United States v. Gieswein

• Decision Date: 27 July 2021
• Docket Number: Crim. Action No. 21-24 (EGS)
• Parties: UNITED STATES OF AMERICA v. ROBERT GIESWEIN, Defendant.
• Court: U.S. District Court — District of Columbia

UNITED STATES OF AMERICA v. ROBERT GIESWEIN, Defendant.

Crim. Action No. 21-24 (EGS)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 27, 2021

MEMORANDUM OPINION

Defendant Robert Gieswein ("Mr. Gieswein") has been charged in a federal indictment with six serious felony offenses arising from his participation in the events at the U.S. Capitol on January 6, 2021. See Indictment, ECF No. 3.¹ Following Mr. Gieswein's arrest in Colorado, a magistrate judge in the District of Colorado ordered Mr. Gieswein detained pending trial, and he was transported to this District. See Rule 5(c)(3) Documents, ECF No. 5 at 21; see also Ex. 1 to Gov't's Opp'n to Def.'s Mot. Hearing & Revocation Detention Order ("Gov't's Opp'n"), ECF No. 19-1. Pending before the Court is Mr. Gieswein's Motion for Hearing and Revocation of Detention Order, which seeks his release from detention to the custody of a third-party custodian in Oklahoma. See Mot. Hearing & Revocation Order ("Def.'s Mot."), ECF No. 18. Upon careful consideration ofthe motion, opposition, reply, and surreply thereto, the arguments set forth at the July 1, 2021 hearing, the applicable law, and the entire record herein, Mr. Gieswein's motion is DENIED.

I. Background

Mr. Gieswein is alleged to have forcibly assaulted, resisted, opposed, impeded, intimidated, or interfered with U.S. Capitol Police officers attempting to maintain the security of the U.S. Capitol on January 6, 2021. See Indictment, ECF No. 3 at 2-3. The six-count indictment, filed January 27, 2021, charges Mr. Gieswein with the following offenses: (1) Obstruction of an Official Proceeding, in violation of 18 U.S.C. § 1512(c)(2); (2) three counts of Assaulting, Resisting, or Impeding Certain Officers Using a Dangerous Weapon, in violation of 18 U.S.C. § 111(a)(1) and (b); (3) Destruction of Government Property, in violation of 18 U.S.C. §§ 1361, 2; and (4) Entering and Remaining in a Restricted Building or Grounds with a Deadly or Dangerous Weapon, in violation of 18 U.SC. § 1752(a)(1) and (b)(1)(A). Indictment, ECF No. 3 at 1-4.

The Court sets out below the evidence proffered by the parties in support of their briefing,² as well as an overview of the procedural history of this case.

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

In the days leading up to January 6, 2021, Mr. Gieswein traveled alone to Washington, D.C. to attend the demonstrations in support of then-President Donald J. Trump. See Def.'s Mot., ECF No. 18 at 2. Mr. Gieswein is a 24-year-old resident of Woodland Park, Colorado, and has no criminal record. See id. at 1, 3. According to letters submitted by Mr. Gieswein's family and friends, although they were aware that Mr. Gieswein supported then-President Trump, Mr. Gieswein never indicated to them that he intended to engage in any violence or illegal activity during his trip to Washington. Id. at 2. However, regardless of Mr. Gieswein's stated intentions regarding his plans in Washington, video and photographic evidence submitted by the government show that Mr. Gieswein's conduct on January 6, 2021 involved violent acts against U.S. Capitol Police during the riot that disrupted the joint session of the U.S. Congress, which was convening to certify the vote count of the ElectoralCollege of the 2020 Presidential Election. See Gov't's Opp'n, ECF No. 19 at 3-11.

On January 5, 2021, Mr. Gieswein joined supporters of then-President Trump at Freedom Plaza in Washington, D.C. Def.'s Mot., ECF No. 18 at 2. According to Mr. Gieswein, "[h]e had just smoked a significant amount of marijuana, and his intoxication [was] palpable in his dilated pupils and grin, and in the rambling comments that ensued." Id. An individual approached Mr. Gieswein and proceeded to ask him questions regarding his presence at the rally. Id. During the interview, Mr. Gieswein stated that he was there "to keep President Trump in," though he described no plans to do so, and that he wished for "both sides [to] stay peaceful." Id. at 2-3. In addition, Mr. Gieswein stated that he believed that "politicians, including President Biden and Vice President Harris, ha[d] 'completely destroyed our country and sold them to the Rothschilds and the Rockefellers.'"³ Gov't's Opp'n, ECF No. 19 at 27; see also Aff. Supp. Crim. Compl. ("Aff."), ECF No. 1-1 at 11 (describing Mr. Gieswein as saying that his message to Congress was "[t]hat they need to get the corrupt politicians out of office. Pelosi, the Clintons, all of . . . every single one of them, Biden, Kamala . . . they havecompletely destroyed our country and sold them to the Rothschilds and Rockefellers"). The Federal Bureau of Investigation ("FBI") affidavit attached to the criminal complaint filed January 16, 2021, further asserts that the same video evidence shows Mr. Gieswein stating: "What we need to do, is we need to get the corrupt politicians that have been in office for 50-60 years, that have been destroying our country and selling it to the Middle East and Israel out of office and they need to be imprisoned." Aff., ECF No. 1-1 at 11.

The following day, on January 6, 2021, Mr. Gieswein arrived on the Capitol grounds wearing camouflage fatigues, a tactical vest, and a helmet. Gov't's Opp'n, ECF No. 19 at 3. Photographic and video evidence proffered by the government also capture Mr. Gieswein with goggles and carrying a baseball bat and an aerosol spray can containing unknown chemicals. See id. at 3-9; see also id. at 3, Figure 1; id. at 21, Figure 10.

After participating in a march with members of the Proud Boys⁴ that morning,⁵ photographic evidence places Mr. Gieswein inthe plaza to the west of the Capitol building ("West Plaza") shortly before 1:00 p.m., while then-President Trump was still speaking to supporters from the Ellipse, near the White House. Id. at 4. According to the government, at this point in the day, rioters had already breached two sets of police barricades—one at a pedestrian entrance near the Peace Monument, and another set closer to the Capitol—resulting in hundreds of rioters, including Mr. Gieswein, flowing into the West Plaza. Id. Mr. Gieswein then positioned himself close to the front line of the rioters standing in front of the line of law enforcement officers. Id. at 4-5. At approximately 1:34 p.m., body-camera footage submitted by the government shows Mr. Gieswein, along with other rioters, forcefully pushing a metal police barricade directly into the bodies of law enforcement officers attempting to keep the rioters from reaching the Capitol, as other law enforcement officers throw tear gas into the mob. See Hr'g Video Ex. 3, at 01:25 to 01:45; Hr'g Video Ex. 4, at 00:06 to 00:15, 01:07 to 01:11.

At approximately 1:48 p.m., rioters and Capitol Police guarding a set of stairs that led from underneath the Inauguration scaffolding and up to the Capitol itself engaged in a violent fight, in which both sides deployed pepper spray against each other and used the metal police barriers as weapons. Gov't's Opp'n, ECF No. 19 at 5. Approximately oneflight of stairs above that fight, Mr. Gieswein stood among other rioters facing another line of Capitol Police officers. Id. at 6. Video evidence shows rioters pulling a police barricade down the staircase, which other rioters and Mr. Gieswein, with baseball bat in hand, then grabbed and began to push forward again up toward the officers. See Hr'g Video Ex. 1, at 00:01 to 00:43. With the barricade largely dividing the rioters from law enforcement at the top of the staircase, the video shows Mr. Gieswein deploying his aerosol spray can in the direction of the law enforcement officers. Gov't's Opp'n, ECF No. 19 at 6-7, 19, Figure 5; see also Hr'g Video Ex. 1 at 02:19 to 02:25; 03:15 to 03:20. Despite law enforcement officers deploying pepper spray and using their batons against the rioters, the rioters continued attempting to push law enforcement out of the way with the metal barricade. Id. at 03:50 to 04:20. It is unclear whether the rioters were successful in pushing the barricade through the makeshift doorframe at the top of the staircase or whether law enforcement chose to stand back, but the barricade was eventually pushed up and to the side and law enforcement fell back, which allowed rioters to continue to make their way toward the Capitol building. Id. As rioters slowly moved up the staircase and out toward the Capitol building, video evidence shows Mr. Gieswein raising his fist and yelling. Id. at 04:45 to 04:50.

Mr. Gieswein is then captured on video running toward the Capitol building, with a baseball bat in one hand and aerosol spray can in the other. Gov't's Opp'n, ECF No. 19 at 7; see also Hr'g Video Ex. 2 at 00:01 to 00:10. Once he reached the building, he began banging on one of the windows with his hand. Id. at 00:12 to 00:15. He then moved to another window in the same alcove where another rioter was using a long wooden board to smash through the window. Id. at 00:23 to 00:28. As the rioters were in the process of breaking that window, Mr. Gieswein got the attention of others attempting to kick open a door to the Capitol, and he pointed back toward the window. Id. at 00:38 to 00:40. After he pointed to the window, two rioters moved toward the window, and one of those rioters grabbed the long wooden board and smashed it through the window. Id. 00:40 to 00:50. The government alleges that once the windows were broken, Mr. Gieswein was either the second or third rioter to enter the Capitol building at approximately 2:14 p.m. Id. at 00:56 to 01:12; Gov't's Opp'n, ECF No. 19 at 7.

Once inside the building, the government alleges that Mr. Gieswein and other rioters began walking up the internal staircase toward the still-occupied Senate Chamber. Gov't's Opp'n, ECF No. 19 at 8. Photographic evidence shows that Mr. Gieswein continued to carry the baseball bat and aerosol spray while inside the Capitol. Id. at 7-8.

By approximately 2:29 p.m., Mr. Gieswein was in the Capitol crypt on the lower level of the...