United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided March 26, 2021

No. 21-3010

UNITED STATES OF AMERICA,

APPELLEE

v.

ERIC GAVELEK MUNCHEL,

APPELLANT

Consolidated with 21-3011

On Appeal of Pretrial Detention Orders

(No. 1:21-cr-00118-1)

(No. 1:21-cr-00118-2)

A. J. Kramer, Federal Public Defender, and Sandra G. 

Roland, Assistant Federal Public Defender, were on appellant 

Eric Munchel=s Memorandum of Law and Fact.

Gregory S. Smith, appointed by the court, was on appellant 

Lisa Eisenhart=s Memorandum of Law and Fact.

Elizabeth Trosman and Elizabeth H. Danello, Assistant 

U.S. Attorneys, were on appellee=s Memorandum of Law and 

Fact.
2

Before: ROGERS, WILKINS and KATSAS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

Opinion concurring in part and dissenting in part filed by 

Circuit Judge KATSAS.

WILKINS, Circuit Judge: We consider an appeal of a 

pretrial detention order issued after a Magistrate Judge had 

previously ordered the two appellants released pursuant to a 

lengthy set of stringent conditions. For the reasons stated 

below, we remand for the District Court to consider anew the 

government’s motion for detention. 

I.

The facts, as found by the District Court, and as observed 

in a 50-minute video of much of the incident at the heart of the 

case, are as follows.

Eric Munchel and his mother, Lisa Eisenhart, participated 

in the January 6, 2021 incident at the Capitol. Munchel is a 

thirty-year-old resident of Nashville, Tennessee. He 

previously worked as a waiter and has twice been convicted for 

misdemeanor possession of marijuana in Georgia state courts. 

See United States v. Munchel, No. 1:21-CR-118-RCL, 2021 

WL 620236, at *1 (D.D.C. Feb. 17, 2021). Eisenhart is a fiftyseven-year-old resident of Woodstock, Georgia. She has been 

employed as a nurse for approximately thirty years and has no 

prior criminal history. Id.; Eisenhart Mem. at 13. 

On January 6, Eisenhart and Munchel attended President 

Trump’s “Stop the Steal” rally to protest the election results. 

Both wore tactical vests and Munchel had a taser, holstered on 
3

his hip. Munchel also wore his iPhone, mounted on his tactical 

vest, and used it to take a video of some of the day’s events. 

Following the rally, Eisenhart and Munchel marched towards 

the Capitol. See Munchel, 2021 WL 620236, at *2–3. As they 

approached the Capitol, they milled around outside and talked 

with others. They met members of the Oath Keepers militia and 

Munchel bumped fists with one of them. Id. at *2; Video at 

11:56–12:05. 

At some point while Munchel and Eisenhart were standing 

around, someone yelled out “they broke the line up there” and 

people began saying “let’s go in.” Eisenhart told Munchel they 

should go in, but she added, “[w]e’re going straight to federal 

prison if we go in there with weapons.” Video at 12:28–12:40. 

Munchel responded that he would not go into the Capitol, and

Eisenhart suggested that they put “em” in their backpacks. Id. 

Munchel and Eisenhart then moved across the crowd to an area 

where a backpack was stowed and Munchel stashed a fanny 

pack in the backpack. See Munchel, 2021 WL 620236, at *2; 

Video at 16:00–16:25. Munchel contends that the only weapon 

in the fanny pack was a pocketknife; the government suggests 

that other weapons could have been inside, perhaps even a 

firearm. See Tr. of Dist. Ct. Detention Hr’g at 10. Munchel 

kept his taser holstered on his hip. See Munchel, 2021 WL 

620236, at *2. 

Subsequently, Eisenhart encouraged others to enter the 

Capitol, stating the tear gas “isn’t bad” and repeatedly stating, 

“let’s go in.” Video at 16:28–17:45. Munchel and Eisenhart 

pushed their way through the crowd to continue towards the 

Capitol. Munchel followed Eisenhart, often holding on to a 

strap on her back. E.g., id. at 17:45–23:00. En route, Eisenhart 

encouraged a man who claimed to have “punched two of them 

in the face,” telling him, “while everyone else is on their couch, 

you guys are training, and getting ready for it.” Id. at 23:56–
4

24:12. Munchel told members of the crowd that “we’re not 

playing f__ing nice no god damn more,” that he is “f__ing 

ready to f__ sh__ up,” and “I guess they thought we were 

playing.” Id. at 25:18, 26:58–27:01, 36:53–36:56; Munchel 

Mem. at 11. Additionally, when Eisenhart heard that Congress 

was “shut down” by tear gas she exclaimed that “they got teargassed, motherf__ers” and proclaimed it her “best day to know 

they got tear-gassed.” Video at 30:08–30:29. Directly in front 

of the Capitol and near an entrance, Munchel stated, this is 

“probably the last time I’ll be able to enter the building with 

armor and . . . f__ing weapons.” Id. at 36:29–36:35. 

Munchel and Eisenhart entered the Capitol through an 

open door and stayed inside for approximately twelve minutes. 

Id. at 38:30–38:50 (entry); Munchel Mem. at 11. Police 

officers were standing to the right of the door, not blocking 

their entry. Munchel Mem. at 11 (citing to Video). While 

walking through the Capitol, Munchel told members of the 

mob “don’t break sh_,” “no vandalizing sh__. We ain’t no god 

damn Antifa, motherf__ers,” and “you break sh__, I break 

you.” Video at 42:45, 43:20–43:43, 44:13–44:15. 

Additionally, while inside, Munchel and Eisenhart spotted 

plastic handcuffs, known as “zip ties.” Munchel, 2021 WL 

620236, at *2; Video at 43:43. Upon seeing the zip ties, 

Munchel shouted “Zip ties! I need to get me some of them 

motherf__ers.” Video at 43:43–43:48. Munchel took several 

zip ties and Eisenhart took one. See Munchel Mem. at 12. 

Munchel and Eisenhart eventually made their way to the Senate 

gallery, both still carrying the zip ties, and Munchel still 

carrying his taser. Munchel, 2021 WL 620236, at *2; Gov’t

Mem. at 12 (pictures of Munchel in Senate gallery with zip 

ties). Inside the gallery, Eisenhart chanted “Treason! 

Treason!” and Munchel looked down at the dais and said, “I 

want that f__ing gavel,” referring to the Senate’s artifact. 
5

Video at 45:14–45:17, 47:21–47:23. Munchel made no effort 

to steal the gavel. Id. at 47:21–47:23; Munchel, 2021 WL 

620236, at *2. 

After leaving the gallery, Eisenhart told Munchel not to 

carry the zip ties, stating that they “need[ed] to get them out of 

[their] hands.” Video at 48:43–48:48. Later, Munchel took 

some home with him to Tennessee. See Munchel, 2021 WL 

620236, at *2. Eisenhart has claimed that she took the zip ties 

to keep them away from “bad actors.” Id.; Eisenhart Mem. at 

3. 

Eventually, Munchel and Eisenhart left the Capitol. As 

they were exiting, Munchel said to nearby police officers, 

“Sorry, guys, I still love you.” Video at 49:27–49:29; Munchel 

Mem. at 13. 

On the evening of January 6, a Metropolitan Police

Department officer stopped Munchel and seized his taser. See

Munchel, 2021 WL 620236, at *3.

1

 The next day, as they 

packed their car to go home, both Eisenhart and Munchel spoke 

to the media. Eisenhart stated:

This country was founded on revolution. If 

they’re going to take every legitimate means 

from us, and we can’t even express ourselves on 

the internet, we won’t even be able to speak 

freely, what is America for? . . . I’d rather die 

as a 57-year-old woman than live under 

1 On January 5, a police officer had observed Munchel’s taser and 

allowed him to keep it, ostensibly because it was legal to possess on 

the street in the District of Columbia. Munchel, 2021 WL 620236,

at *1.
6

oppression. I’d rather die and would rather 

fight.

Laura Pullman, Trump’s Militias Say They Are Armed and 

Ready to Defend Their Freedoms, THE TIMES (of London) (Jan. 

10, 2021), https://www.thetimes.co.uk/article/trumps-militiassay-they-are-armed-and-ready-to-defend-their-freedoms8ht5m0j70https://www.thetimes.co.uk/article/trumps-militiassay-they-are-armed-and-ready-to-defend-their-freedoms8ht5m0j70 (attached to the Gov’t Suppl. Mem. at 26). 

Munchel told the newspaper: 

We wanted to show that we’re willing to rise up, 

band together and fight if necessary. Same as 

our forefathers, who established this country in 

1776. . . . It was a kind of flexing of muscles. . . . 

The intentions of going in were not to fight the 

police. The point of getting inside the building 

is to show them that we can, and we will.

Id. 

Later, Munchel and Eisenhart returned to Tennessee, and 

Eisenhart continued on to her home in Georgia. The FBI 

posted bulletins on the internet and in the media with photos of 

Munchel and Eisenhart from January 6, asking for the public’s 

help in identifying them. On the morning of January 10, FBI 

agents executed a search warrant at Munchel’s apartment. The 

agents found the tactical vest Munchel wore at the Capitol, zip 

ties, firearms, and a large quantity of loaded magazines. 

Munchel was licensed to possess those weapons. See Munchel, 

2021 WL 620236, at *3. Soon after learning about the search, 

Munchel turned himself in. Id. at *4; Munchel Mem. at 15. 

Munchel also made arrangements for his attorney to give his 

iPhone to the FBI. Munchel Mem. at 15. Once Eisenhart 
7

learned she was the target of a federal investigation, she spoke 

to a local FBI agent every day to determine whether there was 

a warrant for her arrest, and when the warrant issued, she selfsurrendered. See Munchel, 2021 WL 620236, at *4, *7; 

Eisenhart Mem. at 3. 

Munchel and Eisenhart were charged in a complaint with 

unlawful entry, violent entry, civil disorder, and conspiracy. 

See Complaint, United States v. Munchel, No. 1:21-CR-118-

RCL, 2021 WL 620236, ECF No. 1 (D.D.C. Feb. 17, 2021). 

Munchel and Eisenhart had pretrial detention hearings before 

Magistrate Judge Jeffrey Frensley in the Middle District of 

Tennessee. Magistrate Judge Frensley concluded that neither 

Munchel nor Eisenhart were flight risks nor posed a danger to 

the community and issued release orders for both appellants 

with various conditions, including home detention, GPS 

monitoring, refraining from possessing firearms or dangerous 

weapons, and supervision by Pretrial Services. See Jan. 22, 

2021 Transcript (“Munchel Tr.”) at 181, 186–89 (included in 

Munchel Suppl.); Jan. 25, 2021 Transcript (“Eisenhart Tr.”) at 

163, 164–66 (attached to Eisenhart Mem.). 

Magistrate Judge Frensley briefly stayed both of his 

release orders, id. at 171; Munchel Tr. at 198–99, and the 

government promptly appealed both orders to the United States 

District Court for the District of Columbia. Chief Judge Beryl 

A. Howell stayed both release orders pending appeal, see Stay 

Orders, ECF Nos. 4, 7, and ordered both appellants to be 

transported to D.C., see Transport Orders, ECF Nos. 5, 9. 

COVID-19-related complications slowed the appellants’ 

transport to D.C. See Status Report, ECF No. 18. While their 

transports were pending, Eisenhart moved to rescind the stay 

or to conduct an immediate review of her detention, which 

Munchel joined. See ECF Nos. 14, 15, 27. Additionally, the 

government filed motions seeking review of Judge Frensley’s 
8

release orders. See ECF Nos. 3, 6. In the meantime, Munchel 

and Eisenhart were detained.2

Subsequently, on February 12, a grand jury sitting in the 

District of Columbia returned an indictment charging Munchel 

and Eisenhart with obstruction of an official proceeding; 

Munchel with unlawful entry while armed with a dangerous 

weapon, and violent entry while armed with a dangerous 

weapon; and Eisenhart with aiding and abetting unlawful entry 

while armed with a dangerous weapon, and aiding and abetting 

violent entry while armed with a dangerous weapon. See

Indictment, ECF No. 21; Munchel, 2021 WL 620236, at *7. 

On February 17, the District Court arraigned Munchel and 

Eisenhart on the indictment and the government made an oral 

motion for pretrial detention. See id. at *4. During the 

detention hearing in the District Court, the government 

proceeded by proffer rather than calling live witnesses. In 

addition to what had been presented to Magistrate Judge 

Frensley, the government introduced the 50-minute videotape 

into evidence and proffered that after January 6, Munchel was 

in contact with a suspected member of the Proud Boys and was 

2 Even though Magistrate Judge Frensley had found that the 

government had not met its burden of proving dangerousness by 

clear and convincing evidence, the government sought and obtained 

an ex parte stay of that release order that resulted in the appellants

being detained for three weeks without any court finding of 

dangerousness, notwithstanding the statute’s mandate that review 

occur “promptly,” 18 U.S.C. § 3145(a), and the statutory and 

constitutional requirement of a dangerousness finding, see infra. 

While COVID-19 issues caused a delay in the appellants’ transport 

to the District of Columbia, the record does not indicate why a D.C. 

District Judge could not have heard this matter prior to February 17, 

even if the appellants were in another location. Ultimately, this 

issue, while troubling, is not presented as a ground for reversal in this 

appeal.
9

told that he was too “hot” after he expressed interest in joining 

the group. Id. at *6; Tr. of Dist. Ct. Detention Hr’g at 51.

Following the detention hearing, the District Court ordered 

both Munchel and Eisenhart to be detained pending trial, 

denied as moot Munchel and Eisenhart’s motions seeking to 

rescind the stay of Judge Frensley’s orders, and denied as moot 

the government’s motion seeking review of Judge Frensley’s 

orders. See Detention Orders, ECF Nos. 25, 26; see also ECF 

No. 27. The District Court concluded that both Munchel and 

Eisenhart were eligible for detention because they were 

charged with felonies while carrying a dangerous weapon, 

explaining that the indictment alleges that Munchel carried a 

dangerous weapon (the taser) and that Eisenhart aided and 

abetted Munchel and therefore she was liable as if she were the 

principal. See Munchel, 2021 WL 620236, at *5, *7. 

Applying de novo review, the District Court determined 

that appellants were not flight risks but that detention was 

appropriate on the basis of dangerousness. Id. at *5–8. The 

District Court concluded that appellants’ history and 

characteristics weighed against detention but that the nature 

and circumstances of the charged offenses, the weight of the 

evidence, and the potential danger appellants pose to the 

community weighed in favor of detention. Id. The District 

Court further determined that neither appellant was likely to be 

deterred by release conditions. Id. at *7, *8. 

Munchel and Eisenhart timely appealed. They contend 

that the District Court erred in not deferring to Magistrate 

Judge Frensley’s factual findings as to their dangerousness. 

They also contend that the District Court inappropriately relied 

on a finding that they were unlikely to abide by release 

conditions to detain them, because that factor is applicable only 

to revocation of pretrial release. They also argue that the 
10

charged offenses do not authorize detention, claiming that 

felonies involving possession of a weapon, rather than use, do 

not qualify for detention and, relatedly, that Munchel’s taser is 

not a “dangerous weapon” within the meaning of the statute. 

Munchel and Eisenhart also object that several other 

defendants who participated in the insurrection have been 

released before trial, arguing that the conduct of those 

defendants is indistinguishable (or even worse) than their 

conduct on January 6. Finally, they contend that the District 

Court’s determinations in support of detention were clearly 

erroneous. 

II.

“In our society liberty is the norm, and detention prior to 

trial or without trial is the carefully limited exception.” United 

States v. Salerno, 481 U.S. 739, 755 (1987).

The Bail Reform Act of 1984 authorizes one of those 

carefully limited exceptions by providing that the court “shall 

order” a defendant detained before trial if it “finds 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.” 18 U.S.C. § 3142(e). “In 

common parlance, the relevant inquiry is whether the 

defendant is a ‘flight risk’ or a ‘danger to the community.’” 

United States v. Vasquez-Benitez, 919 F.3d 546, 550 (D.C. Cir. 

2019). Here, the District Court held that both Munchel and 

Eisenhart should be detained on the basis of dangerousness. 

In assessing whether pretrial detention is warranted for 

dangerousness, the district court considers four statutory 

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

charged,” (2) “the weight of the evidence against the person,” 

(3) “the history and characteristics of the person,” and (4) “the 
11

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)(1)–(4). To justify detention on the basis of 

dangerousness, the government must prove by “clear and 

convincing evidence” that “no condition or combination of 

conditions will reasonably assure the safety of any other person 

and the community.” Id. § 3142(f). Thus, a defendant’s 

detention based on dangerousness accords with due process 

only insofar as the district court determines that the defendant’s 

history, characteristics, and alleged criminal conduct make 

clear that he or she poses a concrete, prospective threat to 

public safety.

In Salerno, the Supreme Court rejected a challenge to this 

preventive detention scheme as repugnant to due process and 

the presumption of innocence, holding that “[w]hen the 

Government proves by clear and convincing evidence that an 

arrestee presents an identified and articulable threat to an 

individual or the community, we believe that, consistent with 

the Due Process Clause, a court may disable the arrestee from 

executing that threat.” 481 U.S. at 751 (emphasis added).

III.

We can readily dispatch with some of the appellants’ 

arguments. 

First, we conclude that we need not reach appellants’ 

contention that the District Court erred in not deferring to 

Magistrate Judge Frensley’s factual findings as to their 

dangerousness. The statute concerning review of a Magistrate 

Judge’s release order says nothing about the standard of the 

district court’s review, see 18 U.S.C. § 3145(a), and we have 
12

not squarely decided the issue.3 We need not break new ground 

in this case, because as the appellants maintain in their briefing, 

Munchel Reply Mem. 8, n.3, the government submitted 

substantial additional evidence to the district judge that had not 

been presented to the Magistrate Judge, including the 50-

minute iPhone video, a partial transcript of the video, and 

several videos from Capitol CCTV.4 As a result, this was not 

an instance where the District Court made its dangerousness 

finding based on the same record as was before the Magistrate 

Judge. Here, the situation was more akin to a new hearing, and 

as such, the issue before the District Court was not really 

whether to defer (or not) to a finding made by the Magistrate 

Judge on the same evidentiary record. Thus, we conclude that 

the issue complained of by appellants is not squarely before us 

in this appeal and we see no need to reach it.

Second, we reject the argument that the District Court 

inappropriately relied on a finding that appellants were unlikely 

to abide by release conditions to detain them, because that 

factor is applicable only to revocation of pretrial release. The 

3 This court stated long ago, in dictum, in a case arising under the 

predecessor Bail Reform Act that district courts review such prior 

determinations with “broad discretion.” Wood v. United States, 391 

F.2d 981, 984 (D.C. Cir. 1968) (“Evaluating the competing 

considerations is a task for the commissioner or judge in the first 

instance, and then the judges of the District Court (where they have 

original jurisdiction over the offense) have a broad discretion to 

amend the conditions imposed, or to grant release outright, if they 

feel that the balance has been improperly struck.”).

4 Below, the government contended that the 50-minute iPhone video 

was presented to the Magistrate Judge in Eisenhart’s detention 

hearing. ECF No. 41 at 2 & n.2. However, it does not dispute the 

appellants’ claim that the partial transcript of the video and the 

videos from Capitol CCTV were not presented to the Magistrate 

Judge. 
13

District Court’s finding as to appellants’ potential compliance 

is relevant to the ultimate determination of “whether there are 

conditions of release that will reasonably assure . . . the safety 

of any other person and the community.” 18 U.S.C. § 3142(f) 

and (g). Indeed, other courts have found a defendant’s 

potential for compliance with release conditions relevant to the 

detention inquiry. See, e.g., United States v. Hir, 517 F.3d 

1081, 1092–93 (9th Cir. 2008) (explaining that release 

conditions require “good faith compliance” and that the 

circumstances of the charged offenses indicate “that there is an 

unacceptably high risk that [the defendant] would not comply. 

. . with the proposed conditions”); United States v. Tortora, 922 

F.2d 880, 886–90 (1st Cir. 1990). While failure to abide by 

release conditions is an explicit ground for revocation of 

release in 18 U.S.C. § 3148(b), it defies logic to suggest that a 

court cannot consider whether it believes the defendant will 

actually abide by its conditions when making the release 

determination in the first instance pursuant to 18 U.S.C. § 3142.

Third, we reject Munchel and Eisenhart’s arguments that 

the charged offenses do not authorize detention. Under 18 

U.S.C. § 3142(f)(1)(E), detention is permitted if the case 

involves “any felony . . . that involves the possession or use of 

a . . . dangerous weapon.” (emphasis added). Two of the 

charges in the indictment meet this description: Count Two—

entering a restricted building “with intent to impede and disrupt 

the orderly conduct of Government business . . . while armed 

with a dangerous weapon,” in violation of 18 U.S.C. 

§ 1752(a)(1) and (a)(2) and 18 U.S.C. § 2 (aiding and abetting 

charge for Eisenhart); and Count Three—violent entry or 

disorderly conduct, again “while armed with a dangerous 

weapon,” in violation of 40 U.S.C. § 5104(e)(1) and (e)(2) and 

18 U.S.C. § 2. Indictment, ECF No. 21 at 2. The Bail Reform 

Act thus explicitly authorizes detention when a defendant is 
14

charged with committing certain felonies while possessing a 

dangerous weapon, as is alleged in this indictment.5 

IV.

That leaves us with Munchel and Eisenhart’s final two 

arguments: (1) that the District Court’s determinations in 

support of detention were clearly erroneous; and (2) that 

several other defendants who participated in the insurrection 

have been released before trial, even though the conduct of 

those defendants is indistinguishable (or even worse) than their 

conduct on January 6. The first challenges the District Court’s 

finding that no condition or combination of conditions of 

release could reasonably assure the safety of the community 

while these appellants await trial. Appellants did not raise the 

5 Eisenhart’s argument that a taser is not a dangerous weapon—

which Eisenhart raises for the first time in reply, and which Munchel 

seeks to adopt in his reply—is without merit. The relevant statute, 

40 U.S.C. § 5104(a)(2)(B), defines the term “dangerous weapon” to 

include “a device designed to expel or hurl a projectile capable of 

causing injury to individuals or property. . . .” 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. See Cantu v. City 

of Dothan, 974 F.3d 1217, 1224–25 (11th Cir. 2020); Mattos v. 

Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (“[A] taser uses 

compressed nitrogen to propel a pair of ‘probes’—aluminum darts 

tipped with stainless steel barbs connected to the taser by insulated 

wires—toward the target at a rate of over 160 feet per second. Upon 

striking a person, the taser delivers a 1200 volt, low ampere electrical 

charge. The electrical impulse instantly overrides the victim’s 

central nervous system, paralyzing the muscles throughout the body, 

rendering the target limp and helpless.” (internal alterations and 

quotation marks omitted)). Thus, at this stage, the evidence 

sufficiently demonstrates that Munchel’s taser is a dangerous 

weapon under the statute. 
15

latter argument below, so we decline to pass on it in the first 

instance and without the benefit of full briefing. 

A.

We review the District Court’s dangerousness 

determinations for clear error. United States v. Smith, 79 F.3d 

1208, 1209 (D.C. Cir. 1996); United States v. Simpkins, 826 

F.2d 94, 96 (D.C. Cir. 1987). “A finding is ‘clearly erroneous’ 

when although there is evidence to support it, the reviewing 

court on the entire evidence is left with the definite and firm 

conviction that a mistake has been committed.” United States 

v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also United 

States v. Celis, 608 F.3d 818, 843 (D.C. Cir. 2010). If, upon 

reviewing the record, it does not appear that the District Court 

considered substantial countervailing evidence that supported 

release when analyzing the detention factors, we sometimes 

remand for reconsideration rather than reverse. See United 

States v. Nwokoro, 651 F.3d 108, 110 (D.C. Cir. 2011) 

(remanding where the “district court [did not] demonstrate that 

it considered many of the facts apparent from the record before 

it”).

In this case, the District Court found that because Munchel 

has limited criminal history and Eisenhart has none, their 

history and characteristics weighed against a finding that no 

conditions of release would protect the community. Munchel, 

2021 WL 620236, at *6, *8. However, the District Court found 

that the nature and circumstances of the charged offenses, 

weight of the evidence, and danger to the community factors 

all weighed in favor of finding that no conditions of release 

would protect the community. Id. at *5–7 (Munchel) 6, *7–8 

6 Although the government presented evidence that Munchel was in 

contact with a member of the Proud Boys after January 6 and was 
16

(Eisenhart). The crux of the District Court’s reasoning was that 

“the grand jury alleged that [the appellants] used force to 

subvert a democratic election and arrest the peaceful transfer 

of power. Such conduct threatens the republic itself. . . . 

Indeed, few offenses are more threatening to our way of life.” 

Id. at *5. Furthermore, because in media interviews Munchel 

showed no remorse and indicated that he would “undertake 

such actions again,” while Eisenhart stated that she would 

rather “fight” and “die” than “live under oppression,” the 

District Court found that both appellants were a danger to the 

republic and unlikely to abide by conditions of release. Id. at 

*6, *8 (quoting Pullman, supra). Nevertheless, we conclude 

that the District Court did not demonstrate that it adequately 

considered, in light of all the record evidence, whether 

Munchel and Eisenhart present an identified and articulable 

threat to the community. Accordingly, we remand for further 

factfinding. Cf. Nwokoro, 651 F.3d at 111–12.

B.

The crux of the constitutional justification for preventive 

detention under the Bail Reform Act is that “[w]hen the 

Government proves by clear and convincing evidence that an 

arrestee presents an identified and articulable threat to an 

individual or the community, . . . a court may disable the 

arrestee from executing that threat.” Salerno, 481 U.S. at 751. 

Therefore, to order a defendant preventatively detained, a court 

interested in joining the group, id. at *6, the District Court made no 

finding as to whether this evidence indicated that Munchel posed a 

danger to the community. It did, however, consider the evidence of 

Munchel’s contact with the Proud Boys in its analysis of Munchel’s 

history and characteristics, and determined that despite the evidence, 

Munchel’s history and characteristics weighed against detention. Id.
17

must identify an articulable threat posed by the defendant to an 

individual or the community. The threat need not be of 

physical violence, and may extend to “non-physical harms such 

as corrupting a union.” United States v. King, 849 F.2d 485, 

487 n.2 (11th Cir. 1988) (quoting S. REP. NO. 98–225, at 3 

(1984), as reprinted in 1984 U.S.C.C.A.N. 3182, 3195–96). 

But it must be clearly identified. See Salerno, 481 U.S. at 750 

(noting that the Act applies in “narrow circumstances” where 

“the Government musters convincing proof that the arrestee, 

already indicted or held to answer for a serious crime, presents 

a demonstrable danger to the community”); cf. Tortora, 922 

F.2d at 894 (Breyer, C.J., concurring) (reversing an order of 

release where the district court failed to “carefully analyze[] the 

danger [the defendant] posed”). Detention cannot be based on 

a finding that the defendant is unlikely to comply with 

conditions of release absent the requisite finding of 

dangerousness or risk of flight; otherwise the scope of 

detention would extend beyond the limits set by Congress. As 

we observed of the Bail Reform Act of 1966, “[t]he law 

requires reasonable assurance[,] but does not demand absolute 

certainty” that a defendant will comply with release conditions 

because a stricter regime “would be only a disguised way of 

compelling commitment in advance of judgment.” United 

States v. Alston, 420 F.2d 176, 178 (D.C. Cir. 1969).

The threat must also be considered in context. See 

Tortora, 922 F.2d at 888 (“Detention determinations must be 

made individually and, in the final analysis, must be based on 

the evidence which is before the court regarding the particular 

defendant. The inquiry is factbound.” (internal citations 

omitted)). It follows that whether a defendant poses a 

particular threat depends on the nature of the threat identified 

and the resources and capabilities of the defendant. Cf. 

Nwokoro, 651 F.3d at 110–11 (noting that evidence “favoring 

appellant’s pretrial release” included the fact that appellant had 
18

no assets under his control, no ability to flee the country, and 

“no prior criminal record”). Whether the defendant poses a 

threat of dealing drugs, for instance, may depend on the 

defendant’s past experience dealing, see, e.g., United States v. 

Briggs, 697 F.3d 98, 102 (2d Cir. 2012), and her means of 

continuing to do so in the future, see, e.g., United States v. 

Henry, 172 F.3d 921 (D.C. Cir. 1999) (unpublished).

Here, the District Court did not adequately demonstrate 

that it considered whether Munchel and Eisenhart posed an 

articulable threat to the community in view of their conduct on 

January 6, and the particular circumstances of January 6. The 

District Court based its dangerousness determination on a 

finding that “Munchel’s alleged conduct indicates that he is 

willing to use force to promote his political ends,” and that 

“[s]uch conduct poses a clear risk to the community.” 

Munchel, 2021 WL 620236, at *6. In making this 

determination, however, the Court did not explain how it 

reached that conclusion notwithstanding the countervailing 

finding that “the record contains no evidence indicating that, 

while inside the Capitol, Munchel or Eisenhart vandalized any 

property or physically harmed any person,” id. at *3, and the 

absence of any record evidence that either Munchel or 

Eisenhart committed any violence on January 6. That Munchel 

and Eisenhart assaulted no one on January 6; that they did not 

enter the Capitol by force; and that they vandalized no property 

are all factors that weigh against a finding that either pose a 

threat of “using force to promote [their] political ends,” and 

that the District Court should consider on remand. If, in light 

of the lack of evidence that Munchel or Eisenhart committed 

violence on January 6, the District Court finds that they do not 

in fact pose a threat of committing violence in the future, the 

District Court should consider this finding in making its 

dangerousness determination. In our view, those who actually 

assaulted police officers and broke through windows, doors, 
19

and barricades, 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. See Simpkins, 

826 F.2d at 96 (“[W]here the future misconduct that is 

anticipated concerns violent criminal activity, no issue arises 

concerning the outer limits of the meaning of ‘danger to the 

community,’ an issue that would otherwise require a legal 

interpretation of the applicable standard.” (internal quotation 

and alteration omitted)). And while the District Court stated 

that it was not satisfied that either appellant would comply with 

release conditions, that finding, as noted above, does not 

obviate a proper dangerousness determination to justify 

detention.

The District Court also failed to demonstrate that it 

considered the specific circumstances that made it possible, on 

January 6, for Munchel and Eisenhart to threaten the peaceful 

transfer of power. The appellants had a unique opportunity to 

obstruct democracy on January 6 because of the electoral 

college vote tally taking place that day, and the concurrently 

scheduled rallies and protests. Thus, Munchel and Eisenhart 

were able to attempt to obstruct the electoral college vote by 

entering the Capitol together with a large group of people who 

had gathered at the Capitol in protest that day. Because 

Munchel and Eisenhart did not vandalize any property or 

commit violence, the presence of the group was critical to their 

ability to obstruct the vote and to cause danger to the 

community. Without it, Munchel and Eisenhart—two 

individuals who did not engage in any violence and who were 

not involved in planning or coordinating the activities—

seemingly would have posed little threat. The District Court 

found that appellants were a danger to “act against Congress” 

in the future, but there was no explanation of how the 

appellants would be capable of doing so now that the specific 
20

circumstances of January 6 have passed. This, too, is a factor 

that the District Court should consider on remand.

C.

Finally, Munchel and Eisenhart argue that the 

government’s proffer of dangerousness should be weighed 

against the fact that the government did not seek detention of 

defendants who admitted they pushed through the police 

barricades and defendants charged with punching officers, 

breaking windows, discharging tasers at officers, and with 

planning and fundraising for the riot. See Munchel Reply 

Mem. at 9–12. Appellants did not raise this claim before the 

District Court and the government did not substantively 

respond to it on appeal because Appellants raised it for the first 

time in Munchel’s reply. Whatever potential persuasiveness 

the government’s failure to seek detention in another case 

carries in the abstract, every such decision by the government 

is highly dependent on the specific facts and circumstances of 

each case, which are not fully before us. In addition, those facts 

and circumstances are best evaluated by the District Court in 

the first instance, and it should do so should appellants raise the 

issue upon remand. 

* * * *

It cannot be gainsaid that the violent breach of the 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. Cf. Salerno, 481 U.S. at 748 (“[I]n 

times of war or insurrection, when society’s interest is at its 

peak, the Government may detain individuals whom the 

government believes to be dangerous.” (citations omitted)). 

But we have a grave constitutional obligation to ensure that the 

facts and circumstances of each case warrant this exceptional 
21

treatment. Accordingly, we conclude that the appropriate 

resolution of this case is to remand the detention orders for 

reconsideration forthwith of the government’s oral motion for 

pretrial detention. 

So ordered.
 KATSAS, Circuit Judge, concurring in part and dissenting 

in part: These appeals present the question whether Eric 

Munchel and his mother, Lisa Eisenhart, may be detained 

pending trial for their participation in the riot at the United 

States Capitol on January 6, 2021. The answer to that question 

does not turn on any generalized, backward-looking 

assessment of the rioters or the riot, as the district court 

erroneously suggested. Instead, it turns on a specific, forwardlooking assessment of whether Munchel and Eisenhart as 

individuals currently pose an unmitigable threat to public 

safety. My colleagues and I agree on this critical point about 

the governing legal standard in these appeals. We also agree 

that the district court failed to justify the detention of Munchel 

and Eisenhart on the record before it. But whereas my 

colleagues remand for a do-over, I would reverse outright.1

 The Bail Reform Act permits pretrial detention in only 

“carefully defined circumstances.” United States v. Simpkins, 

826 F.2d 94, 95–96 (D.C. Cir. 1987). To support detention, a 

court must find 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.” 18 

U.S.C. § 3142(e)(1). In assessing public safety and flight risk, 

courts must consider four factors: (1) “the nature and 

circumstances of the offense charged,” (2) “the weight of the 

evidence against the person,” (3) “the history and 

characteristics of the person,” and (4) “the nature and 

seriousness of the danger to any person or the community that 

would be posed by the person’s release.” Id. § 3142(g). For the 

1

 I join parts I to III of the Court’s opinion. I also agree with 

much of the legal analysis in part IV, including the proposition that 

those who assaulted police officers or forcibly breached Capitol 

security on January 6 “are in a different category of dangerousness” 

than those who, like Munchel and Eisenhart, only “cheered on” the 

disruption and “entered the Capitol after others cleared the way.” 

Ante at 18–19. 
2 

public-safety determination, the government must prove all 

relevant facts “by clear and convincing evidence,” id. 

§ 3142(f)(2), and we review all relevant findings for clear error, 

United States v. Smith, 79 F.3d 1208, 1209 (D.C. Cir. 1996). 

 In this case, a magistrate judge concluded that neither 

Munchel nor Eisenhart is a flight risk and that neither would 

pose a safety risk if subjected to conditions including home 

detention, GPS monitoring, a ban on possessing firearms, a ban 

on travel to Washington, D.C, and supervision by the U.S. 

Pretrial and Probation Services System. Munchel Mag. Tr. at 

177, 181, 185–89; Eisenhart Mag. Tr. at 152, 163, 164–66. The 

district court agreed that Munchel and Eisenhart do not present 

a flight risk, but found that no combination of release 

conditions would reasonably ensure public safety. United 

States v. Munchel, No. 1:21-CR-118-RCL, 2021 WL 620236, 

at *1, *5, *7 (D.D.C. Feb. 17, 2021). The court found that all 

but one of the subsidiary statutory factors weigh in favor of 

detention. Id. at *5–8. 

 In my view, the district court clearly erred in finding that 

the government satisfied its burden to prove an unmitigable 

threat to public safety by clear and convincing evidence. The 

court’s errors infected both its assessment of the individual 

factors and its ultimate determination that Munchel and 

Eisenhart must be detained. 

 The first factor looks to both the “nature” and 

“circumstances” of the “charged” offense: “the former refers to 

the generic offense while the latter encompasses the manner in 

which the defendant committed it.” United States v. Singleton, 

182 F.3d 7, 12 (D.C. Cir. 1999). Munchel and Eisenhart have 

been charged with obstructing an official proceeding, see 18 

U.S.C. § 1512(c)(2); entering a restricted building unlawfully 

or with the intent to impede government business, see id.
3 

§ 1752(a)(1)–(2), (b); carrying a dangerous weapon on the 

Capitol grounds, see 40 U.S.C. § 5104(e)(1); and entering the 

Capitol with the intent to disrupt official business, see id.

§ 5104(e)(2). The district court described the charged offenses 

as “grave,” asserted that “few offenses are more threatening to 

our way of life,” and quoted at length from George 

Washington’s Farewell Address. Munchel, 2021 WL 620236, 

at *5–7. But none of the charged offenses is a Class A or Class 

B felony, see 18 U.S.C. § 3559(a), none carries a mandatory 

minimum sentence, and none gives rise to a rebuttable 

presumption of detention. 

 The district court was primarily concerned with how 

Munchel and Eisenhart committed their offenses. In addition 

to the descriptions noted above, the court asserted that their 

conduct showed “a flagrant disregard for the rule of law”—and 

indeed “threatens the republic itself.” Munchel, 2021 WL 

620236, at *5–6. The court described Munchel as “willing to 

use force to promote his political ends” and as “[s]torming the 

Capitol to disrupt the counting of electoral votes.” Id. at *6. 

Further, it found that Munchel’s entering the Capitol “carried 

great potential for violence” because he was “armed with a 

taser,” “carried plastic handcuffs,” and “threatened to ‘break’ 

anyone who vandalized the Capitol.” Id. But as the court itself 

acknowledged, “[t]he record contains no evidence indicating 

that, while inside the Capitol, Munchel or Eisenhart vandalized 

any property or physically harmed any person.” Id. at *3. 

 A video recorded by Munchel—documenting what he and 

his mother did on January 6—confirms the more benign 

assessment. The video shows the following: Munchel and 

Eisenhart did not organize the election protest or the ensuing 

march to the Capitol, hatched no advance plan to enter the 

Capitol, and acted in concert with no other protestors. Nor did 

they assault any police officers or remove any barricades in 
4 

order to breach Capitol security. They decided to enter the 

Capitol only after others had already done so forcibly. By the 

time they made their way to the building, police were making 

no attempt to stop or even discourage protestors from entering. 

To go inside, Munchel and Eisenhart walked through an open 

door. While there, they attempted neither violence nor 

vandalism. They searched for no Members of Congress, and 

they harassed no police officers. They found plastic handcuffs 

by chance, but never threatened to use them. Munchel’s threat 

to “break” anyone who vandalized the Capitol was intended to 

prevent destruction and was addressed to no one in particular. 

See Munchel iPhone Video at 43:41. For ten to twelve minutes, 

Munchel and Eisenhart wandered the halls of the Capitol, with 

Eisenhart leading the way and Munchel asking his mother what 

her plan was. At one point, they entered the Senate gallery. At 

another, as they entered what appears to be a hallway of offices, 

Munchel told his mother that “[w]e don’t want to get stuck in 

here, this is not a place for us,” which caused her to turn around. 

Id. at 42:11–14. Munchel and Eisenhart voluntarily left the 

building—while many other protestors remained and before 

the police began to restore order. Their misconduct was 

serious, but it hardly threatened to topple the Republic. Nor, 

for that matter, did it reveal an unmitigable propensity for 

future violence. 

 Turning to the second factor, the district court found that 

the “weight of the evidence” supported pretrial detention. 

Munchel, 2021 WL 620236, at *6, *8. The video in this case 

documents exactly what Munchel and Eisenhart did inside the 

Capitol. It forecloses any contention that pretrial detention is 

inappropriate because of uncertainty about whether the alleged 

conduct occurred. But as explained above, the conduct does 

not show that Munchel and Eisenhart pose an unmitigable 

future threat to public safety. The second factor thus moves the 

needle neither one way nor the other. 
5 

 The district court next found that the defendants’ “history 

and characteristics” do not support detention. See Munchel, 

2021 WL 620236, at *6, *8. The government fails to challenge 

that finding—and for good reason. Munchel maintained 

employment until his arrest, has no history of violence, has no 

prior felony convictions, and is not a member of any antigovernment or militia group. He has two prior misdemeanor 

convictions for possession of marijuana, which are both more 

than five years old, and there was no proof that he has ever 

failed to comply with any probation conditions imposed as a 

result. Munchel Mag. Tr. at 174–75. Eisenhart is 57 years old, 

has been a nurse for three decades, and has no criminal history. 

Both appellants voluntarily surrendered to the FBI. Munchel 

took affirmative steps to preserve the evidence in his cellphone 

and arranged to provide it to the government. Id. at 176. 

Before her arrest warrant had even issued, Eisenhart 

established daily contact with the FBI so that she could turn 

herself in as soon as it did. Eisenhart Mag. Tr. at 152. The 

third factor thus cuts strongly in favor of release. 

 In evaluating the “nature and seriousness” of any danger, 

the district court highlighted statements that Munchel and 

Eisenhart made to the media on January 7. Munchel said that 

“[t]he point of getting inside the building is to show them that 

we can, and we will,” Munchel, 2021 WL 620236, at *6, while 

Eisenhart, invoking the American Revolution, said that she 

would “rather die and would rather fight” than “live under 

oppression,” id. at *8. To the district court, these statements 

indicated that the defendants pose “a clear danger to our 

republic” and that Eisenhart is a “would-be martyr.” Id. at *6, 

*8. But the defendants’ actual conduct belied their rhetorical 

bravado. During the chaos of the Capitol riot, Munchel and 

Eisenhart had ample opportunity to fight, yet neither of them 

did. Munchel lawfully possessed several firearms in his home, 

but he took none into the Capitol. Munchel Mag. Tr. at 179, 
6 

182. Indeed, before entering the Capitol, Munchel and 

Eisenhart stashed a knife inside a backpack that they left 

outside, precisely for fear of ending up in “federal prison.” See 

Munchel, 2021 WL 620236, at *2. 

 Moreover, even if their comments indicate some 

willingness to engage in future protests or disruption, the Bail 

Reform Act permits detention only to prevent an “identified 

and articulable threat to an individual or the community.” 

United States v. Salerno, 481 U.S. 739, 751 (1987). Here, the 

district court identified one such threat—that Munchel and 

Eisenhart would attempt “to stop or delay the peaceful transfer 

of power.” Munchel, 2021 WL 620236, at *6, *8. But the 

transition has come and gone, and that threat has long passed. 

In the district court, the government warned of an upcoming 

protest scheduled for March 4. But that protest never 

materialized, and the government produced no evidence that 

Munchel and Eisenhart had been involved in its planning 

before their arrest. The government’s gesturing towards the 

possibility of their joining future protests falls well short of any 

“identified and articulable threat.” Salerno, 481 U.S. at 751. 

 After evaluating the four statutory factors, the district court 

turned to the ultimate question in the case—whether no release 

conditions would reasonably ensure public safety. The court 

worried that a “determined defendant” could “cut off an ankle 

monitor, ignore travel restrictions, elude a third-party 

custodian, unlawfully rearm, and endanger his community.” 

Munchel, 2021 WL 620236, at *7. The court found that 

Munchel was such a defendant given his “brazen actions in 

front of hundreds of law enforcement officers” and his media 

comments. Id. It found that Eisenhart also qualified, because 

of her supposed “willingness to die for her cause.” Id. at *8. 
7 

 Yet the record shows otherwise. As explained above, 

Munchel and Eisenhart chose to trespass—not to engage in 

violence, much less fight to the death. Afterwards, both 

voluntarily surrendered to the FBI, as the district court 

recognized in concluding that neither posed a flight risk. See 

Munchel, 2021 WL 620236, at *5, *7. Munchel preserved and 

voluntarily turned over his cellphone video. Munchel Mag. Tr. 

at 176. Likewise, even after he was identified as a suspect, 

Munchel made no attempt to hide or remove the firearms that 

he lawfully possessed at his home. Id. at 181–82. As for the 

defendants’ attitudes towards law enforcement, the video 

shows that police did not seek to discourage their entry into the 

Capitol through an open door, Munchel iPhone Video at 38:48; 

Munchel and Eisenhart made no attempt to harass officers 

while inside the Capitol; and, as they were preparing to exit, 

Munchel encountered an officer and said “Sorry, guys, I still 

love you,” id. at 49:26. Finally, contrary to the district court’s 

characterization of Eisenhart as a “would-be martyr,” she 

specifically declined to bring a knife into the Capitol because 

of her expressed concerns with “federal prison.” See Munchel, 

2021 WL 620236, at *2. The defendants’ other personal 

characteristics—which the district court acknowledged to 

weigh in favor of release—further indicate that they are likely 

to comply with release conditions. 

 In this case, the magistrate judge imposed strict release 

conditions. For Munchel, he required confinement at the home 

of a third-party custodian, GPS location monitoring, 

supervision by Pretrial Services, no possession of firearms, no 

travel to D.C., no excessive use of alcohol, no possession or 

use of any controlled substance, and drug testing if ordered by 

Pretrial Services. Munchel Mag. Tr. at 185–89. For Eisenhart 

he required home confinement, location monitoring, 

supervision by a third-party custodian, no possession of 

firearms, no travel to D.C., and submission to psychiatric 
8 

treatment if ordered by Pretrial Services. Eisenhart Mag. Tr. at 

164–66. The district court gave no plausible explanation for 

why these stringent conditions would not reasonably ensure 

public safety. 

 Of course, we review dangerousness findings only for 

clear error, Smith, 79 F.3d at 1209, which requires affirmance 

if a district court’s “account of the evidence is plausible in light 

of the record viewed in its entirety,” Anderson v. City of 

Bessemer City, 470 U.S. 564, 573–74 (1985). But while the 

standard of review here is favorable to the government, both 

substantive law and the standard of proof favor the defendants. 

The Bail Reform Act requires a showing that “no condition or 

combination of conditions” would even “reasonably assure” 

the safety of individuals or the community. 18 U.S.C. 

§ 3142(e)(1). And it requires this showing to be made by “clear 

and convincing evidence,” id. § 3142(f)(2)—a heightened 

standard of proof under which the fact finder must “give the 

benefit of the doubt to the defendant,” United States v. 

Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994); see Addington 

v. Texas, 441 U.S. 418, 424 (1979). Putting it all together, 

because the record strongly suggests that Munchel and 

Eisenhart would present no safety risk if subjected to strict 

release conditions, the district court clearly erred in finding that 

the government had proved its case by clear and convincing 

evidence. 

 “In our society liberty is the norm, and detention prior to 

trial or without trial is the carefully limited exception.” 

Salerno, 481 U.S. at 755. Because the district court clearly 

erred here, I would reverse its detention order and remand for 

the setting of appropriate release conditions.