United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided July 7, 2021

No. 21-3029

UNITED STATES OF AMERICA,

APPELLEE

v.

TIMOTHY LOUIS HALE-CUSANELLI,

APPELLANT

On Appeal of a Pretrial Detention Order

(No. 1:21-cr-00037-1)

Jonathan Zucker, appointed by the court, was on the 

appellant’s Memorandum of Law and Fact.

Ann M. Carroll, Chrisellen R. Kolb, and Nicholas P. 

Coleman, Assistant U.S. Attorneys, were on appellee’s 

Memorandum of Law and Fact.

Before: TATEL, WILKINS, and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: Timothy Hale-Cusanelli, who 

was arrested in connection with the incident at the United 

States Capitol on January 6, 2021, appeals from orders of the 

District Court ordering him detained pending trial, and denying 
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reconsideration of that ruling in light of United States v. 

Munchel, 991 F.3d 1273 (D.C. Cir. 2021). Hale-Cusanelli 

challenges the District Court’s conclusion that no condition or 

combination of conditions of release will reasonably assure the 

safety of any other person and the community. We affirm.

I.

On January 6, 2021, Hale-Cusanelli, who was then enlisted 

in the Army Reserves and worked as a Navy contractor in New 

Jersey, traveled to Washington, D.C., to attend the “Stop the 

Steal” rally. He wore a suit and tie and did not bring with him 

any form of weapon. Def.’s Mot. for Modification of Bond to 

Place the Def. on Conditional Release Pending Trial (“Def.’s 

Mot. for Conditional Release”) at 3, 10–11, United States v. 

Hale-Cusanelli, No. 1:21-cr-37, ECF No. 13 (D.D.C. Mar. 2, 

2021). Hale-Cusanelli eventually made his way to the United 

States Capitol, where he entered through doors that had already 

been kicked open. Opp’n to Def.’s Mot. for Conditional 

Release at 2, Hale-Cusanelli, No. 1:21-cr-37, ECF No. 18 

(D.D.C. Mar. 12, 2021). He apparently left the Capitol after 

learning that someone had been shot.

Hale-Cusanelli later admitted to a Confidential Human 

Source (“CHS”) that he had participated in the events at the 

Capitol on January 6. Id. The CHS reported Hale-Cusanelli to 

the Naval Criminal Investigation Service (“NCIS”) and then, 

in cooperation with NCIS, recorded a conversation with HaleCusanelli.1

 Id.; Mot. for Emergency Stay & for Review of 

Release Order at 4, Hale-Cusanelli, No. 1:21-cr-37, ECF No. 

3 (D.D.C. Jan. 19, 2021). In that conversation, Hale-Cusanelli 

admitted to using voice and hand signals to urge other members 

1 The record does not contain a transcript of the recorded 

conversation. Consequently, all quotations in this memorandum are 

as presented by the parties.
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of the mob at the Capitol to “advance.” Mot. for Emergency 

Stay & for Review of Release Order at 4, Hale-Cusanelli, No. 

1:21-cr-37, ECF No. 3 (D.D.C. Jan. 19, 2021). He further 

admitted to picking up a flagpole that someone else had thrown 

“like a javelin” at a police officer, and referring to it as a 

“murder weapon.” Id. Hale-Cusanelli is not accused of using 

or threatening to use the flagpole as a weapon. See id. Later, 

Hale-Cusanelli admitted to NCIS and FBI agents that he had 

used his military training and a face covering to protect himself 

after he was exposed to pepper spray. Id. at 4–5.

In the recorded conversation with the CHS, Hale-Cusanelli 

described “the adrenaline, the rush, the purpose” he felt on 

January 6, which he compared to “civil war.” Opp’n to Def.’s 

Mot. for Conditional Release at 19, ECF No. 18 (D.D.C. Mar. 

12, 2021). The government described part of the conversation 

as follows:

[Hale-Cusanelli] stated that it was “only a 

matter of time” before a civil war broke out 

“along partisan lines,” but that “they” don’t 

want to fire the first shot because all of the guns 

and resources are in Republican hands, and 

Republicans make up 70% of the military. 

[Hale-Cusanelli] then said that, in the event of 

civil war, “it’s not going to be New York and 

California winning the day, it’s going to be the 

good old boys f[ro]m the Midwest, Texas, and 

Arkansas.” [Hale-Cusanelli] told CHS that he 

“really wishes” there would be a civil war. 

When CHS interrupted and said “but a lot of 

people would die,” [Hale-Cusanelli] replied 

“Thomas Jefferson said the tree of liberty 

should be refreshed with the blood of patriots 

and tyrants.”
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Id. at 20.

On January 15, 2021, Hale-Cusanelli was arrested on a 

criminal complaint in Colts Neck, New Jersey. A magistrate 

judge in the District of New Jersey ordered him released with 

conditions but temporarily stayed that ruling. On January 19, 

Chief Judge Howell stayed the New Jersey court’s release 

order pending review by the District Court here. On January 

29, Hale-Cusanelli was indicted on seven counts involving 

trespass and disorderly conduct in connection with the events 

on January 6. Indictment at 1–4, Hale-Cusanelli, No. 1:21-cr37, ECF No. 9 (D.D.C. Jan. 29, 2021). The indictment does 

not allege that Hale-Cusanelli assaulted anyone, damaged any 

property, or organized any of the events on January 6. See id.

Hale-Cusanelli is 31 years old and, prior to his arrest, 

resided in Colts Neck, New Jersey, where he worked at Naval 

Weapons Station Earle as a private security officer. Def.’s 

Mot. for Conditional Release at 2. At the time of his arrest, he 

had been enlisted in the Army Reserves for approximately 11 

years. Id.

After his arrest, NCIS interviewed 44 of Hale-Cusanelli’s 

coworkers, and 34 of them described him “as having extremist 

or radical views pertaining to the Jewish people, minorities, 

and women.” Opp’n to Def.’s Mot. for Conditional Release at 

6–7. Those coworkers reported that Hale-Cusanelli had made 

various abhorrent statements, including that babies born with 

disabilities should be shot, that “Hitler should have finished the 

job,” and that “Jews, women, and blacks were on the bottom of 

the totem pole.” Id. at 7. Hale-Cusanelli’s coworkers also 

described him as “unstable,” observed that he had reported to 

work wearing a “Hitler mustache,” and noted that he had 

discussed leaving his employment “in a blaze of glory” shortly 

before January 6. Id. at 7–8.
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Prior to January 6, Hale-Cusanelli used a YouTube 

channel to upload a series of videos under the name the “Based 

Hermes Show.” Hale-Cusanelli characterized these videos as 

“a platform to talk about local New Jersey politics.” Def.’s 

Mot. for Conditional Release at 14. He deleted the videos after 

January 6, but the government was able to recover some clips 

from his phone. Opp’n to Def.’s Mot. for Conditional Release

at 17. In the recovered clips, Hale-Cusanelli expressed racist 

and anti-Semitic sentiments. Id. at 17–19. Also recovered 

from Hale-Cusanelli’s phone were a number of memes 

expressing similar views. Id. at 13B16.

Hale-Cusanelli’s criminal history is limited. In 2010, he 

was arrested with three other codefendants after one of them 

used a homemade PVC launcher (i.e., a potato gun) to fire 

frozen corn cobs at a home in Howell Township, New Jersey. 

Suppl. to Def.’s Memorandum of Law & Fact (“Suppl.”) at 50–

64, Hale-Cusanelli, No. 21-3029 (D.C. Cir. May 27, 2021). On 

the potato gun were the words “WIDOWMAKER” and 

“WHITE IS RIGHT,” as well as a drawing of the Confederate 

flag. Id. at 59. Hale-Cusanelli additionally had a “punch 

dagger”—i.e., a short-bladed dagger designed so that the blade 

protrudes from the front of an individual’s fist—in his 

possession at the time. Id. Each member of the group was 

charged with conspiracy to commit criminal mischief and 

possession of a weapon. Id. Hale-Cusanelli ultimately pleaded 

guilty to disorderly conduct. Id. at 14.

A police report describing the potato-gun incident 

provided further details, but Hale-Cusanelli did not bring these 

details to the District Court’s attention. According to the police 

report, one of the arrested officers concluded that “[i]t does not 

appear that there was any bias-related intent involved with this 

particular offense.” Id. at 59. The officer stated that he was 

not aware of any black individuals residing at the home, and 

that one of Hale-Cusanelli’s codefendants admitted he had 
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targeted the home because of a prior dispute with one of its 

residents over bicycles. Id.

According to the government, two harassment complaints 

were filed against Hale-Cusanelli in February and March 2020. 

Id. at 9–10. The complaints were both filed by Jewish 

individuals who accused him of posting online their names and 

addresses. Id. at 10. No further details are available in the 

record.

II.

On March 23, the District Court held a hearing to review 

the New Jersey magistrate judge’s release order. After hearing 

from the parties, the District Court addressed the four 18 U.S.C.

§ 3142(g) factors and orally ruled that Hale-Cusanelli was 

dangerous within the meaning of the Bail Reform Act—i.e., 

that “no condition or combination of conditions will reasonably 

assure . . . the safety of any other person and the community.” 

18 U.S.C. § 3142(e)(1).

First, the District Court concluded that the “nature and 

circumstances of the offense” factor weighed “just slightly” in 

favor of release because Hale-Cusanelli was not charged with 

any offenses involving violence or destruction of property. 

Suppl. at 24–25. The District Court nonetheless expressed 

concern about Hale-Cusanelli’s admission that he had urged 

others “to essentially storm the Capitol Building and enter it 

despite police presence, tear gas, fences and what have you.” 

Id. at 25.

Second, the District Court concluded that the weight of the 

evidence against Hale-Cusanelli was “overwhelming” and that 

this factor therefore weighed in favor of detention. Id.

Third, the District Court addressed Hale-Cusanelli’s

history and characteristics. The court observed that “[t]his 

[was] the most difficult prong in this case.” Id. at 26. The court 
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noted Hale-Cusanelli’s lack of criminal history, his 

employment history, and the fact that he was a military veteran 

with a security clearance, all of which 

“sp[oke] in his favor.” Id. However, the court expressed 

concern about his “well-documented history of racist and 

violent language@ and the fact that he “has been generally 

engaged in hateful conduct, if not necessarily violent conduct 

toward a number of people with whom he’s had contact.” Id. 

The court observed that “we don’t typically penalize people for 

what they say or think.” Id. at 27. It “also d[id] take note” of

the potato-gun incident, which it concluded was “some 

evidence of [Hale-Cusanelli] actually acting out on this, that 

this is not just language but actually action.” Id.

Fourth, the District Court concluded that the danger HaleCusanelli posed to the community weighed in favor of 

detention given “all of the violent language . . . previously 

mentioned.” Id. at 27–28. The court found “highly troubling”

Hale-Cusanelli’s statements to the CHS regarding “looking 

forward to a civil war” and “the tree of liberty need[ing] to be 

watered with the blood of patriots from time to time.” Id. at 

28. The court agreed “with the government’s concern

regarding potential escalation of violence at this point given all 

that has occurred.” Id. The court also expressed concern for 

the safety of the CHS, noting that Hale-Cusanelli knew the 

CHS’s identity, that he had previously made comments “about 

committing violence against those who he feels are pitted 

against him,” and that he “has been willing to put these 

thoughts into action in the past.” Id.

The District Court observed that “this is a close case in 

terms of the government meeting its burden under the Bail 

Reform Act,” but the court ultimately concluded that “no 

condition or combinations of conditions will assure the safety 

of the community” were he released pending trial, and it 

ordered that Hale-Cusanelli be detained. Id. at 28–29; see also
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Detention Order, Hale-Cusanelli, No. 1:21-cr-37, ECF No. 20 

(D.D.C. Mar. 23, 2021).

On April 2, Hale-Cusanelli moved for reconsideration of 

the detention order in light of this Court=s decision in Munchel, 

991 F.3d 1273. Def.’s Mot. For Recon., Hale-Cusanelli, No. 

1:21-cr-37, ECF No. 21 (D.D.C. Apr. 2, 2021). In a 

supplement, Hale-Cusanelli informed the District Court that 

the CHS’s employment in New Jersey had ended, that the CHS 

had since moved “well in excess of 1500 miles” from where 

Hale-Cusanelli would be living, and that Hale-Cusanelli did 

not know (and could not easily find out) where the CHS is now 

living and working. Suppl. to Def.’s Mot. For Recon. at 2 & 

n.2, Hale-Cusanelli, No. 1:21-cr-37, ECF No. 25 (D.D.C. Apr. 

14, 2021).

On April 28, the District Court held a hearing on the 

motion for reconsideration and orally denied the motion. The 

court distinguished Munchel, observing that the District 

Court’s dangerousness determination in that case had relied 

primarily on the nature and circumstances of the charged 

offenses, whereas the court had concluded in this case that this 

factor actually “tilted toward release.” Suppl. at 37. The court 

observed that, were it “just looking at what [Hale-Cusanelli] 

did on January 6th, he would be a free man right now.” Id. at 

38. Instead, the District Court observed that its dangerousness

determination here was based on Hale-Cusanelli’s animus 

toward certain groups of people, his having acted on that 

animus in the past, and the possibility that he would do so again 

in the future. Id. The court also rejected Hale-Cusanelli’s 

suggestion that he was no longer a threat to the CHS because 

the CHS had moved, observing that Hale-Cusanelli “may well 

know where [CHS] has moved,” and the CHS “may well have 

moved back.” Id. at 39.
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Hale-Cusanelli appeals the District Court’s March 23 

detention order and April 28 order denying reconsideration. He 

asserts that the decision to detain him based on the danger he 

poses to the community was error.

III.

We review release and detention orders pursuant to the 

Bail Reform Act, 18 U.S.C. § 3142 et seq., for clear error. 

Munchel, 991 F.3d at 1282. “The clear error standard applies 

not only to the factual predicates underlying the district court’s 

decision, but ‘also to its overall assessment, based on those 

predicate facts, as to the risk of flight or danger presented by 

defendant’s release.’” United States v. Mattis, 963 F.3d 285, 

291 (2d Cir. 2020) (quoting United States v. Abuhamra, 389 

F.3d 309, 317 (2d Cir. 2004)). This standard of review is 

highly deferential. We will find clear error only when 

“although there is evidence to support [a finding or a ruling], 

the reviewing court on the entire evidence is left with the 

definite and firm conviction that a mistake has been 

committed.” Munchel, 991 F.3d at 1282 (quoting United States 

v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). However, 

“[w]here there are two permissible views of the evidence, the 

factfinder’s choice between them cannot be clearly erroneous.” 

United States v. Brockenborrugh, 575 F.3d 726, 741 (D.C. Cir. 

2009) (quoting Anderson v. City of Bessemer City, 470 U.S. 

564, 574 (1985)). If the District Court finds that “no condition 

or combination of conditions will reasonably assure . . . the 

safety of any other person and the community,” the District 

Court “shall order” detention before trial. 18 U.S.C. § 

3142(e)(1). 

Hale-Cusanelli primarily asserts that the District Court 

clearly erred in assessing his history and characteristics and the 

nature and seriousness of the danger he poses. See 18 U.S.C. 

§ 3142(g). Regarding his history and characteristics, Hale-
10

Cusanelli argues that the District Court clearly erred in 

concluding that the potato-gun incident was “some evidence”

that he had violently acted on his racist ideology. Specifically, 

Hale-Cusanelli points to portions of a police report that show 

that he had not fired the potato gun and that the codefendant 

who had fired the gun chose the house because of a prior 

dispute with one of its residents over bicycles, not out of any 

racial animus. Hale-Cusanelli failed to raise this argument 

below. Hale-Cusanelli also argues that the District Court erred 

by relying on his “civil war” comments to the CHS, because 

other parts of the conversation allegedly show that he did not 

really want violence to occur. He also failed to make this 

argument below. (In his defense, Hale-Cusanelli asserts that 

he did not receive the recording of the conversation from the 

prosecution until after the District Court ruled.)

It is not readily apparent that it was a “plain, clear, or 

obvious error,” see United States v. Sheffield, 832 F.3d 296, 

311 (D.C. Cir. 2016), for the District Court to observe that the 

potato-gun incident was at least “some evidence” of Appellant

having acted violently based on his racist ideology. HaleCusanelli points to the police report, which gave two reasons 

for its conclusion that “[i]t does not appear that that there was 

any bias[] involved” with the potato gun incident. Suppl. at 59. 

The first was that the victim was not African American, but that 

is not dispositive given Appellant’s prejudices against others—

especially Jews—and the officer apparently made no effort to 

determine whether the victims were Jewish. The second reason 

was that the actual shooter claimed he targeted the victim due 

to a dispute with his son related to stolen bicycles, and while 

the officer credited that explanation, the District Court was not 

required to agree. The potato gun, moreover, bore the words 

“WHITE IS RIGHT,” as well as a Confederate flag. Id. As the 

district court noted, “we don’t typically penalize people for 

what they say or think.” Suppl. at 27. But given Appellant’s 

deeply held and longstanding racist and anti-Semitic views, the 
11

District Court could reasonably view it as more than a 

coincidence that Appellant was implicated in a violent incident 

involving a weapon with a white supremacist message on it. 

Nor is it apparent that it was plain error for the District 

Court to rely upon Appellant’s “civil war” statements to find 

that he was a danger to the community. Appellant contends 

that the District Court was not aware that he said “[w]hen I say 

I want civil war, it’s not like I want to see people dead in the 

street” and that “civil war, not that I actually want that, I think 

that civil war is probably the simplest—not that the simplest 

solutions are always the best solutions—but I think it probably 

is the simplest solution, the most likely outcome, inevitably.” 

Appellant’s Mem. at 19 n.13. Even so, the District Court 

would have to weigh those statements against others where 

Appellant acknowledged that guns would be used in a civil war 

and that people would die, to which Appellant replied “Thomas 

Jefferson said the tree of liberty should be refreshed with the 

blood of patriots and tyrants.” Opp’n to Def.’s Mot. for 

Conditional Release at 20. It is not obviously wrong to 

conclude that these statements, taken as a whole, demonstrate 

a potential danger to the community. This is particularly so 

when viewed with other statements Appellant made just prior 

to January 6, such as proclaiming a “final countdown” and an 

intention to leave his employment in a “blaze of glory.” Id. at 

7–8. 

Appellant suggests, based on Munchel, that because he did 

not commit violence on January 6, he should not be found to 

pose a danger to the community. Appellant misreads Munchel. 

We did not hold in Munchel that only those persons who 

participated in violence on January 6 could properly be 

considered as posing a future danger to the community 

justifying pretrial detention. If that had been the case, we 

would have reversed the detention order (as proposed by the 

dissent) instead of remanding the case for 
12

reconsideration. Compare Munchel, 991 F.3d at 1283–84, with 

id. at 1285 (Katsas, J., concurring in part and dissenting in part) 

(“[W]hereas my colleagues remand for a do-over, I would 

reverse outright.”). To the contrary, we explained in Munchel

that a person could be deemed a danger to the community 

sufficient to justify detention even without posing a threat of 

committing violence in the future. Id. at 1283 (describing the 

threat of corrupting a union as one such danger contemplated 

by Congress). In the nearly forty years since the enactment of 

the Bail Reform Act, countless defendants have been 

detained even where the charged offense did not involve 

violence, based on drug charges, see 18 U.S.C. § 

3142(f)(1)(C), being a repeat offender, see id. § 3142(f)(1)(D), 

a serious risk of obstruction of justice, see id. § 3142(f)(2)(B), 

or a serious risk of threats to prospective witnesses or jurors, 

id. The point of Munchel was that everyone who entered the 

Capitol on January 6 did not necessarily pose the same risk of 

danger and the preventive detention statute should apply to the 

January 6 defendants the same as it applies to everyone else, 

not that the January 6 defendants should get the special 

treatment of an automatic exemption from detention if they did 

not commit violence on that particular day.

Here, the District Court made a forward-looking 

determination about the serious risk of obstruction of justice 

and threats to witnesses as the basis for detention. The District 

Court found a risk to the CHS based on Appellant’s prior 

statements about “committing violence against those who he 

feels are pitted against him.” Suppl. at 28. The District Court 

also expressed concern for a “potential escalation of violence” 

by Appellant given his statements about how great he felt about 

the January 6 incident, his desire for a “civil war” to settle 

political differences, and his lengthy history of statements 

condoning violence against persons of other races and 

religions. Id. Significantly, we also know that Appellant

admitted to the CHS that he directed people to advance on 
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January 6 and assumed a leadership role during the 

incident. The District Court reconsidered its ruling based on 

Munchel and pointed out that it “primarily relied on” 

Appellant’s extensive history of statements condoning 

violence against those of other races and religions to find that 

he was a danger to the community. Id. at 38. And while the 

District Court mentioned that the potato-gun incident showed 

Appellant taking action based upon racial animus “[t]o a 

certain extent,” the court was also aware of Appellant’s 

numerous incendiary statements (such as his intent to leave his 

job “in a blaze of glory”), as well as the harassment complaints 

against Appellant for publicizing the names and addresses of 

Jewish individuals. Id.; see also Opp’n to Def.’s Mot. for 

Conditional Release at 7–8. Ultimately, the court explained 

that “his conduct in this case made me concerned that he was 

perhaps looking to act on these violent tendencies and violent 

comments in the past.” Suppl. at 38. So even were we to 

conclude that the District Court erred by finding that the potatogun incident was motivated by racial animus, it was not the sole 

basis of the ruling that Appellant posed a risk of escalating 

hate-motivated violence in the future. Furthermore, the 

District Court did not appear to rely upon the potato-gun 

incident at all in its ruling that Appellant posed a risk to 

witnesses, which is an independently sufficient basis for 

detention. Finally, even if the potato-gun was not motivated by 

racial bias, it is not completely exculpatory—it is still an 

incident where Appellant participated in violence as an act of 

retaliation, which is precisely the type of concern we should 

have when it comes to the risk to the CHS.

The District Court acknowledged that this was a close 

case, but it ruled that based on the totality of the circumstances, 

the government had met its burden. Reasonable minds might 

disagree on that determination, but our standard of review is 

for clear error, not to substitute our judgment for that of the 

District Court. We affirm.