United States v. Sabol ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Crim. Action No. 21-35-1 (EGS)
JEFFREY SABOL,
Defendant.
MEMORANDUM OPINION
Defendant Jeffrey Sabol (“Mr. Sabol”) has been charged in a
federal indictment with eight serious misdemeanor and felony
offenses arising from his participation in the events at the
U.S. Capitol on January 6, 2021. See Superseding Indictment, ECF
No. 23. After Mr. Sabol was arrested in New York on January 22,
2021, a magistrate judge on the United States District Court for
the Southern District of New York held a detention hearing and
ordered Mr. Sabol detained pending trial due to his “risk of
flight/danger.” See Min. Entry, 7:21-mj-866-UA-1 (S.D.N.Y. Jan.
22, 2021). Pending before the Court is Mr. Sabol’s Motion for
Pretrial Release, which seeks his release from custody to the
Pretrial Services Agency’s High Intensity Supervision Program
(“HISP”). Def.’s Mot. Pretrial Release (“Def.’s Mot.”), ECF No.
17. The Court held a hearing on Mr. Sabol’s motion on April 8,
2021. See Min. Entry (Apr. 9, 2021).
Upon careful consideration of the motion and opposition,
the arguments set forth at the April 8, 2021 hearing, the
applicable law, and the entire record herein, Mr. Sabol’s motion
is DENIED.
I. Background
Mr. Sabol and four co-defendants are alleged to have
forcibly assaulted, resisted, opposed, impeded, intimidated, or
interfered with Metropolitan Police Department (“MPD”) officers
while they were attempting to help the U.S. Capitol Police
maintain the security of the U.S. Capitol on January 6, 2021.
See Superseding Indictment, ECF No. 23 at 1-4. 1 The sixteen-count
superseding indictment, filed March 12, 2021, charges Mr. Sabol
with the following offenses: (1) Assaulting, Resisting, or
Impeding Certain Officers Using a Dangerous Weapon, in violation
of 18 U.S.C. §§ 111(a)(1) and (b); (2) Assaulting, Resisting, or
Impeding Certain Officers, in violation of 18 U.S.C. §
111(a)(1); (3) Civil Disorder, in violation of 18 U.S.C. §
231(a)(3); (4) a second count of Civil Disorder, in violation of
18 U.S.C. § 231(a)(3); (5) Entering and Remaining in a
Restricted Building or Grounds with a Deadly or Dangerous
Weapon, in violation of 18 U.S.C. §§ 1752(a)(1) and (b)(1)(A);
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2
(6) Disorderly and Disruptive Conduct in a Restricted Building
or Grounds with a Deadly or Dangerous Weapon, in violation of 18
U.S.C. §§ 1752(a)(2) and (b)(1)(A); (7) Engaging in Physical
Violence in a Restricted Building or Grounds with a Deadly or
Dangerous Weapon, in violation of 18 U.S.C. §§ 1752(a)(4) and
(b)(1)(A); and (8) Act of Physical Violence in the Capitol
Grounds or Buildings, in violation of 40 U.S.C. § 5104(e)(2)(F).
Id. at 2, 4, 5, 6, 7, 9.
The Court sets out below the evidence proffered by the
government in support of its opposition to Mr. Sabol’s motion,
and in favor of his continued pretrial detention, as well as a
brief overview of the procedural history of this case. 2
A. Mr. Sabol’s Conduct on January 6, 2021
Mr. Sabol has admitted to law enforcement that he was in
Washington D.C. and at the U.S. Capitol on January 6, 2021, the
day a joint session of the U.S. Congress convened to certify the
Electoral College vote count and the 2020 Presidential Election.
See Gov’t’s Opp’n, ECF No. 20 at 3. According to the government,
Mr. Sabol believed that “there was no question” that the 2020
Presidential Election was “stolen.” Id. On January 6, 2021, Mr.
Sabol equipped himself with a helmet, steel-toe boots, zip ties,
2 At a detention hearing, the government may present evidence by
way of a proffer. See United States v. Smith, 79 F.3d 1208,
1209-10 (D.C. Cir. 1996).
3
a radio, and an ear piece, and he traveled to Washington D.C. to
watch then-President Trump speak at a rally and to participate
in the protest against the election results, which ended in a
riot at the U.S. Capitol. Id.Mr. Sabol told law enforcement that when he reached the
U.S. Capitol, he heard flashbangs going off and “recognized that
a ‘battle’ was already occurring,” which he believed was started
by members of the left-wing anti-fascist political movement
Antifa as the “perfect set-up.” Id. He “had to be on the front
line” of the “battle” because he is a “warrior.” Id. Mr. Sabol’s
cell phone records place him in the area around the U.S. Capitol
as of 3:29 p.m. that day. Id.At approximately 4:20 p.m., MPD officers assumed a post in
an archway at the access point of the U.S. Capitol’s lower
western terrace. Id. at 4. Among the MPD officers at that post
were Officer A.W., Officer B.M., and Officer C.M. Id. Shortly
after assuming the post, all three officers were “brutally”
assaulted by rioters who were part of a mob that had gathered
outside of the U.S. Capitol. Id. Video footage provided by the
government displays the violent attacks that left the officers
wounded and in need of medical care. See Exs. 2, 3, 5A to
Gov’t’s Opp’n, ECF No. 20. Officer A.W. sustained a laceration
that caused him to bleed from the head and required staples to
close, and Officer B.M. sustained an abrasion to his nose and
4
right cheek and minor bruising to his left shoulder. See Gov’t’s
Opp’n, ECF No. 20 at 8-9.
The government proffers evidence in support of charges
against Mr. Sabol for his participation in the assault of
Officer A.W. and Officer B.M. Id. at 4-9. At around 4:27 p.m.,
an unknown individual charged at Officer A.W., grabbed at his
face, and knocked him to his feet. Id. at 4. While Officer A.W.
was on the ground, Mr. Sabol climbed up the U.S. Capitol steps
to where Officer A.W. was laying and yanked Officer A.W.’s baton
out of his hand. Id. at 4-5 (citing Officer A.W.’s Body Worn
Camera (“BWC”) Video Footage, Exhibit 2 to Gov’t’s Opp’n). The
government provides additional video footage that “shows that
Sabol used so much force in snatching [Officer] A.W.’s baton out
of his hands that when he succeeded in wrestling it away from
Officer A.W., [Mr.] Sabol fell back down the steps.” Id. at 5
(citing Storyful 3 Video Footage, Ex. 3 to Gov’t’s Opp’n).
Meanwhile, another individual, alleged to be Mr. Sabol’s co-
defendant Mr. Jack Wade Whitton, began striking Officer B.M.
with a crutch and then pulled him by the head and helmet over
Officer A.W. and down the steps into the large crowd. Id. Mr.
3 According to its website, Storyful is a “news and intelligence
agency” owned by News Corp. that was founded as “the first
social media newswire . . . to break the news faster and utilize
social content to add context to reporting.” See About Storyful,
Storyful, https://storyful.com/about/ (last visited Apr. 14,
2021).
5
Sabol then “rushed back up the steps, put his hand on Officer
B.M.’s backside, and with his right hand, held the baton that he
stole from Officer A.W. up against Officer B.M.’s neck” before
helping drag Officer B.M. face-first down the steps and into the
mob. Id. at 5-6 (citing Storyful Video Footage, Ex. 3 to Gov’t’s
Opp’n; Officer C.M.’s BWC Video Footage, Ex. 5A to Gov’t’s
Opp’n). After Mr. Sabol and other rioters dragged Officer B.M.
into the crowd, co-defendant Peter Stager repeatedly struck
Officer B.M. with a flagpole. Id. at 8. Rioters also dragged
Officer A.W.—who was at that point without the baton that Mr.
Sabol had taken from him—down into the mob where rioters ripped
off his helmet, maced him, took his gas mask and MPD-issued cell
phone, kicked him, struck him with poles, and stomped on him.
Id. at 8-9.
B. Mr. Sabol’s Conduct Between January 6, 2021, and His Arrest
on January 22, 2021
On January 7, 2021, Mr. Sabol returned to his home in
Colorado. Id. at 9. There, “paranoid that he was going to be
charged with sedition,” he “fried” electronic devices in his
microwave, destroyed anything that could be “misconstrued as
antigovernment,” and moved two firearms that he kept at his home
to an associate’s residence. Id.
Between January 9 and 10, 2021, Mr. Sabol traveled from
Colorado to Boston, Massachusetts. Id. Mr. Sabol planned to fly
6
from Boston to Switzerland to avoid extradition for any crimes
arising from his conduct at the U.S. Capitol on January 6, 2021.
Id. He has admitted to law enforcement that he planned to ski
while in Switzerland to make his trip “look natural.” Id. But
while at the airport in Boston, Mr. Sabol saw police officers
and “thought they mentioned his backpack.” Id. He left the
airport, rented a vehicle, and began driving south. Id. Because
Mr. Sabol thought law enforcement was tracking him, he discarded
his cell phone out of a window and over a bridge while he was
driving. Id.
On January 11, 2021, officers from the Clarkstown Police
Department in New City, New York responded to a vehicle that was
driving erratically. Id. at 10. They located the vehicle, which
Mr. Sabol was driving, and discovered that he was covered in
blood from severe lacerations on his thighs and arms. Id. at 10.
Mr. Sabol has admitted to law enforcement that he had attempted
to take his own life. Id. When the Clarkstown officers found Mr.
Sabol, he made spontaneous statements, including “I am tired, I
am done fighting”; “My wounds are self-inflicted”; “I was
fighting tyranny in the D.C. Capitol”; and “I am wanted by the
FBI.” Id. An inventory search of Mr. Sabol’s vehicle uncovered
razor blades, a note with instructions and password to a
computer, electronic devices, his passport and Social Security
Card, an airline e-ticket, a rental car agreement, and a green
7
backpack and tan Carhartt jacket similar to the backpack and
jacket depicted in video footage of the attacks on the MPD
officers at the U.S. Capitol on January 6, 2021. Id.
On January 12, 2021, Mr. Sabol spoke with law enforcement
officers while he was recovering from his self-inflicted wounds
at the Westchester Medical Center. Id. In addition to the
admissions discussed above, Mr. Sabol also admitted to law
enforcement officers that he was at the U.S. Capitol on January
6, 2021, wearing a brown Carhartt jacket, a black or grey
helmet, a green backpack, and black gloves. Id. Regarding the
events that took place that day, Mr. Sabol admitted he had
grabbed an MPD officer’s baton, but he alleged that he was there
only to save the officers who he saw “needed help.” Id.
On January 13, 2021, Mr. Sabol spoke with law enforcement
again and was asked to review video footage and still photos
depicting the events at the U.S. Capitol on January 6, 2021. Id.
at 11. Mr. Sabol admitted the following: (1) he was the person
in the Storyful video wearing a grey/black helmet, black gloves,
and the tan/brown Carhartt jacket and green backpack that were
found in his vehicle; (2) he had run up the steps of the U.S.
Capitol, jumped over a barricade, and dragged an MPD officer
down the steps; and (3) he is the individual shown positioned
over an MPD officer who is lying face down on the ground in the
still photo that is Exhibit 4 to the government’s opposition.
8
Id. Mr. Sabol maintained, however, that he was trying to assist
the officer who he helped drag down the steps, and he was
“patting him on the back” and saying “we got you man.” Id. He
claimed that he covered the officer to protect him from rioters
who were trying to hit the officer with poles. Id. But he also
acknowledged, with respect to the image depicted in the
government’s Exhibit 4, that he could not recall if he hit the
officer with the baton he was holding against the back of the
officer’s neck because “he was in a fit of rage” and the details
were “cloudy.” Id. He also stated that during the mayhem, a
“call to battle was announced” and he “answered the call because
he is a patriot warrior.” Id. Mr. Sabol further admitted that
once he believed law enforcement was looking for him, he deleted
numerous text messages and other communications, including a
video he had taken of himself and sent to an associate on
January 6, 2021, in which he said he had been pepper sprayed but
“we are going back in.” Id. Law enforcement recovered the video
as well as a text message from Mr. Sabol advising the associate
to delete the video. Id.
C. Procedural Background
Mr. Sabol was first charged with Civil Disorder in
violation of 18 U.S.C. § 231(a)(3) on January 15, 2021. See
Criminal Complaint, ECF No. 1. He was arrested and had an
initial appearance and detention hearing before a magistrate
9
judge on the United States District Court for the Southern
District of New York on January 22, 2021. See Min. Entry, 7:21-
mj-866-UA-1 (S.D.N.Y. Jan. 22, 2021). Following the detention
hearing, the magistrate judge ordered Mr. Sabol detained pending
trial because he was deemed a “risk of flight/danger.” Id.On January 29, 2021, a federal grand jury indicted Mr.
Sabol, along with two co-defendants, for Civil Disorder and
other offenses arising from their actions at the U.S. Capitol,
including Assaulting, Resisting, or Impeding Certain Officers
Using a Dangerous Weapon, in violation of 18 U.S.C. §§ 111(a)(1)
and (b). Indictment, ECF No. 8. On March 12, 2021, the
superseding indictment was filed. See Superseding Indictment,
ECF No. 23. The sixteen-count superseding indictment names Mr.
Sabol and now four co-defendants, all of whom are alleged to
have participated in the assault of MPD officers at the U.S.
Capitol on January 6, 2021. Id.After his detention hearing, Mr. Sabol was transported to
the D.C. area, and he is currently in custody at the D.C. Jail.
Mr. Sabol filed the pending motion for pretrial release on
February 23, 2021, the government filed its opposition on March
9, 2021, and Mr. Sabol did not file a reply.
II. Legal Standard
The Bail Reform Act, 18 U.S.C. § 3141 et seq., provides
that a hearing shall be held to determine whether a defendant
10
should be detained pretrial upon a motion by the government if
the defendant is charged with an offense falling in one of five
enumerated categories. 18 U.S.C. § 3142(f)(1)(A)-(E). As
relevant here, a detention hearing shall be held pursuant to
Section 3142(f)(1)(A) if a defendant is charged with a “crime of
violence,” which is “defined broadly as an offense having as an
element the attempted, threatened, or actual use of physical
force against a person or property of another, or a felony
offense that, by its nature, involves a substantial risk that
physical force against the person or property of another may be
used in the course of committing the offense.” See United States
v. Chrestman, No. 21-mj-218 (ZMF), 2021 WL 765662, at *4 (D.D.C.
Feb. 26, 2021) (citing 18 U.S.C. § 3156(a)(4)(A)-(B)). A
detention hearing shall also be held upon a motion by the
government or a judicial officer’s own motion if the defendant
poses a serious risk of flight or of attempting to obstruct
justice or threaten, injure, or intimidate a witness or juror.
18 U.S.C. § 3142(f)(2)(A)-(B).
If a detention hearing is held pursuant to Section 3142(f),
a judicial officer “shall” detain a defendant pending trial if
the judicial officer determines that “no 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.” Id. § 3142(e). “In common parlance, the relevant
11
inquiry is whether the defendant is a ‘flight risk’ or a ‘danger
to the community.’” United States v. Munchel, No. 21-3010, 2021
WL 1149196, at *4 (D.C. Cir. Mar. 26, 2021) (quoting United
States v. Vasquez-Benitez, 919 F.3d 546, 550 (D.C. Cir. 2019)).
When the basis for pretrial detention is the defendant’s danger
to the community, the government is required to demonstrate the
appropriateness of detention pursuant to subsection (e) by clear
and convincing evidence. See 18 U.S.C. § 3142(f). When the basis
for pretrial detention is the defendant’s risk of flight, the
government is required to demonstrate the appropriateness of
detention pursuant to subsection (e) by a preponderance of the
evidence. See United States v. Xulam, 84 F.3d 441, 442 (D.C.
Cir. 1996).
Certain conditions and charged offenses trigger a
rebuttable presumption that no condition or combination of
conditions will reasonably assure the safety of any person and
the community. 18 U.S.C. § 3142(e)(2)-(3) (providing that a
rebuttable presumption arises pursuant to subsection (e)(2) if
the defendant committed a “crime of violence” while on release
pending trial for another offense and not more than five years
after the date of conviction or the release of the person from
imprisonment for that offense, or pursuant to subsection (e)(3)
12
if there is probable cause to believe the defendant committed
one of a subset of offenses listed in that section). 4
In cases that do not involve the conditions and charged
offenses that trigger a rebuttable presumption of detention, the
Court considers the following factors to determine whether
detention is required to ensure the appearance of the person and
the safety of any other person and the community:
1. The nature and circumstances of the offense
charged, including whether the offense is a
crime of violence;
2. The weight of the evidence;
3. The history and characteristics of the
person, including
A. The person’s character, physical
and mental condition, family
ties, employment, financial
resources, length of residence in
the community, community ties,
past conduct, history relating to
drug or alcohol abuse, criminal
history, and record concerning
4 The subset of offenses triggering a rebuttable presumption
under subsection (e)(3) include the following: “(A) an offense
for which a maximum term of imprisonment of ten years or more is
prescribed in the Controlled Substances Act . . . the Controlled
Substances Import and Export Act . . . , or chapter 705 of title
46; (B) an offense under section 924(c), 956(a), or 2332b of
this title; (C) an offense listed in section 2332b(g)(5)(B) of
title 18, United States Code, for which a maximum term of
imprisonment of 10 years or more is prescribed; (D) an offense
under chapter 77 of this title for which a maximum term of
imprisonment of 20 years or more is prescribed; or (E) an
offense involving a minor victim under section 1201, 1591, 2241,
2244(a)(1), 2245, 2251, 2251A, 2252(a)(1), 2252(a)(2),
2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4),
2260, 2421, 2422, 2423, or 2425 of this title.” 18 U.S.C. §
3142(e)(3)(A)-(E).
13
appearance at court proceedings;
and
B. Whether, at the time of the
current offense or arrest, the
person was on probation, on
parole, or on other release; and
4. The nature and seriousness of the danger to
any person or the community that would be
posed by the person’s release.
18 U.S.C. § 3142(g); see also Munchel, 2021 WL 1149196, at *4.
If a magistrate judge orders a defendant detained, the
defendant “may file, with the court having original jurisdiction
over the offense, a motion for revocation or amendment of the
order.” 18 U.S.C. § 3145(b). Although the Court of Appeals for
the District of Columbia Circuit (the “D.C. Circuit”) has not
squarely decided the issue of what standard of review a district
court should apply to review of a magistrate’s detention order,
see Munchel, 2021 WL 1149196, at *5; courts in this district
have held, in line with courts across the country, that such
detention decisions are reviewed de novo. See United States v.
Hunt, 240 F. Supp. 3d 128, 132-33 (D.D.C. 2017) (referencing
cases from the Second, Third, Fourth, Fifth, Sixth, Seventh,
Eighth, Ninth, tenth, and Eleven Circuits that support this
proposition); see also Chrestman, 2021 WL 765662, at *5-*6. The
Bail Reform Act also provides that a detention hearing “may be
reopened . . . at any time before trial if the judicial officer
finds that information exists that was not known to the movant
at the time of the hearing and that has a material bearing on”
14
the Section 3142(g) factors. 18 U.S.C. § 3142(f); see also
United States v. Peralta, 849 F.2d 625, 626-27 (D.C. Cir. 1988).
Accordingly, the Court will review the decision to detain Mr.
Sabol de novo and will consider new information presented by Mr.
Sabol that he contends has a material bearing on the Court’s
evaluation of his flight risk and/or danger to the community.
III. Analysis
A. Mr. Sabol is Eligible for Pretrial Detention Pursuant to
18 U.S.C. § 3142(f)(1)(A)
As a threshold matter, the government correctly argues, and
Mr. Sabol does not dispute, that Mr. Sabol is eligible for
pretrial detention pursuant to 18 U.S.C. § 3142(f)(1)(A). See
Gov’t’s Opp’n, ECF No. 20 at 12. Under the Bail Reform Act,
unless a defendant poses a serious risk of flight or of
attempting to obstruct justice, he is only eligible for pretrial
detention if he is charged with an offense listed in one of the
five enumerated categories of Section 3142(f)(1)—i.e., “the most
serious” crimes. See 18 U.S.C. § 3142(f)(1)(A)-(B), (f)(2);
United States v. Singleton, 182 F.3d 7, 13 (D.C. Cir. 1999)
(“Congress limited pretrial detention of persons who are
presumed innocent to a subset of defendants charged with crimes
15
that are ‘the most serious’ compared to other federal offenses.”
(quoting United States v. Salerno, 481 U.S. 739, 747 (1987))).
The Court finds that Mr. Sabol is charged with a crime of
violence, which is the first category of crimes that makes a
defendant eligible for detention under Section 3142(f)(1). See
id. § 3142(f)(1)(A). As relevant here, a “crime of violence” is
either:
(A) an offense that has as an element of the
offense the use, attempted use, or threatened
use of physical force against the person or
property of another; [or] (B) any other
offense that is a felony and that, by its
nature, involves a substantial risk that
physical force against the person or property
of another may be used in the course of
committing the offense.
Id. § 3156(a)(4)(A)-(B). The Supreme Court, in interpreting the
definition of “crime of violence” under a different federal
criminal statute—18 U.S.C. § 924(e)(2)(B)(i)—has held that
“physical force” means “violent force—that is, force capable of
causing physical pain or injury to another person.” Johnson v.
United States, 559 U.S. 133, 140 (2010).
In this Circuit, courts identify crimes of violence on a
categorical basis by reference to the elements of the charged
offenses, rather than on a case-by-case basis through a fact-
intensive analysis of the defendant’s alleged conduct.
Singleton, 182 F.3d at 10-12. When employing the categorical
approach, whether a charged offense is a crime of violence under
16
Section 3142(f)(1)(A) is a question of law and is “ascertainable
by reference to [the crime’s] elements, either because these
elements entail the use of violence, see § 3156(a)(4)(A), or the
risk of violence, see § 3156(a)(4)(B).” Singleton, 182 F.3d at
12. Courts will employ a “modified categorical approach,”
looking at “a limited class of documents” such as the
indictment, if the statute at issue is “divisible”—that is, if
it defines multiple separate crimes. Mathis v. United States,
136 S.Ct. 2243, 2249 (2016).
Mr. Sabol is charged with, among other crimes, Assaulting,
Resisting, or Impeding Certain Officers Using a Dangerous
Weapon, in violation of 18 U.S.C. §§ 111(a)(1) and (b). See
Superseding Indictment, ECF No. 23 at 2. Subsection 111(a)(1)
provides that anyone who “forcibly assaults, resists, opposes,
impedes, intimidates, or interferes with any [designated federal
officer, or person assisting a designated federal officer] 5 while
engaged in or on account of the performance of official duties,”
is exposed to a maximum term of imprisonment of one year if the
violation constitutes simple assault or eight years if the
violation involves physical contact with the victim or the
intent to commit another felony. See 18 U.S.C. § 111(a)(1). 6 The
5 See 18 U.S.C. § 1114.
6 As relevant here, under Subsection 111(b), “the use of a deadly
or dangerous weapon [is] sufficient . . . to boost the crime
17
D.C. Circuit has determined that “the adverb ‘forcibly’ in the
first element of the offense modifies each of the prohibited
acts specified in the second element: that is, a defendant does
not violate the statute unless he forcibly assaults or forcibly
resists or forcibly opposes, etc.” United States. V. Arrington,
309 F.3d 40, 44 (D.C. Cir. 2002) (citing United States v.
Kleinbart, 27 F.3d 586, 592 (D.C. Cir. 1994)). Subsection 111(b)
increases the maximum term of imprisonment to 20 years for
anyone who “in the commission of any act described in subsection
(a), uses a deadly or dangerous weapon . . . or inflicts bodily
injury.” Id. § 111(b). When a defendant is charged under the
first prong of Section 111(b)—for use of a dangerous weapon—
“intent to use the weapon is a necessary element” of the
offense. See Arrington, 309 F. 3d at 45. Courts have observed
that to violate Section 111(b), a defendant “must have committed
one of the acts described in § 111(a), i.e., ‘forcibly
assault[ed], resisted[ed], oppose[d], impede[d], intimidate[d],
or interefere[d] with’ a [federal officer] in specified
circumstances;’ and “in committing the act,” either (a) “’use[d]
a deadly or dangerous weapon’” or (2) “’inflict[ed] bodily
above the level of ‘simple assault.’” United States v. Duran, 96
F.3d 1495, 1511 (D.C. Cir. 1996).
18
injury.’” Gray v. United States, 980 F.3d 264, 266 (2d Cir.
2020) (quoting 18 U.S.C. §§ 111(a)(1), (b)).
In consideration of the elements of these offenses, Section
3156(a)(4)’s definition of a crime of violence, and the relevant
case law, the Court concurs with numerous other courts in
holding that a defendant charged under 18 U.S.C. §§ 111(a)(1)
and (b) is charged with a crime of violence. 7 See Gray, 980 F.3d
at 266 (“[W]e hold that a § 111(b) offense is a categorical
crime of violence.”); United States v. Kendall, 876 F.3d 1264,
1270 (10th Cir. 2017) (“To determine if every violation of §
111(b) is a crime of violence, then, we need only determine
whether both an assault that causes bodily injury and an assault
with a deadly weapon involve the use, threatened use, or
attempted use of violent physical force. They both do.”); United
States v. Taylor, 848 F.3d 476, 492-493 (1st Cir. 2017) (“In
assessing whether the enhanced versions of § 111(b) are crimes
of violence, we do not write on a clean slate. In fact, every
7 In other cases brought in this district, the government has
taken the position that a Capitol Riot defendant charged only
under Section 111(a) is not charged with a crime of violence,
but a defendant charged under 111(a) and (b)—the “enhanced
version of the statute”—is charged with a crime of violence. See
United States v. Fitzsimmons, No. CR 21-158-KBJ, ECF No. 14 at 2
(D.D.C.). Here, Mr. Sabol is charged under both 111(a) and (b),
so the Court need not reach whether 111(a), on its own, triggers
a detention hearing under the “crime of violence” category of
3142(f).
19
court we are aware of that has considered the issue has found
that it is because the elements of the enhanced offense require
the use, attempted use, or threatened use of force capable of
causing pain or injury.”); United States v. Juvenile Female, 566
F.3d 943, 948 (9th Cir. 2009) (holding that an assault involving
a deadly or dangerous weapon under Section 111 “is,
categorically, a crime of violence”). A judicial colleague in
this district, Judge John D. Bates, recently reached the same
conclusion. See United States v. Klein, No. CR 21-236, ECF No.
29 at 7-12 (D.D.C. Apr. 12, 2021).
Accordingly, because using a deadly or dangerous weapon
while assaulting a federal officer (or, in this case, an MPD
officer assisting a federal officer) is a crime of violence, Mr.
Sabol is eligible for pretrial detention under 18 U.S.C. §
3142(f)(1)(A). 8
B. No Condition or Combination of Conditions Will Reasonably
Assure Mr. Sabol’s Appearance as Required and the Safety
of Any Other Person and the Community
Having found that Mr. Sabol is eligible for pretrial
detention, the Court must determine whether any “condition or
8 The government also argues that Mr. Sabol is eligible for
detention pursuant to 18 U.S.C. § 3142(f)(2) “because he is a
flight risk and there is a serious risk that he will obstruct or
attempt to obstruct justice.” Gov’t’s Opp’n, ECF No. 20 at 12.
The Court addresses Mr. Sabol’s risk of flight and attempt to
obstruct justice in Section III, Part B. But the Court need not
address these risks as a basis for Mr. Sabol’s eligibility for
20
combination of conditions will reasonably assure the appearance
of [Mr. Sabol] as required and the safety of any other person
and the community.” 18 U.S.C. § 3142(e)(1). With respect to the
danger Mr. Sabol presents to the safety of any other person and
the community, the Court “must identify an articulable threat
posed by the defendant to an individual or the community,”
though “[t]he threat need not be of physical violence, and may
extend to ‘non-physical harms such as corrupting a union.’”
Munchel, 2021 WL 1149196, at *7 (quoting United States v. King,
849 F.2d 485, 487 n.2 (11th Cir. 1988)). “The threat must also
be considered in context,” and “[t]he inquiry is factbound.” Id.(citing United States v. Tortora, 922 F.2d 880, 888 (1st Cir.
1990)). Mr. Sabol and the government agree that in determining
whether Mr. Sabol is a flight risk and/or danger to the
community, the Court considers the 18 U.S.C. § 3142(g) factors
including: (1) “the nature and circumstances of the offense
charged”; (2) “the weight of the evidence”; (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.” 18 U.S.C. §
pretrial detention, as a threshold matter, because he is
eligible for detention pursuant to 18 U.S.C. § 3142(f)(1)(A).
21
3142(g); see Def.’s Mot., ECF No. 17 at 3-4; Gov’t’s Opp’n, ECF
No. 20 at 12.
In considering these requisite factors, as set forth below,
the Court concludes that clear and convincing evidence supports
a finding that no condition or combination of conditions will
reasonably assure the safety of the community, and a
preponderance of the evidence supports a finding that no
condition or combination of conditions will reasonably assure
Mr. Sabol’s appearance as required. Accordingly, the Court
orders that Mr. Sabol remain detained pending trial. See 18
U.S.C. § 3142(e)(1)
1. Nature and Circumstances of the Offense
The first factor the Court must consider is the nature and
circumstances of the offense charged, “including whether the
offense is a crime of violence.” 18 U.S.C. § 3142(g)(1).
Mr. Sabol admits that he has been charged with forcibly
assaulting, resisting, opposing, impeding, intimidating, and
interfering with MPD Officer A.W., and he acknowledges that the
government alleges he struck Officer B.M. with a police baton.
See Def.’s Mot., ECF No. 17 at 4. At the April 8 hearing,
however, Mr. Sabol argued he never used the police baton as a
weapon as the government alleges. Hr’g Tr., ECF No. 53 at 6:24-
25, 7:21-22. As for the remaining counts in the indictment, Mr.
Sabol avers they “arise from this alleged conduct and Mr.
22
Sabol’s general presence outside of the U.S. Capitol on January
6th.” Def.’s Mot., ECF No. 17 at 4. While Mr. Sabol concedes that
“this alleged conduct is serious,” he argues that “it appears to
have arisen in the context of a hysterical throng” and took
place over a matter of mere seconds. Id.; Hr’g Tr., ECF No. 53
at 7:16-17. His attorney also contends that Mr. Sabol now
understands that his beliefs about the legitimacy of the 2020
Presidential Election were “misguided” and “wrong,” and he was
“lied to about the election being stolen.” Hr’g Tr., ECF No. 53
at 8:5-7. He was caught up inappropriately and made “some really
bad decisions,” he argues, in “the frenzy” of the events that
transpired on January 6, 2021, and by “things that were said to
the crowd of people by people like Roger Stone and Rudy Guiliani
and the President himself.” Id. at 8:7-15. He points out that
“[t]he President of the United States of America was telling
citizens something evil has happened and you all have to go fix
it.” Id. at 9:11-13.
Mr. Sabol also suggests that he may have been trying to
prevent his fellow rioters from attacking the MPD officers.
Def.’s Mot., ECF No. 17 at 3. Mr. Sabol alleged at the April 8
hearing that video evidence (showing events that transpired
about an hour before the attacks on Officers B.M. and A.W.)
shows him “waving his hands like a referee” and instructing
other rioters not to hurt law enforcement officers. See Hr’g
23
Tr., ECF No. 53 at 39:14-21, 38:12-17, 40:5-10. He argues that
these acts reveal his intentions and should inform the Court’s
interpretation of the later attacks on the MPD officers. Id. at
41:2-10. In addition, Mr. Sabol attaches to his motion character
letters from his friends and family members, which he argues
“indicate that any alleged violent conduct by Mr. Sabol would be
out of character for him.” Def.’s Mot., ECF No. 17 at 4.
The government, for its part, paints a grimmer picture of
the events the nation watched unfold at the U.S. Capitol on
January 6, 2021, and Mr. Sabol’s participation in those events.
The government emphasizes that during the “siege of the U.S.
Capitol, multiple law enforcement officers were assaulted by an
enormous mob, which included numerous individuals with weapons,
bulletproof vests, and pepper spray who were targeting the
officers protecting the Capitol.” Gov’t’s Opp’n, ECF No. 20 at
12. The government asserts that Mr. Sabol “was involved in some
of the most violent assaults on law enforcement that occurred”
that day, and for his active participation in the riots and the
attacks on MPD officers, he has been charged with “multiple
counts of violating 18 U.S.C. 111(a)(1) and (b) and 18 U.S.C.
231(a)(3), which are serious felony offenses.” Id.The government points the Court to Chief Judge Beryl
Howell’s recent decision concerning the appropriateness of
pretrial detention for another participant in the January 6
24
events at the U.S. Capitol (a “Capitol Riot defendant”) for an
articulation of how the Court should evaluate the nature and
circumstances of offenses arising from the events that
transpired that day:
Grave concerns are implicated if a defendant
actively threatened or confronted federal
officials or law enforcement, or otherwise
promoted or celebrated efforts to disrupt the
certification of the electoral vote count
during the riot, thereby encouraging others to
engage in such conduct. These factors measure
the extent of a defendant’s disregard for the
institutions of government and the rule of
law, qualities that bear on both the
seriousness of the offense conduct and the
ultimate inquiry of whether a defendant will
comply with conditions of release meant to
ensure the safety of the community.
Id. at 13 (quoting Chrestman, 2021 WL 765662, at *8). The
government argues that Mr. Sabol did not just “actively
threaten[] or confront[] federal officials or law enforcement,”
but that he assaulted MPD officers, impeded their ability to do
their job, and interfered with their ability to help a protestor
who had been trampled and injured by the crowd. Id. Moreover,
Mr. Sabol participated in the riots with the express intent of
protesting the results of the 2020 Presidential Election, and he
then “acted on his beliefs that the 2020 election was fraudulent
and engaged in multiple violent assaults . . . on the law
enforcement officers trying to protect Congress’s certification
of the 2020 Presidential election.” Id. at 13-14. As a result of
25
Mr. Sabol’s actions, the government asserts, Officer A.W. needed
staples to his head “to close the laceration he sustained during
the cumulative assaults he endured,” and he and Officer B.M.
“could have easily been seriously injured, if not killed.” Id.
at 14. And in fact, someone was killed. The protestor who had
been trampled by the mob, who the government alleges Officers
A.W. and B.M. were trying to aid when Mr. Sabol interfered and
attacked them, later died from her injuries. Id.Regarding Mr. Sabol’s prior statements to law enforcement
in which he claimed he was only patting Officer B.M. on the back
and saying “we got you,” the government counters by referencing
BWC video footage that purportedly shows Mr. Sabol held a baton
to the back of Officer B.M.’s neck while he had another hand on
his back “as he dragged Officer B.M., face down into the crowd,
away from the outstretched arms of Officer B.M.’s colleagues who
were trying to help Officer B.M.” Id. at 13. The government
argues that Mr. Sabol went to the U.S. Capitol on January 6 th
“ready for a fight.” Id. He equipped himself with a helmet,
steel-toe boots, zip ties, and a radio and ear piece. Id. at 3.
Once he was at the U.S. Capitol, Mr. Sabol “ran to the front
lines of the ‘battle’ . . . [s]tole the baton from an officer
who had already been attacked and knocked to the ground by one
26
of Sabol’s fellow rioters, . . . [and] proceeded to use that
stolen baton to assault” Officer B.M. Id. at 12-13.
The gravity of Mr. Sabol’s offenses is undeniable, and the
Court is persuaded that the nature and circumstances of the
offenses weigh in favor of his continued pretrial detention. To
start, the gravity of the conduct that occurred at the U.S.
Capitol on January 6, 2021 cannot be understated. Judge Randolph
Moss summarized the day’s events powerfully:
[The defendant] and hundreds of others took
over the United States Capitol; caused the
Vice President of the United States, the
Congress, and their staffs to flee the Senate
and House Chambers; engaged in violent attacks
on law enforcement officers charged with
protecting the Capitol; and delayed the solemn
process of certifying a presidential election.
This was a singular and chilling event in U.S.
history, raising legitimate concern about the
security—not only of the Capitol building—but
of our democracy itself.
United States v. Cua, No. 21-107 (RDM), 2021 WL 918255, at *3
(D.D.C. Mar. 10, 2021). Nonetheless, and despite the serious and
chilling nature of the events that took place that day, the D.C.
Circuit has made clear that detention is not appropriate in all
cases involving Capitol Riot defendants. Munchel, 2021 WL
1149196, at *8. The Court considers the specific offenses with
which each defendant is charged and the conduct underlying those
offenses. Chrestman, 2021 WL 765662, at *7. The Court must
“adequately demonstrate that it considered whether [Mr. Sabol]
27
pose[s] an articulable threat to the community in view of [his]
conduct on January 6, and the particular circumstances of
January 6.” Munchel, 2021 WL 1149196, at *8. To aid in this
consideration, Chief Judge Howell has articulated “guideposts”
for assessing “the comparative culpability of a given defendant
in relation to fellow rioters.” Id. The Court finds these
guideposts persuasive for the purpose of differentiating among
Capitol Riot defendants: (1) whether the defendant has been
charged with felony or misdemeanor offenses; (2) the extent of
the defendant’s prior planning, “for example, by obtaining
weapons or tactical gear”; (3) whether the defendant used or
carried a dangerous weapon; (4) evidence of coordination with
other protestors before, during, or after the riot; (5) whether
the defendant played a leadership role in the events of January
6, 2021; and (6) the defendant’s “words and movements during the
riot”—e.g., whether the defendant “remained only on the grounds
surrounding the Capitol” or stormed into the Capitol interior,
or whether the defendant “injured, attempted to injure, or
threatened to injure others.” Id. at *7-*8. These factors,
“[t]aken together, as applied to a given defendant, . . . are
probative of ‘the nature and circumstances of the offense
charged,’ 18 U.S.C. § 3142(g)(1), and, in turn, of the danger
28
posed by the defendant,” as relevant to the fourth Section
3142(g) factor. Id. at *9.
Four of the six Chrestman factors strongly support a
finding that Mr. Sabol’s comparative culpability in relation to
his fellow rioters is high. First, Mr. Sabol has been charged
with multiple felonies. See Superseding Indictment, ECF No. 23.
“Felony charges are by definition more serious than misdemeanor
charges; the nature of a felony offense is therefore
substantially more likely to weigh in favor of pretrial
detention than the nature of a misdemeanor offense.” Chrestman,
2021 WL 765662. Moreover, Section 3142(g)(1) specifically
directs the Court to consider whether a defendant has been
charged with a crime of violence, and at least one of the
charged felonies—using a deadly weapon while assaulting an MPD
officer who was assisting federal officials protect the U.S.
Capitol—is a crime of violence. See supra Section III, Part A.
Second, Mr. Sabol engaged in prior planning that suggests
his assaultive conduct and civil disorder did not merely arise
“in the context of a hysterical throng,” as Mr. Sabol claims.
See Def.’s Mot., ECF No. 17 at 4. When Mr. Sabol went to the
U.S. Capitol, he believed the 2020 Presidential Election had
been stolen from former-President Trump and that the election
results confirming that President Biden had won were fraudulent.
See Gov’t’s Opp’n, ECF No. 20 at 14. He brought tactical gear,
29
including a helmet, steel-toe boots, zip ties, a radio and an
ear piece. Id. at 3. He later admitted to law enforcement that
he had equipped himself with this gear because he anticipated
encountering counter-protesters. See id. at 3. He also
maintained, even days after the riot when he believed he was
wanted by the FBI, that he had been “fighting tyranny in the
D.C. Capitol.” Id. at 10. 9 As was true of a similarly-situated
fellow rioter in Chrestman, this amount of prior planning and
intentionality “suggests that he was not just caught up in the
frenzy of the crowd, but instead came to Washington, D.C. with
9 At the April 8 hearing, Mr. Sabol’s counsel emphasized that the
helmet and steel-toe boots that Mr. Sabol brought to the U.S.
Capitol are irrelevant to the dangerousness analysis because Mr.
Sabol did not intend to fight with the government or stop
democracy, he only wore that gear because he thought counter-
protesters would be present at the rallies. See Hr’g Tr., ECF
No. 53 at 11:12-20. But whether Mr. Sabol arrived prepared to
engage in violence against the government or against counter-
protesters is a distinction that is of little significance when
evaluating the danger he poses to the community. The Court is
also not persuaded by Mr. Sabol’s argument that his zip ties and
two-way radio should not be considered as part of the Court’s
analysis of the Chrestman prior-planning factor because the zip
ties were only “little wire cable ties that he carries with him
everywhere he goes”—not like the type of zip ties used to
restrain people—and the two-way radio was not intended to be
used in a coordinated way with fellow rioter, and it did not
work in any event. See Hr’g Tr., ECF No. 53 at 11:21-13:5.
Regardless of the opponent, and despite his claims that certain
tactical gear had alternative uses, Mr. Sabol’s own admissions
reveal that he planned and prepared for a fight against
perceived tyranny and then did in fact engage in violence
against law enforcement officers protecting the U.S. Capitol on
January 6, 2021, and the Court is not persuaded that the
tactical gear was not brought for that purpose.
30
the intention of causing mayhem and disrupting the democratic
process, mandated under the U.S. Constitution, of counting and
certifying Electoral College votes.” Chrestman, 2021 WL 765662,
at *8 (citing U.S. Const. art. II, § 1, cl. 3). This prior
planning also differentiates Mr. Sabol from fellow rioters who
are not being detained pretrial, like Mr. Frederico Klein who
Judge Bates recently released. See Klein, No. CR 21-236, ECF No.
29 at 13-14 (considering that Mr. Klein did not carry any items
that evinced an expectation that the need to engage in violence
might arise, and a witness testified that she was unaware of Mr.
Klein having any plans for violence while attending the “Stop
the Steal” rally outside the White House). The Court is
ultimately unpersuaded by Mr. Sabol’s argument that he did not
plan to commit violence or disrupt the electoral process on
January 6, 2021, but rather was caught up in the “frenzy” that
was created in part by then-President Trump’s, and his
associates’, words and actions. See Hr’g Tr. ECF No. 53 at 8:5-
15.
To be sure, to what extent President Trump’s words and
actions led to the violent and shocking storming of the U.S.
Capitol on January 6, 2021 is an important question, and one
that could still have legal consequences for the former
President and his prominent supporters. See Thompson v. Trump,
No. 21-cv-400-APM (D.D.C.) (civil lawsuit against President
31
Trump, Rudy Giuliani, Proud Boys International LLC, and Oath
Keepers alleging violations of the Ku Klux Klan Act for
“plot[ing], coordinat[ing], and execut[ing] a common plan to
prevent Congress from discharging its official duties in
certifying the results of the presidential election”). But
President Trump’s culpability is not before this Court. To the
extent Mr. Sabol raises this issue to suggest he has a complete
defense to the criminal charges he faces based on President
Trump ostensibly or actually giving the rioters permission to
use violence to interfere with the peaceful transition of power,
that argument fails for the reasons clearly and thoughtfully
articulated by Chief Judge Howell in Chrestman. 2021 WL 765662,
at *10-*14. Indeed, “even if former President Trump in fact
. . . ‘told the assembled rabble what they must do’ (i.e.,
attack the Capitol and disrupt the certification of the
electoral vote count) and ‘ratified their actions,’ . . . he
acted ‘beyond [his] power’ as President, . . . and his
statements would not immunize defendants charged with offenses
arising from the January 6 assault on the Capitol from criminal
liability.” Id. at *13. If, on the other hand, Mr. Sabol raises
this issue not as a complete defense but rather in an attempt to
show that he is not a danger to his community because he did not
plan to participate in a violent attack on the U.S. Capitol and
only did so because President Trump directed him and other
32
members of the crowd to do so that day, that argument also
fails. As Judge Royce Lamberth explained, even if a Capitol Riot
defendant “truly believes that the only reason he participated
in an assault on the U.S. Capitol was to comply with President
Trump’s orders, this shows defendant’s inability (or refusal) to
exercise his independent judgment and conform his behavior to
the law. These are not qualities of a person who can be trusted
on conditional release.” United States v. Chansley, No. 21-cr-3
(RCL), 2021 WL 861079, at *10 (D.D.C. Mar. 8, 2021). This same
rationale applies, with even greater force, if Mr. Sabol was not
acting out of a perceived need to comply with the President’s
orders but rather because he was simply “caught up
inappropriately in the moment.” See Hr’g Tr., ECF No. 53 at
8:13-14.
Third, Mr. Sabol used a dangerous weapon, a police baton,
during the riot. Although he did not bring the baton with him to
the U.S. Capitol and claims he did not use it as a weapon once
he acquired it there, the fact that he took the weapon from a
vulnerable MPD officer and subsequently wielded it while helping
drag another officer into the violent mob where he sustained
prolonged beatings is sufficient for the Court to find that this
factor weighs against Mr. Sabol. Mr. Sabol admits that he
obtained the weapon after a “call to battle was announced.”
Gov’t’s Opp’n, ECF No. 20 at 11. In view of Mr. Sabol’s
33
admission that he “answered the call [to battle] because he was
a patriot warrior,” see id., and considering the context of the
moment at which Mr. Sabol snatched the baton from Officer A.W.—
as the officer was laying on his back in the midst of a brutal
physical assault from other rioters with little more than that
baton to protect himself, see Officer A.W. BWC Video Footage,
Ex. 2 to Gov’t’s Opp’n at 00:22 to 00:25—Mr. Sabol cannot
plausibly maintain that he stole the baton for any reason other
than to arm himself for “battle.” Even if he believed that the
“battle” was started by Antifa as the “perfect set-up,” see
Gov’t’s Opp’n, ECF No. 20 at 3; the Court is persuaded that he
forcibly took Officer A.W.’s baton to injure or intimidate
others—whether it was Antifa, law enforcement, members of
Congress, or anyone else he viewed as his enemy. Mr. Sabol even
admits that it was “evil” that made him snatch the baton. Id. at
10. Then, Mr. Sabol wielded the baton in one hand as he pushed
Officer B.M. down the U.S. Capitol steps with his other hand,
helping co-defendant Mr. Jack Wade Whitton feed the officer to
the crowd of rioters. See Storyful Video Footage, Ex. 3 to
Gov’t’s Opp’n at 00:14-00:22. During this encounter, Officer
B.M. was lying face-down, and Mr. Sabol held the baton against
the back of the officer’s neck and back. Id. The video evidence
may not show Mr. Sabol striking the officer with the baton, but
it certainly shows him using it during this violent encounter.
34
Mr. Sabol’s willingness to strip a vulnerable law enforcement
officer of his weapon so he could use it to forcibly push
another officer into a violent mob speaks to the gravity of the
offenses with which he has been charged as well as the danger he
poses not just to his community, but to the American public as a
whole. See Chrestman, 2021 WL 765662, at *8.
Fourth, Mr. Sabol’s words and movements during the riot
indicate he acted deliberately and dangerously. In charging him
under 18 U.S.C. §§ 111(a)(1) and (b), the grand jury charges Mr.
Sabol with using a “deadly or dangerous weapon, that is, a
baton, . . . to forcibly assault, resist, oppose, impede,
intimidate, and interfere with” Officer B.M. while he was
protecting the U.S. Capitol from violent rioters, many of whom
were attempting to subvert a democratic election and prevent the
peaceful transition of power. See Superseding Indictment, ECF
No. 23 at 2. “It cannot be gainsaid that the violent breach of
the [U.S.] Capitol on January 6 was a grave danger to our
democracy, and that those who participated could rightly be
subject to detention to safeguard the community.” See Munchel,
2021 WL 1149196, at *8. For purposes of evaluating a Capitol
Riot defendant’s dangerousness, the D.C. Circuit has drawn a
distinction between Capitol Riot defendants who, like Mr. Sabol,
engaged in violence at the U.S. Capitol on January 6, 2021, and
those who, like the defendants in Munchel, did not. See Munchel,
35
2021 WL 1149196, at *8 (“[T]hose [rioters] who actually
assaulted police officers and . . . those who aided, conspired
with, planned, or coordinated such actions, are in a different
category of dangerousness than those who cheered on the violence
or entered the Capitol after others cleared the way.”). In
Munchel, two Capitol Riot defendants had appealed the district
court’s detention decision, and the D.C. Circuit remanded the
case for further consideration of the defendants’ dangerousness.
Id. In so doing, the D.C. Circuit emphasized that the record
lacked evidence that the defendants committed any violence or
vandalized any property. Id. In comparison, “[g]rave concerns”
are implicated by Mr. Sabol’s conduct, which included using
physical force to strip Officer A.W. of his police baton,
assisting other rioters in pulling Officer B.M. into the mob,
and assaulting Officer B.M. with the baton he had stolen from
Officer A.W. See Gov’t’s Opp’n, ECF No. 20 at 13 (citing
Chrestman, 2021 WL 765662, at *8). This conduct sets him apart
from other rioters who engaged with law enforcement but have
been granted pretrial release. See, e.g., Klein, No. CR 21-236,
ECF No. 29 at 16, n.8 (distinguishing Mr. Klein’s actions from
rioters who “clearly sought to incapacitate and injure members
36
of law enforcement,” identifying Mr. Sabol specifically in that
comparison).
To the extent Mr. Sabol maintains that he was attempting to
help, not hurt, Officer B.M. when he joined other rioters in
pulling the officer down the U.S. Capitol steps and into the mob
while holding the stolen baton against the back of his neck, the
evidence tells a different story. The Court has reviewed the
chilling video footage provided by the government and Mr. Sabol.
The government’s Exhibit 3 is a one-minute, 41-second clip of a
video posted by Storyful to YouTube. 10 In the video, a person in
a tan jacket wearing a green backpack and a dark helmet is seen
moving quickly up the U.S. Capitol steps through the large,
screaming crowd as rioters at the top of the steps are swinging
objects including a crutch and a hockey stick toward law
enforcement gathered under the U.S. Capitol’s western terrace
archway. Storyful Video Footage, Ex. 3 to Gov’t’s Opp’n at
00:01-00:08. Mr. Sabol has confirmed to law enforcement that he
is that person. See Gov’t’s Opp’n, ECF No. 20 at 11. When Mr.
Sabol reaches the top of the steps, he then reaches toward the
ground before falling backwards down a few steps with a black
baton in his left hand. Storyful Video Footage, Ex. 3 to Gov’t’s
10Available at Storyful Rights Management, Pro-Trump Protesters
Beat Police Officer Protecting Capitol Entrance, YouTube (Jan.
10, 2021), https://www.youtube.com/watch?v=aEGthdTzedk.
37
Opp’n at 00:08-00:11. A few seconds later, another rioter at the
top of the steps wearing a grey backpack and white ball cap, who
has now been identified as Mr. Sabol’s co-defendant Mr. Jack
Wade Whitton, appears to begin forcefully pulling an officer,
who is on the ground at that point, away from the archway and
into the mob. Id. at 00:14-00:19. Mr. Sabol seems to observe
this, and he moves back up the steps and joins Mr. Whitton in
dragging Officer B.M. face-first down the U.S. Capitol steps and
away from the other officers as rioters continue to relentlessly
swing and throw objects at the officers in the archway and at
Officer B.M. on the ground, all while members of the large crowd
yell and chant “U-S-A, U-S-A.” Id. at 00:14-00:22. Mr. Sabol can
be seen using his left hand to push Officer B.M. down the steps
while he is bending over the officer and holding the black baton
in his right hand against the officer’s back and neck. Id.; see
also Ex. 4 to Gov’t’s Opp’n, ECF No. 20 at 5. Seconds later,
another rioter repeatedly slams what appears to be a wooden
flagpole bearing the American flag toward the ground where
Officer B.M. seems to be laying, now in the middle of the crowd
on the steps. See Storyful Video Footage, Ex. 3 to Gov’t’s
Opp’n, at 00:23-00:28. The government’s Exhibit 5A is a clip
from Officer C.M.’s BWC video footage that shows some of these
events from a different angle. Officer C.M. BWC Video Footage,
Ex. 5A to Gov’t’s Opp’n. In the video, officers gather under the
38
archway seemingly trying to fend off the throng of violent
protesters who are attacking them. Id. About halfway through the
clip, co-defendant Mr. Whitton is seen grabbing an officer’s
head and lurching him forward over another officer who is laying
on the ground. Id. at 00:33-00:35. The government proffers that
those officers are B.M. and A.W., respectively. See Gov’t’s
Opp’n, ECF No. 20 at 5-6. Mr. Sabol comes into the frame at
about 35 seconds into the video. See Officer C.M. BWC Video
Footage, Ex. 5A to Gov’t’s Opp’n at 00:35; see also Ex. 5B to
Gov’t’s Opp’n, ECF No. 20 at 6. Although the events unfold
quickly, and the image of Mr. Sabol is choppy and occasionally
blocked as Officer C.M. appears to be jostled around and other
officers block the frame, Mr. Sabol can be seen helping push
Officer B.M. down the U.S. Capitol steps while holding the black
baton against Officer B.M.’s back and neck. Officer C.M. BWC
Video Footage, Ex. 5A to Gov’t’s Opp’n at 00:35-00:37.
The video evidence that Mr. Sabol submits to cast doubt on
the nefariousness of his conduct during Officer B.M.’s violent
attack is unconvincing, at least as it pertains to the Court’s
consideration of the nature and circumstances of the charged
offenses and Mr. Sabol’s request for pretrial release. Mr. Sabol
offers a one-minute, 36-second video of unknown origin as
Exhibit 2 to his motion. Video Footage, Ex. 2 to Def.’s Mot.,
ECF No. 17-2. He points out that “a voice can be heard” in the
39
video “urging others to not attack officers.” Def.’s Mot., ECF
No. 17 at 3. An unnamed “witness” who “has known Mr. Sabol for
over 10 years . . . says the voice in the video is that of Mr.
Sabol.” Id. At the April 8 hearing, Mr. Sabol also introduced a
second video exhibit that shows Mr. Sabol waving his hands
horizontally, in what he contends is a gesture a referee might
make to indicate action needed to stop, as other members of the
mob appear to be attacking law enforcement officers. See Hr’g
Tr. 40:5-11. In light of Mr. Sabol’s exhibits, he argues “the
government’s video is ambiguous as to whether the individual in
the video believed himself to be helping, rather than harming,
the officer B.M.” Def.’s Mot., ECF No. 17 at 3.
The Court is not persuaded. The Court’s review of the first
video reveals that Mr. Sabol’s unnamed “witness” appears to be
mistaken in believing that the voice in the video heard telling
rioters not to attack the cops is Mr. Sabol’s. A person begins
saying “Don’t hurt the police” around 30 seconds into the video
clip. Video Footage, Ex. 2 to Def.’s Mot., ECF No. 17-2 at
00:30. At that point, Mr. Sabol is about three or four rows of
people away from the person who is filming. Id. He appears to be
moving forward further into the crowd toward the officers and is
positioned above other rioters, suggesting he is on a step or
other raised surface. Id. Seconds before a voice is heard
calling for other rioters not to hurt the police, a hand enters
40
the immediate foreground of the video holding a white Pyle
megaphone. Id. at 00:25. The megaphone is passed to a man
wearing a red shirt who is positioned right in front of the
person who is filming. Id. From there, it seems the man in the
foreground with the microphone wearing a red shirt, who is not
Mr. Sabol, is the person who repeatedly says “don’t hurt the
cops,” while a female voice also yells “don’t hurt the cops” and
“stop it.” Id. at 00:30-00:50. The second video does depict Mr.
Sabol waving his hands horizontally, as Mr. Sabol argues, but
there are no discernable statements made by Mr. Sabol in the
video that reveal what this gesture meant in the context of the
mob attacks on law enforcement. Moreover, the government avers
that the videos depict events that occurred approximately one
hour before the attacks on Officers B.M. and A.W., meaning that
even if the Court accepts Mr. Sabol’s interpretation of the
events that transpired at that time, the assaults on law
enforcement for which Mr. Sabol is charged occurred an hour
later. Mr. Sabol’s video evidence is therefore ineffective in
countering the government’s proffer of video evidence that
depicts conduct intended to harm, rather than help, the MPD
officers, including: (1) taking Officer A.W.’s police baton by
force while the officer was laying on the ground after having
been attacked by other rioters, see Officer A.W. BWC Video
Footage, Ex. 2 to Gov’t’s Opp’n; and (2) helping drag Officer
41
B.M. away from his fellow officers and into the mob by using his
left hand to push Officer B.M. down the steps while bending over
him and holding Officer A.W.’s baton in his right hand against
Officer B.M.’s back and neck. See Storyful Video Footage, Ex. 3
to Gov’t’s Opp’n at 00:14-00:22; Still Photo, Ex. 4 to Gov’t’s
Opp’n, ECF No. 20 at 5; Officer C.M. BWC Video Footage, Ex. 5A
to Gov’t’s Opp’n at 00:35-00:37; Still Photo, Ex. 5B to Gov’t’s
Opp’n, ECF No. 20 at 6.
Finally, while Mr. Sabol’s friends and family believe that
this violent conduct is “out of character for him,” see Def.’s
Mot., ECF No. 17 at 4; those views expressed in character
letters supporting Mr. Sabol, no matter how credible or
persuasive, do not change the nature and circumstances of the
offenses the grand jury has charged him with. The fact is that
the grand jury determined that Mr. Sabol’s conduct at the U.S.
Capitol on January 6, 2021 supported not only charges for civil
disorder, disorderly and disruptive conduct, and violent entry
and disorderly conduct, but also assault on a federal officer
with a deadly weapon. See Superseding Indictment, ECF No. 23.
The two remaining Chrestman factors—evidence of
coordination with other rioters and whether the defendant
assumed a leadership role in the assault—do not appear to be
implicated in this case. The government has not proffered any
evidence of Mr. Sabol communicating before, during, or after the
42
riot with anyone else in an attempt to amplify or assure the
success of the U.S. Capitol breach. And while Mr. Sabol
voluntarily admitted that when he arrived at the U.S. Capitol on
January 6, 2021, he sought to be on the front line of the
“battle,” see Gov’t’s Opp’n, ECF No. 20 at 3; the government has
not proffered any evidence that suggests Mr. Sabol urged other
rioters to advance on the U.S. Capitol or attack law
enforcement, other than his conduct, which arguably was leading
by example.
Nonetheless, in view of all of these considerations, the
Court is convinced that the nature and circumstances of Mr.
Sabol’s offenses evince a clear disregard for the law, an
aversion to the fundamental ten ts of our democracy, and a
willingness to act violently when he believes he is “fighting
tyranny,” all of which indicate that he poses a danger to the
community. See Chrestman, 2021 WL 765662, at *9. Accordingly,
this factor weighs heavily in favor of detention on the basis
that no condition or combination of conditions will reasonably
assure the safety of the community. 18 U.S.C. § 3142(e)(1); 18
U.S.C. § 3142(g)(1). Likewise, in view of the substantial term
of imprisonment to which Mr. Sabol is exposed for his offenses,
this factor also weighs in favor of Mr. Sabol’s continued
detention on the basis that no condition or combination of
43
conditions will reasonably assure Mr. Sabol’s appearance as
required. Id.; see also Chansley, 2021 WL 861079, at *14.
2. Weight of the Evidence Against the Defendant
The second factor the Court must consider is the weight of
the evidence against Mr. Sabol. 18 U.S.C. § 3142(g)(2).
As discussed supra Section III, Part B.1, Mr. Sabol submits
video evidence that he believes lessens the effectiveness of the
government’s evidence against him. Video Footage, Ex. 2 to
Def.’s Mot., ECF No. 17-2. He argues that these videos cast
doubt as to whether he “believed himself to be helping, rather
than hurting, the officer B.M.” in the videos proffered by the
government. Def.’s Mot., ECF No. 17 at 4.
The government, on the other hand, has proffered video
evidence, cell phone evidence, physical evidence recovered from
Mr. Sabol’s vehicle, and testimonial evidence from Mr. Sabol
himself in support of the charged offenses. The government
describes the video evidence—Exhibits 2, 3, and 5A to the
government’s opposition—as “objective and unwavering.” Gov’t’s
Opp’n, ECF No. 20 at 14. The video evidence, according to the
government, “shows precisely how [Mr.] Sabol stole Officer
A.W.’s baton, and then dragged Officer B.M. into the violent
crowd.” Id. Cell phone records “corroborate the defendant’s
presence near the U.S. Capitol.” Id. Physical evidence recovered
from Mr. Sabol’s vehicle includes Mr. Sabol’s green backpack and
44
tan Carhartt jacket that he is seen wearing in the video
exhibits during the attacks on the MPD officers. Id. Mr. Sabol
also confirmed to law enforcement that he is the person in the
video footage wearing that attire, and he confirmed that he took
the baton of an officer who was laying on the ground. Id. The
government contends that Mr. Sabol’s “self-serving statements
that he was trying to help officers” is shown by the video
evidence to “clearly not [be] the case.” Id.
For the reasons discussed more fully supra Section III,
Part B.1, video footage clearly shows Mr. Sabol using physical
force against Officer A.W. and physical force with a dangerous
weapon against Officer B.M. in a manner that is inconsistent
with Mr. Sabol’s suggestion that he intended to help the
officers. The government also confirmed Mr. Sabol’s presence at
the U.S. Capitol during the January 6, 2021 riots with cell
phone records, and Mr. Sabol admitted he was present and
identified himself to law enforcement as the person wearing a
tan jacket, dark-colored helmet, and green backpack in the
government’s video and still photo exhibits. See Gov’t’s Opp’n,
ECF No. 14 at 11, 14. Law enforcement recovered the jacket and
backpack from Mr. Sabol’s vehicle. Id. at 10, 14. And Mr. Sabol
made numerous admissions to law enforcement that not only
corroborate his presence at the U.S. Capitol and involvement in
the assaults, but that shed light on his frame of mind and
45
motives. See id. at 3, 10-11 (proffering that Mr. Sabol told law
enforcement officers that (1) there was no question the 2020
Presidential Election was stolen; (2) he “was fighting tyranny
in the D.C. Capitol”; (3) during the riot, a “call to battle”
was announced, and he “answer the call because he was a patriot
warrior”; (4) it was “evil” that took the baton from Officer
A.W. during the attack; and (5) he could not recall if he hit
Officer B.M. with the stolen police baton because he was in a
fit of rage).
In consideration of the strength of the government’s
evidence against Mr. Sabol and the lack of evidence presented to
corroborate Mr. Sabol’s self-serving statements that he did not
intend to harm MPD officers during the siege on the U.S.
Capitol, the Court finds that the second 18 U.S.C. § 3142(g)
factor weighs against Mr. Sabol and in favor of his continued
pretrial detention on the basis that no condition or combination
of conditions will reasonably assure the safety of the
community, see Chrestman, 2021 WL 765662, at *10; and on the
basis that no condition or combination of conditions will
reasonably assure Mr. Sabol’s appearance as required, see
Chansley, 2021 WL 861079, at *14 (“The overwhelming weight of
46
the evidence may further prompt defendant to flee and thus
weighs in favor of pre-trial detention.”).
3. The History and Characteristics of the Defendant
Under the third factor, the Court must consider Mr. Sabol’s
history and characteristics. 18 U.S.C. § 3142(g)(3). The Court
considers Mr. Sabol’s “character, physical and mental condition,
family ties, employment, financial resources, length of
residence in the community, community ties, past conduct,
history relating to drug or alcohol abuse, criminal history, and
record concerning appearance at court proceedings,” 18 U.S.C. §
3142(g)(3)(A); and “whether, at the time of the current offense
or arrest, [Mr. Sabol] was on probation, on parole, or on other
release, Id. § 3142(g)(3)(B).
Here, Mr. Sabol relies heavily on the character letters
submitted to the Court by his friends and family. Mr. Sabol
points out that his friends and family “say he is a peaceful and
nonviolent person” and he is a “responsible person who has
strong support from his friends and family.” Def.’s Mot., ECF
No. 17 at 4. Those who wrote letters in support of Mr. Sabol’s
release expressed surprise at the allegations against Mr. Sabol,
and they “indicate that it would be an aberration at the very
least,” for probable cause for these offenses to exist. Id. at
4-5. In addition, Mr. Sabol has strong community ties in both
New York and Colorado—his family resides in New York, and he and
47
his long-time girlfriend live in Colorado. Id. at 4. Mr. Sabol
asserts that he “volunteers in his community” and “takes an
active role in his community by helping neighbors and friends
when they need it.” Id. Mr. Sabol has three children, and he
states that he is “close with his family.” Id. at 5. Mr. Sabol
also has steady employment. He is a Senior Geophysical Manager
at a company at which he has been employed for over six years,
and before that he worked for two other companies for a combined
total of 14 years. Id. Mr. Sabol is 51 years old. Id. Finally,
he contends at “[a]t the time of his arrest, [he] had reached a
mental breaking point,” but he “has recovered from the episode
and is focused on resolving this case responsibly.” Id.
The government acknowledges that many letters of support
have been written on Mr. Sabol’s behalf and that Mr. Sabol does
not have a criminal history. Gov’t’s Opp’n, ECF No. 20 at 15.
However, the government returns to Mr. Sabol’s actions on
January 6, 2021, and in the days thereafter. “[T]he defendant’s
actions, as demonstrated by his apparent willingness to prepare
for and engage in what he perceived to be a battle, weigh
against his release,” the government argues. Id. The government
contends that he engaged in this violent behavior, which
included assaulting police officers, because he did not believe
the results of the 2020 Presidential Election were valid, and
“[i]f released, [he] would have even more opportunities to
48
unleash violence against those in ‘battle’ against him.” Id.
Moreover, the government points out that Mr. Sabol has already
admitted to “succeed[ing] in destroying evidence and asked
others to delete incriminating videos he made,” and that he
would have more opportunities to “obstruct the proceedings
against him” in this manner if he were released. Id.
In consideration of all pertinent information presented by
the parties concerning Mr. Sabol’s history and characteristics,
the Court is persuaded that this factor weighs against Mr. Sabol
and in favor of his continued pretrial detention. The Court
agrees with the government that Mr. Sabol’s willingness to act
violently during what he perceived to be a “battle” and a fight
against tyranny is extremely troubling. See Gov’t’s Opp’n, ECF
No. 20 at 15. That he acted violently against law enforcement
protecting the peaceful transition of power based on a belief
that the 2020 Presidential Election was stolen is also very
alarming. Id. This recent conduct indeed raises concerns about
Mr. Sabol’s character and the danger Mr. Sabol may present to
the community if he were released. See Chrestman, 2021 WL
765662, at *14.
To Mr. Sabol’s credit, however, his friends and family
appear to think very highly of his character, and their letters
asking for his release from custody are both credible and
persuasive. See Character Letters, Ex. 1 to Def.’s Mot., ECF No.
49
17-1. Thirty family members and individuals were willing to
write letters on Mr. Sabol’s behalf, which is indicative of Mr.
Sabol’s ability to establish and maintain strong, meaningful
relationships. The letters also demonstrate that Mr. Sabol’s
social circle includes individuals with political viewpoints
different than his own, as well as a law enforcement officer,
former military officers, and a practicing attorney working for
a federal government agency. Despite the nature and
circumstances of his charges, these individuals were willing to
write letters to the Court on his behalf. See ECF No. 17-2 at 6-
7, 9, 11, 20, 31. As Mr. Sabol points out, many of the people
who wrote letters expressed their surprise that Mr. Sabol could
have engaged in the type of conduct with which he has been
charged because it is inconsistent with his peaceful and
nonviolent nature and his respect for law enforcement. See,
e.g., id. at 2 (“Never would I characterize Jeff as someone who
would hurt others. Never. He is the peacekeeper. He is that guy
who steps in and breaks up a fight, not the participant. The
events, of January 6 are completely inconsistent with Jeff and
how he has lived his life.”); 4 (“He is the most honest,
peaceful, non violent person I have ever met. He is loving,
giving, and always willing to help others.”); 10 (“When I heard
the news . . . I was in shock. The Jeff Sabol that I know is not
a violent man or an instigator at all.”); 11 (“His respect for
50
both law enforcement and our military have always been not just
laudable, but exemplary.”); 18 (“Never in the years that I have
known him have I ever heard Jeff talk about starting violence .
. . We have all seen videos from January 6th and I cannot
imagine the friend I volunteered with participating in that
violence.”); 20 (“I cannot explain his presence at the Capitol
on January 6, and I disagree strongly with the notion that the
2020 presidential election was ‘stolen,’ but Jeff is—without
exaggeration—the last person I would expect to harm a police
officer.”); 31 (“The portrayal of Jeff by the media is
inconsistent with the good moral character of the Jeff I know.
Of all people, I understand the seriousness of this incident,
especially as it relates to my Brother’s in Blue; however, I
hope the court will show some leniency on Jeff Sabol.”).
The letters also confirm that Mr. Sabol is an active
volunteer in his community, he regularly helps people in need,
and he cares deeply about his family. See Def.’s Mot., ECF No.
17 at 4-5. Other factors the Court notes in Mr. Sabol’s favor
are that he has maintained steady employment for decades and has
no criminal history. See id. Altogether, these factors have
persuaded the Court that Mr. Sabol’s nature and characteristics
are inconsistent with a person who would present a danger to his
community if released, though it is a very close call given the
severity of his offenses and the extremely troubling conduct he
51
displayed at the U.S. Capitol on January 6, 2021. See Cua, 2021
WL 918255, at *4-*5.
But the Court’s inquiry is not finished. In addition to
considering these factors in relation to the danger Mr. Sabol
may pose to his community if released, the Court must also
consider Mr. Sabol’s history and characteristics in relation to
his flight risk. See 18 U.S.C. § 3142(g); Chansley, 2021 WL
861079, at *14-*15. The government has proffered evidence
regarding Mr. Sabol’s past attempts to avoid prosecution that
cannot be ignored. In the days after January 6, 2021, Mr. Sabol
planned an escape to Switzerland where he believed he could
avoid extradition for his criminal offenses. Gov’t’s Opp’n, ECF
No 20 at 9. To effectuate that plan, he traveled from Colorado
to Boston and was at the airport before abandoning the plan when
he believed law enforcement had spotted him. Id. He then drove
from Boston to New York where he was ultimately located by local
law enforcement in New City, New York. Id. at 10. Among the
items found in his car were his passport and an airline e-
ticket. Id. And regrettably, Mr. Sabol’s mental and emotional
state was such that he had attempted to take his own life. Id.When found by local law enforcement in New City, he was covered
in blood and suffering from severe self-inflicted lacerations.
Id. Mr. Sabol asserts that he had “reached a mental breaking
point,” but he “has recovered from the episode and is focused on
52
resolving this case responsibly.” Def.’s Mot., ECF No. 17 at 5.
The Court sincerely hopes that is true. But the Court cannot
ignore that Mr. Sabol presents a flight risk nonetheless.
Considering the steps he took to flee to Switzerland to avoid
arrest, Mr. Sabol is the epitome of a flight risk. The Court is
unpersuaded by Mr. Sabol’s argument, made at the April 8
hearing, that he only wanted to go to Switzerland for a short
time to give himself an opportunity to find video evidence to
counter the videos that were being circulated by the media at
the time. Hr’g Tr., ECF No. 53 at 9:2-21. For one thing, before
traveling to Boston, Mr. Sabol engaged in the destruction of
evidence—having “fried” electronic devices at his home, directed
an associate to delete incriminating video evidence, and
destroyed anything that could be construed as antigovernment.
See Gov’t’s Opp’n, ECF No. 20. The fact that he destroyed
evidence is inconsistent with the behavior of someone trying to
legitimately and honestly clear their name; instead, it is
consistent with someone trying to avoid prosecution. In
addition, the Court cannot condone a criminal defendant’s
attempt to circumvent the criminal justice system and
independently clear their name from the safety of a perceived
non-extradition country. Mr. Sabol’s attempted flight and his
destruction of evidence that could be used against him in a
53
criminal prosecution unquestionably weighs against pre-trial
release. See Chrestman, 2021 765662, at *14-*15.
In sum, the Court finds that the third Section 3142(g)
factor weighs in favor of Mr. Sabol and against his continued
pretrial detention on the basis that no condition or combination
of conditions will reasonably assure the safety of the
community, but only by a slim margin. See Cua, 2021 WL 918255,
at *4-*5. However, the Court finds that this factor weighs
strongly against Mr. Sabol and in favor of his continued
pretrial detention on the basis that no condition or combination
of conditions will reasonably assure his appearance as required.
See Chrestman, 2021 WL 765662, at *14-*15. As a result, the
Court concludes that this factor weighs against Mr. Sabol and in
favor of his continued pretrial detention overall. See 18 U.S.C.
§ 3142(g). Cf. Chrestman, 2021 WL 765662, at *15 (concluding
that the defendant’s history and characteristics weighed in
favor of pretrial detention where defendant posed a clear danger
54
to the community, but his risk of flight was minimal, though not
zero).
4. The Nature and Seriousness of the Danger Posed by
Defendant’s Release
The final factor the Court must consider is the “nature and
seriousness of the danger to any person or the community that
would be posed by the person’s release.” 18 U.S.C. § 3142(g)(4).
Mr. Sabol states that although the charge for assaulting a
federal officer with a deadly weapon carries a maximum penalty
of 20 years, “none of the offenses have mandatory minimums.”
Def.’s Mot., ECF No. 17 at 5. In his motion, Mr. Sabol states
that, if released, he would return to Colorado, which is “a long
distance from the location of the alleged crime and victims, who
are strangers to Mr. Sabol, in this case.” Id. In Colorado and
elsewhere, he has “a long record of living as a productive and
positive member of society.” Id. At the April 8 hearing, Mr.
Sabol presented an alternative release plan: he would live in
Waterville, New York under house arrest and subject to
electronic GPS monitoring in a home owned by his girlfriend that
is next door to his parent’s residence, under the supervision of
the probation office in the Northern District of New York. Hr’g
Tr., ECF No. 53 at 14:5-15:24. Finally, Mr. Sabol points out
that the “pretrial service report in New York recommended
release on an unsecured bond with conditions to include
55
surrendering his passport, GPS monitoring, and restricted travel
to his home and the District of Columbia for court.” Def.’s
Mot., ECF No. 17 at 5. For these reasons, he argues, “[r]elease
with strict conditions is appropriate in this case.” Id.The government raises concerns about both Mr. Sabol’s
danger to the community based on his actions on January 6, 2021,
as well as his risk of flight based on his effort to flee the
country and his attempt to take his own life when he believed he
was under FBI investigation. Id. at 15-16. With respect to the
danger Mr. Sabol poses to the community if released, the
government again emphasizes that Mr. Sabol used physical force
against MPD officers. Id. at 15. Again, rioters, with the
assistance of Mr. Sabol, dragged Officer A.W. and Officer B.M.
from their post outside the U.S. Capitol into a violent mob, not
only subjecting the officers to severe physical danger but also
preventing them from tending to a wounded protestor who had been
crushed by the mob and subsequently died of her injuries. Id. at
15-16. Moreover, “[t]he charged offenses involve assaultive
conduct aimed to stop the functioning of the United States
government, specifically to derail the certification of the
electoral process, a cornerstone of our democracy.” Id. at 15.
With respect to Mr. Sabol’s risk of flight, the government
points out that he has already attempted to avoid prosecution by
drastic means, and now, considering the evidence and charges
56
against him, which expose him to a significant term of
imprisonment, “he has an even more compelling incentive to
flee.” Id.For many of the reasons already addressed above, the Court
finds that this factor also weighs against Mr. Sabol and in
favor of his continued pretrial detention. “Consideration of
this factor encompasses much of the analysis set forth above,
but it is broader in scope,” requiring an “open-ended assessment
of the ‘seriousness’ of the risk to public safety.” Cua, 2021 WL
918255, at *5 (quoting United States v. Taylor, 289 F. Supp. 3d
55, 70 (D.D.C. 2018)). “Because this factor substantially
overlaps with the ultimate question whether any conditions of
release ‘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), it bears heavily on the Court’s analysis.”
Id.As discussed in detail above, the nature and circumstances
of Mr. Sabol’s offenses evince not just a clear disregard for
the safety of others and law enforcement in particular, but also
a willingness to engage in “battle” when he believes he is
“fighting tyranny.” See supra Section III, Part B.1; see also
Chrestman, 2021 WL 765662, at *9. On January 6, 2021, that
“battle” took place at the U.S. Capitol, and Mr. Sabol’s role in
it resulted in two MPD officers being wounded and a protester
57
dying after not receiving needed medical care because the MPD
officers were prevented from coming to her aid. See Gov’t’s
Opp’n, ECF No. 20 at 15. Though Mr. Sabol suggests that he may
not have intended to hurt Officer A.W. and Officer B.M. during
the riot, the Court carefully reviewed Mr. Sabol’s video
evidence alongside the government’s video evidence and concluded
that the Court cannot construe Mr. Sabol’s video as supporting
his claim at this juncture. See supra Section III, Part B.1. The
Court does acknowledge that the character letters sent on Mr.
Sabol’s behalf are compelling. The letters provide the Court
with a longer and fuller view of Mr. Sabol’s life and character,
and the Court appreciates that based on those letters, it
appears that his character is inconsistent with the chilling
behavior he displayed on January 6, 2021. See supra Section III,
Part B.3. But a lifetime view of Mr. Sabol’s history and
characteristics is not the only consideration when determining
whether today Mr. Sabol poses a danger to his community if he
were to be released pending trial. See 18 U.S.C. § 3142(g). His
history of a productive and peaceful life did not prevent him
from committing horrific acts on January 6, 2021, and those acts
inform the Court’s view of his propensity for further violence
if he were to be released pending trial.
In determining whether Mr. Sabol poses a danger to his
community, neither the video evidence offered by Mr. Sabol nor
58
the character letters submitted on his behalf outweigh the fact
that he displayed an extremely troubling disregard for the law
and an aversion to the fundamental ten ts of our democracy
based on what appears to be a sincerely held, but tremendously
misguided, belief that he was acting valiantly and patriotically
to fight against a tyrannical government that “stole” a
presidential election. And Mr. Sabol did not simply hold these
misguided beliefs; he acted on them. He traveled across the
country to the U.S. Capitol equipped with battle gear. When
“called,” he stepped up to battle because he believed himself to
be “a warrior.” To arm himself, he stripped a vulnerable police
officer of his police baton. He then used that stolen police
baton to force another officer away from his post and into a mob
of rioters who proceeded to viciously attack him, leaving him
bleeding from the head. Mr. Sabol himself has admitted much of
this, and the weight of the evidence against him is strong. For
these reasons, the Court is convinced that Mr. Sabol would pose
a danger to his community and the broader community of American
citizens if he were to be released pending trial.
The Court reaches this conclusion having considered, as it
must, whether the danger Mr. Sabol poses to the community is
concrete and continuing. See Munchel, 2021 WL 1149196, at *4
(“[A] defendant’s detention based on dangerousness accords with
due process only insofar as the district court determines that
59
the defendant’s history, characteristics, and alleged criminal
conduct make clear that he or she poses a concrete, prospective
threat to public safety.”). While the circumstances of January
6, 2021 were unique, and the day has passed, it cannot be said
that every Capitol Riot defendant is no longer a danger because
those exact circumstances are unlikely to arise again. The D.C.
Circuit certainly did not say as much; instead, the court
observed that for the defendants in that case who “did not
vandalize any property or commit violence, the presence of the
group was critical to their ability to obstruct the vote and to
cause danger to the community.” Id. at *8. Mr. Sabol, on the
other hand, did commit acts of violence. In this regard, Mr.
Sabol is also different from Capitol Riot defendants like Mr.
Frederico Klein who engaged in “forceful conduct” but did not
direct that conduct toward inflicting injury. See Klein, No. CR
21-236, ECF No. 29 at 24 (“[Mr. Klein’s] most forceful conduct
was directed to advancing and maintaining the mob’s position in
the tunnel, not toward inflicting injury, and outside that
context, the nature of his actions and the force that he
employed would not have had the same effect.”). The Court is
also influenced by Mr. Sabol’s admissions to law enforcement
which were made after the events of January 6 and reflect what
motivated him to engage in violence. Thus while it may be true
that some Capitol Riot defendants no longer pose a threat to the
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community because the unique circumstances of January 6 have
passed and “the specific concerns in the wake of the January 6
events over future protests and violent attacks on the
government . . . have dissipated to some degree now three months
later,” see Klein, No. CR 21-236, ECF No. 29 at 25; the Court
finds that the presence of the group at the U.S. Capitol was not
necessary for Mr. Sabol to cause danger to the community. He
appears to have been motivated to act violently that day not
solely by the presence of the group or President Trump’s
encouragement, but also by his belief that he is a “warrior” in
a fight against perceived tyranny, and there is ample reason to
believe that fight is not finished for Mr. Sabol and others like
him, making the threat of further violence present, concrete,
and continuing. See Mark Niquette, Trump Rips Into Mitch
McConnell in Speech to Party Donors, Bloomberg (Apr. 10, 2021),
https://www.bloomberg.com/news/articles/2021-04-10/trump-touts-
appeal-to-new-voters-as-path-for-gop-return-to-power (reporting
that former President Trump repeated false claims about the 2020
Presidential Election being stolen and criticized former Vice
President Pence for not rejecting the certification of the
election results); David Jackson, “Radical Left CRAZIES:” Trump
issues Easter greetings by attacking political rivals, griping
about election loss, USA Today (Apr. 4, 2021) (reporting on a
written statement issued by former President Trump that stated,
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“Happy Easter to ALL, including the Radical Left CRAZIES who
rigged our Presidential Election, and want to destroy our
Country!”). 11
Moreover, a danger exists that, if released, Mr. Sabol may
again try to flee or otherwise attempt to prevent his
prosecution from moving forward. See supra Section III, Part
B.3. When Mr. Sabol tried to flee previously, he feared being
caught by the FBI. Now Mr. Sabol is facing a potential twenty-
year prison sentence for assaulting Officer B.M. with a deadly
weapon and is charged with seven other felony and misdemeanor
offenses. See Superseding Indictment, ECF No. 23. As noted, the
evidence against him is strong. And he has already destroyed
incriminating evidence and directed others to do so as well.
Finally, releasing Mr. Sabol from custody and allowing him
to return to Colorado or move to New York with strict conditions
of home incarceration, as Mr. Sabol proposes and as he says the
Pretrial Services Agency in New York recommended, would be
insufficient to mitigate Mr. Sabol’s danger to the community and
the risk that he would flee or try to obstruct justice. Mr.
11The Court takes judicial notice of the existence of news
articles. See Washington Post v. Robinson, 935 F.2d 282, 291
(D.C. Cir. 1991) (“[A] court may take judicial notice of the
existence of newspaper articles in the Washington, D.C., area
that publicized [certain facts].”); Agee v. Muskie, 629 F.2d 80,
81 n.1, 90 (D.C. Cir. 1980) (taking judicial notice of facts
generally known as a result of newspaper articles).
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Sabol argues that in Colorado he would be “a long distance from
the location of the alleged crime and victims, who are strangers
to Mr. Sabol.” Def.’s Mot., ECF No. 17 at 5. The same could be
said of home confinement in New York. But Mr. Sabol was in
Colorado before he committed the instant offenses. He was in
Colorado with his girlfriend, not in Washington D.C., when he
planned his participation in the protests; when he acquired the
tactical gear he brought with him to the U.S. Capitol; and when
he developed the beliefs that ultimately led him to the U.S.
Capitol on January 6, 2021. Mr. Sabol’s actions demonstrate that
he is willing to follow his beliefs, and act on them violently,
no matter how far they take him from his home and no matter what
“strangers” are on the other side of the “battle” he intends to
wage in violation of the laws designed to protect our democracy.
While the Court appreciates that living in New York with his
girlfriend and near his family may provide him the type of
support and oversight needed to improve his mental health
conditions, the Court is not persuaded that this proposed home
confinement plan would mitigate his continued danger to the
community based on his demonstrated willingness to engage in
violence in furtherance of his beliefs and in a perceived battle
against tyranny. As was true in Chrestman, “[t]ogether, these
factors demonstrate that he cannot be trusted to abide by any
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conditions of release that might be imposed instead of pretrial
detention.” 2021 WL 765662, at *16.
IV. Conclusion
After considering the factors set forth in 18 U.S.C. §
3142(g), the Court finds, by clear and convincing evidence, that
no condition or combination of conditions will reasonably assure
the safety of any other person and the community were Mr. Sabol
to be released pending trial. 18 U.S.C. § 3142(e)(1). The Court
further finds, after considering the factors set forth in 18
U.S.C. § 3142(g) and by a preponderance of the evidence, that no
condition or combination of conditions will reasonably assure
Mr. Sabol’s appearance as required if he were to be released
pending trial. Id. Accordingly, Mr. Sabol’s Motion for Pretrial
Release, is DENIED. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: /s/
Emmet G. Sullivan
United States District Judge
April 14, 2021
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