United States v. Rhine

1

UNITED STATES OF AMERICA v. DAVID CHARLES RHINE, Defendant.

CRIMINAL ACTION No. 21-687 (RC)

United States District Court, District of Columbia

February 21, 2024

MEMORANDUM OPINION

Denying Defendant's Motion for Bond Pending Appeal

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

On April 24, 2023, a federal jury convicted David Charles Rhine on each of four counts arising from his participation in the assault on the U.S. Capitol on January 6, 2021. In the wake of the jury's verdict, the Court sentenced Rhine to a four-month term of imprisonment on each of the counts of conviction, with each term to run concurrently. Shortly thereafter, Rhine noticed an appeal of his conviction to the D.C. Circuit. Rhine now moves for bond pending the conclusion of that appeal. For the reasons described below, Rhine's motion is denied.

II. BACKGROUND

On November 19, 2021, the Government filed an information charging Rhine with four separate offenses arising from his participation in the January 6, 2021, riot at the U.S. Capitol. Information, ECF No. 8. Rhine opted not to plead guilty, and instead proceeded to try his case to a jury in April of 2023. After a five-day trial, the jury found Rhine guilty on each of the four charged counts. See Verdict Form, ECF No. 102. Specifically, the jury found Rhine guilty of four misdemeanor offenses: entering and remaining in a restricted building or grounds, in violation of 18 U.S.C. § 1752(a)(1) (Count One); disorderly and disruptive conduct in a restricted building or grounds, in violation of 18 U.S.C. § 1752(a)(2) (Count Two); disorderly conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D) (Count Three); and parading, demonstrating, or picketing in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G) (Count Four). Judgment at 1-2, ECF No. 120. This Court then sentenced Rhine to four-month terms of imprisonment on each count of conviction, with the terms to run concurrently. Id. at 3. The Court also granted Rhine's request to delay his self-surrender date to March 1, 2024. See id. at 3, 6.

On September 25, 2023, Rhine noticed an appeal of the judgment. See Notice of Appeal, ECF No. 122. He subsequently filed the instant motion for bond pending appeal and for a stay of execution of his sentence. Def.'s Mot. Bond Pending Appeal (“Def.'s Mot.”) at 1, ECF No. 124. The Government opposed the motion, see Gov't's Opp'n Mot. Bond Pending Appeal (“Gov't's Opp'n”), ECF No. 135, and the motion is now ripe for review, see Def.'s Reply Gov't's Opp'n Mot. Bond Pending Appeal (“Def.'s Reply”), ECF No. 136.

III. ANALYSIS

A. Legal Standards

The Bail Reform Act provides, in relevant part, that a court “shall order . . . a person who has been found guilty of an offense and sentenced to a term of imprisonment” to “be detained” pending the resolution of an appeal unless the court finds that two conditions are met. 18 U.S.C. § 3143(b). First, the court must find “by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title.” Id. § 3143(b)(1)(A). And second, the court must find both “that the appeal is not for the purpose of delay” and that the appeal “raises a substantial question of law or fact likely to result in . . . (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.” Id. § 3143(b)(1)(B).

B. Flight Risk or Danger to the Community

As an initial matter, the parties dispute whether Rhine has borne his burden of proving by clear and convincing evidence that he is not a flight risk or danger to the community. For his part, Rhine argues that he had no criminal history prior to this case. See Def.'s Mot. at 2; see also Presentence Investigation Report (“PSR”) at 9, ECF No. 112. Rhine also notes his “strong record of public service”-which includes his years of service in the Navy-“and [his] long history as a contributing community member in Bremerton, Washington.” See Def.'s Mot. at 23. Rhine further notes that he is employed as an accountant-a job he has held since 2006-and that he has not violated any of the terms of his supervised release. See id. at 3.

The Government concedes that Rhine “appears to have been compliant with the terms of his release.” See Gov't's Opp'n at 6. But the Government argues that Rhine nonetheless poses a threat to the community. Id. at 5-7. In support, the Government emphasizes Rhine's actions on January 6, arguing that-although Rhine “did not himself engage in hands-on violence”-he “ignored the obvious indications that his presence on the Capitol grounds was unauthorized” and knowingly entered the Capitol with “two pocket knives and a container of pepper spray.” See Id. at 6. The Government also argues that Rhine “has not accepted responsibility for his conduct on January 6.” See id. at 7. According to the Government, that fact, coupled with the “volatile context of the upcoming election year,” serve as additional reasons to fear the danger Rhine poses if he remains in the community. See id. at 5, 7.

Having considered the arguments of the parties and the available evidence-including the facts detailed in the Presentence Investigation Report-the Court finds that Rhine has shown, by clear and convincing evidence, that he poses neither a flight risk nor a risk to the broader community. The Court agrees with Rhine that his compliance with the conditions of his supervised release, his close ties to the community, and his longstanding employment suggest that he is unlikely to flee or commit further offenses while his appeal is pending. See United States v. Sheppard, No. 21-cr-203, 2023 WL 7279263, at *2 (D.D.C. Nov. 3, 2023) (finding defendant posed no flight risk and did not represent threat to community based on similar factors). Accordingly, the Court finds that the requirements of section 3143(b)(1)(A) are satisfied.

C. Substantial Questions of Law

Having concluded that Rhine has satisfied section 3143(b)(1)(A)'s requirements, the Court must next consider whether Rhine's appeal “raises a substantial question of law or fact likely to result in . . . (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.” 18 U.S.C. § 3143(b)(1)(B). This requires the Court to answer two questions. First, “[d]oes the appeal raise a substantial question?” United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1987) (per curiam). In this context, the D.C. Circuit has explained that “a substantial question is a ‘close' question or one that very well could be decided the other way.” Id. (internal quotation marks omitted); see id. (explaining that this standard is “more demanding” than one that requires the inquiry to be “fairly debatable,” “fairly doubtful,” or simply “not frivolous”). “In conducting this inquiry, the Court presumes the defendant was validly convicted,” United States v. Sheppard, No. 21-cr-203, 2024 WL 127016, at *2 (D.D.C. Jan. 11, 2024), and “the defendant bears the burden of rebutting this presumption,” United States v. Libby, 498 F.Supp.2d 1, 3 (D.D.C. 2007). If the court answers the first question in the affirmative, it then must determine whether “resolution of th[e] [substantial] question in the defendant's favor [is] likely to lead to reversal” or one of the other outcomes enumerated in section 3143(b)(1)(B)(ii)-(iv). Perholtz, 836 F.2d at 555.

Rhine contends that his appeal raises not one, but rather three substantial questions of law. Def.'s Mot. at 3. First, he argues that the Court's instructions to the jury misstated the law on Counts One and Two. Id. More specifically, he argues that the Court erred by instructing the jury that they did not need to find that Rhine knew Vice President Mike Pence (or another Secret Service protectee) was inside the Capitol in order to find Rhine guilty of violating 18 U.S.C. § 1752(a)(1) and (a)(2). See id. at 3-16. Second, Rhine argues that the statutes underlying his convictions on Counts Three and Four-40 U.S.C. § 5104(e)(2)(D) and (e)(2)(G), respectively- violate the First Amendment both on their face and as-applied. See id. at 16-39. Finally, Rhine contends that the Court's sentence was impermissibly punitive because it was imposed as a sanction for Rhine's “exercise of his Sixth Amendment rights.” See id. at 3, 39-43.

1. Rhine's Challenge to 40 U.S.C. § 5104(e)(2)(D) and (e)(2)(G)

For reasons that will become apparent, the Court begins with Rhine's contention that his challenge to the constitutionality of 40 U.S.C. § 5104(e)(2)(D) and (e)(2)(G) presents a substantial question of law. As relevant here, section 5104(e)(2)(D) makes it a crime for “[a]n individual or group of individuals [to] willfully and knowingly . . . utter loud, threatening, or abusive language, or engage in disorderly or disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress.” 40 U.S.C. § 5104(e)(2)(D). And section 5104(e)(2)(G) prohibits “parad[ing], demonstrat[ing], or picket[ing] in any of the Capitol Buildings.” Id. § 5104(e)(2)(G).

Rhine argues that sections 5104(e)(2)(D) and (e)(2)(G) are both facially unconstitutional and unconstitutional as applied to his conduct. See Def.'s Mot. at 16, 37. In arguing that the statutes...