United States v. Hale-Cusanelli

• Decision Date: 07 July 2021
• Docket Number: No. 21-3029,21-3029
• Parties: UNITED STATES of America, Appellee v. Timothy Louis HALE-CUSANELLI, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

3 F.4th 449

UNITED STATES of America, Appellee

v.Timothy Louis HALE-CUSANELLI, Appellant

No. 21-3029

United States Court of Appeals, District of Columbia Circuit.

Decided July 7, 2021

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.

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. Munchel , 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.

I.

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. Id. 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 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." Id. Hale-Cusanelli is not accused of using or threatening to use the flagpole as a weapon. See id. Later, 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 4–5.

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 id.

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 years. Id.

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 7–8.

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 13–16.

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

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 addresses. Id. at 10. No further details are available in the record.

II.

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 language" 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...