United States v. Timothy Hale-Cusanelli

 United States Court of Appeals

                    Decided July 7, 2021

                         No. 21-3029




           On Appeal of a Pretrial Detention Order
                  (No. 1:21-cr-00037-1)

    Jonathan Zucker, appointed by the court, was on the
appellant’s Memorandum of Law and Fact.

    Ann M. Carroll, Chrisellen R. Kolb, and Nicholas P.
Coleman, Assistant U.S. Attorneys, were on appellee’s
Memorandum of Law and Fact.

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

    Opinion for the Court filed by Circuit Judge WILKINS.

     WILKINS, Circuit Judge: Timothy Hale-Cusanelli, who
was arrested in connection with the incident at the United
States Capitol on January 6, 2021, appeals from orders of the
District Court ordering him detained pending trial, and denying
reconsideration of that ruling in light of United States v.

991 F.3d 1273

 (D.C. Cir. 2021). Hale-Cusanelli
challenges the District Court’s conclusion that no condition or
combination of conditions of release will reasonably assure the
safety of any other person and the community. We affirm.
     On January 6, 2021, Hale-Cusanelli, who was then enlisted
in the Army Reserves and worked as a Navy contractor in New
Jersey, traveled to Washington, D.C., to attend the “Stop the
Steal” rally. He wore a suit and tie and did not bring with him
any form of weapon. Def.’s Mot. for Modification of Bond to
Place the Def. on Conditional Release Pending Trial (“Def.’s
Mot. for Conditional Release”) at 3, 10–11, United States v.
Hale-Cusanelli, No. 1:21-cr-37, ECF No. 13 (D.D.C. Mar. 2,
2021). Hale-Cusanelli eventually made his way to the United
States Capitol, where he entered through doors that had already
been kicked open. Opp’n to Def.’s Mot. for Conditional
Release at 2, Hale-Cusanelli, No. 1:21-cr-37, ECF No. 18
(D.D.C. Mar. 12, 2021). He apparently left the Capitol after
learning that someone had been shot.
     Hale-Cusanelli later admitted to a Confidential Human
Source (“CHS”) that he had participated in the events at the
Capitol on January 6. 


 The CHS reported Hale-Cusanelli to
the Naval Criminal Investigation Service (“NCIS”) and then,
in cooperation with NCIS, recorded a conversation with Hale-
Cusanelli.1 Id.; Mot. for Emergency Stay & for Review of
Release Order at 4, Hale-Cusanelli, No. 1:21-cr-37, ECF No.
3 (D.D.C. Jan. 19, 2021). In that conversation, Hale-Cusanelli
admitted to using voice and hand signals to urge other members

   The record does not contain a transcript of the recorded
conversation. Consequently, all quotations in this memorandum are
as presented by the parties.
of the mob at the Capitol to “advance.” Mot. for Emergency
Stay & for Review of Release Order at 4, Hale-Cusanelli, No.
1:21-cr-37, ECF No. 3 (D.D.C. Jan. 19, 2021). He further
admitted to picking up a flagpole that someone else had thrown
“like a javelin” at a police officer, and referring to it as a
“murder weapon.” 


 Hale-Cusanelli is not accused of using
or threatening to use the flagpole as a weapon. See 


Hale-Cusanelli admitted to NCIS and FBI agents that he had
used his military training and a face covering to protect himself
after he was exposed to pepper spray. 

Id. at 4

     In the recorded conversation with the CHS, Hale-Cusanelli
described “the adrenaline, the rush, the purpose” he felt on
January 6, which he compared to “civil war.” Opp’n to Def.’s
Mot. for Conditional Release at 19, ECF No. 18 (D.D.C. Mar.
12, 2021). The government described part of the conversation
as follows:
       [Hale-Cusanelli] stated that it was “only a
       matter of time” before a civil war broke out
       “along partisan lines,” but that “they” don’t
       want to fire the first shot because all of the guns
       and resources are in Republican hands, and
       Republicans make up 70% of the military.
       [Hale-Cusanelli] then said that, in the event of
       civil war, “it’s not going to be New York and
       California winning the day, it’s going to be the
       good old boys f[ro]m the Midwest, Texas, and
       Arkansas.” [Hale-Cusanelli] told CHS that he
       “really wishes” there would be a civil war.
       When CHS interrupted and said “but a lot of
       people would die,” [Hale-Cusanelli] replied
       “Thomas Jefferson said the tree of liberty
       should be refreshed with the blood of patriots
       and tyrants.”

Id. at 20

     On January 15, 2021, Hale-Cusanelli was arrested on a
criminal complaint in Colts Neck, New Jersey. A magistrate
judge in the District of New Jersey ordered him released with
conditions but temporarily stayed that ruling. On January 19,
Chief Judge Howell stayed the New Jersey court’s release
order pending review by the District Court here. On January
29, Hale-Cusanelli was indicted on seven counts involving
trespass and disorderly conduct in connection with the events
on January 6. Indictment at 1–4, Hale-Cusanelli, No. 1:21-cr-
37, ECF No. 9 (D.D.C. Jan. 29, 2021). The indictment does
not allege that Hale-Cusanelli assaulted anyone, damaged any
property, or organized any of the events on January 6. See 


     Hale-Cusanelli is 31 years old and, prior to his arrest,
resided in Colts Neck, New Jersey, where he worked at Naval
Weapons Station Earle as a private security officer. Def.’s
Mot. for Conditional Release at 2. At the time of his arrest, he
had been enlisted in the Army Reserves for approximately 11


     After his arrest, NCIS interviewed 44 of Hale-Cusanelli’s
coworkers, and 34 of them described him “as having extremist
or radical views pertaining to the Jewish people, minorities,
and women.” Opp’n to Def.’s Mot. for Conditional Release at
6–7. Those coworkers reported that Hale-Cusanelli had made
various abhorrent statements, including that babies born with
disabilities should be shot, that “Hitler should have finished the
job,” and that “Jews, women, and blacks were on the bottom of
the totem pole.” 

Id. at 7

. Hale-Cusanelli’s coworkers also
described him as “unstable,” observed that he had reported to
work wearing a “Hitler mustache,” and noted that he had
discussed leaving his employment “in a blaze of glory” shortly
before January 6. 

Id. at 7

     Prior to January 6, Hale-Cusanelli used a YouTube
channel to upload a series of videos under the name the “Based
Hermes Show.” Hale-Cusanelli characterized these videos as
“a platform to talk about local New Jersey politics.” Def.’s
Mot. for Conditional Release at 14. He deleted the videos after
January 6, but the government was able to recover some clips
from his phone. Opp’n to Def.’s Mot. for Conditional Release
at 17. In the recovered clips, Hale-Cusanelli expressed racist
and anti-Semitic sentiments. 

Id. at 17

–19. Also recovered
from Hale-Cusanelli’s phone were a number of memes
expressing similar views. 

Id. at 13

     Hale-Cusanelli’s criminal history is limited. In 2010, he
was arrested with three other codefendants after one of them
used a homemade PVC launcher (i.e., a potato gun) to fire
frozen corn cobs at a home in Howell Township, New Jersey.
Suppl. to Def.’s Memorandum of Law & Fact (“Suppl.”) at 50–
64, Hale-Cusanelli, No. 21-3029 (D.C. Cir. May 27, 2021). On
the potato gun were the words “WIDOWMAKER” and
“WHITE IS RIGHT,” as well as a drawing of the Confederate

Id. at 59

. Hale-Cusanelli additionally had a “punch
dagger”—i.e., a short-bladed dagger designed so that the blade
protrudes from the front of an individual’s fist—in his
possession at the time. 


 Each member of the group was
charged with conspiracy to commit criminal mischief and
possession of a weapon. 


 Hale-Cusanelli ultimately pleaded
guilty to disorderly conduct. 

Id. at 14

     A police report describing the potato-gun incident
provided further details, but Hale-Cusanelli did not bring these
details to the District Court’s attention. According to the police
report, one of the arrested officers concluded that “[i]t does not
appear that there was any bias-related intent involved with this
particular offense.” 

Id. at 59

. The officer stated that he was
not aware of any black individuals residing at the home, and
that one of Hale-Cusanelli’s codefendants admitted he had
targeted the home because of a prior dispute with one of its
residents over bicycles. 


    According to the government, two harassment complaints
were filed against Hale-Cusanelli in February and March 2020.

Id. at 9

–10. The complaints were both filed by Jewish
individuals who accused him of posting online their names and

Id. at 10

. No further details are available in the
     On March 23, the District Court held a hearing to review
the New Jersey magistrate judge’s release order. After hearing
from the parties, the District Court addressed the four 18 U.S.C.
§ 3142(g) factors and orally ruled that Hale-Cusanelli was
dangerous within the meaning of the Bail Reform Act—i.e.,
that “no condition or combination of conditions will reasonably
assure . . . the safety of any other person and the community.”
18 U.S.C. § 3142(e)(1).
     First, the District Court concluded that the “nature and
circumstances of the offense” factor weighed “just slightly” in
favor of release because Hale-Cusanelli was not charged with
any offenses involving violence or destruction of property.
Suppl. at 24–25. The District Court nonetheless expressed
concern about Hale-Cusanelli’s admission that he had urged
others “to essentially storm the Capitol Building and enter it
despite police presence, tear gas, fences and what have you.”
Id. at 25.
     Second, the District Court concluded that the weight of the
evidence against Hale-Cusanelli was “overwhelming” and that
this factor therefore weighed in favor of detention. Id.
     Third, the District Court addressed Hale-Cusanelli’s
history and characteristics. The court observed that “[t]his
[was] the most difficult prong in this case.” Id. at 26. The court
noted Hale-Cusanelli’s lack of criminal history, his
employment history, and the fact that he was a military veteran
with      a       security   clearance,      all    of    which
“sp[oke] in his favor.” Id. However, the court expressed
concern about his “well-documented history of racist and
violent [email protected] and the fact that he “has been generally
engaged in hateful conduct, if not necessarily violent conduct
toward a number of people with whom he’s had contact.” Id.
The court observed that “we don’t typically penalize people for
what they say or think.” Id. at 27. It “also d[id] take note” of
the potato-gun incident, which it concluded was “some
evidence of [Hale-Cusanelli] actually acting out on this, that
this is not just language but actually action.” Id.
     Fourth, the District Court concluded that the danger Hale-
Cusanelli posed to the community weighed in favor of
detention given “all of the violent language . . . previously
mentioned.” Id. at 27–28. The court found “highly troubling”
Hale-Cusanelli’s statements to the CHS regarding “looking
forward to a civil war” and “the tree of liberty need[ing] to be
watered with the blood of patriots from time to time.” Id. at
28. The court agreed “with the government’s concern
regarding potential escalation of violence at this point given all
that has occurred.” Id. The court also expressed concern for
the safety of the CHS, noting that Hale-Cusanelli knew the
CHS’s identity, that he had previously made comments “about
committing violence against those who he feels are pitted
against him,” and that he “has been willing to put these
thoughts into action in the past.” Id.
    The District Court observed that “this is a close case in
terms of the government meeting its burden under the Bail
Reform Act,” but the court ultimately concluded that “no
condition or combinations of conditions will assure the safety
of the community” were he released pending trial, and it
ordered that Hale-Cusanelli be detained. Id. at 28–29; see also
Detention Order, Hale-Cusanelli, No. 1:21-cr-37, ECF No. 20
(D.D.C. Mar. 23, 2021).
     On April 2, Hale-Cusanelli moved for reconsideration of
the detention order in light of this Court=s decision in Munchel,

991 F.3d 1273

. Def.’s Mot. For Recon., Hale-Cusanelli, No.
1:21-cr-37, ECF No. 21 (D.D.C. Apr. 2, 2021). In a
supplement, Hale-Cusanelli informed the District Court that
the CHS’s employment in New Jersey had ended, that the CHS
had since moved “well in excess of 1500 miles” from where
Hale-Cusanelli would be living, and that Hale-Cusanelli did
not know (and could not easily find out) where the CHS is now
living and working. Suppl. to Def.’s Mot. For Recon. at 2 &
n.2, Hale-Cusanelli, No. 1:21-cr-37, ECF No. 25 (D.D.C. Apr.
14, 2021).
     On April 28, the District Court held a hearing on the
motion for reconsideration and orally denied the motion. The
court distinguished Munchel, observing that the District
Court’s dangerousness determination in that case had relied
primarily on the nature and circumstances of the charged
offenses, whereas the court had concluded in this case that this
factor actually “tilted toward release.” Suppl. at 37. The court
observed that, were it “just looking at what [Hale-Cusanelli]
did on January 6th, he would be a free man right now.” 

Id. at

. Instead, the District Court observed that its dangerousness
determination here was based on Hale-Cusanelli’s animus
toward certain groups of people, his having acted on that
animus in the past, and the possibility that he would do so again
in the future. 


 The court also rejected Hale-Cusanelli’s
suggestion that he was no longer a threat to the CHS because
the CHS had moved, observing that Hale-Cusanelli “may well
know where [CHS] has moved,” and the CHS “may well have
moved back.” 

Id. at 39

    Hale-Cusanelli appeals the District Court’s March 23
detention order and April 28 order denying reconsideration. He
asserts that the decision to detain him based on the danger he
poses to the community was error.
     We review release and detention orders pursuant to the
Bail Reform Act, 18 U.S.C. § 3142 et seq., for clear error.
Munchel, 991 F.3d at 1282. “The clear error standard applies
not only to the factual predicates underlying the district court’s
decision, but ‘also to its overall assessment, based on those
predicate facts, as to the risk of flight or danger presented by
defendant’s release.’” United States v. Mattis, 

963 F.3d 285

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

F.3d 309

, 317 (2d Cir. 2004)). This standard of review is
highly deferential. We will find clear error only when
“although there is evidence to support [a finding or a ruling],
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” Munchel, 991 F.3d at 1282 (quoting United States
v. U.S. Gypsum Co., 

333 U.S. 364

, 395 (1948)). However,
“[w]here there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”
United States v. Brockenborrugh, 

575 F.3d 726

, 741 (D.C. Cir.
2009) (quoting Anderson v. City of Bessemer City, 

470 U.S.

, 574 (1985)). If the District Court finds that “no condition
or combination of conditions will reasonably assure . . . the
safety of any other person and the community,” the District
Court “shall order” detention before trial. 18 U.S.C. §
     Hale-Cusanelli primarily asserts that the District Court
clearly erred in assessing his history and characteristics and the
nature and seriousness of the danger he poses. See 18 U.S.C.
§ 3142(g). Regarding his history and characteristics, Hale-
Cusanelli argues that the District Court clearly erred in
concluding that the potato-gun incident was “some evidence”
that he had violently acted on his racist ideology. Specifically,
Hale-Cusanelli points to portions of a police report that show
that he had not fired the potato gun and that the codefendant
who had fired the gun chose the house because of a prior
dispute with one of its residents over bicycles, not out of any
racial animus. Hale-Cusanelli failed to raise this argument
below. Hale-Cusanelli also argues that the District Court erred
by relying on his “civil war” comments to the CHS, because
other parts of the conversation allegedly show that he did not
really want violence to occur. He also failed to make this
argument below. (In his defense, Hale-Cusanelli asserts that
he did not receive the recording of the conversation from the
prosecution until after the District Court ruled.)
     It is not readily apparent that it was a “plain, clear, or
obvious error,” see United States v. Sheffield, 

832 F.3d 296

311 (D.C. Cir. 2016), for the District Court to observe that the
potato-gun incident was at least “some evidence” of Appellant
having acted violently based on his racist ideology. Hale-
Cusanelli points to the police report, which gave two reasons
for its conclusion that “[i]t does not appear that that there was
any bias[] involved” with the potato gun incident. Suppl. at 59.
The first was that the victim was not African American, but that
is not dispositive given Appellant’s prejudices against others—
especially Jews—and the officer apparently made no effort to
determine whether the victims were Jewish. The second reason
was that the actual shooter claimed he targeted the victim due
to a dispute with his son related to stolen bicycles, and while
the officer credited that explanation, the District Court was not
required to agree. The potato gun, moreover, bore the words
“WHITE IS RIGHT,” as well as a Confederate flag. 


 As the
district court noted, “we don’t typically penalize people for
what they say or think.” Suppl. at 27. But given Appellant’s
deeply held and longstanding racist and anti-Semitic views, the
District Court could reasonably view it as more than a
coincidence that Appellant was implicated in a violent incident
involving a weapon with a white supremacist message on it.
     Nor is it apparent that it was plain error for the District
Court to rely upon Appellant’s “civil war” statements to find
that he was a danger to the community. Appellant contends
that the District Court was not aware that he said “[w]hen I say
I want civil war, it’s not like I want to see people dead in the
street” and that “civil war, not that I actually want that, I think
that civil war is probably the simplest—not that the simplest
solutions are always the best solutions—but I think it probably
is the simplest solution, the most likely outcome, inevitably.”
Appellant’s Mem. at 19 n.13. Even so, the District Court
would have to weigh those statements against others where
Appellant acknowledged that guns would be used in a civil war
and that people would die, to which Appellant replied “Thomas
Jefferson said the tree of liberty should be refreshed with the
blood of patriots and tyrants.” Opp’n to Def.’s Mot. for
Conditional Release at 20. It is not obviously wrong to
conclude that these statements, taken as a whole, demonstrate
a potential danger to the community. This is particularly so
when viewed with other statements Appellant made just prior
to January 6, such as proclaiming a “final countdown” and an
intention to leave his employment in a “blaze of glory.” 

Id. at

     Appellant suggests, based on Munchel, that because he did
not commit violence on January 6, he should not be found to
pose a danger to the community. Appellant misreads Munchel.
We did not hold in Munchel that only those persons who
participated in violence on January 6 could properly be
considered as posing a future danger to the community
justifying pretrial detention. If that had been the case, we
would have reversed the detention order (as proposed by the
dissent)    instead     of    remanding     the    case    for
reconsideration. Compare Munchel, 991 F.3d at 1283–84, with
id. at 1285 (Katsas, J., concurring in part and dissenting in part)
(“[W]hereas my colleagues remand for a do-over, I would
reverse outright.”). To the contrary, we explained in Munchel
that a person could be deemed a danger to the community
sufficient to justify detention even without posing a threat of
committing violence in the future. Id. at 1283 (describing the
threat of corrupting a union as one such danger contemplated
by Congress). In the nearly forty years since the enactment of
the Bail Reform Act, countless defendants have been
detained even where the charged offense did not involve
violence, based on drug charges, see 18 U.S.C. §
3142(f)(1)(C), being a repeat offender, see id. § 3142(f)(1)(D),
a serious risk of obstruction of justice, see id. § 3142(f)(2)(B),
or a serious risk of threats to prospective witnesses or jurors,
id. The point of Munchel was that everyone who entered the
Capitol on January 6 did not necessarily pose the same risk of
danger and the preventive detention statute should apply to the
January 6 defendants the same as it applies to everyone else,
not that the January 6 defendants should get the special
treatment of an automatic exemption from detention if they did
not commit violence on that particular day.
     Here, the District Court made a forward-looking
determination about the serious risk of obstruction of justice
and threats to witnesses as the basis for detention. The District
Court found a risk to the CHS based on Appellant’s prior
statements about “committing violence against those who he
feels are pitted against him.” Suppl. at 28. The District Court
also expressed concern for a “potential escalation of violence”
by Appellant given his statements about how great he felt about
the January 6 incident, his desire for a “civil war” to settle
political differences, and his lengthy history of statements
condoning violence against persons of other races and
religions. Id. Significantly, we also know that Appellant
admitted to the CHS that he directed people to advance on
January 6 and assumed a leadership role during the
incident. The District Court reconsidered its ruling based on
Munchel and pointed out that it “primarily relied on”
Appellant’s extensive history of statements condoning
violence against those of other races and religions to find that
he was a danger to the community. Id. at 38. And while the
District Court mentioned that the potato-gun incident showed
Appellant taking action based upon racial animus “[t]o a
certain extent,” the court was also aware of Appellant’s
numerous incendiary statements (such as his intent to leave his
job “in a blaze of glory”), as well as the harassment complaints
against Appellant for publicizing the names and addresses of
Jewish individuals. Id.; see also Opp’n to Def.’s Mot. for
Conditional Release at 7–8. Ultimately, the court explained
that “his conduct in this case made me concerned that he was
perhaps looking to act on these violent tendencies and violent
comments in the past.” Suppl. at 38. So even were we to
conclude that the District Court erred by finding that the potato-
gun incident was motivated by racial animus, it was not the sole
basis of the ruling that Appellant posed a risk of escalating
hate-motivated violence in the future. Furthermore, the
District Court did not appear to rely upon the potato-gun
incident at all in its ruling that Appellant posed a risk to
witnesses, which is an independently sufficient basis for
detention. Finally, even if the potato-gun was not motivated by
racial bias, it is not completely exculpatory—it is still an
incident where Appellant participated in violence as an act of
retaliation, which is precisely the type of concern we should
have when it comes to the risk to the CHS.
     The District Court acknowledged that this was a close
case, but it ruled that based on the totality of the circumstances,
the government had met its burden. Reasonable minds might
disagree on that determination, but our standard of review is
for clear error, not to substitute our judgment for that of the
District Court. We affirm.

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