1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

ROBERT GIESWEIN, 

Defendant.

Crim. Action No. 21-24 (EGS)

MEMORANDUM OPINION

Defendant Robert Gieswein (“Mr. Gieswein”) has been charged 

in a federal indictment with six serious felony offenses arising 

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

January 6, 2021. See Indictment, ECF No. 3.1 Following Mr. 

Gieswein’s arrest in Colorado, a magistrate judge in the 

District of Colorado ordered Mr. Gieswein detained pending 

trial, and he was transported to this District. See Rule 5(c)(3) 

Documents, ECF No. 5 at 21; see also Ex. 1 to Gov’t’s Opp’n to 

Def.’s Mot. Hearing & Revocation Detention Order (“Gov’t’s 

Opp’n”), ECF No. 19-1. Pending before the Court is Mr. 

Gieswein’s Motion for Hearing and Revocation of Detention Order, 

which seeks his release from detention to the custody of a 

third-party custodian in Oklahoma. See Mot. Hearing & Revocation 

Order (“Def.’s Mot.”), ECF No. 18. Upon careful consideration of 

1 When citing electronic filings throughout this Opinion, the 

Court cites to the ECF page number, not the page number of the 

filed document.
2

the motion, opposition, reply, and surreply thereto, the 

arguments set forth at the July 1, 2021 hearing, the applicable 

law, and the entire record herein, Mr. Gieswein’s motion is 

DENIED.

I. Background

Mr. Gieswein is alleged to have forcibly assaulted, 

resisted, opposed, impeded, intimidated, or interfered with U.S. 

Capitol Police officers attempting to maintain the security of 

the U.S. Capitol on January 6, 2021. See Indictment, ECF No. 3 

at 2-3. The six-count indictment, filed January 27, 2021, 

charges Mr. Gieswein with the following offenses: (1) 

Obstruction of an Official Proceeding, in violation of 18 U.S.C. 

§ 1512(c)(2); (2) three counts of Assaulting, Resisting, or 

Impeding Certain Officers Using a Dangerous Weapon, in violation 

of 18 U.S.C. § 111(a)(1) and (b); (3) Destruction of Government 

Property, in violation of 18 U.S.C. §§ 1361, 2; and (4) Entering 

and Remaining in a Restricted Building or Grounds with a Deadly 

or Dangerous Weapon, in violation of 18 U.SC. § 1752(a)(1) and 

(b)(1)(A). Indictment, ECF No. 3 at 1-4.
3

The Court sets out below the evidence proffered by the 

parties in support of their briefing,2 as well as an overview of 

the procedural history of this case.

A. Mr. Gieswein’s Conduct on January 6, 2021

In the days leading up to January 6, 2021, Mr. Gieswein 

traveled alone to Washington, D.C. to attend the demonstrations

in support of then-President Donald J. Trump. See Def.’s Mot., 

ECF No. 18 at 2. Mr. Gieswein is a 24-year-old resident of 

Woodland Park, Colorado, and has no criminal record. See id. at 

1, 3. According to letters submitted by Mr. Gieswein’s family 

and friends, although they were aware that Mr. Gieswein 

supported then-President Trump, Mr. Gieswein never indicated to 

them that he intended to engage in any violence or illegal 

activity during his trip to Washington. Id. at 2. However,

regardless of Mr. Gieswein’s stated intentions regarding his 

plans in Washington, video and photographic evidence submitted

by the government show that Mr. Gieswein’s conduct on January 6, 

2021 involved violent acts against U.S. Capitol Police during 

the riot that disrupted the joint session of the U.S. Congress, 

which was convening to certify the vote count of the Electoral 

2 At a detention hearing, both parties may present evidence by 

way of a proffer. See 18 U.S.C. § 3142(f); United States v. 

Smith, 79 F.3d 1208, 1209-10 (D.C. Cir. 1996).
4

College of the 2020 Presidential Election. See Gov’t’s Opp’n, 

ECF No. 19 at 3-11.

On January 5, 2021, Mr. Gieswein joined supporters of thenPresident Trump at Freedom Plaza in Washington, D.C. Def.’s 

Mot., ECF No. 18 at 2. According to Mr. Gieswein, “[h]e had just 

smoked a significant amount of marijuana, and his intoxication 

[was] palpable in his dilated pupils and grin, and in the 

rambling comments that ensued.” Id. An individual approached Mr. 

Gieswein and proceeded to ask him questions regarding his 

presence at the rally. Id. During the interview, Mr. Gieswein 

stated that he was there “to keep President Trump in,” though he 

described no plans to do so, and that he wished for “both sides 

[to] stay peaceful.” Id. at 2-3. In addition, Mr. Gieswein 

stated that he believed that “politicians, including President 

Biden and Vice President Harris, ha[d] ‘completely destroyed our 

country and sold them to the Rothschilds and the Rockefellers.’”3

Gov’t’s Opp’n, ECF No. 19 at 27; see also Aff. Supp. Crim. 

Compl. (“Aff.”), ECF No. 1-1 at 11 (describing Mr. Gieswein as 

saying that his message to Congress was “[t]hat they need to get 

the corrupt politicians out of office. Pelosi, the Clintons, all 

of . . . every single one of them, Biden, Kamala . . . they have 

3 According to the government, “online and anti-Semitic 

conspiracy theories hold that shadow forces, including the 

Rothschild family, secretly control global currency.” Gov’t’s 

Opp’n, ECF No. 19 at 27 n.11.
5

completely destroyed our country and sold them to the 

Rothschilds and Rockefellers”). The Federal Bureau of 

Investigation (“FBI”) affidavit attached to the criminal 

complaint filed January 16, 2021, further asserts that the same 

video evidence shows Mr. Gieswein stating: “What we need to do, 

is we need to get the corrupt politicians that have been in 

office for 50-60 years, that have been destroying our country 

and selling it to the Middle East and Israel out of office and 

they need to be imprisoned.” Aff., ECF No. 1-1 at 11.

The following day, on January 6, 2021, Mr. Gieswein arrived 

on the Capitol grounds wearing camouflage fatigues, a tactical 

vest, and a helmet. Gov’t’s Opp’n, ECF No. 19 at 3. Photographic 

and video evidence proffered by the government also capture Mr. 

Gieswein with goggles and carrying a baseball bat and an aerosol 

spray can containing unknown chemicals. See id. at 3-9; see also 

id. at 3, Figure 1; id. at 21, Figure 10. 

After participating in a march with members of the Proud 

Boys4 that morning,5 photographic evidence places Mr. Gieswein in 

4 The government describes the Proud Boys as “an organization 

that bills itself as ‘Western chauvinist’ and ‘nationalist,’” 

and notes that “multiple [members] have been charged in 

conspiracy indictments that allege a conspiracy that predates 

January 6.” Gov’t’s Opp’n, ECF No. 19 at 4.

5 According to the government, “the investigation to date has 

uncovered no evidence of [Mr. Gieswein’s] affiliation with the 

Proud Boys prior to January 6.” Gov’t’s Opp’n, ECF No. 19 at 22; 

see also id. at 26.
6

the plaza to the west of the Capitol building (“West Plaza”) 

shortly before 1:00 p.m., while then-President Trump was still 

speaking to supporters from the Ellipse, near the White House. 

Id. at 4. According to the government, at this point in the day, 

rioters had already breached two sets of police barricades—one 

at a pedestrian entrance near the Peace Monument, and another 

set closer to the Capitol—resulting in hundreds of rioters, 

including Mr. Gieswein, flowing into the West Plaza. Id. Mr. 

Gieswein then positioned himself close to the front line of the 

rioters standing in front of the line of law enforcement 

officers. Id. at 4-5. At approximately 1:34 p.m., body-camera 

footage submitted by the government shows Mr. Gieswein, along 

with other rioters, forcefully pushing a metal police barricade 

directly into the bodies of law enforcement officers attempting 

to keep the rioters from reaching the Capitol, as other law 

enforcement officers throw tear gas into the mob. See Hr’g Video 

Ex. 3, at 01:25 to 01:45; Hr’g Video Ex. 4, at 00:06 to 00:15, 

01:07 to 01:11.

At approximately 1:48 p.m., rioters and Capitol Police 

guarding a set of stairs that led from underneath the 

Inauguration scaffolding and up to the Capitol itself engaged in 

a violent fight, in which both sides deployed pepper spray 

against each other and used the metal police barriers as 

weapons. Gov’t’s Opp’n, ECF No. 19 at 5. Approximately one 
7

flight of stairs above that fight, Mr. Gieswein stood among 

other rioters facing another line of Capitol Police officers. 

Id. at 6. Video evidence shows rioters pulling a police 

barricade down the staircase, which other rioters and Mr. 

Gieswein, with baseball bat in hand, then grabbed and began to 

push forward again up toward the officers. See Hr’g Video Ex. 1, 

at 00:01 to 00:43. With the barricade largely dividing the 

rioters from law enforcement at the top of the staircase, the 

video shows Mr. Gieswein deploying his aerosol spray can in the 

direction of the law enforcement officers. Gov’t’s Opp’n, ECF 

No. 19 at 6-7, 19, Figure 5; see also Hr’g Video Ex. 1 at 02:19 

to 02:25; 03:15 to 03:20. Despite law enforcement officers 

deploying pepper spray and using their batons against the 

rioters, the rioters continued attempting to push law 

enforcement out of the way with the metal barricade. Id. at 

03:50 to 04:20. It is unclear whether the rioters were

successful in pushing the barricade through the makeshift 

doorframe at the top of the staircase or whether law enforcement 

chose to stand back, but the barricade was eventually pushed up 

and to the side and law enforcement fell back, which allowed

rioters to continue to make their way toward the Capitol

building. Id. As rioters slowly moved up the staircase and out 

toward the Capitol building, video evidence shows Mr. Gieswein 

raising his fist and yelling. Id. at 04:45 to 04:50. 
8

Mr. Gieswein is then captured on video running toward the 

Capitol building, with a baseball bat in one hand and aerosol 

spray can in the other. Gov’t’s Opp’n, ECF No. 19 at 7; see also 

Hr’g Video Ex. 2 at 00:01 to 00:10. Once he reached the 

building, he began banging on one of the windows with his hand. 

Id. at 00:12 to 00:15. He then moved to another window in the 

same alcove where another rioter was using a long wooden board 

to smash through the window. Id. at 00:23 to 00:28. As the 

rioters were in the process of breaking that window, Mr. 

Gieswein got the attention of others attempting to kick open a 

door to the Capitol, and he pointed back toward the window. Id. 

at 00:38 to 00:40. After he pointed to the window, two rioters 

moved toward the window, and one of those rioters grabbed the 

long wooden board and smashed it through the window. Id. 00:40 

to 00:50. The government alleges that once the windows were

broken, Mr. Gieswein was either the second or third rioter to 

enter the Capitol building at approximately 2:14 p.m. Id. at 

00:56 to 01:12; Gov’t’s Opp’n, ECF No. 19 at 7.

Once inside the building, the government alleges that Mr. 

Gieswein and other rioters began walking up the internal 

staircase toward the still-occupied Senate Chamber. Gov’t’s 

Opp’n, ECF No. 19 at 8. Photographic evidence shows that Mr. 

Gieswein continued to carry the baseball bat and aerosol spray 

while inside the Capitol. Id. at 7-8. 
9

By approximately 2:29 p.m., Mr. Gieswein was in the Capitol 

crypt on the lower level of the building, where the government 

asserts that multiple fights between law enforcement and rioters

had broken out. Id. at 8. Video footage from surveillance 

cameras capture Capitol Police officers running away from the 

crypt toward a set of metal doors—which could be rolled down 

from the ceiling to the floor—in the Capitol tunnels. Id.

According to the government, rioters began placing chairs and 

trash cans under the doors to stop them from closing to the 

ground, and, once the doors stopped closing, the rioters began 

throwing those same chairs and trash cans toward the officers. 

Id. at 9. During this incident, video surveillance footage 

captures Mr. Gieswein deploying his aerosol spray can in the 

direction of officers. Id.; see also id., Figure 7. The 

government asserts that video footage also shows Mr. Gieswein 

waving his arm to encourage other rioters to join the advance on 

police. Id.; see also id., Figure 8.

Mr. Gieswein next made his way to the Capitol Visitor 

Center. Id. at 10. Although there is no video evidence of Mr. 

Gieswein’s actions within the Capitol Visitor Center, the 

government alleges that a rioter fitting Mr. Gieswein’s 

description6 sprayed a group of officers with his aerosol spray 

6 The Capitol Police officer described the individual as follows: 

“White male; approximately 5’8 or a little taller, in his 30’s 
10

can, which one of the officers described as an “oleoresin 

capsicum (OC) type spray” that caused eye irritation. Id. at 10; 

Ex. 2 to Gov’t’s Opp’n, ECF No. 19-2 at 2. According to the 

government, when law enforcement grabbed Mr. Gieswein to arrest 

him, Mr. Gieswein resisted arrest and tried to punch a U.S. 

Capitol Police officer.7 Gov’t’s Opp’n, ECF No. 19 at 10; Ex. 2 

to Gov’t’s Opp’n, ECF No. 19-2 at 2. After the officers and Mr. 

Gieswein fell to the ground during the struggle to arrest him, 

the surrounding crowd grabbed Mr. Gieswein and pulled him free 

of the officers. Gov’t’s Opp’n, ECF No. 19 at 10; Ex. 2 to 

Gov’t’s Opp’n, ECF No. 19-2 at 2. Mr. Gieswein then fled the 

area. Gov’t’s Opp’n, ECF No. 19 at 10; Ex. 2 to Gov’t’s Opp’n, 

ECF No. 19-2 at 2. During this struggle, Mr. Gieswein’s baseball 

bat was stored in his backpack, though it was visible to others. 

Ex. 2 to Gov’t’s Opp’n, ECF No. 19-2 at 2 (reporting that the 

law enforcement officer in the Capitol Visitor Center noticed 

the baseball bat in the backpack, and was “concerned” about Mr. 

Gieswein using it). According to the government, a portion of 

[sic], wearing goggles, a green in color newer style military 

helmet with a rail system on the front, wearing full military 

‘garb’, and had a ceramic like breast plate on with an unknown 

object near the bottom of the vest or stomach area.” Ex. 2 to 

Gov’t’s Opp’n, ECF No. 19-2 at 2. The officer also stated that 

the individual had a baseball bat in his backpack, which “stuck 

out because he was concerned about [the individual] using the 

bat.” Id.

7 Mr. Gieswein has not been charged with an offense in connection 

with the alleged attempt to punch an officer or resist arrest.
11

this incident is captured on surveillance video, including video 

showing Mr. Gieswein and Capitol Police officers on the ground 

and Mr. Gieswein subsequently fleeing the area. Gov’t’s Opp’n, 

ECF No. 19 at 10; Ex. 2 to Gov’t’s Opp’n, ECF No. 19-2 at 2.

B. Mr. Gieswein’s Conduct Between January 6, 2021 and His 

Self-Surrender on January 18, 2021

Mr. Gieswein returned home to Woodland Park, Colorado 

following the events of January 6, 2021. Def.’s Mot., ECF No. 18 

at 3.

On January 16, 2021, the FBI executed a search warrant at 

Mr. Gieswein’s residence. Gov’t’s Opp’n, ECF No. 19 at 10. Mr. 

Gieswein was not present at the time of the search. Id. During 

the search, FBI agents did not locate the items of clothing Mr. 

Gieswein wore on January 6, 2021, nor the baseball bat he 

carried that day. Id. The FBI also did not locate Mr. Gieswein’s 

phone during that search or the subsequent search incident to 

arrest. Id. at 10-11. According to AT&T phone records, however, 

Mr. Gieswein’s phone had been in use up to and including January 

16, 2021. Id.

Mr. Gieswein voluntarily turned himself in to local 

authorities on January 18, 2021. Def.’s Mot., ECF No. 18 at 3.

Because he invoked his right to counsel, he was not interviewed 

about the events of January 6, 2021. Gov’t’s Opp’n, ECF No. 19 

at 11. However, according to the government, he made unsolicited 
12

statements to the agents transporting him to Denver for his 

initial appearance in the District of Colorado, including that,

“although he was present at the Capitol on January 6, he did 

nothing wrong, and that is why he turned himself in.” Id. In 

addition, the government alleges that he “described himself as a 

‘constitutionalist’ who wants the military to take back over the 

country and restore the Constitution.” Id.

C. Procedural History

Mr. Gieswein was first charged by criminal complaint on 

January 16, 2021. See Criminal Compl., ECF No. 1. Mr. Gieswein 

turned himself in to the Teller County Jail on January 18, 2021, 

and he had his initial appearance before a magistrate judge on 

the United States District Court for the District of Colorado. 

See Rule 5(c)(3) Documents, ECF No. 5. On January 22, 2021, the 

magistrate judge ordered Mr. Gieswein detained pending trial and 

transported to this District. See Ex. 1 to Gov’t’s Opp’n, ECF 

No. 19-1. Mr. Gieswein made his initial appearance in this 

District on March 29, 2021. See Min. Entry (Mar. 29, 2021).

On June 8, 2021, Mr. Gieswein filed a motion for release 

from custody. See Def.’s Mot., ECF No. 18. The government filed 

its response on June 15, 2021, see Gov’t’s Opp’n, ECF No. 19; 

and Mr. Gieswein filed his reply on June 22, 2021, see Def.’s 

Reply, ECF No. 21. In response to an Order from the Court, see 

Min. Order (June 23, 2021); the government filed a surreply on 
13

June 25, 2021, see Gov’t’s Surreply, ECF No. 22. The Court held 

a hearing on Mr. Gieswein’s motion on July 1, 2021. See Min. 

Entry (July 1, 2021). For the hearing and after the completion 

of briefing on Mr. Gieswein’s motion, the government submitted 

four videoclips as additional exhibits. See Notice, ECF No. 24. 

Mr. Gieswein’s motion is now ripe for adjudication.

II. Legal Standard

The Bail Reform Act, 18 U.S.C. § 3141 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. 18 U.S.C. § 3142(f)(1)(A)-(E). 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. 18 U.S.C. § 3142(f).

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.” Id. § 3142(e). “In common parlance, the relevant 
14

inquiry is whether the defendant is a ‘flight risk’ or a ‘danger 

to the community.’” United States v. Munchel, 991 F.3d 1273, 

1279 (D.C. Cir. 2021) (quoting United States v. Vasquez-Benitez, 

919 F.3d 546, 550 (D.C. Cir. 2019)). When 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) by clear and convincing 

evidence. 18 U.S.C. § 3142(f).

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 

the community. 18 U.S.C. § 3142(e)(2)-(3). As relevant here, “it 

shall be presumed that no condition or combination of conditions 

will reasonably assure the appearance of the person as required 

and the safety of the community if the judicial officer finds 

that there is probable cause to believe that the person 

committed” an “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.” Id. § 

3142(e)(3)(C).8

8 The full subset of 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 
15

Once this presumption is triggered, “it imposes a burden of 

production on the defendant ‘to offer some credible evidence 

contrary to the statutory presumption.’” United States v. 

Cherry, 221 F. Supp. 3d 26, 32 (D.D.C. 2016) (quoting United 

States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985)). “While 

the burden of production may not be heavy,” United States v. 

Lee, 195 F. Supp. 3d 120, 125 (D.D.C. 2016) (citations omitted); 

the defendant must proffer “at least some evidence” or basis to 

conclude that the case falls “outside ‘the congressional 

paradigm’” giving rise to the presumption. United States v. 

Stone, 608 F.3d 939, 945-46 (6th Cir. 2020) (quoting United 

States v. Jessup, 757 F.2d 378, 387 (1st Cir. 1985)); see also

United States v. Klein, No. 21-23 (RDM), 2021 WL 1751056, at *3 

(D.D.C. May 4, 2021). In other words, to rebut the presumption, 

the defendant must “offer some credible evidence” that he will 

not endanger the community or flee if released. Id. at 32. If 

the defendant meets his burden of production, the presumption 

“does not disappear entirely, but remains a factor to be 

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.” 18 U.S.C. § 

3142(e)(3)(A)-(E).
16

considered among those weighed by the district court.” United 

States v. Hunt, 240 F. Supp. 3d 128, 132-33 (D.D.C. 2017) 

(citing United States v. Ali, 793 F. Supp. 2d 386, 388 (D.D.C. 

2001)). Although the burden of production may shift, the burden 

of persuasion remains with the government throughout. Cherry, 

221 F. Supp. 3d at 32.

In cases that do not involve the conditions and charged 

offenses that trigger a 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.

18 U.S.C. § 3142(g); see also Munchel, 991 F.3d at 1279-80.
17

Although the Court of Appeals for the District of Columbia 

Circuit (the “D.C. Circuit”) has not squarely decided the issue 

of what standard of review a district court should apply to 

review of a magistrate’s detention or release order, see 

Munchel, 991 F.3d at 1280-81; courts in this District have held 

that such detention decisions are reviewed de novo. See Hunt, 

240 F. Supp. 3d at 132-33; United States v. Chrestman, No. 21-

mj-218 (ZMF), 2021 WL 765662, at *5-6 (D.D.C. Feb. 26, 2021). 

Accordingly, the Court will review the decision to detain Mr. 

Gieswein de novo.

III. Analysis

A. Mr. Gieswein Has Rebutted Any Presumption in Favor of 

Detention

Pursuant to the Bail Reform Act, if there is probable cause 

to believe the defendant has committed an offense for which a 

maximum term of imprisonment of ten years or more is prescribed 

under an offense listed in 18 U.S.C. § 2332b(g)(5)(B), a 

rebuttable presumption arises that no pretrial release condition 

or combination of conditions may be imposed to reasonably assure 

the appearance of the person or the safety of the community if 

he were released. See 18 U.S.C. § 3142(e)(3). Here, the 

government contends that the rebuttable presumption applies

because Mr. Gieswein is charged with Destruction of Government 

Property, in violation of 18 U.S.C. § 1361, which is 
18

specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B) and 

carries a maximum sentence of ten years in prison. Gov’t’s 

Opp’n, ECF No. 19 at 12-13. The Court agrees.

First, the D.C. Circuit has explained that an “indictment 

alone [is] enough to raise the rebuttable presumption that no 

condition would reasonably assure the safety of the community.” 

United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996); see 

also United States v. Little, 235 F. Supp. 3d 272, 277 (D.D.C. 

2017). Here, a grand jury found probable cause to believe that 

Mr. Gieswein committed the offense of Destruction of Government 

Property, in violation of 18 U.S.C. §§ 1361, 2. See Indictment, 

ECF No. 3 at 2. This charge carries a maximum sentence of 10 

years. See 18 U.S.C. § 1361. And given the evidence proffered by 

the government, as described below in Section III, Part C.2, the 

Court has no reason to second guess the grand jury’s 

determination. Thus, based on the indictment, the Court would 

have cause to find that a rebuttal presumption applies in this 

case. 

Second, although there is not a wealth of case law on the 

issue within this Circuit, other courts interpreting a different 

section of the Bail Reform Act have concluded that “a conspiracy 

to commit a crime of violence is itself a crime of violence,” 

United States v. Mitchell, 23 F.3d 1, 3 (1st Cir. 1994); and 

that the Bail Reform Act “does not require that the defendant 
19

himself commit acts of physical violence as a condition 

precedent to a detention order,” United States v. Ciccone, 312 

F.3d 535, 542 (2d Cir. 2002). Another court in this District has 

relied upon such case law in addressing whether the presumption 

of dangerousness attaches when there is probable cause to 

believe the defendant was an aider and abettor or co-conspirator 

for an alleged violation of Section 924(c). See United States v. 

Lee, 195 F. Supp. 3d 120, 128 (D.D.C. 2016). In Lee, the court 

found the out-of-Circuit case law persuasive, and concluded that 

“[b]ecause the government ha[d] established probable cause to 

believe that the defendant violated [S]ection 924(c) by aiding 

and abetting or conspiring to commit that offense,” the court 

“could find that the rebuttable presumption prescribed in § 

3142(e)(3)(B) applie[d] in th[e] case.” Id. This Court similarly 

finds the out-of-Circuit cases to be persuasive, particularly in 

view of the well-established precedent explaining that “[u]nder 

[18 U.S.C. § 2], the acts of the perpetrator become the acts of 

the aider and abettor and the latter can be charged with having 

done the acts himself.” United States v. Kegler, 724 F.2d 190, 

200-01 (D.C. Cir. 1983); see also Rosemond v. United States, 572 

U.S. 65, 71 (2014); In re Colon, 826 F.3d 1301, 1305 (11th Cir. 

2016). And indeed, here, Mr. Gieswein has been charged with 

violating Section 1361. See Indictment, ECF No. 3 at 2.
20

Third, the Court is not persuaded by Mr. Gieswein’s 

argument that the text of the statute supports a finding that a 

rebuttable presumption cannot apply in this case. Mr. Gieswein 

argues that the text of Section 3142(e)(3) is narrower than the 

language used in neighboring Sections 3142(e)(1)-(2) and 

3142(f)(1)(A), (E). Def.’s Mot., ECF No. 21 at 4. In those 

subsections, a presumption is created where a defendant is

“involved” in certain conduct, which could include an aiding and 

abetting claim. Id. However, the Court finds that this language 

merely indicates that a broader range of activity as a whole is 

contemplated, such as all “crimes of violence” or any offense 

for which the maximum sentence is life imprisonment or death. 18 

U.S.C. § 3142(f)(1). Section 3142(e)(3), on the other hand, 

refers to specific offenses, as listed within the U.S. Code.

Thus, based on the above, the Court could presume that no 

condition or combination of conditions of release will 

reasonably assure Mr. Gieswein’s appearance as required or the 

safety of the community. See 18 U.S.C. § 3142(e)(3). To rebut 

this presumption, Mr. Gieswein must “offer some credible 

evidence” that he will not endanger the community or flee if 

released. Cherry, 221 F. Supp. 3d at 32. Here, Mr. Gieswein is 

24 years old and does not have a criminal record. Def.’s Mot., 

ECF No. 18 at 29. He also appears to have strong ties to his 

community, as he received supportive letters and signed 
21

declarations from family and friends who largely describe him as 

loving, honest, and hardworking. Furthermore, Mr. Gieswein has 

had steady employment since he was 14 years old, until he 

recently lost his job in the fall of 2020 for reasons related to 

the COVID-19 pandemic. Def.’s Mot., ECF No. 18 at 29. 

Assuming that Mr. Gieswein has come forward with some 

credible evidence to counter the presumption, the Court next

must consider all of the factors set forth in Section 3142(g). 

See Hunt, 240 F. Supp. 3d at 132-33.

B. Mr. Gieswein Is Eligible for Pretrial Detention Pursuant 

to 18 U.S.C. § 3142(f)(1)(A)

Even if the rebuttable presumption in favor of detention 

does not apply in this case, Mr. Gieswein is eligible for 

pretrial detention pursuant to 18 U.S.C. § 3142(f)(1)(A). Under 

the Bail Reform Act, unless a defendant poses a serious risk of 

flight or of attempting to obstruct justice, he is only eligible 

for pretrial detention if he is charged with an offense listed 

in one of the five enumerated categories of Section 3142(f)(1)—

i.e., “the most serious” crimes. See 18 U.S.C. § 3142(f)(1)(A)-

(B), (f)(2); United States v. Singleton, 182 F.3d 7, 13 (D.C. 

Cir. 1999) (“Congress limited pretrial detention of persons who 

are presumed innocent to a subset of defendants charged with 

crimes that are ‘the most serious’ compared to other federal 
22

offenses.” (quoting United States v. Salerno, 481 U.S. 739, 747 

(1987))).

Mr. Gieswein is charged under 18 U.S.C. § 111(a)(1) and (b) 

with Assaulting, Resisting, or Impeding Certain Officers Using a 

Dangerous Weapon. See Indictment, ECF No. 3 at 2-3. For the 

reasons the Court set out in its Memorandum Opinion regarding 

Mr. Jeffrey Sabol’s request for pretrial release, United States 

v. Sabol, No. 21-35-1 (EGS), 2021 WL 1405945, at *6-7 (D.D.C. 

Apr. 14, 2021); a defendant charged under 18 U.S.C. § 111(a)(1) 

and (b) is charged with a crime of violence, see United States 

v. Kendall, 876 F.3d 1264, 1270 (10th Cir. 2017); United States 

v. Taylor, 848 F.3d 476, 492-493 (1st Cir. 2017); United States 

v. Juvenile Female, 566 F.3d 943, 948 (9th Cir. 2009). Moreover, 

the D.C. Circuit, in an unpublished order, recently affirmed 

that a defendant charged with violating 18 U.S.C. § 111(b) is 

charged with a crime of violence. J. at 2, United States v. 

Quaglin, No. 21-3028 (D.C. Cir. June 24, 2021) (unpublished).

Because using a deadly or dangerous weapon while assaulting a 

federal officer is a crime of violence, Mr. Gieswein is eligible 

for pretrial detention under 18 U.S.C. § 3142(f)(1)(A).9

9 The government also argues that Mr. Gieswein is eligible for 

detention because Felony Destruction of Property, in violation 

of 18 U.S.C. § 1361, is both a crime of terrorism and a crime of 

violence. Gov’t’s Opp’n, ECF No. 19 at 13-14. The Court need not 

address this argument because the Court finds that Mr. Gieswein 
23

C. No Condition or Combination of Conditions Will Reasonably 

Assure the Safety of Any Other Person and the Community

Having found both that Mr. Gieswein is eligible for 

pretrial detention under 18 U.S.C. § 3142(f)(1)(A) and that he 

has met his burden of production if a rebuttable presumption 

applies, the Court must determine whether any “condition or 

combination of conditions will reasonably assure the appearance 

of [Mr. Gieswein] as required and the safety of any other person 

and the community.” 18 U.S.C. § 3142(e)(1). The government does 

not argue that Mr. Gieswein is a flight risk, so the Court will 

focus its inquiry on whether Mr. Gieswein is a danger to any 

other person and the community. For this inquiry, the Court 

“must identify an articulable threat posed by the defendant to 

an individual or the community,” though “[t]he threat need not 

be of physical violence, and may extend to ‘non-physical harms 

such as corrupting a union.’” Munchel, 2021 WL 1149196, at *7 

(quoting United States v. King, 849 F.2d 485, 487 n.2 (11th Cir. 

1988)). “The threat must also be considered in context,” and 

“[t]he inquiry is factbound.” Id. (citing United States v. 

Tortora, 922 F.2d 880, 888 (1st Cir. 1990)).

In determining whether Mr. Gieswein is a danger to the 

community, the Court considers the 18 U.S.C. § 3142(g) factors,

is eligible for detention pursuant to 18 U.S.C. § 3142(f)(1)(A) 

for a “crime of violence.”
24

including: (1) “the nature and circumstances of the offense 

charged”; (2) “the weight of the evidence”; (3) “the history and 

characteristics” of the defendant; and (4) “the nature and 

seriousness of the danger to any person or the community that 

would be posed by the [defendant’s] release.” 18 U.S.C. § 

3142(g).

In consideration of these requisite factors, as set forth 

below, the Court concludes that clear and convincing evidence 

supports a finding that no condition or combination of 

conditions, including those proposed by Mr. Gieswein, will 

reasonably assure the safety of the community. Accordingly, the 

Court orders that Mr. Gieswein remain detained pending trial. 

1. Nature and Circumstances of the Offense

The first factor the Court must consider is the nature and 

circumstances of the offense charged, “including whether the 

offense is a crime of violence.” 18 U.S.C. § 3142(g)(1).

Despite the serious and unsettling nature of the events 

that transpired at the U.S. Capitol on January 6, 2021, the D.C. 

Circuit has made clear that detention is not appropriate in all 

cases involving defendants who participated in the events 

(“Capitol Riot defendants”). See Munchel, 2021 WL 1149196, at 

*8. The Court therefore considers the nature and circumstances 

of the specific offenses and underlying conduct with which each 

defendant is charged. Chrestman, 2021 WL 765662, at *7. The 
25

Court must “adequately demonstrate that it considered whether 

[Mr. Gieswein] pose[s] an articulable threat to the community in 

view of [his] conduct on January 6, and the particular 

circumstances of January 6.” Munchel, 2021 WL 1149196, at *8. 

To aid in this consideration, Chief Judge Howell has 

articulated “guideposts” for assessing “the comparative 

culpability of a given defendant in relation to fellow rioters.” 

Chrestman, 2021 WL 765662, at *7-8. The Court finds these 

guideposts persuasive for the purpose of differentiating among 

Capitol Riot defendants: (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 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.” Id. These factors, “[t]aken together, as applied to a 

given defendant, . . . are probative of ‘the nature and 

circumstances of the offense charged,’ 18 U.S.C. § 3142(g)(1), 
26

and, in turn, of the danger posed by the defendant,” as relevant 

to the fourth Section 3142(g) factor. Id. at *9.

At least four of the six Chrestman factors strongly support 

a finding that Mr. Gieswein’s comparative culpability in 

relation to his fellow rioters is high.

First, regarding whether the defendant has been charged 

with felony or misdemeanor offenses, Mr. Gieswein has been 

charged with multiple felonies. See Indictment, ECF No. 3. 

“Felony charges are by definition more serious than misdemeanor 

charges; the nature of a felony offense is therefore 

substantially more likely to weigh in favor of pretrial 

detention than the nature of a misdemeanor offense.” Chrestman, 

2021 WL 765662, at *7. Moreover, Section 3142(g)(1) specifically 

directs the Court to consider whether a defendant has been 

charged with a crime of violence, and at least three of the 

charged felonies—using a deadly weapon while assaulting federal 

officers protecting the U.S. Capitol—are crimes of violence. See 

supra Section III, Part B.

The second Chrestman factor—the extent of the defendant’s 

prior planning, “for example, by obtaining weapons or tactical 

gear,” Chrestman, 2021 WL 765662, at *2—also weighs in favor of 

continued pretrial detention. On the one hand, the government 

has not proffered any evidence suggesting that Mr. Gieswein 

privately or publicly expressed any prior intent to attack or 
27

engage in violence at the Capitol building. See Def.’s Mot., ECF 

No. 18 at 23-24. And while Mr. Gieswein was recorded on January 

5, 2021 as stating that, among other things, “we need to get the 

corrupt politicians . . . out of office and they need to be 

imprisoned,” he also stated that he wished for “both sides [to] 

stay peaceful.” Id. at 2-3, 22. 

On the other hand, however, Mr. Gieswein arrived at the 

Capitol on January 6, 2021 wearing camouflage fatigues, a 

tactical vest, and a helmet. Gov’t’s Opp’n, ECF No. 19 at 17. 

And though Mr. Gieswein attempts to characterize this gear as 

“defensive” in nature, Def.’s Reply, ECF No. 21 at 14-15; Mr. 

Gieswein also prepared by arming himself with a baseball bat and 

a chemical spray, while also wearing goggles designed to prevent 

the spray from harming his own eyes. Id. Even if Mr. Gieswein 

did not purchase such items until he arrived in Washington, his

decision to arrive at the Capitol on January 6, 2021 wearing

specialized gear and carrying weapons “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 causing mayhem and 

disrupting the democratic process.” Chrestman, 2021 WL 765662, 

at *8; see also Sabol, 2021 WL 1405945, at *10 (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 
28

States v. Caldwell, 2021 WL 2036667, at *7 (D.D.C. May 21, 2021) 

(finding that the defendant’s decision to carry and use a 

chemical spray on “law enforcement officers donned in riot gear” 

was evidence of prior planning).

Mr. Gieswein argues, however, that the baseball bat and 

chemical spray were “defensive, not aggressive” weapons. Def.’s 

Mot., ECF No. 18 at 23. He further contends that his comments to 

the interviewer on January 5 “are consistent with an expectation 

that those who opposed the former President”—such as Antifa or 

“other leftwing counter-protestors”—“could be violent” and that 

he “hope[d] that his presence would help deter violence.” Id. 

Moreover, he states that he had previously worn the same 

tactical gear on January 5 without incident, and letters from 

friends in support of his release noted that “he often wore his 

plate carrier, even around his hometown.” Id. at 23-25. The 

Court is not persuaded. The government’s evidence captures Mr. 

Gieswein, with a baseball bat and an aerosol spray can in his 

hands, forcefully advancing on law enforcement officers—who were

greatly outnumbered by rioters and clearly in a defensive 

position—at multiple moments on January 6, 2021. See, e.g., 

Gov’t’s Opp’n, ECF No. 19 at 6-10. Among other things, the 

government has proffered evidence that Mr. Gieswein deployed his 

chemical spray in the direction of officers on three separate

occasions, and that he joined other rioters in shoving a metal 
29

police barricade against officers in an apparent effort to 

breach the police line guarding the Capitol. Id.; see also Hr’g 

Video Ex. 3, at 01:25 to 01:45; Hr’g Video Ex. 4, at 00:06 to 

00:15. In view of this evidence, the Court is not persuaded that 

Mr. Gieswein brought the tactical gear and weapons in a hope to 

“deter violence and avoid injury at the hands of others.” Def.’s 

Reply, ECF No. 21 at 16 n.11. Rather, Mr. Gieswein’s actions

“indicate[] 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, 2021 WL 765662, at *2.

The third Chrestman factor—whether the defendant used a 

dangerous weapon—also weighs in favor of pretrial detention.

Evidence proffered by the government shows that, in the middle 

of a violent riot against law enforcement officers struggling to 

protect the Capitol building, Mr. Gieswein openly carried a 

baseball bat and carried and used a chemical spray on law 

enforcement officers. See Gov’t’s Opp’n, ECF No. 19 at 3-10; see 

also United States v. Padilla, 2021 WL 1751054, at *6 (D.D.C. 

May 4, 2021) (finding that the nature and circumstances of the 

offense weighed in favor of detention where, among other things,

defendant threw a pole at police officers and “forcefully pushed 

a metal barricade—designed to protect police officers—directly 

into their bodies, and, then, minutes later, helped to 
30

successfully knock down that barricade with a large metal 

sign”); Sabol, 2021 WL 1405945, at *11 (finding that, though 

defendant did not use a police baton he took from an officer on 

January 6, 2021, “the fact that he took the weapon from a 

vulnerable MPD officer and subsequently wielded it while helping 

drag another officer into the violent mob” was sufficient to 

find that the third Chrestman factor weighed in favor of 

detention).

The fourth Chrestman factor—evidence of coordination with 

other protestors before, during, or after the riot—is not 

strongly implicated in this case. Although the government’s

evidence captures Mr. Gieswein marching with the Proud Boys on 

the morning of January 6, 2021, the government concedes that 

there is no evidence that he was affiliated with the group prior 

to that date or was in radio communication with anyone on 

January 6, 2021. Gov’t’s Opp’n, ECF No. 19 at 22. Mr. Gieswein 

also has not been charged with any conspiracy offense. Id.

Further, the government does not argue that Mr. Gieswein’s 

affiliation with a group called the Woodland Wild Dogs—which Mr. 

Gieswein described on January 5 as a “militia,” but described in 

his motion briefing as a “group of friends who like to shoot 

guns, pretend to be in battles, and go camping to practice 

survival skills”—had anything to do with his decision to travel 

to Washington, D.C. See Def.’s Mot., ECF No. 18 at 18. And, as 
31

Mr. Gieswein points out, his connection with the Three 

Percenters10 had ended long before the events of January 6. Id.

at 25.

The fifth Chrestman factor—whether the defendant assumed a 

formal or de facto leadership role in the events of January 6, 

2021—is a close call, but on balance weighs in favor of Mr. 

Gieswein’s release. The government argues that evidence shows

Mr. Gieswein on the “front line” of the fight between rioters 

and police on the West Plaza, and that he was either “the second 

or third rioter through the window” of the Capitol building. 

Gov’t’s Opp’n, ECF No. 19 at 22. Furthermore, video evidence 

proffered by the government appears to capture Mr. Gieswein 

encouraging rioters to enter through the Capitol window by 

pointing to others attempting to break through, and then later 

appearing to urge the mob to advance on retreating law 

enforcement officers near the Capitol crypt by waving his arms 

forward. Id. But despite these actions, Mr. Gieswein does not 

appear to have been an instigator. To be sure, Mr. Gieswein does 

appear to encourage other rioters to act, but viewed in context, 

10 The Three Percenters are “a domestic militia that advocates 

for resistance to the U.S. federal government polic[i]es it 

considers to infringe on personal, local, and gun ownership 

rights. This group is loosely allied with the Oath Keepers, 

another anti-government militia, and has provided security 

services for various right-wing protests and movements.” Aff. 

Supp. Criminal Compl., ECF No. 1-1 at 5.
32

such actions do not establish that he was a formal or de facto 

leader of the mob. See Sabol, 2021 WL 1405945, at *13 (finding 

that seeking to be on the “front line of the ‘battle’” was not 

sufficient evidence of leadership).

Finally, the sixth Chrestman factor weighs strongly in 

favor of continued detention. Mr. Gieswein’s words and movements 

during the riot indicate he acted deliberately and dangerously. 

For purposes of evaluating a Capitol Riot defendant’s 

dangerousness, the D.C. Circuit has said that “those [rioters] 

who actually assaulted police officers and . . . those who 

aided, conspired with, planned, or coordinated such actions, are 

in a different category of dangerousness than those who cheered 

on the violence or entered the Capitol after others cleared the 

way.” Munchel, 991 F.3d at 1284. Here, grave concerns are 

implicated by Mr. Gieswein’s conduct, which included: (1) 

forcefully pushing a metal police barricade against a line of 

law enforcement officers attempting to keep rioters from 

advancing on the Capitol, Hr’g Video Ex. 3, at 01:25 to 01:45; 

Hr’g Video Ex. 4, at 00:06 to 00:15; (2) spraying an aerosol 

spray in the direction of law enforcement officers—and in the 

midst of a large crowd of other rioters—at the top of a 

staircase leading toward the Capitol, Gov’t’s Opp’n, ECF No. 19 

at 6-7, 19, Figure 5; Hr’g Video Ex. 1 at 02:19 to 02:25; 03:15 

to 03:20; (3) banging on a window of the Capitol building and 
33

appearing to encourage other rioters to break or enter through a

window, before he enters the Capitol himself through a smashed 

window, Hr’g Video Ex. 2 at 00:12 to 00:15, 00:38 to 01:12; (4) 

spraying a chemical spray in the direction of law enforcement 

officers while inside the Capitol building and surrounded by 

other rioters, Gov’t’s Opp’n, ECF No. 19 at 9; (5) spraying a

chemical spray while inside the Capitol building, which 

allegedly hit an officer in the eyes, id. at 10; and (6) 

actively resisting arrest,11 id.; see also Chrestman, 2021 WL

765662, at *8 (“Grave concerns are implicated if a defendant 

actively threatened or confronted federal officials or law 

enforcement” because such conduct demonstrates “disregard for 

the institutions of government and the rule of law[.]”). His 

actions and words reflect a contempt for the rule of law and law 

enforcement, a disturbing disregard for the safety of others, 

and a willingness to engage in violence. These are qualities 

that bear on the seriousness of the offensive conduct and the 

ultimate inquiry of whether Mr. Gieswein will comply with 

conditions of release meant to ensure the safety of the 

community. See Chrestman, 2021 WL 765662, at *8.

11 While the government argues that Mr. Gieswein actively 

resisted arrest by taking swings at an officer, the Court notes 

that the government has conceded that Capitol surveillance video 

only shows “the defendant and Capitol police on the ground, and 

the defendant fleeing.” Gov’t’s Opp’n, ECF No. 19 at 10. 
34

Thus, the first 18 U.S.C. § 3142(g) factor weighs heavily 

in favor of detention on the basis that no condition or 

combination of conditions will reasonably assure the safety of 

the community. 18 U.S.C. § 3142(e)(1), (g)(1).

2. Weight of the Evidence Against the Defendant

The second factor the Court must consider is the weight of 

the evidence against Mr. Gieswein. 18 U.S.C. § 3142(g)(2).

The Court finds that the weight of the evidence against Mr. 

Gieswein tips slightly in favor of continued detention. Mr. 

Gieswein was indisputably present at the U.S. Capitol on January 

6, 2021, and videoclips and photographs from the day show Mr. 

Gieswein, in his distinctive outfit, carrying a baseball bat and 

a chemical spray on the Capitol grounds and inside the Capitol 

building itself. See Def.’s Mot., ECF No. 18 at 13; Gov’t’s 

Opp’n, ECF No. 19 at 3-10. Evidence further places Mr. Gieswein, 

in the midst of an angry crowd gathered on a staircase, spraying 

a chemical spray in the direction of law enforcement officers 

and raising his fist and yelling as rioters advanced past the 

officers and made their way toward the Capitol. See Hr’g Video 

Ex. 1, at 02:19 to 02:25, 03:15 to 03:20, 04:45 to 04:50; 

Gov’t’s Opp’n, ECF No. 19 at 6-7. Mr. Gieswein is captured on 

video running toward the Capitol, banging on a Capitol window 

with his fist, and then appearing to encourage other rioters to 

go toward a window that was in the process of being smashed 
35

open. Gov’t’s Opp’n, ECF No. 19 at 7; see also Hr’g Video Ex. 2 

at 00:01 to 00:10, 00:38 to 01:12. Once he entered the Capitol 

through the broken window, evidence also shows that Mr. Gieswein 

deployed his chemical spray in the direction of law enforcement 

a second time while near the Capitol crypt, and appeared to wave 

his arms to encourage others to continue to advance on the 

officers. See Gov’t’s Opp’n, ECF No. 19 at 9. While there is no 

video or photographic evidence of the third incident in which 

the government alleges Mr. Gieswein sprayed and hit an officer 

with his chemical spray while in the Capitol Visitor Center, the 

government provides as evidence a U.S. Capitol Police officer’s

statement to the FBI, and represents that video surveillance 

captures the “aftermath” of the incident. Id. at 10.

Though Mr. Gieswein does not dispute that he took the 

actions shown in the video and photographic evidence, he 

nonetheless argues that the government’s evidence on each charge 

is weak. 

First, regarding Count One—Obstruction of an Official 

Proceeding, in violation of 18 U.S.C. § 1512(c)(2)—Mr. Gieswein 

argues that the government likely will not be able to show that 

the Electoral College vote certification constitutes an 

“official proceeding” within the meaning of the statute. Def.’s 

Mot., ECF No. 18 at 11. Under Section 1512(c)(2), whoever 

“obstructs, influences or impedes any official proceeding, or 
36

attempts to do so, shall be fined under this title or imprisoned 

not more than 20 years, or both.” 18 U.S.C. § 1512(c)(2) 

(emphasis added). Section 1515 then defines “official 

proceeding” as, among other things, “a proceeding before the 

Congress.” Id. § 1515(a)(1). Mr. Gieswein contends that, under 

these definitions, he is “not aware of any case in which” the 

phrase “official proceeding” has been “interpreted” to include a 

session such as the “ceremonial certification of the Electoral 

College vote.” Def.’s Mot., ECF No. 18 at 11-12. Thus, in Mr. 

Gieswein’s view, it is “far from clear that the government can 

prove this charge.” Def.’s Mot., ECF No. 18 at 11-12.

The Court does not doubt that the case law regarding the 

parameters of the definition of “official proceeding” is sparse.

However, this argument has not been fully briefed by the 

parties, and Mr. Gieswein offers no substantive argument or any 

citations regarding why the Joint Session of Congress convening 

to certify the Electoral College vote would not constitute a 

“proceeding before Congress” and, therefore, an “official 

proceeding” under Section 1512(c)(2). See id. at 11-12. 

Accordingly, the Court is not convinced at this stage of the 

litigation that the government’s evidence underlying the charge 

is weak, particularly in view of the plain language of the 

statute. 
37

Second, Mr. Gieswein argues that the government likely 

cannot meet its burden of proving that the baseball bat and 

chemical spray qualify as a “dangerous weapon” with regard to 

Counts Two through Four and Count Six—Assaulting, Resisting, or 

Impeding Certain Officers Using a Dangerous Weapon, in violation 

of 18 U.S.C. § 111(a)(1) and (b); and Entering and Remaining in 

a Restricted Building or Grounds with a Deadly or Dangerous 

Weapon, in violation of 18 U.S.C. § 1752(a)(1) and (b)(1)(A). 

Def.’s Mot., ECF No. 18 at 12-14, 25.

To violate Section 111(b), a defendant “must have committed 

one of the acts described in § 111(a), i.e., ‘forcibly 

assault[ed], resist[ed], oppose[d], impede[d], intimidate[d], or 

interfere[d] with’ a [federal officer] in specified 

circumstances;” and “in committing the act,” either (1) “use[d] 

a deadly or dangerous weapon” or (2) “inflict[ed] bodily 

injury.” United States v. Klein, No. 21-236 (JDB), 2021 WL 

1377128, at *6 (D.D.C. Apr. 12, 2021) (citation omitted). A 

“deadly or dangerous weapon” is “any object which, as used or 

attempted to be used, may endanger the life of or inflict great 

bodily harm on a person.” United States v. Sanchez, 914 F.2d 

1355, 1358 (9th Cir. 1990); see also United States v. Chansley, 

No. 21-cr-3 (RCL), 2021 WL 861079, at *7 (D.D.C. Mar. 8, 2021) 

(defining “dangerous weapon” as “an object that is either 

inherently dangerous or is used in a way that is likely to 
38

endanger life or inflict great bodily harm”). “Whether something 

is a ‘dangerous’ weapon depends on how it is used.” Gray v. 

United States, 980 F.3d 264, 267 (2d Cir. 2020). Thus, “‘objects 

that have perfectly peaceful purposes may be turned into 

dangerous weapons’ when used in a manner likely to cause bodily 

harm.” Chansley, 2021 WL 861079, at *7 (quoting United States v. 

Smith, 561 F.3d 934, 939 (9th Cir. 2009) (en banc)).

“A defendant who acts forcibly using a deadly or dangerous 

weapon under § 111(b) must have used force by making physical 

contact with the federal employee, or at least threatened the 

employee, with an object that, as used, is capable of causing 

great bodily harm.” Gray, 980 F.3d at 266-67 (citation omitted); 

see United States v. Taylor, 848 F.3d 476, 492-93 (1st Cir. 

2017) (same); United States v. Bullock, 970 F.3d 210, 215 (3d 

Cir. 2020) (same); United States v. Duran, 96 F.3d 1495, 1509-11 

(D.C. Cir. 1996). “Th[e] first means of violating § 111(b) 

therefore necessarily requires the use or threat of force 

capable of causing physical pain or injury to another.” Klein, 

2021 WL 1377128, at *6 (quoting Taylor, 848 F.3d at 494) 

(quotation marks omitted). “The second scenario under § 111(b) 

is even more straightforward given that a defendant who acts 

‘forcibly’ and actually ‘inflicts bodily injury’ by definition 

uses ‘force capable of causing . . . injury’ to another.” Id.
39

(citing Bullock, 970 F.3d at 216; Gray, 980 F.3d at 267; Taylor, 

848 F.3d at 494). 

Mr. Gieswein argues that neither the aerosol spray nor the 

baseball bat is a dangerous weapon because (1) there is no 

evidence that the aerosol spray can was designed to cause great 

bodily injury or that it in fact caused great bodily injury; and 

(2) Mr. Gieswein merely held the baseball bat throughout the 

day, and did not brandish it or use it. Def.’s Mot., ECF 18 at 

13. Mr. Gieswein further asks the Court to adopt a definition of 

“bodily injury” that he asserts the government “agreed” to use 

in a different case. Id. According to Mr. Gieswein, based on the 

government’s position in the other case, “to prove that a noninherently dangerous object is a dangerous weapon, the 

government must prove that it was likely to endanger life or 

inflict an injury” that meets the definition of “serious bodily 

injury” provided in 18 U.S.C. § 1365(h)(3), which defines the 

term as used in 18 U.S.C. § 113(b)(2). Def.’s Reply, ECF No. 21 

at 10. Section 1365(h)(3) defines “serious bodily injury” as 

bodily injury that involves: “(A) a substantial risk of death; 

(B) extreme physical pain; (C) protracted and obvious 

disfigurement; or (D) protracted loss or impairment of the 

function of a bodily member, organ, or mental faculty.” 18 

U.S.C. § 1365(h)(3).
40

Here, the strength of the evidence as to whether the 

chemical spray and baseball bat are dangerous weapons is mixed.

Regarding the chemical spray, the government’s evidence includes 

photos and video footage clearly showing Mr. Gieswein deploying 

the spray in the direction of law enforcement officers on two 

separate occasions. See Gov’t’s Opp’n, ECF No. 19 at 6-8, 19; 

Hr’g Video Ex. 1 at 02:19 to 02:25; 03:15 to 03:20. And contrary 

to Mr. Gieswein’s argument, there is no requirement in 18 U.S.C. 

§ 111(b) that the defendant’s use of a dangerous weapon must 

actually injure another person. See 18 U.S.C. § 111(b) 

(increasing the maximum penalty for anyone who “uses a deadly or 

dangerous weapon . . . or inflicts bodily injury” (emphasis 

added)). It is enough that Mr. Gieswein forcefully used the 

chemical spray in a manner that was threatening to a federal 

officer. See Duran, 96 F.3d 1495, 1509-11 (D.C. Cir. 1996) 

(holding that “the act of using a deadly weapon with the purpose 

of causing Secret Service agents to fear imminent serious bodily 

injury” constituted a crime under § 111(b)). Furthermore, 

according to the government’s evidence, one of the officers that 

Mr. Gieswein allegedly sprayed within the Capitol Visitor Center 

likened the chemical to an OC spray, Gov’t’s Opp’n, ECF No. 19 

at 10; which is generally understood to be capable of causing 

“extreme physical pain” and “protracted” impairment of a bodily 

organ, such as coughing, choking, burning sensations of the eyes 
41

and nose, and exacerbation of pre-existing conditions such as 

asthma. See, e.g., United States v. Neill, 166 F.3d 943, 949-50 

(9th Cir. 1999); United States v. Bartolotta, 153 F.3d 875, 879 

(8th Cir. 1998); cf. Munchel, 991 F.3d at 1281 n.5 (“While the 

record contains no evidence or proffer as to how Munchel’s taser 

operates, a taser is commonly understood as a device designed to 

expel a projectile capable of causing injury to individuals. . . 

. Thus, at this stage, the evidence sufficiently demonstrates 

that Munchel’s taser is a dangerous weapon under the statute.”). 

Thus, even under the heightened definition of “serious bodily 

injury” that Mr. Gieswein proposes the Court use, there is 

evidence that would support a finding that the chemical spray 

was “dangerous.” See Aff., ECF No. 19-1 at 2 (describing the 

spray as causing watering eyes, coughing, and a burning 

sensation). To be sure, the weight of the government’s evidence 

is mitigated by the lack of information regarding the specific 

type of chemical spray at issue. But while Mr. Gieswein argues 

that the chemical spray only caused “mild symptoms,” the Court 

is not convinced that the fortuitous fact that the officer was 

not more seriously injured makes a chemical spray any less a 

dangerous weapon. See United States v. Loman, 551 F.2d 164, 169 

(7th Cir. 1977) (finding that a walking stick that the defendant 

brought down on the victim’s head constituted a dangerous 

weapon, though the stick did not cause serious injury).
42

The evidence regarding whether the baseball bat is a 

dangerous weapon is relatively weaker, however. As stated above, 

what constitutes a dangerous weapon depends not on the nature of 

the object itself but on its capacity, given the manner of its 

use, to “endanger the life of or inflict great bodily harm on a 

person.” Taylor, 848 F.3d at 494. “[T]he ‘use’ of a dangerous 

weapon in the course of a § 111(b) assault or battery 

constitutes the ‘use, attempted use, or threatened use of 

physical force against the person . . . of another,’” Gray, 980 

F.3d at 267. In addition, “[a] defendant who acts ‘forcibly’ 

using a deadly or dangerous weapon under § 111(b) must have used 

force by making physical contact with the federal employee, or 

at least threatened the employee,” with the dangerous weapon. 

Id. Here, the government’s evidence captures Mr. Gieswein openly 

holding a baseball bat on Capitol grounds and within the Capitol 

building itself. Gov’t’s Opp’n, ECF No. 19 at 3. The parties do 

not dispute that a baseball bat is capable of causing death or 

serious bodily injury when used violently against another 

person. Moreover, the Court does not doubt that a baseball bat 

in the hands of a rioter in the midst of a violent mob, in which 

“many people injured and threatened to injure the police,” 

Gov’t’s Opp’n, ECF No. 19 at 20, incites fear in others. But, as 

Mr. Gieswein points out, the government has not provided 

evidence of Mr. Gieswein “‘brandishing’ it in front of officers” 
43

in a threatening manner, let alone swinging it at or hitting 

others with it. Def.’s Mot., ECF No. 18 at 14. And though a U.S. 

Capitol Police Officer reported being “concerned” about Mr. 

Gieswein “using the bat” while they were allegedly engaged in a 

struggle in the Capitol Visitor Center, the officer also noted 

that the bat was in Mr. Gieswein’s backpack at the time. Aff., 

ECF No. 19-1 at 2. Thus, though there is evidence of Mr. 

Gieswein holding the baseball bat and storing it in his 

backpack, the government has not provided evidence that Mr. 

Gieswein used, attempted to use, or threatened to use the 

baseball bat against another during the events of January 6, 

2021.

Finally, regarding Count Five—Destruction of Government 

Property, in violation of 18 U.S.C. §§ 1361, 2—Mr. Gieswein 

argues that the government’s evidence is weak. Def.’s Mot., ECF 

No. 18 at 14-15. He argues that the affidavit attached to the 

criminal complaint “fails to specify how Mr. Gieswein 

encourage[d] others” to break the Capitol window, and that 

“though there are voices seeming to encourage those actually 

working to break the window, the government has offered no 

evidence that Mr. Gieswein is among them.” Id.

The Court agrees that it is unclear whether the voice on 

the videoclip yelling words to the effect of “guys, it’s busted 

over here, get through” and “boys, boys, look at this” belongs 
44

to Mr. Gieswein. See Hr’g Video Ex. 2, at 00:32 to 00:35, 00:38 

to 00:41. In addition, beyond banging on one of the windows with 

his fist, Mr. Gieswein does not directly attempt to break the 

second window in the alcove himself. However, the videoclip does 

capture Mr. Gieswein getting the attention of other rioters 

attempting to break in a set of doors in the alcove; pointing 

them in the direction of a window in the process of being 

smashed in; and then one of those rioters moves over to the 

window, grabs a wooden beam, and smashes the window open. Id. at 

00:38 to 00:54. Mr. Gieswein then enters the Capitol building 

through that same window. Id. at 01:04 to 01:11. These actions 

are consistent with the grand jury’s determination that Mr. 

Gieswein aided and abetted the destruction of federal property.

Thus, in consideration of the strength of the government’s 

evidence against Mr. Gieswein, the Court finds that the second 

18 U.S.C. § 3142(g) factor weighs slightly in favor of his 

continued pretrial detention, although it “is the least 

important” factor. Padilla, 2021 WL 175054, at *7 (quoting 

United States v. Gebro, 948 F.2d 1118, 1121-22 (9th Cir. 1991)).

3. History and Characteristics of the Defendant

Under the third factor, the Court must consider Mr. 

Gieswein’s history and characteristics. 18 U.S.C. § 3142(g)(3). 

The Court considers Mr. Gieswein’s “character, physical and 

mental condition, family ties, employment, financial resources, 
45

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,” 

id. § 3142(g)(3)(A); and “whether, at the time of the current 

offense or arrest, [Mr. Gieswein] was on probation, on parole, 

or on other release,” id. § 3142(g)(3)(B).

Here, there are several factors in Mr. Gieswein’s favor. He 

is 24 years old and has no criminal history. Def.’s Mot., ECF 

No. 18 at 29. He has also received support from friends and 

family, who have either sent in letters or have signed 

declarations under penalty of perjury on Mr. Gieswein’s behalf. 

See Rockel Decl., ECF No. 18-1; Fellhauer Decl., ECF No. 18-2; 

Character Letters, ECF No. 18-4. The letters and declarations 

describe Mr. Gieswein as a nonviolent supporter of law 

enforcement and the military, see Rockel Decl., ECF No. 18-1 at 

2; Fellhauer Decl., ECF No. 18-2 at 2; who is “loving, honest, 

caring, and hard[-]working,” Character Letters, ECF No. 18-4 at 

1; see also id. at 6-7; and who acts as a mentor figure to his 

younger sister, see id. at 4. Mr. Gieswein has also had steady

employment since he was 14, until he recently lost his job in 

the fall of 2020 for reasons related to the COVID-19 pandemic. 

Def.’s Mot., ECF No. 18 at 29.

The government acknowledges that Mr. Gieswein does not have 

a criminal history and that he voluntarily turned himself in to 
46

local authorities in connection with this case. Gov’t’s Opp’n, 

ECF No. 19 at 26. The government also acknowledges that there is 

no evidence indicating that Mr. Gieswein is connected with the 

Proud Boys or Oath Keepers. Id. But the government returns to 

Mr. Gieswein’s actions on January 6, 2021, which resulted in Mr. 

Gieswein being charged with what the government characterizes as 

“three separate counts of a crime classified by Congress as 

crimes of violence and one classified by that same body as a 

federal crime of terrorism.” Id. In the government’s view, 

“[w]hatever motivated the defendant on January 6, it was strong 

enough to overcome the respect he appears to have had for law 

enforcement prior to traveling to Washington, D.C., and to cause 

him to chemically assault officers who were trying to prevent a 

mob from taking over the Capitol.” Id. at 27. The government 

also points out that according to an FBI report of an interview

with a “character witness,” Mr. Gieswein subscribes to the QAnon 

conspiracy theory, which includes a belief that “a cabal of 

Satanic, cannibalistic pedophiles run a global sex trafficking 

ring, and that President Trump was planning to have many members 

of the cabal arrested.” Id. In addition, the government argues 

that Mr. Gieswein’s statements on January 5—including that he 

believed that certain politicians have “completely destroyed our 

country and sold them to the Rothschilds and the Rockefellers”—

indicated a belief in an “anti-Semitic conspiracy theor[y] . . . 
47

that shadow forces . . . secretly control global currency.” Id.

at 27 & n.11. 

The Court agrees that Mr. Gieswein’s decisions on January 

6, 2021 “show that he is willing to allow his own personal 

beliefs to override the rule of law, which reflects poorly on 

his character.” Klein, 2021 WL 1377128, at *10 (quotation 

omitted); see also Sabol, 2021 WL 1405945, at *15 (“That [the 

defendant] acted violently against law enforcement protecting 

the peaceful transition of power based on a belief that the 2020 

Presidential Election was stolen is also very alarming [and]

indeed raises concerns about [his] character and the danger [he] 

may present to the community if he were released.”). In 

addition, Mr. Gieswein’s alleged belief in conspiracy theories

is concerning when considered in the context of this case—a 

political protest that turned into a violent riot at the 

Capitol. However, the Court ultimately finds that Mr. Gieswein’s 

history and characteristics reflect an ability to abide by the 

law. It is true that Mr. Gieswein’s actions on January 6, 2021 

stand in direct conflict with his history and the substance of 

the letters submitted on his behalf. But Mr. Gieswein’s age, 

lack of criminal history, family and community ties, and history 

of steady employment overall weigh in favor of his pretrial 

release. See United States v. Cua, No. 21-107 (RDM), 2021 WL 

918255, at *4-5 (D.D.C. Mar. 10, 2021) (finding that, despite 
48

the defendant’s criminal history, his “young age, family and 

community ties, expressed remorse, and lack of a significant 

criminal history weigh in favor of his pretrial release”).

4. Nature and Seriousness of the Danger Posed by the 

Defendant’s Release

The final factor the Court must consider is the “nature and 

seriousness of the danger to any person or the community that 

would be posed by the person’s release.” 18 U.S.C. § 3142(g)(4). 

For many of the reasons already addressed above, the Court 

finds that this factor also weighs against Mr. Gieswein and in 

favor of his continued pretrial detention. “Consideration of 

this factor encompasses much of the analysis set forth above, 

but it is broader in scope,” requiring an “open-ended assessment 

of the ‘seriousness’ of the risk to public safety.” Cua, 2021 WL 

918255, at *5 (quoting United States v. Taylor, 289 F. Supp. 3d 

55, 70 (D.D.C. 2018)). “Because this factor substantially 

overlaps with the ultimate question whether any conditions of 

release ‘will reasonably assure [the appearance of the person as 

required] and the safety of any other person and the community,’ 

18 U.S.C. § 3142(e), it bears heavily on the Court’s analysis.” 

Id.

As discussed above, the nature and circumstances of Mr. 

Gieswein’s offenses evince a clear disregard for the safety of 

others, and of law enforcement in particular. See supra Section 
49

III, Part C.1; see also Chrestman, 2021 WL 765662, at *9. The 

government has shown that Mr. Gieswein intentionally deployed 

chemical spray against multiple Capitol Police officers

throughout the day on January 6, 2021. And though Mr. Gieswein 

argues that deploying a chemical spray does not “indicate actual 

intent to cause lasting pain and injury [or] an especially high 

tolerance for risk,” Def.’s Reply, ECF No. 21 at 13 (citing 

cases); the Court disagrees, see Fairlamb, 2021 WL 1614821, at 

*8 (“[T]he defendant’s willingness to assault a police officer 

on January 6—in the full view of other officers, scores of 

bystanders, and many cameras—confirms that, when enraged, he 

poses a danger to the community.”). As another judge in this 

District has put it, “[p]epper spray would hardly serve its 

purpose if it did not cause the sprayee pain.” United States v. 

Moore, 149 F. Supp. 3d 177, 182 (D.D.C. 2016). Furthermore, 

during at least one of the instances in which Mr. Gieswein 

deployed his chemical spray in the direction of law enforcement 

officers, Mr. Gieswein was surrounded by individuals—including 

one person with red, watery eyes, calling out for water—clearly 

in distress after being hit with a chemical spray. See Hr’g 

Video Ex. 1 at 02:30 to 02:57. The Court also is not persuaded 

that choosing to spray a chemical substance directly at police

does not show a “high tolerance for risk.” Def.’s Reply, ECF No. 

21 at 13. There is evidence that, rather than being carried away 
50

in the excitement of the moment, Mr. Gieswein instead arrived at 

the Capitol on January 6, 2021 prepared to engage in such 

behavior by bringing the chemical spray with him, along with 

goggles to keep the spray from getting into his own eyes. See 

Gov’t’s Opp’n, ECF No. 19 at 3, Figure 1; id. at 21, Figure 10.

Mr. Gieswein was also equipped with a baseball bat, helmet, 

tactical vest, and camouflage fatigues, and is pictured standing 

near the front line of protestors confronting police officers 

both on the West Plaza and on the staircase leading up to the 

Capitol. Id. at 4-5. Videoclips capture Mr. Gieswein using his 

body to shove a metal police barricade against police officers 

who were trying to keep the rioters at bay, Hr’g Video Ex. 3, at 

01:25 to 01:45; Hr’g Video Ex. 4, at 00:06 to 00:15; and he is 

one of the first rioters to enter the Capitol through a smashed 

window, with the baseball bat and chemical spray, after 

appearing to encourage others to enter the Capitol through the 

same window, Hr’g Video Ex. 2, at 00:56 to 01:12; Gov’t’s Opp’n, 

ECF No. 19 at 7. Altogether, “[t]his evidence suggests that [Mr. 

Geiswein] was not a passive observer, but an active aggressor.” 

United States v. Caldwell, No. 21-181, 2021 WL 2036667, at *10 

(D.D.C. May 21, 2021).

Mr. Gieswein’s statements also demonstrate that a 

willingness to “take matters into his own hands to defend the 

country against perceived corruption in democratic 
51

institutions.” United States v. DeGrave, No. 21-90, 2021 WL 

1940536, at *17 (D.D.C. May 14, 2021). On January 5, 2021, the 

government represents that Mr. Gieswein is recorded as saying 

that Congress “need[ed] to get the corrupt politicians out of 

office. Pelosi, the Clintons, all of . . . every single one of 

them, Biden, Kamala . . . they have completely destroyed our 

country and sold them to the Rothschilds and Rockefellers.” 

Gov’t’s Opp’n, ECF No. 19 at 27; see also Aff., ECF No. 1-1 at 

11. He is also reported as saying: “What we need to do, is we 

need to get the corrupt politicians that have been in office for 

50-60 years, that have been destroying our country and selling 

it to the Middle East and Israel out of office and they need to 

be imprisoned.” Aff., ECF No. 1-1 at 11. And, as described 

above, Mr. Gieswein “did not simply hold these misguided 

beliefs; he acted on them.” Sabol, 2021 WL 1405945, at *17. The 

Court does acknowledge Mr. Gieswein’s lack of a criminal record 

and the supportive letters friends and family submitted on his 

behalf. Def.’s Mot., ECF No. 18 at 29; See Rockel Decl., ECF No. 

18-1; Fellhauer Decl., ECF No. 18-2; Character Letters, ECF No. 

18-4. The Court also acknowledges Mr. Gieswein’s statement on 

January 5 that he wished for “both sides [to] stay peaceful.” 

Id. at 2-3. Nonetheless, his history and wish for peace did not 

prevent him from committing acts of violence against police 

officers, nor from actively resisting arrest and fleeing the 
52

scene,12 and they do little to dissuade the Court from finding 

that Mr. Gieswein poses a serious danger to his community.

The Court is similarly unpersuaded by Mr. Gieswein’s

argument that he does not pose a danger to anyone in the 

community because there have not been any similar events carried 

out by former President Trump supporters since January 6, 2021.

Def.’s Mot., ECF No. 18 at 31. “While the circumstances of 

January 6, 2021 were unique, and the day has passed, it cannot 

be said that every Capitol Riot defendant is no longer a danger 

because those exact circumstances are unlikely to arise again.” 

Sabol, 2021 WL 1405945, at *18. And as this Court stated in 

Whitton, “even if the exact circumstances of the January 6 

attacks are not ‘continuing in nature’ or ‘likely to be repeated 

in the future,’ the violent offenses [the defendant] committed 

that day are serious enough on their own to militate against 

pretrial release.” Whitton, 2021 WL 1546931, at *9. The Court is 

further troubled by Mr. Gieswein’s unsolicited statement to 

police—made several days after the events of January 6, 2021 

unfolded—that he had turned himself in because he believed he 

“did nothing wrong.” Gov’t’s Opp’n, ECF No. 19 at 11; see also 

12 As stated above, while the entire incident within the Capitol 

Visitor Center is not captured on video or photographic 

evidence, the government has represented that video surveillance 

shows Mr. Gieswein and officers on the ground, and Mr. Gieswein 

“fleeing.” Gov’t’s Opp’n, ECF No. 19 at 10.
53

id. (alleging that Mr. Gieswein “described himself as a 

‘constitutionalist’ who wants the military to take back over the 

country and restore the Constitution”). Like Mr. Whitton, Mr. 

Gieswein is thus “distinguishable from other Capitol Riot 

defendants who displayed a dangerous distain for democracy and 

the rule of law on January 6, 2021, but who did not engage in 

violence, see, e.g., Munchel, 991 F.3d at 1283-84, or who did 

not direct their ‘forceful conduct’ toward inflicting injury, 

see United States v. Klein, No. CR 21-236 (JDB), ECF No. 29 at 

24, (D.D.C. Apr. 12, 2021).” Whitton, 2021 WL 1546931, at *12. 

In consideration of these factors and noting the D.C. 

Circuit’s observation that “[i]t cannot be gainsaid that the 

violent breach of the [U.S.] Capitol on January 6 was a grave 

danger to our democracy, and that those who participated could 

rightly be subject to detention to safeguard the community,” 

Munchel, 991 F.3d at 1284-85; the Court is persuaded that Mr. 

Gieswein poses a danger to his community and the broader 

community of American citizens if he were to be released pending 

trial, and he “cannot be trusted to abide by any conditions of 

release that might be imposed instead of pretrial detention.” 

Chrestman, 2021 WL 765662, at *16.

IV. Conclusion

After considering the factors set forth in 18 U.S.C. § 

3142(g), the Court finds, by clear and convincing evidence, that 
54

no condition or combination of conditions will reasonably assure 

the safety of any other person and the community were Mr. 

Gieswein to be released pending trial. 18 U.S.C. § 3142(e)(1). 

Accordingly, Mr. Gieswein’s motion is DENIED. Mr. Gieswein shall 

be detained pending trial. An appropriate Order accompanies this 

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

July 27, 2021