrates acceptance of responsibility for his offense”);

see also United States v. Jones,

(D.C. Cir. 1993) (en banc) (explaining that

“[t]he Guidelines explicitly tell judges that they normally should deny the two-point reduction to

a defendant who does not plead guilty” and collecting cases for the proposition that “[n]umerous

courts considering the matter have upheld the Guideline direction to draw this distinction”).

Here, the Court made clear that it was primarily Rhine’s failure to accept responsibility

for his actions—not his decision to go to trial—that factored into its decision to impose a four-

month term of incarceration on each of the counts of conviction. See, e.g., Sentencing Tr. at

21:16–17 (“[D]efendant never accepted responsibility for his actions . . . .”);

at 18:21–24

(finding Rhine’s refusal to submit financial information to Probation as “a further example of his

lack of acceptance of responsibility”). This was important for two reasons. First, it meant that,

consistent with D.C. Circuit precedent and the principles reflected in the Guidelines, Rhine did

not receive the “reward” or benefit that often accrues to defendants who do accept responsibility

for their actions. See United States v. Alford,

(D.C. Cir. 2024) (affirming

January 6 misdemeanant’s sentence and explaining that the defendant’s “decision to exercise his

right to trial meant that he did not receive a sentencing reduction for acceptance of responsibility,

as he likely would have had he pleaded guilty”).

13 Second—and as the Court highlighted at sentencing—Rhine’s failure to accept

responsibility distinguished his case from the many January 6 misdemeanants who had pleaded

guilty and received sentences that did not include terms of incarceration. See, e.g., Sentencing

Tr. at 24:8–13 (“Although the Court is mindful that [P]robation has not recommended a custodial

sentence, the Court disagrees with that position due to the lack of acceptance of responsibility,

putting him in a different position than the other misdemeanants I've sentenced.” (emphasis

added));

at 21:20–24 (“Therefore, despite the fact that I have not imposed incarceration

sentences to other misdemeanants, all of them pleaded guilty. So defendant is not in that

category of getting a reward of a reduced sentence.”);

at 26:1–3 (“What defendant fails to

appreciate is that all of those defendants pleaded guilty, usually to just the parading charge and,

thus, were rewarded for their acceptance of responsibility. That is not the case here.”). Of

course, Rhine’s decision to deny responsibility also meant that, unlike January 6 misdemeanants

who had pleaded guilty, Rhine’s case proceeded to trial. But that fact only served to further

distinguish Rhine from all of the previous January 6 misdemeanants sentenced by the Court, and

the Court properly factored that discrepancy into its sentencing analysis. See United States v.

Lopesierra-Gutierrez,

(D.C. Cir. 2013) (“That some defendants pled guilty

while others did not provides a perfectly valid basis for a sentencing disparity . . . .”); Mejia,

(affirming a sentence as reasonable where the disparity in sentences between two

co-defendants was “entirely explained” by one defendant receiving an “acceptance-of-

responsibility reduction for his having pleaded guilty”).

What is more, the Court’s sentencing decision is entirely consistent with the D.C.

Circuit’s latest precedent on the subject. In United States v. Alford, a jury convicted the

defendant of “four misdemeanors stemming from his role in the U.S. Capitol protest on January

14 6th, 2021.”

. The district court sentenced the defendant to a twelve-month term

of incarceration. See

On appeal, the defendant challenged the substantive reasonableness of

his sentence. See

. As relevant here, the defendant contended that “the district court

abused its discretion in sentencing him to twelve months’ imprisonment” in large part because

“his sentence [wa]s disproportionate to the sentences of other January 6th misdemeanants, who

typically accepted plea deals and received sentences that ranged from probation to a few weeks’

imprisonment.”

The defendant argued that this “disparity” in sentencing was attributable “to

the fact that he exercised his right to trial.”

The Circuit disagreed. In doing so, it

emphasized that there were “material differences between [the defendant’s] situation and the

January 6th misdemeanants who received lesser sentences.”

. Namely, the defendant’s

“decision to exercise his right to trial meant that he did not receive a sentencing reduction for

acceptance of responsibility, as he likely would have had he pleaded guilty.”

The Circuit

explained that, although the defendant “was entitled to put the government to its burden of

proof,” that decision “meant foregoing benefits that other defendants obtained by striking plea

bargains.” 3

For all these reasons, the Court finds that Rhine has not raised a substantial or particularly

“close” question as to the propriety of his sentence. In other words, the Court did not penalize

Rhine for electing to go to trial, and the Court does not believe it is likely that the D.C. Circuit

will conclude otherwise.

3 The Circuit also found that the district court’s “express[] state[ment] that it was ‘not going to penalize’ [the defendant] for going to trial” indicated that the trial court had not “punished [the defendant] for exercising his right to a jury trial.” Alford,

n.6 (citation omitted). The Court made a similarly explicit statement here. See Sentencing Tr. at 30:14 (“I did not impose a penalty.”).

15 3. Rhine’s Challenges Regarding

(a)(1) and (a)(2)

Finally, Rhine contends that his appeal presents the substantial question of whether the

Court mis-instructed the jury with regard to what the Government needed to prove in order for

the jury to convict Rhine of violating

(a)(1) and (a)(2). More specifically,

Rhine argues that the Court erred by instructing the jury that it could convict Rhine even if the

Government had not proven that Rhine knew Vice President Pence or another Secret Service

protectee was or would be visiting the Capitol on January 6. See Def.’s Mot. at 3. Rhine also

contends that the Court erred by instructing the jury that the Government did not need to “prove

any causal nexus between the visit of a Secret Service protectee and the restriction of the area in

question.” See

at 3–4.

As a refresher,

(a)(1) makes it a crime to “knowingly enter[] or remain[]

in any restricted building or grounds without lawful authority to do so.” (Emphases added).

And

(a)(2) prohibits “knowingly, and with intent to impede or disrupt the

orderly conduct of Government business or official functions, engag[ing] in disorderly or

disruptive conduct in, or within such proximity to, any restricted building or grounds when, or

so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or

official functions.” (Emphases added). In pertinent part, section 1752 defines the term

“restricted building[] or grounds” as “any posted, cordoned off, or otherwise restricted

area . . . of a building or grounds where the President or other person protected by the Secret

Service is or will be temporarily visiting.”

(c)(1)(B).

In support of his argument that his challenges to the Court’s instructions raise a

substantial question of law, Rhine correctly notes that judges in this district have recently split on

the question of how far the mens rea requirement in sections 1752(a)(1) and (a)(2) extends.

16 Some judges have held that the statutes’ “knowingly” requirement only extends to the first part

of section 1752(c)(1)(B)’s definition of “restricted building or grounds.” Under that approach,

the Government need only show that the defendant knew that an area was “‘posted, cordoned

off, or otherwise restricted’ but need not” show that the defendant knew “anything else.” United

States v. Groseclose, No. 21-cr-311,

, at *2 (D.D.C. Jan. 5, 2024) (collecting

cases adopting this view). Other courts, however, have held that the scienter requirement in

sections 1752(a)(1) and (a)(2) extends to the entire statutory definition of “restricted building or

grounds.”

at *2–9; see also United States v. Elizalde, No. 23-cr-00170,

, at

*7 (D.D.C. Dec. 1, 2023). Under this view, it is not enough for the Government to prove that the

defendant knew that an area was posted, cordoned off, or otherwise restricted; rather, the

Government must show, for example, that the defendant “knew that (1) the Capitol building and

its grounds were posted, cordoned off, or otherwise restricted on January 6 and (2) a person

protected by the Secret Service was or would be temporarily visiting the Capitol that day.”

Groseclose,

, at *9 (cleaned up). The question is currently before the D.C.

Circuit. See United States v. Griffin, No. 22-3042 (D.C. Cir. argued Dec. 4, 2023).

The Court will assume—favorably to Rhine—that he is correct that the intra-district split

regarding the mens rea requirement of sections 1752(a)(1) and (a)(2) presents a close question of

law that “very well could be decided” different ways. See Perholtz,

.

Nonetheless, Rhine cannot demonstrate that he is entitled to relief under

(b).

As discussed above, a defendant seeking relief under section 3143(b) must demonstrate

both that his “appeal raise[s] a substantial question” and that “resolution of that question in [his]

favor [is] likely to lead to reversal,” an order for a new trial, a sentence that does not include a

term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of the

17 time already served plus the expected duration of the appeal process. Id.; see also

(b). Where, as here, a defendant stands convicted on multiple charges, it is not enough for

the defendant to demonstrate that favorable resolution of the substantial question is “likely to

lead to reversal” of just a subset of counts. Instead, he must demonstrate that resolution of that

question is “likely to result in reversal of all counts on which imprisonment is imposed.” See

Perholtz,

(emphasis added); see also United States v. Brock, No. 23-3045,

, at *1 (D.C. Cir. May 25, 2023) (per curiam). As discussed above, in addition to

being convicted and sentenced to a term of imprisonment for violating

(a)(1)

and (a)(2), Rhine was convicted and sentenced to a term of imprisonment for violating

(e)(2)(D) and (e)(2)(G). Resolution of the substantial question relating to the scienter

requirement in the former two statutes would have no bearing on Rhine’s convictions under the

latter two statutes. That being the case, Rhine is unable to show that resolution of the substantial

question in his favor is “likely to result in reversal of all counts on which imprisonment is

imposed,” see Perholtz,

(emphasis added), or, by similar logic, “an order for a

new trial” on all counts, see

(b)(1)(B)(ii).

Recognizing this difficulty, Rhine instead argues that reversal or vacation of his

convictions under sections 1752(a)(1) and (a)(2) “raises a probability that the Court would

reduce or eliminate the custodial sentence upon re-sentencing, should the two less serious § 5104

convictions survive appeal.” Def.’s Reply at 7. Assessing this contention requires the Court to

“embark on the unusual task of predicting the sentence it would ‘likely’ impose if [Rhine’s

section 1752] conviction[s] were reversed.” See Sheppard,

, at *4.

As discussed above, at Rhine’s sentencing, the Court weighed a number of factors in

determining that a sentence of four-months’ incarceration was warranted on each of the counts of

18 conviction. Among other things, the Court discussed the “serious[ness]” of Rhine’s offense and

evidence tending to show that Rhine was at the Capitol with the “inten[t] [of] block[ing] the

certification of the votes for President Joe Biden.” Sentencing Tr. at 19:14–20:7; see also

at

21:6–9 (explaining that, on January 6, “[Rhine] gave a videotaped interview in which he made it

clear that he was there to ‘Stop the Steal,’ illustrating his intent to take part in the blocking of the

certification that day”). And because Rhine’s presence at the Capitol contributed to the rioters’

ability to “overwhelm[] the outnumbered law enforcement officers present,” the Court also

stressed the need to “h[o]ld [Rhine] accountable for his actions and the result to which his

actions contributed.”

at 21:10–15. The Court also found it significant that Rhine—unlike

many other January 6 defendants—had “never accepted responsibility for his actions.”

at

21:16–22. Moreover, the Court was concerned that Rhine’s “righteous belief in his cause”—as

evidenced by his “videotaped interview”—made it less likely that Rhine would “be deterred

from” engaging in similar actions in the future.

at 23:19–24. Separately, the Court noted the

need to “impose a sentence that avoids unwarranted sentencing disparities among defendants

with similar records who have been found guilty of similar conduct.”

at 25:14–16. In that

vein, the Court identified three comparator cases in which judges in this district sentenced

similarly situated defendants to twelve-, eleven-, and four-month terms of imprisonment.

at

26:1–14.

All of these considerations would apply with equal force were the Court to re-sentence

Rhine only on Counts Three and Four. Of further significance, the maximum term of

imprisonment for a violation of

(e)(2)(D) and (e)(2)(G) is six months.

(b) (“A person violating section [5104(e)(2)] . . . shall be . . . imprisoned for not

more than six months . . . .”). Thus, even though the Sentencing Guidelines would no longer

19 apply were Rhine’s convictions on Counts One and Two vacated, see U.S.S.G. § 1B1.9; United

States v. Bledsoe, No. 21-cr-204,

, at *1 (D.D.C. Jan. 30, 2024), the range of a

possible term of incarceration to which Rhine would be exposed (zero to six months) is the same

as the Guidelines range the Court calculated at sentencing, see Sentencing Tr. at 6:1–3

(calculating that “the applicable guidelines range is 0 to 6 months”). And finally, the Court

emphasizes that it initially sentenced Rhine to four-months’ imprisonment on each of the four

counts of conviction, and at no point did the Court suggest or imply that the sentences it imposed

on Counts Three and Four were in any way dependent on or related to the sentences it imposed

on Counts One and Two.

In light of all of these factors, the Court concludes that, even if the Circuit vacated

Rhine’s sentences on Counts One and Two, the Court would still sentence Rhine to four-months’

imprisonment on Counts Three and Four. Accordingly, Rhine has failed to show that his appeal

raises a substantial question of law “likely to result in . . . a sentence that does not include a term

of imprisonment” or “a reduced sentence to a term of imprisonment less than the total of the time

already served plus the expected duration of the appeal process.” See

(b)(1)(B)(iii)-(iv).

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Bond Pending Appeal (ECF No. 124)

is DENIED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: February 21, 2024 RUDOLPH CONTRERAS United States District Judge

20