Case 1:21-cr-00175-TJK Document 370 Filed 05/27/22 Page 1 of 15

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 21-175-5 (TJK)

ENRIQUE TARRIO,

Defendant.

MEMORANDUM OPINION

On March 7, 2022, a grand jury returned a Second Superseding Indictment charging En-

rique Tarrio with, among other things, conspiring with his five codefendants to obstruct the certi-

fication of the Electoral College vote related to the 2020 presidential election. Each of his code-

fendants was previously charged, and all of them are detained pending trial. Tarrio was arrested

on a warrant the day after the indictment was returned, and Magistrate Judge Lauren F. Louis of

the Southern District of Florida held a hearing to determine whether Tarrio should be detained too.

After considering the factors enumerated in 18 U.S.C. § 3142(g), Judge Louis found by clear and

convincing evidence that Tarrio presented a danger to the community and that no condition or

combination of conditions will reasonably assure the safety of the community. She therefore or-

dered him detained. Tarrio now moves for bond, which requires this Court to review Judge Louis’s

determination de novo. After holding its own hearing, the Court reaches the same conclusion for

substantially the same reasons. Thus, his motion will be denied, and the Court orders him detained

pending trial.

I. Legal Standard

“In our society liberty is the norm, and detention prior to trial or without trial is the carefully

limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). Under the Bail Reform
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Act (“BRA”), 18 U.S.C. §§ 3141–3156, “Congress limited pretrial detention of persons who are

presumed innocent to a subset of defendants charged with crimes that are ‘the most serious’ com-

pared to other federal offenses.” United States v. Singleton, 182 F.3d 7, 13 (D.C. Cir. 1999) (quot-

ing Salerno, 481 U.S. at 747). As a result, a detention hearing must be held at the government’s

request only “in a case that involves” a charged offense falling in one of five enumerated catego-

ries, 18 U.S.C. § 3142(f)(1)(A)–(E), or if the defendant poses a serious risk of flight or of trying

to obstruct justice or threaten, injure, or intimidate a witness or juror, id. § 3142(f)(2)(A)–(B).

A subset of offenses requiring a detention hearing triggers a rebuttable presumption “that

no condition or combination of conditions will reasonably assure the appearance of the person as

required and the safety of the community”—that is, as long as “the judicial officer finds that there

is probable cause to believe that the person committed” that subset of offenses. 18 U.S.C.

§ 3142(e)(3). The subset includes any “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.” Id.

§ 3142(e)(3)(C).

The presumption places “a burden of production on the defendant to offer some credible

evidence contrary to the statutory presumption.” United States v. Taylor, 289 F. Supp. 3d 55, 63

(D.D.C. 2018) (quoting United States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985)). And even

when the defendant offers evidence to rebut the presumption, it “is not a ‘bursting bubble’ that

becomes devoid of all force once a defendant has met his burden of production.” Taylor, 289 F.

Supp. 3d at 63 (quoting United States v. Jessup, 757 F.2d 378, 382 (1st Cir. 1985)). Instead, it is

“incorporated into the other factors considered by this Court in determining whether to grant a

conditional release and is given substantial weight.” United States v. Ali, 793 F. Supp. 2d 386,

391 (D.D.C. 2011).

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The BRA provides that a judicial officer “shall order” the “detention of the [defendant]

before trial,” if, after a detention hearing held under 18 U.S.C. § 3142(f), and upon consideration

of “the available information concerning” enumerated factors, id. § 3142(g), “the judicial officer

finds 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)(1). “In

common parlance, the relevant inquiry is whether the defendant is a ‘flight risk’ or a ‘danger to

the community.’” United States v. Vasquez-Benitez, 919 F.3d 546, 550 (D.C. Cir. 2019). Even if

the defendant does not pose a flight risk, danger to the community alone is sufficient reason to

order pretrial detention. Salerno, 481 U.S. at 755. But the BRA “requires that detention be sup-

ported by ‘clear and convincing evidence’ when the justification is the safety of the community.”

United States v. Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987).

In assessing whether pretrial detention or release is warranted, the judicial officer must

“take into account the available information concerning” four factors: (1) “the nature and circum-

stances of the offense charged, including whether the offense is a crime of violence”; (2) “the

weight of the evidence against the person”; (3) “the history and characteristics of the person, in-

cluding . . . the person’s character, physical and mental condition, family ties, employment, finan-

cial 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”;

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). At the detention hearing, both the govern-

ment and the defendant may offer evidence or proceed by proffer. United States v. Smith, 79 F.3d

1208, 1210 (D.C. Cir. 1996) (per curiam).

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If a defendant is ordered detained under § 3142 by a judicial officer, including “by a mag-

istrate judge,” the BRA allows the defendant to “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). The

statute does not specify the standard of review to be applied by a district court reviewing a magis-

trate judge’s detention order, and “the D.C. Circuit has not yet addressed the issue.” United States

v. Hunt, 240 F. Supp. 3d 128, 132–33 (D.D.C. 2017). That said, both the BRA and the Federal

Magistrates Act, 28 U.S.C. § 636, support the conclusion, reached by every circuit to have consid-

ered the question, that a district court reviews a magistrate judge’s release or detention order de

novo. See United States v. Chrestman, 525 F. Supp. 3d 14, 23 (D.D.C. 2021). And courts in this

District routinely apply that standard. See id. at 24; Hunt, 240 F. Supp. 3d at 132–33.

II. Analysis

The government mainly seeks to detain Tarrio under 18 U.S.C. § 3142(f)(1)(A), because

he is charged with an offense listed in 18 U.S.C. § 2332b(g)(5)(B) for which a maximum term of

imprisonment of 10 years or more is prescribed: in this case, a felony violation of 18 U.S.C. §

1361.1 And, the government argues, that same offense provides a rebuttable presumption of de-

tention because the grand jury found probable cause to believe that Tarrio committed “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.” 18 U.S.C. § 3142(e)(3)(C). For the below rea-

sons, the Court agrees that a rebuttable presumption arises from the charges against Tarrio and that

he has not offered sufficient evidence to rebut it. And after considering all the § 3142(g) factors,

the Court finds that the government has shown, by clear and convincing evidence, that “no

1
The government also argues that Tarrio should be detained under 18 U.S.C. §§ 3142(f)(2)(A)
and (f)(2)(B). Because the Court finds that detention is proper under § 3142(f)(2)(A), it need not
address these alternative grounds.

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condition or combination of conditions will reasonably assure” the safety of the community, id.

§ 3142(e)(1). Thus, the Court will order that Tarrio be detained pending trial.

A. A Rebuttable Presumption of Detention Arises from the Charges Against

Tarrio

Tarrio does not contest that a rebuttable presumption of detention arises here, because

grand jury found probable cause to believe that he committed “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.” 18 U.S.C. § 3142(e)(3)(C). One of those offenses charged in the

Second Superseding Indictment—18 U.S.C. § 1361—is specifically enumerated in 18 U.S.C.

§ 2332b(g)(5)(B)(i). And in cases such as this one involving alleged damage or attempted damage

to property of the United States in excess of $1,000, that offense carries a maximum sentence of

ten years in prison. Under Circuit precedent, the return of that indictment “makes conclusive the

existence of probable cause to hold the accused for further prosecution.” United States v. King,

482 F.2d 768, 776 (D.C. Cir. 1973). Thus, the rebuttable presumption arises.

B. Pretrial Detention Factors

1. The Nature and Circumstances of the Offense

The first statutory factor requires the Court to consider “the nature and circumstances of

the offense charged.” 18 U.S.C. § 3142(g)(1). Tarrio is charged with one count of Conspiracy to

Obstruct an Official Proceeding, in violation of 18 U.S.C. § 1512(k); one count of Obstruction of

an Official Proceeding, in violation of 18 U.S.C. § 1512(c)(2); one count of Obstruction of Law

Enforcement During a Civil Disorder, in violation of 18 U.S.C. § 231(a)(3); two counts of De-

struction of Government Property, in violation of 18 U.S.C. § 1361; and two counts of Assaulting,

Resisting, or Impeding Certain Officers, in violation of 18 U.S.C. § 111(a)(1). ECF No. 305 at 8,

24–29. The Court will not belabor the point that these offenses are, to say the least, very serious.

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They involve, among other things, an alleged conspiracy to obstruct the certification of the Elec-

toral College vote and thus to interfere with the peaceful transfer of power, one of our Nation’s

crown jewels. This factor supports detention.

2. The Weight of the Evidence Against Tarrio

The second statutory factor requires the Court to consider “the weight of the evidence

against the person.” 18 U.S.C. § 3142(g)(2). To begin with, the Court incorporates by reference

its findings about the evidence the government relied on in arguing that Tarrio’s codefendants

should be detained pending trial, as well as the evidence they submitted over time to argue other-

wise, as if reiterated here.2 While that evidence does not say much about Tarrio’s personal in-

volvement in the charged conspiracy, it does constitute substantial evidence of the conspiracy it-

self, which is still relevant to the Court’s assessment of the weight of the evidence against him.

The parties here understandably focus on Tarrio’s alleged role. According to the Second

Superseding Indictment, through at least January 6, 2021, Tarrio was the national chairman of the

Proud Boys, and most of his codefendants are alleged to have filled leadership or organizational

roles with that group. ECF No. 305 ¶¶ 6–10. In November 2020, Tarrio is alleged to have made

these statements on social media about the 2020 presidential election:

• On November 6, 2020: “The media constantly accuses us of wanting to start a civil

war. Careful what the fuck you ask for we don’t want to start one . . . but we will sure
as fuck finish one.” Id. ¶ 13.

• On November 12, 2020: “Fuck Unity. No quarter. Raise the black flag.” Id.

• On November 16, 2020: “If Biden steals this election, [the Proud Boys] will be political
prisoners. We won’t go quietly . . . I promise.” Id.

• On November 25, 2020, in response to a “post from Joe Biden” that stated, “We need
to remember: We’re at war with a virus – not with each other”: “No, YOU need to

2
See, e.g., ECF Nos. 71, 101, & 252; United States v. Pezzola, 531 F. Supp. 3d 139, 142–45
(D.D.C. 2021).
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remember the American people are at war with YOU. No Trump…No Peace. No
quarter.” Id.

The Second Superseding Indictment also alleges that in December 2020, Tarrio and other

Proud Boys members created new Proud Boys chapter known as the MOSD, or Ministry of Self-

Defense, which Tarrio allegedly described it as a “national rally planning” chapter that would

include only “hand selected members.” ECF No. 305 ¶ 20. It also alleges that Tarrio and others

created an encrypted communications channel for use by the MOSD leaders. Id. ¶ 21. And it

alleges ways in which Tarrio and his codefendants used this and related encrypted channels, as

well as social media and other electronic communications, to plan and organize the conspiracy,

even if they never spelled out its details in doing so. Focusing on Tarrio, the Second Superseding

Indictment alleges that he:

• On December 29, 2020, “posted a message to a MOSD Prospect Group to notify pro-
spective members of a virtual meeting on December 30 to explain ‘how this all works,’”
advising that “the MOSD ‘will have a top down structure’” and that “‘if that’s some-
thing you’re not comfortable with’ [prospective members] should not bother attending
the live session.” Id. ¶ 38. In that meeting, Tarrio and others emphasized that members
“were to follow the commands of leadership,” with one codefendant warning that Jan-
uary 6 was going to be a “completely different operation.” Id. ¶ 42.

• On December 29, 2020, “posted a message on social media that the Proud Boys planned
to ‘turn out in record numbers on Jan 6th but this time with a twist . . . . we will not be
wearing our traditional Black and Yellow.’” Id. ¶ 37.

• Between December 30 and December 31, 2020, “communicated multiple times with
an individual” who sent him a document titled “1776 Returns.” Id. ¶ 41. “The docu-
ment set forth a plan to occupy a few ‘crucial buildings’ in Washington, D.C., on Jan-
uary 6, including House and Senate office buildings around the Capitol, with as ‘many
people as possible’ to ‘show our politicians We the People are in charge.’” Id. “After
sending the document, the individual stated, ‘The revolution is important than any-
thing.’ Tarrio responded, ‘That’s what every waking moment consists of . . . I’m not
playing games.’” Id.

• On December 31, 2020, posted a picture of Pezzola from an earlier event in Washing-
ton, D.C, along with the message: “Lords of War. #J6 #J20.” Id. ¶ 44.

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• On January 1, 2021, “posted separate messages on social media that read, ‘Let’s bring
this new year with one word in mind . . . Revolt’ and later, ‘New Years Revolution.’”
Id. ¶ 45.

• On January 3, 2021, “as efforts to plan for January 6 intensified in the MOSD leader-
ship chat,” “stated in the MOSD Leaders Group that he wanted to wait until January 4
to make final plans. In response, at 7:10 p.m., a person posted a voice note to the
MOSD Leaders Group in which he stated: ‘I mean the main operating theater should
be out in front of the house of representatives. It should be out in front of the Capitol
building. That’s where the vote is taking place and all of the objections. So, we can
ignore the rest of these stages and all that shit and plan the operations based around the
front entrance to the Capitol building. I strongly recommend you use the national mall
and not Pennsylvania avenue though. It’s wide-open space, you can see everything
coming from all angles.” Id. ¶ 49. On January 4, 2021, Tarrio posted a voice note to
the MOSD Leaders Group at 7:36 a.m. in which he stated, “I didn’t hear this voice note
until now, you want to storm the Capitol.” Id. ¶ 50.

On January 4, 2021, Tarrio was arrested in Washington, D.C., and charged with destruction

of property and possession of two large capacity magazines in D.C. Superior Court. ECF No. 305

¶ 22. The charges were related to an incident on December 12, 2020, in which Tarrio allegedly

burned a banner belonging to a church in Washington, D.C., that read “#BLACKLIVESMAT-

TER.” Id. ¶ 17. He was briefly detained after his arrest but was released around 5:00 p.m. on

January 5 and ordered to leave the District of Columbia. Id. ¶ 22.

According to the Second Superseding Indictment, Tarrio’s codefendants, within an hour of

his arrest, created new encrypted communications channels that did not at first include Tarrio.

ECF No. 305 ¶ 51. One remarked that he hoped Tarrio had logged out from the encrypted mes-

saging application before his arrest. Id. Others discussed the need to “manually delete each mes-

sage from each chat.” Id. Another responded that “Well at least they won’t get our boots on the

ground plans because we are one step ahead of them.” Id. Still, that same codefendant was con-

cerned that “[e]verything is compromised and we can be looking at Gang charges.” Id. ¶ 53. The

next night, on January 5 at 9:17 p.m., another codefendant allegedly posted that “We just had a

meeting with a lot of guys. Info should be coming out,” then: “Just spoke with Enrique.” Id. ¶ 63.

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A few minutes later, that same codefendant posted: “I gave Enrique a plan. The one I told the guys

and he said he had one.” Id. ¶ 65. Within fifteen minutes or so, Tarrio allegedly had been added

to two of these new encrypted channels, the New MOSD Leaders Group and the New MOSD

Members Group. Id. ¶¶ 64, 66.

On the morning of January 6, the Second Superseding Indictment alleges, Tarrio’s code-

fendants organized a large group of Proud Boy members (not dressed in the group’s usual colors)

at the Washington Monument. They marched the group to the Capitol, where the group crossed

barriers meant to restrict the access to the Capitol grounds, helped overwhelm law enforcement

officers, and stormed into the Capitol, causing Congress to suspend the certification of the Elec-

toral College vote. ECF No. 305 ¶¶ 70–96. Several of Tarrio’s codefendants allegedly used a

bullhorn to direct the group. Id. ¶ 71. Several allegedly carried walkie-talkie style communication

devices. Id. One codefendant is alleged to have spoken to a person who was the first to breach a

barrier protecting the Capitol grounds moments before he did so. Id. ¶ 76. Another codefendant

is alleged to have ripped away an officer’s riot shield and used it to break a window through which

the first members of the mob entered the Capitol. Id. ¶ 93.

Tarrio is not alleged to have been present in Washington, D.C., that day. But according to

the Second Superseding Indictment, he:

• At 2:36 p.m., posted on social media that “After I finish watching this I’ll make a state-
ment about my arrest . . . But for now I’m enjoying the show . . . Do what must be done.
#WeThe People.” Id. ¶ 97.

• At 2:38 p.m., made a public post on social media that read, “Don’t fucking leave.” Id.
¶ 99.

• At 2:39 p.m., “responded to question posed by a Proud Boys member—‘Are we a mi-

litia yet?’—with a one word voice note in which he stated ‘Yep.’” Id. ¶ 100. He then
posted two additional messages that stated, “Make no mistake . . .” and then “We did
this . . .” Id.

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• At 2:41 p.m., made a public post on social media that stated, “Proud of My Boys and
my country.” Id. ¶ 103.

• At 2:54 p.m., had a phone call with one of his codefendants. Id. ¶ 105.

• At 2:57 p.m., posted a message on social media that read “1776” and then “Revolution-
aries are now in the Rayburn building,” referring to a House of Representatives office
building. Id. ¶ 106.

• At 11:16 p.m., posted a message on social media that “featured a video of a masked
man resembling [him], wearing a flowing black cape, standing in front of a deserted
Capitol. The video was captioned, ‘Premonition.’” Id. ¶ 107.

The government also represents that that afternoon, on one of the Proud Boys’ encrypted

messaging channels, Tarrio posted a message that “They’ll fear us doing it again . . .” A member

of the group asked, “So what do we do now?” Tarrio responded: “Do it again.” ECF No. 350 at 4.

And months later, in September 2021, before surrendering himself to serve his sentence after his

pled guilty in the Superior Court matter, Tarrio posed for a picture in front of the Capitol, holding

a lighter up to its dome while wearing a t-shirt that read “@FREETHEPROUDBOYS BY ANY

MEANS NECESSARY.” Id. at 7–8.

Finally, the parties have provided video clips to the Court apparently created by a docu-

mentary filmmaker. The clips show a few moments just after Tarrio was released from jail on

January 5. They depict, in part, an informal meeting in an underground parking garage in which

Tarrio participated. The Second Superseding Indictment identifies one of the meeting’s partici-

pants as “Elmer Stewart Rhodes III, the founder and leader of the Oath Keepers.” ECF No. 305 ¶

23. Rhodes is currently charged for his activities on January 6 with—among other things—Sedi-

tious Conspiracy, in violation of 18 U.S.C. § 2384. United States v. Rhodes III, et al., 22-cr-15,

ECF No. 1 (APM). But not much about the substance of the meeting can be gleaned from the

clips—at one point, Tarrio and others motion for the filmmaker to stop. The government points

out that the clips depict Tarrio as focused on obtaining a communications device to reestablish

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access to the encrypted communications channels, as well as saying that he has “a lot of stuff to

do tomorrow.” And at another point Tarrio disclaims any concern about law enforcement breaking

into his phone (which law enforcement still possessed) because of the two-step security feature he

employed, and because he had deleted evidence of his communications. For his part, Tarrio points

out that the clips also contain evidence suggesting that he ended up in the garage in part because

it was near the hotel where the documentary filmmaker was staying, and in part to talk to a lawyer

about the possibility of representing him in the case for which he had just been arrested.

Given all the above, the Court finds the evidence against Tarrio very strong, so this factor

supports detention. Tarrio makes several broad arguments to the contrary, but none are persuasive.

He suggests alternative explanations for some allegations and evidence. For example, he argues

that the MOSD was created as a defensive measure to ensure the safety of Proud Boys members,

rather than part of a plan to storm the Capitol. He is right that some of the evidence, viewed in

isolation, is susceptible to alternative explanations. But that does not mean that taken as a whole,

the evidence is not very strong. Similarly, Tarrio argues that, essentially, the government does not

have a smoking gun, perhaps in the form of direct evidence of an order from Tarrio to other Proud

Boys to storm the Capitol. True, but again, that is hardly necessary for the evidence to be very

strong in the aggregate for detention purposes. Tarrio also claims that he is no longer associated

with the Proud Boys, and points to certain statements he has given to law enforcement and to the

media after January 6 in which he expresses disapproval for what happened that day and denies

participating in any plan to storm the Capitol. But the Court can hardly give much weight to these

post-hoc, self-serving representations, especially given the above evidence that (especially in pri-

vate) he approved of and took credit for the events of the day.

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3. Tarrio’s History and Characteristics

The third statutory factor requires the Court to consider Tarrio’s “history and characteris-

tics.” 18 U.S.C. § 3142(g)(3). Tarrio argues, and the government does not contest, that he has

strong ties to the community in South Florida, and that he is employed. That is all to his credit.

The problem for Tarrio is his criminal record, which (among other things) makes it hard

for him to rebut the presumption of detention in the context of all the other factors the Court must

weigh. The government represents that Tarrio has seven adult arrests that have resulted in three

convictions. In 2004, he was sentenced to three years of probation by a Florida court for a felony

charge of dealing in stolen property and grand theft. More recently, in 2013, he was convicted on

federal charges of Conspiracy to Receive or Possess Stolen Goods, in violation of 18 U.S.C. § 371;

Possessing, Concealing, Storing, Selling, and Disposing of Stolen Goods, in violation of 18 U.S.C.

§ 2315; Transporting, Transmitting, and Transferring Stolen Goods in Interstate Commerce, in

violation of 18 U.S.C. § 2314; and Misbranding FDCA Devices While Held for Sale after Ship-

ment in Interstate Commerce, in violation of 21 U.S.C. §§ 331(k), 352(a), and 333(a)(2). His

sentence was reduced from 30 months to 16 months incarceration (along with two years of super-

vised release) after the government filed a Rule 35 motion, but he has still paid just some of his

required restitution. Finally, in 2021, he was sentenced to 155 days incarceration after pleading

guilty to one count of destruction or property and one count of attempted possession of a large-

capacity ammunition feeding device in D.C. Superior Court. As explained more below, one reason

why the Court has little confidence that he would comply with conditions of release here is that

the allegations and evidence suggest that, after his release on conditions in the Superior Court case

on January 5, he continued to engage in the conspiracy for which he is charged here. As Tarrio

points out, things could be worse: there is no evidence, for example, that he failed to appear in any

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of his prior criminal matters. But that does not get him very far. All in all, this factor also weighs

in favor of detention.

4. The Nature and Seriousness of the Danger to Any Person or the Community that
Would be Posed by Tarrio’s Release

The final factor requires the Court to weigh “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). To justify detention based on dangerousness, the Court must find by “clear and

convincing evidence” that “no condition or combination of conditions will reasonably assure the

safety of any other person and the community.” 18 U.S.C. § 3142(f). As the Circuit held in United

States v. Munchel, 991 F.3d 1273, 1280 (D.C. Cir. 2021), a “defendant’s detention based on dan-

gerousness accords with due process only insofar as the district court determines that the defend-

ant’s history, characteristics, and alleged criminal conduct make clear that he or she poses a con-

crete, prospective threat to public safety,” or as the Supreme Court described in Salerno, “an iden-

tified and articulable threat to an individual or the community.” 481 U.S. at 751. For the reasons

explained below, the Court finds—as with each of his codefendants—that this factor supports de-

tention, and that this ultimate standard for detention is met.

First, Tarrio is charged with very serious offenses that created an obvious danger to the

peaceful transfer of power under the U.S. Constitution, the safety of members of Congress and law

enforcement officers guarding the Capitol, and the community at large on January 6. One of the

offenses creates a rebuttable presumption of detention all by itself. And as the Circuit recognized

in Munchel, those who “aided, conspired with, planned, or coordinated” the events of January 6

are in “a different category of dangerousness” than many others present that day. Munchel, 991

F.3d at 1284.

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Second, Tarrio’s alleged statements and actions show a deep and forward-looking commit-

ment to the causes that the allegations and evidence suggest motivated the charged conspiracy, and

a willingness to resort to similar violent tactics against the United States government in the future.

To take just one example, the government represents that Tarrio posted a message that “They’ll

fear us doing it again . . .” A member of the group asked, “So what do we do now?” Tarrio

responded: “Do it again.” ECF No. 350 at 4.

Third, even though he was not physically present near the Capitol that day, Tarrio’s alleged

leadership and organizational role in the conspiracy—as well as his alleged experience using en-

crypted communications channels to conceal his activity from law enforcement—suggests that he

has skill set, resources, and networks to plan similar challenges to the lawful functioning of the

United States government in the future.

Fourth, the Court has carefully considered the conditions of release proposed by Tarrio,

including the proposed personal surety bond, home detention, and a ban on the use of social media.

In the end, given all the above, the Court agrees with Judge Louis that they do not adequately

mitigate the threat of dangerousness Tarrio poses. And like Judge Louis, the Court reaches this

conclusion in part because it is unconvinced that Tarrio will abide by his conditions of release.

That is so because of the evidence that Tarrio “committed the alleged acts while he was on bond

for another offense, thereby violating that court’s bond; and his apparent attempt to conceal or

destroy his and other’s communications relating to their plans for January 6th, thereby substanti-

ating the government’s motion predicated on the risk that he would obstruct justice.” United States

v. Tarrio, No. 22-mj-2369-AOR, ECF No. 14 ¶ 11 (S.D. Fla. Mar. 17, 2022). And this conclusion

does not depend on any assumption about exactly how and why Tarrio ended up meeting with

Rhodes in an underground parking garage on January 5.

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 Case 1:21-cr-00175-TJK Document 370 Filed 05/27/22 Page 15 of 15

Thus, the Court finds that this last factor supports detention, and, upon review of all the

factors, it finds by “clear and convincing evidence” that because of the prospective danger to the

community that Tarrio presents, that “no condition or combination of conditions will reasonably

assure the safety of any other person and the community.” 18 U.S.C. § 3142(f).

III. Conclusion

For all the above reasons, upon consideration of Tarrio’s motion for pretrial release, the gov-

ernment’s opposition, and Tarrio’s reply, the evidence proffered and arguments presented in connec-

tion with the motion, including at the detention hearing, the entire record, and the factors set forth in

18 U.S.C. § 3142(g), the Court finds that all four of the statutory factors favor pretrial detention, and

that the statutory presumption of detention has not been rebutted. Thus, the government has met its

burden of establishing, by clear and convincing evidence, that no condition or combination of condi-

tions can be imposed that would reasonably assure the safety of the community if he were released

pending trial. 18 U.S.C. § 3142(e)(1). The Court will therefore deny Tarrio’s motion in a separate

order.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY
United States District Judge

Date: May 27, 2022

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