United States v. Brockhoff

590 F.Supp.3d 295

UNITED STATES of America

v.Nicholas James BROCKHOFF, Defendant

Criminal Action No. 21-0524 (CKK)

United States District Court, District of Columbia.

Signed March 10, 2022

Frances Elizabeth Blake, Assistant U.S. Attorney, U.S. Attorney's Office, McAllen, TX, Jacqueline N. Schesnol, Assistant U.S. Attorney, United States Attorney's Office, Phoenix, AZ, for United States of America.

Alex Reed Stavrou, Sr., Alex R. Stavrou, P.A., Patrick Nelson Leduc, Law Offices of Patrick Leduc, P.A., Tampa, FL, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

This criminal case is one of several hundred arising from the insurrection at the United States Capitol on January 6, 2021. For his participation in the events that day, the Government moved for Defendant Nicholas James Brockhoff ("Defendant" or "Brockhoff") to be detained pending trial. Magistrate Judge Jon A. York of the United States District Court for the Western District of Tennessee held a detention hearing and concluded that pretrial detention was warranted.

Pending before the Court is Defendant Brockhoff's [32] Request for Pretrial Release and for Immediate Release with Conditions ("Motion"), in which he asks the Court to revoke the magistrate judge's detention order and place him on pretrial release with conditions. Upon careful consideration of the pleadings,¹ the relevant legal authority, and the record before the Court, the Court shall DENY Defendant's Motion.

I. BACKGROUND

Defendant is charged by Indictment with four felony and four misdemeanor counts: (1) two counts of Assaulting, Resisting, or Impeding Certain Officers Using a Dangerous Weapon, in violation of 18 U.S.C. §§ 111(a)(1) and (b) ; (2) one count of Entering and Remaining in a Restricted Building or Grounds, in violation of 18 U.S.C. §§ 1752(a)(1) ; (3) Civil Disorder, in violation of 18 U.S.C. § 231(a)(3) ; (4) one count of Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2) ; (5) one count of Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D) ; (6) one count of Act of Physical Violence in the Capitol Grounds or Building, in violation of 40 U.S.C. § 5104(e)(2)(F) ; and (7) one count of Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G). Indictment, ECF No. 13.

The facts discussed here are based upon the record presently before the Court, including the parties’ pleadings and associated exhibits, the photographic evidence presented by the Government, and the [1-1] Statement of Facts in support of the [1] Criminal Complaint. In an exercise of its discretion, the Court declines to hear additional evidence. See United States v. Sheffield , 799 F. Supp. 2d 18, 29 (D.D.C. 2011) ("The Court is free to use in its analysis any evidence or reasons relied on by the magistrate judge, but it may also hear additional evidence and rely on its own reasons." (cleaned up)). The facts stated here do not represent the Court's findings of fact on the merits of the case, which are the province of the jury.

A. Defendant's Participation in the Insurrection on January 6, 2021

On January 6, 2021, a joint session of the United States Congress convened to certify the vote count of the Electoral College of the 2020 Presidential Election, which had taken place on November 3, 2020. Aff. at 1. The joint session began at approximately 1:00 p.m., with then-Vice President Michael R. Pence presiding. Id. By 1:30 p.m., the United States House of Representatives and the United States Senate adjourned to separate chambers within the Capitol to resolve an objection raised in the joint session. Id. Vice President Pence continued to preside in the Senate chamber. Id. As the House and Senate proceedings took place, a large crowd of protesters gathered outside the Capitol. Id. "[T]emporary and permanent barricades were in place around the exterior of the ... building, and United States Capitol Police were present and attempting to keep the crowd away from the Capitol building and the proceedings underway inside." Id.

Shortly after 2:00 p.m., "individuals in the crowd forced entry into the Capitol building, including by breaking windows and by assaulting members of the Capitol Police, as others in the crowd encouraged and assisted those acts." Id. These violent acts caused members of the Senate and House of Representatives to evacuate the chambers of the Capitol and suspend the certification process of the presidential election results. Id. The riot "desecrated [the Capitol], blood was shed, and several individuals lost their lives." Trump v. Thompson , 20 F.4th 10, 19 (D.C. Cir. 2021). All told, "[t]he events of January 6, 2021 marked the most significant assault on the Capitol since the War of 1812." Id. at 18-19 (footnote omitted).

The Government's Statement of Facts in support of the Criminal Complaint explain Brockhoff's actions that day. Several images show Brockhoff standing on a landing above law enforcement officers on the west side of the Capitol who were struggling to keep rioters behind police lines. Aff. at 2-4. Brockhoff can be seen wielding a fire extinguisher and spraying its contents onto the officers below him. Id. The resulting fog covered the officers, "which caused law enforcement to disperse, and obstructed law enforcement's ability to see." Id. at 2. The Government also alleges that Brockhoff threw a wrench at police below him, injuring one of the officers, although this conduct has not yet been charged by indictment. Opp. at 4. In support thereof, the Government attaches two images of Brockhoff appearing to throw some sort of object, though there is no photographic or video evidence showing clearly the object or the object making contact with an officer below him. See id.

After striking the officers, Brockhoff clambered through a broken window and into the Capitol itself. Aff. at 4. Having absconded with a Metropolitan Police Department riot helmet, Defendant forced his way into a conference room with other rioters. Id. at 5-6. In one video, Defendant "can be observed directing other individuals on the best method to make entry into the room." Id. at 6. Once inside, Defendant "tore open a box[,] rifled through the office," and took Senate stationary. Opp. at 6-7.

B. Defendant's Arrest and Detention Hearing

On May 27, 2021, law enforcement officers executed a search warrant on Defendant's home. Opp. at 7. Defendant was not there, having left home three days prior for a three-month motorcycle and camping trip. Id. Family members alerted Brockhoff that federal law enforcement had a warrant for his arrest, and Defendant voluntarily shared his precise location in Tennessee with law enforcement. Id. at 7-8. Citing the nature of the offenses charged, Magistrate Judge York ordered Defendant held without bond, reasoning that there was no set of conditions that could reasonably assure the safety of members in the community and prevent Defendant's flight before trial.

II. LEGAL STANDARD

"In 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." Munchel , 991 F.3d at 1285 (cleaned up) (quoting United States v. Salerno , 481 U.S. 739, 748, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). Nevertheless, "[i]n 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, 107 S.Ct. 2095.

A defendant ordered detained by a magistrate judge may file "a motion for revocation or amendment to the order" with "the court having original jurisdiction over the offense." 18 U.S.C. § 3145(b). Although the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") has not ruled on the matter, every circuit to consider the issue has found that a magistrate judge's detention order is subject to de novo review. See United States v. Hunt , 240 F. Supp. 3d 128, 132 (D.D.C. 2017) (identifying cases supporting this proposition from the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits). The district court is "free to use in its analysis any evidence or reasons relied on by the magistrate judge, but it may also hear additional evidence and rely on its own reasons." Sheffield , 799 F. Supp. 2d at 20 (quoting United States v. Hanson , 613 F. Supp. 2d 85, 88 (D.D.C. 2009) ).

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). A detention hearing must be held only if a case involves any of an enumerated set of offenses, including a crime of violence or a felony that involves the use of a dangerous weapon, § 3142(f)(1), or if the defendant poses a serious risk of flight or of trying to obstruct justice or threaten, injure, or intimidate a witness or juror, id. § 3142(f)(2)(A)–(B).

The question for the Court is whether any "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). In determining whether a defendant should be detained pending trial, the Court must consider "the available information" concerning four enumerated factors: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the defendant; (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. § 3142(g).

"To justify detention on the basis of dangerousness, the government must prove by ‘clear and convincing...