United States v. Munchel

• Decision Date: 26 March 2021
• Docket Number: No. 21-3010,C/w 21-3011,21-3010
• Citation: 991 F.3d 1273
• Parties: UNITED STATES of America, Appellee v. Eric Gavelek MUNCHEL, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

991 F.3d 1273

UNITED STATES of America, Appellee

v.Eric Gavelek MUNCHEL, Appellant

No. 21-3010

C/w 21-3011

United States Court of Appeals, District of Columbia Circuit.

Decided March 26, 2021

A. J. Kramer, Federal Public Defender, and Sandra G. Roland, Assistant Federal Public Defender, were on appellant Eric Munchel's Memorandum of Law and Fact.

Gregory S. Smith, Washington, DC, appointed by the court, was on appellant Lisa Eisenhart's Memorandum of Law and Fact.

Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys, were on appellee's Memorandum of Law and Fact.

Before: Rogers, Wilkins and Katsas, Circuit Judges.

Opinion concurring in part and dissenting in part filed by Circuit Judge Katsas.

Wilkins, Circuit Judge:

We consider an appeal of a pretrial detention order issued after a Magistrate Judge had previously ordered the two appellants released pursuant to a lengthy set of stringent conditions. For the reasons stated below, we remand for the District Court to consider anew the government's motion for detention.

I.

The facts, as found by the District Court, and as observed in a 50-minute video of much of the incident at the heart of the case, are as follows.

Eric Munchel and his mother, Lisa Eisenhart, participated in the January 6, 2021 incident at the Capitol. Munchel is a thirty-year-old resident of Nashville, Tennessee. He previously worked as a waiter and has twice been convicted for misdemeanor possession of marijuana in Georgia state courts. See United States v. Munchel , No. 1:21-CR-118-RCL, 2021 WL 620236, at *1 (D.D.C. Feb. 17, 2021). Eisenhart is a fifty-seven-year-old resident of Woodstock, Georgia. She has been employed as a nurse for approximately thirty years and has no prior criminal history. Id. ; Eisenhart Mem. at 13.

On January 6, Eisenhart and Munchel attended President Trump's "Stop the Steal" rally to protest the election results. Both wore tactical vests and Munchel had a taser, holstered on his hip. Munchel also wore his iPhone, mounted on his tactical vest, and used it to take a video of some of the day's events. Following the rally, Eisenhart and Munchel marched towards the Capitol. See Munchel , 2021 WL 620236, at *2–3. As they approached the Capitol, they milled around outside and talked with others. They met members of the Oath Keepers militia and Munchel bumped fists with one of them. Id. at *2 ; Video at 11:56–12:05.

At some point while Munchel and Eisenhart were standing around, someone yelled out "they broke the line up there" and people began saying "let's go in." Eisenhart told Munchel they should go in, but she added, "[w]e're going straight to federal prison if we go in there with weapons." Video at 12:28–12:40. Munchel responded that he would not go into the Capitol, and Eisenhart suggested that they put "em" in their backpacks. Id. Munchel and Eisenhart then moved across the crowd to an area where a backpack was stowed and Munchel stashed a fanny pack in the backpack. See Munchel , 2021 WL 620236, at *2 ; Video at 16:00–16:25. Munchel contends that the only weapon in the fanny pack was a pocketknife; the government suggests that other weapons could have been inside, perhaps even a firearm. See Tr. of Dist. Ct. Detention Hr'g at 10. Munchel kept his taser holstered on his hip. See Munchel , 2021 WL 620236, at *2.

Subsequently, Eisenhart encouraged others to enter the Capitol, stating the tear gas "isn't bad" and repeatedly stating, "let's go in." Video at 16:28–17:45. Munchel and Eisenhart pushed their way through the crowd to continue towards the Capitol. Munchel followed Eisenhart, often holding on to a strap on her back. E.g. , id. at 17:45–23:00. En route, Eisenhart encouraged a man who claimed to have "punched two of them in the face," telling him, "while everyone else is on their couch, you guys are training, and getting ready for it." Id. at 23:56–24:12. Munchel told members of the crowd that "we're not playing f__ing nice no god damn more," that he is "f__ing ready to f__ sh__ up," and "I guess they thought we were playing." Id. at 25:18, 26:58–27:01, 36:53–36:56; Munchel Mem. at 11. Additionally, when Eisenhart heard that Congress was "shut down" by tear gas she exclaimed that "they got tear-gassed, motherf__ers" and proclaimed it her "best day to know they got tear-gassed." Video at 30:08–30:29. Directly in front of the Capitol and near an entrance, Munchel stated, this is "probably the last time I'll be able to enter the building with armor and ... f__ing weapons." Id. at 36:29–36:35.

Munchel and Eisenhart entered the Capitol through an open door and stayed inside for approximately twelve minutes. Id. at 38:30–38:50 (entry); Munchel Mem. at 11. Police officers were standing to the right of the door, not blocking their entry. Munchel Mem. at 11 (citing to Video). While walking through the Capitol, Munchel told members of the mob "don't break sh_," "no vandalizing sh__. We ain't no god damn Antifa, motherf__ers," and "you break sh__, I break you." Video at 42:45, 43:20–43:43, 44:13–44:15.

Additionally, while inside, Munchel and Eisenhart spotted plastic handcuffs, known as "zip ties." Munchel , 2021 WL 620236, at *2 ; Video at 43:43. Upon seeing the zip ties, Munchel shouted "Zip ties! I need to get me some of them motherf__ers." Video at 43:43–43:48. Munchel took several zip ties and Eisenhart took one. See Munchel Mem. at 12. Munchel and Eisenhart eventually made their way to the Senate gallery, both still carrying the zip ties, and Munchel still carrying his taser. Munchel , 2021 WL 620236, at *2 ; Gov't Mem. at 12 (pictures of Munchel in Senate gallery with zip ties). Inside the gallery, Eisenhart chanted "Treason! Treason!" and Munchel looked down at the dais and said, "I want that f__ing gavel," referring to the Senate's artifact. Video at 45:14–45:17, 47:21–47:23.

Munchel made no effort to steal the gavel. Id. at 47:21–47:23; Munchel , 2021 WL 620236, at *2.

After leaving the gallery, Eisenhart told Munchel not to carry the zip ties, stating that they "need[ed] to get them out of [their] hands." Video at 48:43–48:48. Later, Munchel took some home with him to Tennessee. See Munchel , 2021 WL 620236, at *2. Eisenhart has claimed that she took the zip ties to keep them away from "bad actors." Id. ; Eisenhart Mem. at 3.

Eventually, Munchel and Eisenhart left the Capitol. As they were exiting, Munchel said to nearby police officers, "Sorry, guys, I still love you." Video at 49:27–49:29; Munchel Mem. at 13.

On the evening of January 6, a Metropolitan Police Department officer stopped Munchel and seized his taser. See Munchel , 2021 WL 620236, at *3.¹ The next day, as they packed their car to go home, both Eisenhart and Munchel spoke to the media. Eisenhart stated:

This country was founded on revolution. If they're going to take every legitimate means from us, and we can't even express ourselves on the internet, we won't even be able to speak freely, what is America for? ... I'd rather die as a 57-year-old woman than live under oppression. I'd rather die and would rather fight.

Laura Pullman, Trump ’s Militias Say They Are Armed and Ready to Defend Their Freedoms , THE TIMES (of London) (Jan. 10, 2021), https://www.thetimes.co.uk/article/trumps-militias-say-they-are-armed-and-ready-to-defend-their-freedoms-8ht5m0j70https://www.thetimes.co.uk/article/trumps-militias-say-they-are-armed-and-ready-to-defend-their-freedoms-8ht5m0j70 (attached to the Gov't Suppl. Mem. at 26). Munchel told the newspaper:

We wanted to show that we're willing to rise up, band together and fight if necessary. Same as our forefathers, who established this country in 1776.... It was a kind of flexing of muscles. ... The intentions of going in were not to fight the police. The point of getting inside the building is to show them that we can, and we will.

Id.

Later, Munchel and Eisenhart returned to Tennessee, and Eisenhart continued on to her home in Georgia. The FBI posted bulletins on the internet and in the media with photos of Munchel and Eisenhart from January 6, asking for the public's help in identifying them. On the morning of January 10, FBI agents executed a search warrant at Munchel's apartment. The agents found the tactical vest Munchel wore at the Capitol, zip ties, firearms, and a large quantity of loaded magazines. Munchel was licensed to possess those weapons. See Munchel , 2021 WL 620236, at *3. Soon after learning about the search, Munchel turned himself in. Id. at *4 ; Munchel Mem. at 15. Munchel also made arrangements for his attorney to give his iPhone to the FBI. Munchel Mem. at 15. Once Eisenhart learned she was the target of a federal investigation, she spoke to a local FBI agent every day to determine whether there was a warrant for her arrest, and when the warrant issued, she self-surrendered. See Munchel , 2021 WL 620236, at *4, *7 ; Eisenhart Mem. at 3.

Munchel and Eisenhart were charged in a complaint with unlawful entry, violent entry, civil disorder, and conspiracy. See Complaint, United States v. Munchel , No. 1:21-CR-118-RCL, 2021 WL 620236, ECF No. 1 (D.D.C. Feb. 17, 2021). Munchel and Eisenhart had pretrial detention hearings before Magistrate Judge Jeffrey Frensley in the Middle District of Tennessee. Magistrate Judge Frensley concluded that neither Munchel nor Eisenhart were flight risks nor posed a danger to the community and issued release orders for both appellants with various conditions, including home detention, GPS monitoring, refraining from possessing firearms or dangerous weapons, and supervision by Pretrial Services. See Jan. 22, 2021 Transcript ("Munchel Tr.") at 181, 186–89 (included in Munchel Suppl.); Jan. 25, 2021 Transcript ("Eisenhart Tr.") at 163, 164–66 (attached to Eisenhart Mem.).

Magistrate Judge Frensley briefly stayed both of his release orders, id. at 171; Munchel Tr. at 198–99, and the government promptly appealed both orders to the United States District Court for the District of Columbia. Chief Judge Beryl A. Howell...