Fitzsimons Appellate Court Appendix

USCA Case #21-3069 Document #1921625 Filed: 11/09/2021 Page 1 of 289
UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 21-3069
UNITED STATES OF AMERICA,

Plaintiff-Appellee
V.
KYLE FITZSIMONS,
Defendant-Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
PUBLIC APPENDIX-SEALED MATERIAL IN SEPARATE

SUPPLEMENT
ABIGAIL E. HORN
Assistant Federal Defender
Counsel for Defendant-Appellant
BRETT G. SWEITZER
Chief of Appeals
LEIGH M. SKIPPER
Chief Federal Defender
Federal Community Defender Office

for the Eastern District of Pennsylvania
Suite 540 West - Curtis Center
601 Walnut Street
Philadelphia, PA 19106
(215) 928-1100
District Court
Cr No. 21-00158-RC-1
(Page 1 of Total)
TABLE OF CONTENTS
PAGE
Docket Entries ............................................................................................................ 1
Criminal Complaint .................................................................................................. 12
Indictment ................................................................................................................. 22
Memorandum in Support of Pretrial Detention ....................................................... 28
Arrest Warrant .......................................................................................................... 40
Position of the Defense on the Government’s Motion for Pretrial Detention ......... 41
Transcript of Detention Hearing (April 6, 2021) ..................................................... 51
Transcript of Detention Hearing Continued (April 7, 2021) .................................... 94
Motion to Revoke Detention Order and for Pretrial Release ................................. 128
Opposition to Defendant’s Motion to Revoke Detention Order and for Pretrial

Release ............................................................................................................... 145
Order of Detention Pending Trial ........................................................................... 197
Transcript of Motion Hearing (September 16, 2021) ............................................. 201
District Court’s Order Denying Defendant’s Motion to Revoke Detention

Order .................................................................................................................. 254
Memorandum Opinion ........................................................................................... 255
Notice of Appeal ..................................................................................................... 272
Government Exhibit 9 (Rochester Voice Article) .................................................. 274
Government Exhibit 15 (Bangor Daily News Article) .......................................... 280
i
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TABLE OF CONTENTS - continued
VOLUME II (UNDER SEAL)
Government Exhibit 2 (Video Town Hall) ................ 286 (See attached Flash Drive)
Government Exhibit 7 (Video Lower West Terrace) . 286 (See attached Flash Drive)
ii
(Page 3 of Total)
District of Columbia live database https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?158735905023684-L_1_0-1

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APPEAL,CAT B
U.S. District Court

District of Columbia (Washington, DC)
CRIMINAL DOCKET FOR CASE #: 1:21-cr-00158-RC-1
Case title: USA v. FITZSIMONS Date Filed: 02/26/2021
Assigned to: Judge Rudolph Contreras
Defendant (1)
KYLE FITZSIMONS represented by Greg Hunter
GREGORY T. HUNTER, ESQUIRE
2007 North 15th Street
Suite 201
Arlington, VA 22201
703-966-7226
Fax: 703-527-0810
Email: [email protected]
TERMINATED: 05/10/2021
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Designation: Retained
Joel William Anders

1750 K St NW
Suite 700
Washington DC, DC 20006
202-466-4334
TERMINATED: 05/10/2021
LEAD ATTORNEY
Designation: Retained
Natasha Taylor-Smith
FEDERAL COMMUNITY DEFENDER
OFFICE
Trial Unit
601 Walnut Street
Suite 545 West
Philadelphia, PA 19106
215-928-1100
LEAD ATTORNEY
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Designation: Public Defender or
Community Defender Appointment
Pending Counts Disposition

18:231(a)(3); CIVIL DISORDER; Civil
Disorder
(1-2)
18:1512(c)(2) and 2; TAMPERING WITH
A WITNESS, VICTIM OR
INFORMANT; Obstruction of an Official
Proceeding and Aiding and Abetting
(3)
18:111(a)(1) and (b);
ASSAULTING/RESISTING/IMPEDING
OFFICERS/EMPLOYEES; Inflicting
Bodily Injury on Certain Officers
(4-5)
18:1752(a)(1); TEMPORARY
RESIDENCE OF THE PRESIDENT;
Entering and Remaining in a Restricted
Building or Grounds
(6)
Disorderly and Disruptive Conduct in a
Restricted Building or Grounds
(7)
Engaging in Physical Violence in a
Restricted Building or Grounds
(8)
40:5104(e)(2)(D); FEDERAL STATUTES,
OTHER; Disorderly Conduct in a Capitol
Building
(9)
40:5104(e)(2)(F); FEDERAL STATUTES,
OTHER; Act of Physical Violence in the
Capitol Grounds or Buildings
(10)
Highest Offense Level (Opening)

Felony
Terminated Counts Disposition

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None
Highest Offense Level (Terminated)

None
Complaints Disposition
COMPLAINT in Violation of
18:1752(a)(4), 40:5104(e)(2)(F),
18:111(a)(1) and 18:231(a)(3)
Plaintiff
USA represented by Brandon K. Regan
DOJ-USAO
Federal Major Crimes
555 4th St NW
Washington, DC 20530
202-252-7759
LEAD ATTORNEY
Designation: Assistant U.S. Attorney
Puja Bhatia
DOJ-USAO
555 4th Street NW
Ste Office 9439
Washington, DC 20530
202-809-3575
LEAD ATTORNEY
Designation: Assistant U.S. Attorney
Date Filed # Docket Text

02/01/2021 1 SEALED COMPLAINT as to KYLE FITZSIMONS (1). (Attachments: # 1 Statement
of Facts) (zstd) [1:21-mj-00190-ZMF *SEALED*] (Entered: 02/02/2021)
02/01/2021 3 MOTION to Seal Case by USA as to KYLE FITZSIMONS. (Attachments: # 1 Text of
Proposed Order)(zstd) [1:21-mj-00190-ZMF *SEALED*] (Entered: 02/02/2021)
02/01/2021 4 ORDER granting 3 Motion to Seal Case as to KYLE FITZSIMONS (1). Signed by
Magistrate Judge Zia M. Faruqui on 2/1/2021. (zstd) [1:21-mj-00190-ZMF
*SEALED*] (Entered: 02/02/2021)
02/04/2021 Arrest of KYLE FITZSIMONS in the District of Maine. (ztl) (Entered: 03/29/2021)
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02/04/2021 8 Arrest Warrant Returned Executed on 2/4/2021 in Lebanon, Maine as to KYLE
FITZSIMONS. (bb) (Entered: 03/29/2021)
02/26/2021 5 INDICTMENT as to KYLE FITZSIMONS (1) count(s) 1-2, 3, 4-5, 6, 7, 8, 9, 10. (zstd)
(Entered: 03/01/2021)
03/18/2021 7 MEMORANDUM in Support of Pretrial Detention by USA as to KYLE FITZSIMONS
(bb) (Entered: 03/18/2021)
03/29/2021 Case unsealed as to KYLE FITZSIMONS. (ztl) (Entered: 03/29/2021)
03/29/2021 Case unsealed as to KYLE FITZSIMONS (bb) (Entered: 03/29/2021)
03/29/2021 ORAL MOTION for Speedy Trial by USA as to KYLE FITZSIMONS. (ztl) (Entered:
04/05/2021)
03/29/2021 Minute Entry for proceedings held before Magistrate Judge Zia M. Faruqui: Initial
Appearance as to KYLE FITZSIMONS held on 3/29/2021. Defendant present by video.
Defendant retained counsel. Oral Motion by the Government for Speedy Trial as to
KYLE FITZSIMONS (1); heard and granted. Detention Hearing set for 4/6/2021 at
2:00 PM by Telephonic/VTC before Magistrate Judge G. Michael Harvey. Bond Status
of Defendant: Defendant Remain Held Without Bond; Court Reporter: Nancy Meyer;
Defense Attorney: Eugene Ohm for Gregory Hunter; US Attorney: Jacob Steiner for
Brandon Regan; Pretrial Officer: Andre Sidbury. (ztl) (Entered: 04/05/2021)
03/30/2021 9 NOTICE OF ATTORNEY APPEARANCE Puja Bhatia appearing for USA. (Bhatia,
Puja) (Entered: 03/30/2021)
04/02/2021 10 NOTICE OF ATTORNEY APPEARANCE: Greg Hunter appearing for KYLE
FITZSIMONS (Hunter, Greg) (Entered: 04/02/2021)
04/05/2021 11 Unopposed MOTION for Protective Order by USA as to KYLE FITZSIMONS.
(Bhatia, Puja) (Entered: 04/05/2021)
04/05/2021 12 MOTION to Continue and Exclude Time Under the Speedy Trial Act by USA as to
KYLE FITZSIMONS. (Bhatia, Puja) (Entered: 04/05/2021)
04/05/2021 13 Memorandum in Opposition by KYLE FITZSIMONS re 12 MOTION for Speedy Trial
and Detention Pending Trial (Hunter, Greg) Modified on 4/21/2021 (bb). (Entered:
04/05/2021)
04/05/2021 21 MOTION to Exclude Time Under the Speedy Trial Act by USA as to KYLE
FITZSIMONS. (See DE 12 to view document). (bb) (Entered: 04/21/2021)
04/06/2021 MINUTE ORDER as to KYLE FITZSIMONS (1). On April 2, 2021, the government
filed a motion in U.S. v. Lopatic (1:21-cr-00035-EGS-3) that Defendant be detained
pending trial, "because there are no conditions or combination of conditions which will
reasonably... ensure the safety of any other person and the community." However,
during Defendant's detention hearing in Lopatic, begun on April 5, 2021 and continued
until today at 3:30 p.m., government counsel asserted that the government was not
contending that an assault in violation of 18 U.S.C. § 111(a)(1) constituted a crime of
violence under the Bail Reform Act, 18 U.S.C. § 3156(a)(4), nor was it requesting that
Defendant be held based on his potential dangerousness. Instead, counsel for the
government noted that the government sought Defendant's detention only on the
grounds that there is a "serious risk" that Defendant "will flee" or "attempt to obstruct
justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a
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prospective witness or juror." See 18 U.S.C. § 3142(f)(2)(A), (B). Further, at a March 2,
2021 detention hearing before Chief Judge Howell in U.S. v. Clayton Ray Mullins
(1:21-mj-233), counsel for the government suggested that the Department of Justice
may not be taking the position that a violation of 18 U.S.C. § 111(a)(1) constituted a
crime of violence under section 3156(a)(4) of the Bail Reform Act. As this position
appears contrary to the position taken by the government in its detention memorandum
filed in a different, substantially similar matter scheduled for a detention hearing before
this Court today at 2:00 p.m., see U.S. v. Fitzsimons (1:21-cr-00158-KBJ, ECF No. 7),
it is hereby ORDERED that the government file a written supplement to its detention
motion in both cases by 1:00 p.m. today, April 6, 2021, addressing this apparent
discrepancy and clarifying the legal basis under the Bail Reform Act on which the
government relies for its detention request in both matters. To the extent the government
is asserting that a violation of 18 U.S.C. § 111(a)(1) does constitute a crime of violence
in these matters under section 3156(a)(4) of the Bail Reform Act, the government
should provide legal authority for that proposition and address the Supreme Courts
decisions in United States v. Davis, __ U.S. __, 139 S. Ct. 2319 (2019), Mathis v.
United States, __ U.S. __, 136 S. Ct. 2243 (2016), Sessions v. Dimaya, __ U.S. __, 138
S. Ct. 1204 (2018), and Beckles v. United States, __ U.S. __, 137 S. Ct. 886 (2017).
Signed by Magistrate Judge G. Michael Harvey on 4/6/2021. (zpt) (Entered:
04/06/2021)
04/06/2021 14 SUPPLEMENT by USA as to KYLE FITZSIMONS 7 GOVERNMENT'S
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF PRETRIAL DETENTION
(Bhatia, Puja) Modified on 4/21/2021 (bb). (Entered: 04/06/2021)
04/06/2021 15 ORDER granting 11 Motion for Protective Order as to KYLE FITZSIMONS (1). The
parties' attention is directed to the edits that the Court has made to paragraph 4(d) of the
Proposed Order. Signed by Judge Ketanji Brown Jackson on 4/6/2021. (jag) (Entered:
04/06/2021)
04/06/2021 ORAL MOTION to Commit Defendant to Custody of Attorney General by USA as to
KYLE FITZSIMONS. (zpt) (Entered: 04/06/2021)
04/06/2021 ORAL MOTION for Release from Custody by KYLE FITZSIMONS. (zpt) (Entered:
04/06/2021)
04/06/2021 Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: VTC
Detention Hearing as to KYLE FITZSIMONS (1) held on 4/6/2021. Detention Hearing
was held but did not conclude. Continued Detention Hearing set for 4/7/2021 at 02:30
PM in Telephonic/VTC before Magistrate Judge G. Michael Harvey. Bond Status of
Defendant: Defendant Remains Committed; Court Reporter: FTR-Gold; FTR Time
Frame: CTRM 6 [2:18:41-3:26:54]; Defense Attorney: Greg Hunter and Joel Anders;
US Attorney: Brandon Regan and Puja Bhatia; Pretrial Officer: Dashanta
ValentineLewis; (zpt) (Entered: 04/06/2021)
04/07/2021 16 NOTICE OF ATTORNEY APPEARANCE: Joel William Anders appearing for KYLE
FITZSIMONS Joel W. Anders (Anders, Joel) (Entered: 04/07/2021)
04/07/2021 ORAL MOTION for Speedy Trial Waiver by USA as to KYLE FITZSIMONS (1). (zpt)
(Entered: 04/07/2021)
04/07/2021 Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: VTC
Continued Detention Hearing as to KYLE FITZSIMONS (1) held on 4/7/2021. Oral
Motion by the Government to Commit Defendant to Custody of Attorney General as to
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KYLE FITZSIMONS (1) Heard and Granted. Oral Motion for Release from Custody by
KYLE FITZSIMONS (1) Heard and Denied. Oral Motion by the Government for
Speedy Trial Waiver Nunc Pro Tunc as to KYLE FITZSIMONS (1) Heard and Granted.
Defense objects to Speedy Trial Waiver. Time between 3/31/2021 and 4/22/2021 (23
Days) shall be excluded from calculation under the Speedy Trial Act in the interest of
justice X-T. Status Hearing set for 4/22/2021 at 11:00 AM in Telephonic/VTC before
Judge Ketanji Brown Jackson. Bond Status of Defendant: Defendant
Committed/Commitment Issued; Court Reporter: FTR-Gold FTR Time Frame: CTRM
6 [3:25:57-4:15:55]; Defense Attorney: Greg Hunter and Joel Ayers; US Attorney:
Brandon Regan and Puja Phatia; Pretrial Officer: John Copes; (zpt) (Entered:
04/07/2021)
04/12/2021 MINUTE ORDER as to KYLE FITZSIMONS. It is hereby ORDERED that this case
shall be handled by Judge Reggie B. Walton under further Order. Signed by Judge
Ketanji Brown Jackson on 4/12/2021. (jag) (Entered: 04/12/2021)
04/17/2021 17 NOTICE OF DISCOVERY by USA as to KYLE FITZSIMONS (Bhatia, Puja) (Entered:
04/17/2021)
04/19/2021 18 MOTION for Disclosure OF GRAND JURY MATERIALS by USA as to KYLE
FITZSIMONS. (Bhatia, Puja) (Entered: 04/19/2021)
04/20/2021 19 TRANSCRIPT OF PROCEEDINGS in case as to KYLE FITZSIMONS before
Magistrate Judge G. Michael Harvey held on 04/06/2021. Page Numbers: 1-43. Date of
Issuance: 04/16/2021. Court Reporter: Nancy J. Meyer. Telephone Number:
202-354-3118. Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse
at a public terminal or purchased from the court reporter referenced above. After 90
days, the transcript may be accessed via PACER. Other transcript formats, (multi-page,
condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have 21 days to file

with the court and the court reporter any request to redact personal identifiers from this
transcript. If no such requests are filed, the transcript will be made available to the
public via PACER without redaction after 90 days. The policy, which includes the five
personal identifiers specifically covered, is located on our website at
www.dcd.uscourts.gov.
Redaction Request due 5/11/2021. Redacted Transcript Deadline set for 5/21/2021.
Release of Transcript Restriction set for 7/19/2021.(Meyer, Nancy) (Entered:
04/20/2021)
04/20/2021 20 TRANSCRIPT OF PROCEEDINGS in case as to KYLE FITZSIMONS before
Magistrate Judge G. Michael Harvey held on 04/07/2021. Page Numbers: 1-34. Date of
Issuance: 04/16/2021. Court Reporter: Nancy J. Meyer. Telephone Number:
202-354-3118. Transcripts may be ordered by submitting the Transcript Order Form
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have 21 days to file

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with the court and the court reporter any request to redact personal identifiers from this
transcript. If no such requests are filed, the transcript will be made available to the
public via PACER without redaction after 90 days. The policy, which includes the five
personal identifiers specifically covered, is located on our website at
Release of Transcript Restriction set for 7/19/2021.(Meyer, Nancy) (Entered:
04/20/2021)
04/22/2021 Minute Entry for proceedings held before Judge Reggie B. Walton for Judge Ketanji
Brown Jackson. Arraignment as to KYLE FITZSIMONS (1) held on 4/22/2021. A Not
Guilty Plea is entered as to Counts 1-10 of the Indictment. Speedy Trial Time Excluded
4/22/2021 - 5/7/2021(XT). Status Conference continued for 5/7/2021 at 03:00 PM by
Telephonic/VTC before Judge Reggie B. Walton for Judge Ketanji Brown Jackson.
Bond Status of Defendant: Committed/Defendant present via video; Court Reporter:
Cathryn Jones; Defense Attorney: Greg Hunter/Joel Anders; US Attorney: Puja Bhatia;
(hs) (Entered: 04/22/2021)
04/23/2021 22 ORDER, granting 18 Motion for Disclosure and denying 12 Motion to Continue as to
KYLE FITZSIMONS (1). Signed by Judge Reggie B. Walton on 4/22/2021. (hs)
(Entered: 04/23/2021)
04/25/2021 36 ORDER OF DETENTION PENDING TRIAL - Defendant Held Without Bond as to
KYLE FITZSIMONS (1). Signed by Magistrate Judge G. Michael Harvey on
4/25/2021. (zpt) (zpt). Modified Document Number on 9/14/2021 (zpt). (Entered:
04/27/2021)
05/03/2021 23 MOTION to Withdraw as Attorney by Gregory T. Hunter and Joel Anders., MOTION
to Appoint Counsel by KYLE FITZSIMONS. (Attachments: # 1 Proposed Order)
(Hunter, Greg) (Entered: 05/03/2021)
05/06/2021 24 NOTICE of Discovery by USA as to KYLE FITZSIMONS (Regan, Brandon) (Entered:
05/06/2021)
Brown Jackson: Status Conference as to KYLE FITZSIMONS held on 5/7/2021.
Defendant's 23 MOTION to Withdraw as Attorney by Gregory T. Hunter and Joel
Anders: heard and granted. Speedy Trial Time Excluded 5/7/2021-5/21/2021(XT).
Status Conference continued for 5/21/2021 at 10:00 AM by Telephonic/VTC before
Judge Reggie B. Walton for Judge Ketanji Brown Jackson Bond Status of Defendant:
Committed/Defendant present via telephone; Court Reporter: Nancy Meyer; Defense
Attorney: Greg Hunter/Joel Anders; US Attorney: Puja Bhatia;Brandon Regan
(Entered: 05/07/2021)
05/10/2021 25 ORDER as to KYLE FITZSIMONS. Signed by Judge Reggie B. Walton on 5/10/2021.
(hs) (Entered: 05/10/2021)
05/12/2021 26 NOTICE OF ATTORNEY APPEARANCE: Natasha Taylor-Smith appearing for KYLE
FITZSIMONS (Taylor-Smith, Natasha) (Entered: 05/12/2021)
Brown Jackson: Status Conference as to KYLE FITZSIMONS held on 5/21/2021.
Defendant's oral motion for a continuance; heard and granted. Speedy Trial Time
Excluded 5/21/2021 - 6/8/2021(XT). Status Conference set for 6/8/2021 at 09:30 AM
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by Telephonic/VTC before Judge Reggie B. Walton. Bond Status of Defendant:
Committed/Defendant present by phone; Court Reporter: Cathryn Jones; Defense
Attorney: Natasha Taylor-Smith; US Attorney: Brandon Regan; (hs) (Entered:
05/21/2021)
05/24/2021 27 ORDER as to KYLE FITZSIMONS. Signed by Judge Reggie B. Walton on 5/24/2021.
(hs) (Entered: 05/24/2021)
06/08/2021 Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference
as to KYLE FITZSIMONS held on 6/8/2021. Case continued to determine if the
defendant will agree to the toll speedy trial time. Status Conference set for 6/15/2021 at
10:00 AM by Telephonic/VTC before Judge Reggie B. Walton. Bond Status of
Defendant: Committed/Defendant present by telephone; Court Reporter: Cathryn Jones;
Defense Attorney: Natasha Taylor-Smith; US Attorney: Brandon Regan; (hs) (Entered:
06/08/2021)
06/15/2021 Minute Entry for telephone proceedings held before Judge Reggie B. Walton:Status
Conference as to KYLE FITZSIMONS held on 6/15/2021. Speedy Trial Excludable
(XT) started 6/15/21 until 7/19/21, in the interest of justice. Status Conference set for
7/19/2021 at 10:30 AM in Telephonic/VTC before Judge Reggie B. Walton. Bond
Status of Defendant: Remains Incarcerated/Presented via telephone; Court Reporter:
Cathryn Jones; Defense Attorney: Natasha Taylor-Smith; US Attorney: Brandon Regan.
(zgdf) (Entered: 06/15/2021)
06/15/2021 Case as to KYLE FITZSIMONS randomly reassigned to Judge Rudolph Contreras.
Judge Ketanji Brown Jackson has been elevated to the USCA and is no longer assigned
to the case. (ztnr) (Entered: 06/15/2021)
06/22/2021 28 TRANSCRIPT OF PROCEEDINGS in case as to KYLE FITZSIMONS before Judge
Reggie B. Walton held on May 21, 2021; Page Numbers: 1 - 5. Court
Reporter/Transcriber Cathryn Jones, Telephone number 202 354-3246, Transcripts may
be ordered by submitting the Transcript Order Form
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days

to file with the court and the court reporter any request to redact personal identifiers
from this transcript. If no such requests are filed, the transcript will be made available to
the public via PACER without redaction after 90 days. The policy, which includes the
five personal identifiers specifically covered, is located on our website at
Release of Transcript Restriction set for 9/20/2021.(Jones, Cathryn) (Entered:
06/22/2021)
Reggie B. Walton held on June 8, 2021; Page Numbers: 1 - 7. Court
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06/22/2021)
Reggie B. Walton held on June 15, 2021; Page Numbers: 1 - 5. Court

06/22/2021)
06/25/2021 31 Response to Application for Access to Video Exhibits by USA as to KYLE
FITZSIMONS. (Regan, Brandon) Modified Text on 6/26/2021 (zhsj). (Entered:
06/25/2021)
06/29/2021 32 Response to Application Regarding Video Exhibit Release by KYLE FITZSIMONS.
(Taylor-Smith, Natasha) Modified Text on 7/1/2021 (zhsj). (Entered: 06/29/2021)
07/12/2021 33 Memorandum Regarding Status of Discovery by USA as to KYLE FITZSIMONS.
(Regan, Brandon) Modified Text on 7/12/2021 (zhsj). (Entered: 07/12/2021)
07/16/2021 NOTICE OF HEARING as to KYLE FITZSIMONS: Status Conference currently set
for 7/19/2021 at 10:30 AM will now be held before Judge Rudolph Contreras via Zoom
Video. (tj) (Entered: 07/16/2021)
07/19/2021 Minute Entry for proceedings held Via VTC before Judge Rudolph Contreras:Status
Conference as to KYLE FITZSIMONS held on 7/19/2021. Parties Discussed On The
Record Posture Of The Case. Defendant Will File A Bond Motion. Parties Request
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Continuance Of Thirty (30) Days.Status Conference set for 8/19/2021 at 10:30 AM in
Telephonic/VTC before Judge Rudolph Contreras. With No Objections From The
Parties, Speedy Trial Is Tolled 7/19/21 - 8/19/21 In The Interest Of Justice (XT).Bond
Status of Defendant: APPEARED VIA VTC; REMAINS COMMITTED; Court
Reporter: LISA EDWARDS; Defense Attorney: NATASHA TAYLOR-SMITH; US
Attorney: BRANDON REGAN; (mac) (Entered: 07/19/2021)
08/19/2021 Minute Entry for proceedings held before Judge Rudolph Contreras:Status Conference
as to KYLE FITZSIMONS held on 8/19/2021. Parties inform the court of the status of
this action. Defendant's motion for bond review shall be filed by 8/27/2021, and the
government's response shall be filed by 9/9/2021. Speedy trial is excluded (XT) from
8/19/2021 to 9/16/2021 in the interest of justice. Motion Hearing is set for 9/16/2021 at
11:00 AM before Judge Rudolph Contreras. Bond Status of Defendant: Committed/with
consent to appear by video; Court Reporter: Nancy Meyer; Defense Attorney: Natasha
Taylor-Smith; US Attorney: Brandon K. Regan; (tj) (Entered: 08/19/2021)
08/27/2021 34 MOTION to Revoke Detention Order, MOTION for Release from Custody , Pretrial by
KYLE FITZSIMONS. (Taylor-Smith, Natasha) (Entered: 08/27/2021)
09/09/2021 35 Memorandum in Opposition by USA as to KYLE FITZSIMONS re 34 MOTION to
Revoke Detention Order MOTION for Release from Custody , Pretrial (Regan,
Brandon) (Entered: 09/09/2021)
09/15/2021 NOTICE OF COURTROOM CHANGE in case as to KYLE FITZSIMONS: Status
conference currently scheduled for 9/16/2021 @ 11:00am will be held in Courtroom 14
- 4th Floor (Prettyman Building) before Judge Rudolph Contreras. (tj) (Entered:
09/15/2021)
09/16/2021 Minute Entry for proceedings held before Judge Rudolph Contreras: Motion Hearing as
to KYLE FITZSIMONS held (In Person) on 9/16/2021 re 34 MOTION to Revoke
Detention Order MOTION for Release from Custody , Pretrial filed by KYLE
FITZSIMONS. Oral argument heard, and motion taken under advisement. Next Status
Conference set for 10/20/2021 at 12:30 PM before Judge Rudolph Contreras via Zoom
Video. Bond Status of Defendant: Committed/Commitmen Issued; Court Reporter: Sara
Wick; Defense Attorney: Natasha Taylor-Smith; US Attorney: Brandon K. Regan;
Pretrial Officer: Shay Holman; (zj) (Entered: 09/16/2021)
09/24/2021 37 ORDER denying 34 Defendant's Motion to Revoke Detention Order and for Pretrial
Release. See document for details. Signed by Judge Rudolph Contreras on 09/24/2021.
(lcrc2) (Entered: 09/24/2021)
09/24/2021 38 MEMORANDUM OPINION denying 34 Defendant's Motion to Revoke Detention
Order and for Pretrial Release. See document for details. Signed by Judge Rudolph
Contreras on 09/24/2021. (lcrc2) (Entered: 09/24/2021)
09/27/2021 MINUTE ORDER: The parties are hereby ORDERED to respond on or before October
11, 2021, to the Supplemental Memorandum re Motion to Produce Video and Audio
Exhibits filed by AMERICAN BROADCASTING COMPANIES, INC., et al, in the
related case In re Application for Access to Video Exhibits, 21-mc-00090, ECF No. 6.
Responses should be filed on the dockets for both 21-mc-00090 and 21-cr-00158. SO
ORDERED. Signed by Judge Rudolph Contreras on 09/27/2021. (lcrc2) (Entered:
09/27/2021)
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10/8/2021, 10:12 AM

09/27/2021 39 NOTICE Regarding Status of Discovery as of September 14, 2021 by USA as to KYLE
FITZSIMONS (Regan, Brandon) (Entered: 09/27/2021)
10/07/2021 40 NOTICE OF APPEAL (Interlocutory) by KYLE FITZSIMONS re 37 Order on Motion
to Revoke, Order on Motion for Release from Custody. Fee Status: No Fee Paid. Parties
have been notified. (Taylor-Smith, Natasha) (Entered: 10/07/2021)
PACER Service Center

Transaction Receipt
10/08/2021 10:12:13
PACER Login: abbyhorn Client Code:
Description: Docket Report Search Criteria: 1:21-cr-00158-RC
Billable Pages: 9 Cost: 0.90
Exempt flag: Exempt Exempt reason: Always
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10/8/2021, 10:12 AM
Case 1:21-cr-00158-RC Document 1 Filed 02/01/21 Page 1 of 1
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Code Section Offense Description
18 U.S.C. § 1752(a)(4) - Knowingly Entering or Remaining in Any Restricted Building or

Grounds without Lawful Authority
40 U.S.C. § 5104(e)(2)(F) - Violent Entry and Disorderly Conduct on Capitol Grounds
18 U.S.C. § 111(a)(1) - Assault on a Federal Officer
18 U.S.C. § 231(a)(3)- Certain Acts During a Civil Disorder
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Complainant’s signature
Benjamin Spinale, Special Agent

Printed name and title
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Case 1:21-cr-00158-RC Document 1-1 Filed 02/01/21 Page 1 of 9
STATEMENT OF FACTS
Your affiant, Benjamin Spinale, is a Special Agent with the Federal Bureau of Investigation
(“FBI”) and I am assigned to the Washington Field Office. Currently, I am a tasked with
investigating criminal activity in and around the Capitol grounds on January 6, 2021. As a Special
Agent with the Federal Bureau of Investigation, I am authorized by law or by a Government agency
to engage in or supervise the prevention, detention, investigation, or prosecution of violations of
Federal criminal laws.
The U.S. Capitol is secured 24 hours a day by U.S. Capitol Police. Restrictions around the
U.S. Capitol include permanent and temporary security barriers and posts manned by U.S. Capitol
Police. Only authorized people with appropriate identification were allowed access inside the U.S.
Capitol. On January 6, 2021, the exterior plaza of the U.S. Capitol was also closed to members of
the public.
On January 6, 2021, a joint session of the United States Congress convened at the United
States Capitol, which is located at First Street, SE, in Washington, D.C. During the joint session,
elected members of the United States House of Representatives and the United States Senate were
meeting in separate chambers of the United States Capitol to certify the vote count of the Electoral
College of the 2020 Presidential Election, which had taken place on November 3, 2020. The joint
session began at approximately 1:00 p.m. Shortly thereafter, by approximately 1:30 p.m., the
House and Senate adjourned to separate chambers to resolve a particular objection. Vice President
Mike Pence was present and presiding, first in the joint session, and then in the Senate chamber.
As the proceedings continued in both the House and the Senate, and with Vice President
Mike Pence present and presiding over the Senate, a large crowd gathered outside the U.S. Capitol.
As noted above, temporary and permanent barricades were in place around the exterior of the U.S.
Capitol building, and U.S. Capitol Police were present and attempting to keep the crowd away
from the Capitol building and the proceedings underway inside.
At such time, the certification proceedings were still underway and the exterior doors and
windows of the U.S. Capitol were locked or otherwise secured. Members of the U.S. Capitol Police
attempted to maintain order and keep the crowd from entering the Capitol; however, shortly around
2:00 p.m., individuals in the crowd forced entry into the U.S. Capitol, including by breaking
windows and by assaulting members of the U.S. Capitol Police, as others in the crowd encouraged
and assisted those acts.
Shortly thereafter, at approximately 2:20 p.m. members of the United States House of
Representatives and United States Senate, including the President of the Senate, Vice President
Mike Pence, were instructed to—and did—evacuate the chambers. Accordingly, the joint session
of the United States Congress was effectively suspended until shortly after 8:00 p.m. Vice
President Pence remained in the United States Capitol from the time he was evacuated from the
Senate Chamber until the sessions resumed.
During national news coverage of the aforementioned events, video footage which
appeared to be captured on mobile devices of persons present on the scene depicted evidence of
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violations of local and federal law, including scores of individuals inside the U.S. Capitol building
without authority to be there.
On January 6, 2021, at approximately 3:45 pm – 4:30 pm, Kyle Fitzsimons (herein referred
to as FITZSIMONS) was observed pushing and grabbing against officers who were holding a
police line in an arched entranceway on the lower west terrace of the Capitol Building. Capitol
building surveillance footage captured FITZSIMONS at the terrace archway (circled in red below):
FITZSIMONS moved to the front of the group of rioters and was observed grabbing at
officers. In the image below, FITZSIMONS is wearing a dark blue sweater and a white coat,
appearing on Capitol building surveillance to the left of the archway. FITZSIMONS was then
observed reaching down and grabbing at officers as he entered the archway:
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After being struck by officers’ batons, FITZSIMONS got up and moved towards the middle
of the archway; he lowered his shoulder and charged at the line of officers. The officer’s helmet
in the lower right corner of the footage has MPDC printed on the back, indicating the Officer
belongs to the Metropolitan Police Department (MPD) of the District of Columbia:
FITZSIMONS simultaneously appeared on MPD body worn camera, where he was

observed performing the same actions stated above: lowering his shoulder and charging at the
police line while swinging at officers. The image below shows FITZSIMONS with his head down,
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engaging with officers with what appears to be fur pelt hanging from around his neck, wearing
dark pants and rubber boots:
After officers fought off FITZSIMONS, surveillance footage depicted FITZSIMONS

retreating back into the crowd. A BOLO (Be On the Look Out) was issued for FITZSIMONS after
video surveillance was reviewed which depicted him engaging in the above-stated actions in the
lower west terrace archway:
A concerned citizen (C-1) observed the BOLO and reported to the FBI that the BOLO
looks similar to an individual by the name of Kyle Fitzsimons from Lebanon, Maine. C-1 has
interacted with FITZSIMONS in person on a number of occasions. C-1 reported FITZSIMONS
gave an interview to the Rochester Voice wherein FITZSIMONS stated he attended President
Trump’s rally at the Ellipse and walked over to the Capitol after the speeches ended. Your affiant
reviewed the news article entitled “West Lebanon man recounts the hope, then terror he
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encountered on Jan. 6” authored by the Rochester Voice. 1 In the article, FITZSIMONS was
interviewed and the article recounted that FITZSIMONS was clubbed in the head with a baton
after he was unwillingly pushed forward to a police line outside the west face of the Capitol.
FITZSIMONS stated that after being hit in the head, he moved towards the perimeter where he
was helped down the Capitol steps towards an ambulance. He was then transported to a local
hospital and received six stitches to his head. In the article, FITZSIMONS is quoted as saying,
“The speeches from the morning were overtly preaching the election was not over, there was a
path to victory through decertification, there was a plan to delay the certification by the House
and Senate and then state legislatures would convene and (certify) the right result.”
FITZSIMONS stated that as the rally at the Ellipse ended, the crowd was asked by President
Trump to walk to the Capitol to “give our Republicans, the weak ones ... the kind of pride and
boldness that they need to take back our country.” FITZSIMONS stated that he went to his car at
a local parking garage and changed from regular clothes to his butcher whites and carried an
unstrung bow with him, which was meant to signify his peaceful intent. The article included
several pictures which were attributed to FITZSIMONS in the captions below. The captions
described the images depicted in the photographs and in parentheses “Kyle Fitzsimons photo.”
See below for a picture in the article with caption “inset a picture of Fitzsimons taken earlier in
the day” in which FITZSIMONS is seen wearing a dark blue sweater, a white coat with the name
“Kyle” on the left shoulder, a fur item and what appears to be a wooden stick:
The article contained two additional photographs that were attributed to Fitzsimons. The
first included the caption, “The thousands who went to protect at the Capitol found themselves in
tight spaces as they ascended from the west front (Kyle Fitzsimons photo).” The photo appears to
be taken by the scaffolding on the west face of the Capitol building as individuals were ascending
the Capitol steps:
1
Available at https://www.therochestervoice.com/west-lebanon-man-recounts-the-hope-then-terror-he-encountered-
on-jan-6-cms-15693 (last checked January 31, 2021).
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The second image included the caption, “Looking out from the west front of the Capitol
at a huge throng of humanity and the Washington Monument (Kyle Fitzsimons photo)”, taken
from higher up on the Capitol steps, looking down to the west terrace with scaffolding to the
right and left and the Washington Monument in the distance:
Additionally, the news article cited a video from Right Side Broadcast Network capturing
FITZSIMONS as he descended from the steps of the west side of the Capitol building with blood
on his face, with FITZSIMONS wearing a dark apron over his white coat. Below is a screen shot
of the Right Side Broadcast Network video, capturing FITZSIMONS at 4:19 pm:
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Additionally, C-1 reported that FITZSIMONS called into a Town of Lebanon meeting on
January 7, 2021. Your affiant watched the video of the meeting, which was posted on YouTube.
In the video, FITZSIMONS stated he had returned from Washington D.C. after being there
between January 5th and 6th, 2021. In the video, FITZSIMONS stated that he was present on the
Ellipse for the speeches made by politicians. FITZSIMONS said he believes that Trump is a lion
leading an army of lambs through “lawfare”. Following the addresses, the crowd was directed to
march down Pennsylvania Avenue to the Capitol. FITZSIMONS stated that he went to an
unknown parking garage to put on a costume. FITZSIMONS’s costume was a butcher’s jacket and
an unstrung bow. This costume held an indiscernible symbolistic value to FITZSIMONS.
FITZSIMONS also reasoned that if it were the last day of the republic, he wanted to live it like he
did every day. FITZSIMONS stated he was at the protest for peace. As FITZSIMONS approached
the Capitol building, he said there were individuals already involved in disorder who were
climbing the building. FITZSIMONS stated he was near a group of individuals near a police line
that was protecting a doorway. According to FITZSIMONS, anyone “sucked in” to the crowd was
pushed into the police line and were subjected to force. FITZSIMONS stated that he went through
“two cycles” of being pushed into the police line, at which point he was struck in the head by a
police officer with a baton. FITZSIMONS was bloodied, so he left the steps of the Capitol building,
where he was attended to by rescue members. FITZSIMONS was treated at a hospital and received
six stitches in his head. FITZSIMONS said this was a peaceful protest gone wrong and the violence
at the protest was a set up, and it wasn’t the MAGA crowd. FITZSIMONS further identified
himself as a pawn in that set up.
On January 21, 2021, C-2 was telephonically interviewed by the FBI regarding a tip C-2
had provided. C-2 has interacted with FITZSIMONS in person on a number of occasions. C-2
stated he/she saw the article featuring FITZSIMONS published in the Rochester Voice
(described above), as well as a post attributed to FITZSIMONS published on the “Lebanon
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Maine Truth Seekers” Facebook page with FITZSIMONS name and email listed as the contact.
While the post may not have been made by Fitzsimons, it is understood that he communicated
the message to the author of the message, who posted it on Fitzsimons’ behalf (pictured below):
C-2 stated FITZSIMONS was known to be very vocal about his right-wing political
beliefs, was a gun owner, and C-2 felt FITZSIMONS held racist beliefs, but has not heard
FITZSIMONS make violent expressions towards government or law enforcement. On January
26, 2021, C-2 was shown a photograph from the article published in the Rochester Voice
(pictured and discussed above); C-2 confirmed the pictured individual was Kyle FITZSIMONS.
C-2 also stated that FITZSIMONS was currently employed at Hannaford Supermarket in York,
Maine.
On January 21, 2021 C-3, who has interacted with FITZSIMONS in person on a number
of occasions and is familiar with FITZSIMONS’ voice, was interviewed by the FBI concerning a
tip C-3 provided to the FBI on January 12, 2021. C-3 described FITZSIMONS as an “anti-
establishment” type who is opposed to government interference and frequently discusses firearms,
but has not heard of FITZSIMONS making violent expressions towards government or law
enforcement. C-3 also stated he/she was present during the January 7th Lebanon town meeting
(discussed above) where FITZSIMONS called in and discussed his role in the Capitol riots. C-3
was again interviewed on January 26, 2021, wherein C-3 confirmed the voice of the person
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recounting the events at the U.S. Capitol on January 6, 2021 during the Lebanon town meeting
was FITZSIMONS. C-3 was shown a photograph of FITZSIMONS from the Rochester Voice
news article and C-3 identified the individual in the photograph as FITZSIMONS.
Based on the foregoing, your affiant submits that there is probable cause to believe that
FITZSIMONS violated 18 U.S.C. § 1752(a)(4), which makes it a crime to knowingly engage in
any act of physical violence against any person or property in any restricted building or grounds;
or attempts or conspires to do so. For purposes of Section 1752 of Title 18, a “restricted building”
includes a posted, cordoned off, or otherwise restricted area of a building or grounds where the
President or other person protected by the Secret Service, including the Vice President, is or will
be temporarily visiting; or any building or grounds so restricted in conjunction with an event
designated as a special event of national significance.
Your affiant submits there is also probable cause to believe that FITZSIMONS violated 40
U.S.C. § 5104(e)(2)(F), which makes it a crime to willfully and knowingly engage in an act of
physical violence in the Grounds or any of the Capitol buildings.
Your affiant submits there is also probable cause to believe that FITZSIMONS violated 18
U.S.C. § 111(a)(1), which makes it crime for whoever forcibly assaults, resists, opposes, impedes,
intimidates, or interferes with any person designated in section 1114 of this title while engaged in
or on account of the performance of official duties. For purposes of Section 1114 of Title 18, an
officer or employee is engaged in or on account of the performance of official duties, or any person
assisting such an officer or employee in the performance of such duties or on account of that
assistance.
Finally, your affiant submits there is probable cause to believe that FITZSIMONS violated
18 U.S.C. 231(a)(3), which makes it unlawful to commit or attempt to commit any act to obstruct,
impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful
performance of his official duties incident to and during the commission of a civil disorder which
in any way or degree obstructs, delays, or adversely affects commerce or the movement of any
article or commodity in commerce or the conduct or performance of any federally protected
function. For purposes of Section 231 of Title 18, a federally protected function means any
function, operation, or action carried out, under the laws of the United States, by any department,
agency, or instrumentality of the United States or by an officer or employee thereof. This includes
the Joint Session of Congress where the Senate and House count Electoral College votes.
_________________________________
Special Agent Benjamin Spinale
Federal Bureau of Investigation
Attested to by the applicant in accordance with the requirements of Fed. R. Crim. P. 4.1 by
telephone, this 1st day of February 2021.
___________________________________
=,$0)$5848,
U.S. MAGISTRATE JUDGE
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UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA :

:
v. : Case No. FU
:
KYLE FITZSIMONS, :
:
Defendant. :
____________________________________:
MEMORANDUM IN SUPPORT OF PRETRIAL DETENTION
The United States of America, by and through its attorney, the United States Attorney for
the District of Columbia, respectfully submits this memorandum in support of pretrial detention
that the defendant, Kyle Fitzsimons, be detained pending trial pursuant to 18 U.S.C. §
3142(f)(1)(A) [Crime of Violence] and 18 U.S.C. § 3142(f)(2)(A) [Risk of Flight]. There are no
conditions or combinations of conditions which can effectively ensure the defendant’s appearance
or the safety of any other person and the community, pursuant to 18 U.S.C. §§ 3142(e).
The government respectfully requests that the following points and authorities, as well as
any other facts, arguments and authorities presented at the detention hearing, be considered in the
Court’s determination regarding pre-trial detention.
PROCEDURAL POSTURE
The defendant was arrested in Maine on February 4, 2021. He appeared before Magistrate
Judge John H. Rich III on February 5, 2021. The defendant waived a detention hearing and
preliminary hearing and asked that his hearings and further proceedings be held in the U.S. District
Court, District of Columbia. Judge Rich issued a temporary order of detention and a commitment
to another district while the defendant was remanded to the custody of the U.S. Marshals for
transport to the District of Columbia.
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On February 26, 2021, an indictment was returned against defendant Fitzsimons charging
him with following ten counts:
1. Obstruction of Law Enforcement During Civil Disorder (18 U.S.C. § 231(a)(3)) (Sergeant
A.G.) (5 year max);
2. Obstruction of Law Enforcement During Civil Disorder (18 U.S.C. § 231(a)(3)) (Detective
P.N.) (5 year max);
3. Obstruction of an Official Proceeding and Aiding and Abetting, in violation of Title 18,
United States Code, Sections 1512(c)(2) and 2 (20 year max);
4. Inflicting Bodily Injury on Certain Officers (18 U.S.C. § 111(a)(1), and (b)) (Sergeant
A.G.) (20 year max);
5. Inflicting Bodily Injury on Certain Officers (18 U.S.C. § 111(a)(1), and (b)) (Detective
P.N.) (20 year max);
6. Entering or Remaining in any Restricted Building or Grounds (18 U.S.C. § 1752(a)(1)) (1
year max);
7. Disorderly and Disruptive Conduct in a Restricted Building or Grounds (18 U.S.C. §
1752(a)(2) (1 year max);
8. Engaging in Physical Violence in a Restricted Building or Grounds (18 U.S.C. §
1752(a)(4)) (1 year max);
9. Disorderly Conduct on Capitol Grounds (40 U.S.C. § 5104(e)(2)(D)) (6 month max)
10. Act of Physical Violence in the Capitol Grounds or Buildings (40 U.S.C. § 5104(e)(2)(F))
(6 month max)
FACTUAL BACKGROUND
1. The Attack on the United States Capitol on January 6, 2021
The government hereby proffers that, two months after the November 3, 2020 presidential
election, on January 6, 2021, a joint session of the United States Congress convened at the Capitol
to certify the vote count of the Electoral College of the 2020 Presidential Election. The joint session
began at approximately 1:00 p.m., with then–Vice President Mike Pence presiding. By 1:30 p.m.,
the United States House of Representatives and the United States Senate adjourned to separate
chambers within the Capitol to resolve an objection raised in the joint session. Vice President
Pence continued to preside in the Senate chamber.
As the House and Senate proceedings took place, a large crowd of protestors gathered
outside the Capitol. “[T]emporary and permanent barricades were in place around the exterior of
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the . . . building, and U.S. Capitol Police were present and attempting to keep the crowd away from
the Capitol building and the proceedings underway inside.” Shortly after 2:00 p.m., a violent mob
of rioters “forced entry” into the Capitol, and mayhem broke out inside the building, putting an
hours-long halt to the electoral vote count while elected representatives, congressional staff, and
members of the press hid from the mob. The joint session, and thus the constitutional ritual of
confirming the results of the 2020 Presidential Election, “was effectively suspended until shortly
after 8:00 p.m.”
2. Kyle Fitzsimons’ Criminal Conduct
After receiving tips, including reviewing a Rochester Voice article in which Fitzsimons
gave an interview about his actions at the Capitol on January 6th and a Town of Lebanon meeting
in which Fitzsimons recounted his actions, the FBI was able to identify Fitzsimons in a collection
of video footage, including body worn camera worn by Metropolitan Police Officers, video
surveillance from the Capitol Building and a video posted online showing Fitzsimons walking
away from the Capitol area bloodied.
Between 3:45 pm – 4:30 pm, Fitzsimons was pushing and grabbing against officers who
were holding a police line in an arched entranceway on the lower west terrace of the Capitol
Building. Fitzsimons moved to the front of the group of rioters and was observed reaching down
and grabbing at officers as he entered the archway. Specifically, Fitzsimons grabbed Sergeant
A.G.’s left shoulder and was trying to pull Sergeant A.G. into the crowd. Sergeant A. G. slipped
and fell while standing on three police shields that had been covered in pepper/mace spray.
Sergeant A.G. had to strike Fitzsimons with a baton several times to get free from Fitzsimons’
grip. After being struck by officers’ batons, Fitzsimons got up and moved towards the middle of
the archway; he lowered his shoulder and charged at the line of officers. Fitzsimons grabbed
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Detective P.N.’s gas mask and pulled it to the side before another individual behind Fitzsimons
covered Detective P.N. in spray.
Speaking of his participation in the riot, Fitzsimons told the Rochester Voice the following
and provided pictures taken from his phone, which documented his travel up towards the Capitol
building:
“The speeches from the morning were overtly preaching the election
was not over, there was a path to victory through decertification,
there was a plan to delay the certification by the House and Senate
and then state legislatures would convene and (certify) the right
result.”
The crowd at the Ellipse was asked by President Trump to walk to

the Capitol to “give our Republicans, the weak ones ... the kind of
pride and boldness that they need to take back our country.”
The day after the riots, Fitzsimons called into a Town of Lebanon meeting. Fitzsimons
stated that he believes that Trump is a lion leading an “army of lambs through lawfare.” After
Trump’s speech, Fitzsimons went to an unknown parking garage to put on a costume which
consisted of butcher’s jacket and an unstrung bow, which held an indiscernible symbolistic value
to Fitzsimons. Fitzsimons stated that if it were the last day of the republic, he wanted to live it like
he did every day. Fitzsimons stated he was near a group of individuals near a police line that was
protecting a doorway and anyone “sucked in” to the crowd was pushed into the police line and
were subjected to force.
Furthermore, law enforcement were directed to the Lebanon Maine Truth Seekers
Facebook page in which a message posted on December 24, 2020 contained the following
messages:
“I’m also seeing flags that this election was stolen and we are being
slow walked towards Chinese ownership by an establishment that is
treasonous and all too willing to gaslight the public into believing
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the theft was somehow the will of the people.”
“Would there be an interest locally an organizing a caravan to

Washington DC for the Electoral College cote count on Jan 6 th,
2021? I am arranging the time off and will be a driver if anyone
wishes to hitch a ride, or a lead for a caravan of vehicles. If a call
went out for able bodies, would there be an answer?”
The Facebook message was signed with Fitzsimons’ first and last name and included a
gmail address also containing his first and last name.
According to C-3, who had identified Fitzsimons through the recorded Town of Lebanon
meeting and the Rochester Voice article and who has had numerous face to face interactions with
Fitzsimons, described Fitzsimons as an “anti-establishment” type who is opposed to government
interference and frequently discusses firearms.
As law enforcement continued to investigate Fitzsimons, information was obtained that
Fitzsimons made several calls to a Congressional office representing his district, stating the
following:
x On March 19, 2020, Fitzsimons called-in, demanding the number for Chinese
President, Xi Jinping. Fitzsimons said that he wanted to start a war with China
and if the individual answering the phone don't give him the number, he was
going to go out on the street and start talking to the Chinese people he saw. He
said many times that he wanted to start a war and when the staffer asked him for a
name, he said “This is Kyle Fitzsimons, the man who wants to start a war.”
Fitzsimons’ tone was noted to be very aggressive and angry.
x On December 17, 2020, Fitzsimons called-in and stated that he was against
impeachment. He was reported to be very aggressive, shouting and yelling.
Fitzsimons said that he was going to "give it to her hard" and that "we're coming
for her" (referring to the Congressperson).
x On December 18, 2020, Fitzsimons stated that the electoral college vote is corrupt
and total garbage. He urged the Congressperson to dispute the election results in
January. He stated that Biden is a corrupt skeleton and that this is going to be
Civil War.
Pursuant to a lawfully-obtained search warrant, law enforcement was able to recover from
the defendant’s premise fur pelts and unstrung bows and from his vehicle, a bloodied butcher’s
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coat with “Kyle” inscribed in the coat, rubber boots and the apron Fitzsimons was seen wearing at
the Capitol on January 6th.
LEGAL STANDARD
Under the Bail Reform 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’ compared to other federal offenses.” United States v. Singleton, 182
F.3d 7, 13 (D.C. Cir. 1999) (quoting United States v. Salerno, 481 U.S. 739, 747 (1987)). Thus, 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 categories, 18 U.S.C. § 3142(f)(1)(A)–(E), or if the
defendant poses a serious risk of flight or of attempting to obstruct justice or threaten, injure, or
intimidate a witness or juror, id. § 3142(f)(2)(A)–(B). The BRA “requires that detention be
supported 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). 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.
The charges brought against Fitzsimons trigger a detention hearing under 18 U.S.C.
3142(f)(1)(A) (“crime of violence”), defined broadly as “an offense that has as an element of …
physical force” or a felony that “by its nature, involves a substantial risk that physical force against
the person or property of another.” 18 USC § 3156(a)(4). This case also involves “a serious risk
that such person will flee.” 18 U.S.C. § 3142(f)(2)(A). Accordingly, the Court “shall hold a hearing
to determine whether any condition or combination of conditions … will reasonably assure the
appearance of such person as required and the safety of any other person and the community.” 18
U.S.C. 3142(f).
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To determine whether conditions exist that will reasonably assure the appearance of the
defendant as required and the safety of any person in the community, the judicial officer shall
consider four factors: (1) “the nature and the circumstances of the offense charged,” (2) “the weight
of the evidence against the person,” (3) “the history and characteristics of the person,” 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)(l)-(4).
ARGUMENT
The United States submits that there are no conditions or combination of conditions the
Court could impose that would reasonably assure the safety of the community or the appearance
of the defendant.
(1) The Nature and Circumstances of the Offense Charged:
The defendant has been charged with grave offenses. He forcibly entered and remained on
the Capitol grounds and sought to stop, delay, and hinder Congress’s certification of the Electoral
College vote. He was at the front of the crowd in the Lower West Terrace tunnel and engaged
directly with officers by pulling them by the body parts, including the shoulder, in attempt to pull
them into the crowd. Not hindered by the batons meant to prevent further violence on Fitzsimons’
part, he pulled the gas mask off another officer, which was then followed by another individual
spraying the officer in the face. He persisted in his violence and was unhindered by the line formed
at the tunnel meant to protect the Capitol building from the rioters.
As made clear in the Facebook post on the Lebanon Truth seekers page, once a call “went
out for able bodies” to march to the Capitol, Fitzsimons answered with violence, force and
aggression. Following up on his threatening calls made to the Congressional office on December
17-18, 2020, in which he stated he was going to “give it to her hard” (referring to the
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34
Congressperson) and stating that the fraudulent election was going to result in a Civil War,
Fitzsimons prepared himself for a battle both in apparel (butcher coat, rubber boots and apron,
unstrung bow) and in his actions that day. Fitzsimons made clear his disgust for the election and
was acting on the threats by use of violence and force. Such conduct poses a clear risk to the
community. As stated by Chief Judge Beryl A. Howell, “[t]he actions of this violent mob,
particularly those members who breached police lines and gained entry to the Capitol, are
reprehensible as offenses against morality, civic virtue, and the rule of law.” See United States v.
Chestman, 21-mj-218 (BAH), ECF No. 23, at *13, 16 (D.D.C. February 26, 2021) (“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”). Here, the
defendant attempted to breach the police lines, but due to the heroic efforts of law enforcement to
consistently push him back, thankfully failed.
For those reasons, the nature and circumstances of the charged offenses strongly support a
finding that no conditions of release would protect the community. Additionally, someone who
demonstrates such contempt from the rule of law cannot reasonably assure future court
appearances.
(2) The Weight of Evidence Against the Person:
Substantial evidence supports the position that Fitzsimons poses a threat to the community.
Fitzsimons violent actions at the Capitol were captured on film, both through body worn camera
footage and Capitol building surveillance. Fitzsimons statements on the Facebook Lebanon Truth
Seekers page and through calls to the Congressional office catalogued that his intentions in
Washington, D.C. were not harmless or “peaceful” as he later recounted to the Rochester Voice,
but instead filled with aggression and anger. Fitzsimons then confirmed his presence at the Capitol
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35
by providing an interview to the Rochester Voice, as well as pictures taken from his phone
documenting his travel up towards the Capitol building. The weight of the evidence thus strongly
supports a finding that no conditions of release would protect the community.
(3) History and Characteristics of the Person:
The United States adopts the factual proffer related to the defendant’s history and
characteristics in the February 10, 2021 pretrial services report generated by Jennifer Metcalfe,
United States Probation Officer in Maine. Given the defendant’s unemployment, his prior
conviction in 2008 for driving under the influence and 2016 conviction for operating an
unregistered motor vehicle, he presents a high risk of non-compliance with any conditions, a
significant danger to the community, and a flight risk. Ms. Metcalfe’s assessment is that due to the
defendant’s risk of danger, which is due to the instant offense, and due to the defendant being
unwilling to be interviewed, there is no information to mitigate the risk of danger, and therefore
no condition or combination of conditions that would reasonably assure the appearance of the
defendant as required and the safety of the community. As a result, Ms. Metcalfe recommended
the defendant’s detention.
In addition, one of the circumstances the court can consider when making a release decision
is the support network the defendant will or will not have available to him upon release. During a
review of the defendant’s cell-phone, pursuant to a search warrant, the government discovered a
text message from the defendant’s wife on January 5, 2021, stating “[a]fter this trip you need to
do some serious decision making. If your [sic] not going to change, I don’t want anything to do
with you. This is it kyle, it’s me and holly or politics…Chose [sic] is yours.” Based on this
communication it appears that the defendant, if released, would not have the support of his closest
family members when re-entering the community. Moreover, it appears that the defendant’s
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36
participation in political activity prior to the Capitol riots has had a similarly negative impact on
his personal life yet was not enough of a limiting factor to dissuade him from the actions that led
to his current detention. For all of these reasons, the government concurs with the recommendation
of Ms. Metcalfe that no condition or combination of conditions that would reasonably assure the
appearance of the defendant as required and the safety of the community.
(4) Nature and Seriousness of the Danger to Community:
The defendant’s words and actions evince a serious threat to the community. Per
Chrestman, 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.
21-mj-218, at *13. On several occasions, Fitzsimons was seen engaging in acts of violence. If he
were successful in pulling Sergeant A.G. from the tunnel, he would have put Sergeant A.G.in
serious danger, as several other officers pulled into the crowd were severely beaten that day. See
Chrestman, at *30 (“Nearly as significant is defendant’s use of force to advance towards the
Capitol and his use of words to lead and guide the mob in obstructing the police and pushing
against police barriers”). He then pushed aside Detective P.N.’s gas mask, allowing chemical
irritants to affect him. 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.
Second, after the events, Fitzsimons recounted the events by giving an interview in a local
newspaper and calling into this town’s meeting, expressing no remorse for what he did and
downplaying his violence and intentions at the Capitol. All of the release conditions available to
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37
the Court depend-at least in part-on voluntary compliance. Accordingly, the potential danger
Fitzsimons poses to the community strongly supports a finding that no conditions of release would
protect the community.
CONCLUSION
Pretrial detention is necessary in this case to ensure the safety of people and the community,
and the appearance of the defendant as required. 18 U.S.C. § 3142(f). There is clear and convincing
evidence that the defendant would pose a danger to the community if released, and that there are
no release conditions or combination of conditions that would ensure the safety of the community.
There is probable cause that the defendant would be a flight risk and would not appear at trial as
required.
Respectfully submitted,
CHANNING D. PHILLIPS
ACTING UNITED STATES ATTORNEY
/s/ Puja Bhatia

PUJA BHATIA
BRANDON REGAN
Assistant United States Attorneys
U.S. Attorney’s Office for the District of Columbia
555 4th Street, N.W.
Washington, D.C. 20530
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38
CERTIFICATE OF SERVICE
I certify that a copy of the Government’s Memorandum in Support of Pretrial Detention
was served on counsel of record via the Court’s electronic filing service.
/s/ Puja Bhatia

PUJA BHATIA
Assistant United States Attorney
Date: March 16, 2021
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39
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(Page 53 of Total)
50
USCA Case #21-3069 Document #1921625 Filed: 11/09/2021 Page 54 of 289 1
1 IN THE UNITED STATES DISTRICT COURT

2 ___________________________________________________________
3 United States of America, ) Criminal

) No. 1:21-cr-00158-KBJ
4 Plaintiff, )
)
5 vs. ) Detention Hearing
)
6 Kyle Fitzsimons, ) Washington, D.C.
) April 6, 2021
7 Defendant. ) Time: 2:18 p.m.
___________________________________________________________
8
Transcript of Detention Hearing
9 Held Before
The Honorable Magistrate Judge G. Michael Harvey
10 United States Magistrate Judge
____________________________________________________________
11
A P P E A R A N C E S
12
For the Plaintiff: Brandon K. Regan
13 DEPARTMENT OF JUSTICE
U.S. ATTORNEY'S OFFICE
14 555 Fourth Street, Northwest
15
Puja Bhatia
18
For the Defendant: Gregory T. Hunter
19 GREGORY T. HUNTER, ESQUIRE
2055 North 15th Street, Suite 302
20 Arlington, Virginia 22201
21 Joel W. Anders
1750 K Street, Northwest, Suite 700
22 Washington, D.C. 20006
23 Also Present: Da'Shanta' Valentine-Lewis, Pretrial

Services Agency.
24
Proceedings reported by FTR Gold Electronic Recording Software.
25 ____________________________________________________________
(Page 54 of Total)
51
1 Transcribing Stenographic Court Reporter:

Nancy J. Meyer
2 Registered Diplomate Reporter
Certified Realtime Reporter
3 United States Courthouse, Room 6509
333 Constitution Avenue, Northwest
202-354-3118
5
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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(Page 55 of Total)
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1 P R O C E E D I N G S
2 THE COURT: Good afternoon. This is Judge Harvey.
3 Mr. Tran, please call the case.
4 THE COURTROOM DEPUTY: Yes, Judge. Give me one
5 moment. The recording system is acting up.
6 Okay. This is Case 21-cr-158, United States of
7 America v. Kyle Fitzsimons. This is scheduled to be a
8 detention hearing held by video.
9 Would the parties please introduce themselves to the
10 Court, beginning with the government.
11 MR. REGAN: Good afternoon, Your Honor. This is
12 Brandon Regan on behalf of the United States. Also on the line
13 are AUSA Puja Bhatia, AUSA Jodi Lazarus, for the United States
14 as well.
15 MR. HUNTER: Good afternoon, Your Honor. Greg Hunter
16 on behalf of Mr. Fitzsimons, who's present also by video and by
17 our consent.
18 THE COURT: It's FITZ-SYM-ONS or FITZ-SIM-ONS?
19 THE DEFENDANT: Your Honor, it's FITZ-SIM-ONS.
20 THE COURT: FITZ-SIM-ONS. Good enough.
21 MR. ANDERS: And good afternoon, Your Honor. I'm
22 Joel Anders joining as co-counsel with Mr. Hunter for the
23 defense.
24 THE PRETRIAL SERVICES OFFICER: Good afternoon,
25 Your Honor. Da'Shanta' Valentine-Lewis, Pretrial Services
(Page 56 of Total)
53
1 Agency.
2 THE COURT: All right. This matter has been
3 scheduled for a detention hearing.
4 Mr. Hunter, did I just hear you consent on behalf of
5 your client to this proceeding occurring by video and not in
6 person pursuant to the CARES Act?
7 MR. HUNTER: Yes, Your Honor. We are grateful to all
8 of the staff with the marshals service and -- and the D.C. jail
9 and your court for making this possible.
10 THE COURT: Okay. As I hope the defense is aware, I
11 did issue an order earlier today, and the government has
12 responded to that order. I had some question in my mind
13 between the defendant's charge in this case and a case that
14 I've scheduled for later this afternoon, which I thought looked
15 very similar -- the government's filing, very similar -- in
16 that both defendants are charged with violations of
17 18 U.S.C. 111.
18 What the government has clarified is that in this case,
19 Mr. Fitzsimons is charged with 111(a) and (b), and in the later
20 case -- that's the Lopatic case -- the government has only
21 charged that individual, Mr. Lopatic, with 111(a). The
22 government's view is that because Mr. Fitzsimons is charged
23 with a violation of 111(b) that this -- his offense is a crime
24 of violence and, in their view, unquestionably so and that no
25 Court has ever held otherwise.
(Page 57 of Total)
54
1 I'm going to ask the government a few questions about
2 that, but then I do want to present you with an opportunity to
3 respond. And I'm happy to give you the possibility to respond
4 in writing, if you would so choose. I don't mean to rush
5 things along, but I'll -- I'll ask that question of you,
6 Mr. Hunter, in a moment.
7 Let me just ask the government a question. Government,
8 so he's been charged under (b) and he's been charged by
9 indictment -- is that correct -- Mr. Fitzsimons?
10 MR. REGAN: That's correct, Your Honor.
11 THE COURT: So what is the factual basis for the
12 charge under (b)? My understanding under the statute is you've
13 got to use -- you know, has to be some proof of a weapon. I --
14 I don't see that here. I would assume the government is
15 pursuing the (b) charge because there was some physical injury
16 that was actually done by Mr. Fitzsimons in this case. Is that
17 what the legal theory is?
18 I can't hear you. You're muted, sir.
19 MR. REGAN: That's correct, Your Honor. For -- for
20 purposes of the detention hearing itself, that is the factual
21 basis. There is no suggestion of use of a deadly or dangerous
22 weapon. The government has alleged in the indictment use of
23 violent force that inflicted bodily injury on two separate
24 officers.
25 THE COURT: Okay. Well, I got it. So that's the
(Page 58 of Total)
55
1 point. I just want to know what was the bodily injury. I
2 don't believe there was a representation in the detention memo,
3 but I assume there's a factual basis for that assertion.
4 What -- what was the bodily injury that the government is
5 relying upon to prosecute Mr. Fitzsimons under U.S. --
6 18 U.S.C. 111(e)?
7 MR. REGAN: Your Honor, in terms of the factual
8 basis, which, again, the government believes for the purposes
9 of a detention hearing, essentially there's two separate
10 officers that are assaulted by Mr. Fitzsimons in the lower west
11 barracks [sic], one of which he's grabbed and attempted to be
12 dragged into the crowd, and ultimately there's a large group of
13 people. That officer falls on top of other officers' riot
14 shields and is injured.
15 Second officer, Mr. Fitzsimons actually reaches in
16 and lifts the gas mask up so it's not covering his face
17 anymore. Individuals behind Mr. Fitzsimons are then spraying
18 what appears to be pepper spray or Mace that strikes the
19 officer in the face.
20 Both of those are -- are physical touchings using force
21 as required in 111(b). We believe --
22 THE COURT: Well, I think physical -- I think
23 physical force is -- is -- is required for any of the felonies
24 under 111. To get him into (b), you need bodily injury. And
25 so you just said that the first officer slipped and fell and
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56
1 bodily -- there is bodily injury. What was his bodily injury?
2 MR. REGAN: Your Honor, the officer that -- that
3 slipped and fell was taken down to the ground and landed on his
4 shoulder and indicated following the investigation that he --
5 that that was the injury that he sustained, went down on top of
6 the riot shields. There was a whole slew of riot shields on
7 the ground with a subsequent scrum thereafter that injured his
8 shoulder.
9 And then the other officer, like I indicated earlier,
10 was sprayed in the face with pepper spray after the defendant
11 lifted up the -- the gas mask during the -- his attempt to
12 engage with the officer.
13 THE COURT: Okay. Mr. Hunter, you -- you've heard
14 all of that. I'm happy to hear your response to the legal
15 issues raised in government's filing, to -- to those -- the
16 facts, if you wish, and no -- no obligation to respond to the
17 facts if you choose not to.
18 MR. HUNTER: Well --
19 THE COURT: And I'm happy to allow you to do it in
20 writing. I gave the government that chance, and -- and -- and
21 I didn't mean to deny you of it, especially if you believe that
22 even as alleged under (b) this may not be a crime of violence,
23 which would -- under the Supreme Court's jurisprudence, which
24 you know is in some sense a little counterintuitive for anyone
25 who may be listening, but, anyways, Mr. Hunter, your response.
(Page 60 of Total)
57
1 MR. HUNTER: You know, Your Honor, it's -- it's
2 amazing to me the journey we've taken as -- as lawyers in the
3 last several years since the Supreme Court had their finding in
4 Johnson on the crime of violence and residual cause in the
5 Armed Career Criminal Act and how that's rippled through
6 everything else --
7 THE COURT: Yeah.
8 MR. HUNTER: -- that we do. And now we're how many
9 layers past that into -- -to 111(a) versus (b) and -- and the
10 Bail Reform Act.
11 I -- I am concerned any time I see these issues briefed
12 that precedents and -- and quotations from -- from cases that
13 came before, because those -- those cases, the jurisprudence,
14 the opinions in those cases are based on old law.
15 We're -- we're pursuing a moving target here when we
16 talk about crime of violence, but I think, Your Honor, that
17 your -- your concern was spot on. To -- to get this into
18 subsection (b), they've got to prove that the defendant caused
19 a physical injury. And even by the government's own argument
20 here on the one officer, they're saying that -- that the -- the
21 touching that Mr. Fitzsimons is accused of then led to a harm
22 by -- by other people in -- in a scrum. And -- and that just
23 fails under basic concepts of proximate causation.
24 And much like the -- the second officer with the -- the
25 gas mask, we -- we have, you know, some evidence of touchings,
(Page 61 of Total)
58
1 assuming that that's Mr. Fitzsimons -- and I just don't want to
2 concede any of those issues right now; but even taking the
3 government in -- in the light most favorable to them with these
4 touchings, that counterargument that -- you know, maybe he's
5 pushed from behind. What's the intent of -- of the touching on
6 Mr. Fitzsimons' part is -- is problematic for furthering
7 111(b).
8 And, likewise, the physical injury that the government
9 needs to -- to prove, in both cases they're saying that that
10 physical injury was actually caused later, by -- by some
11 other -- other person, some other factor, and not the -- the
12 touching that -- that Mr. Fitzsimons is alleged to have engaged
13 in.
14 THE COURT: Well, Mr. Hunter, here's my -- my, you
15 know, additional level of complexity here is that the grand
16 jury has indicted -- has indicted him for, you know, that
17 charge. They heard the evidence, probably much like Mr. Regan
18 articulated it, and they decided that there was probable cause
19 there for causing of a physical injury. You know, he -- he
20 represents that the one officer fell and -- and hurt his
21 shoulder. I -- I don't know if the grand jury received more
22 detail and perhaps the jury one day will and will need to, if
23 you try to push beyond probable cause.
24 I hear you on the causation. I did -- I didn't hear
25 that -- that the first officer was injured as part of the
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59
1 scrum. I heard that -- the allegation is your client caused
2 him to fall to the ground and he hurt his shoulder. I -- I get
3 your point with respect to causation in the mask. Your client
4 moved the mask, and someone else squirted the Mace which caused
5 the injury. Nevertheless, there is an indictment and he has
6 been indicted for that charge.
7 So, again, I don't want to rush this. If you want to
8 think about it, if you want to submit something tomorrow and
9 that's -- I can have this hearing tomorrow, if that's what you
10 wish to do, but, you know, absent, you know, such a filing --
11 and I'll certainly consider it, you know, I -- I think they
12 have an indictment. It's -- it's to that charge.
13 I don't think -- you know, I think consistent with the
14 case law that's been out there and even the Supreme Court case
15 law, which is -- as you say, has caused quite a -- quite a
16 ripple effect throughout the law, that I don't have the basis
17 hearing from you right now to find at least for purposes of
18 this detention hearing that the government can't trigger a
19 detention hearing under the crime of violence given the
20 indictment in front of me and cases that have been interpreted
21 that charge consistent with the Supreme Court's recent
22 jurisprudence in this area.
23 Again, I don't want to rob you of an opportunity to dig
24 a little deeper, if you wish. It's your choice.
25 MR. HUNTER: Your Honor, my -- my concern -- and I
(Page 63 of Total)
60
1 say this with all the respect in the world for the -- the
2 secrecy that the marshals and the -- the United States
3 Attorney's Office work on to -- to preserve for the grand jury,
4 but I guarantee that there was no judge there explaining the
5 finer points of -- of 18 11 -- I'm sorry -- 111(a) versus (b)
6 and -- and the -- the -- the effect of, you know, what injury
7 is not a crime of violence depending on recent rapidly changing
8 legal precedents.
9 That said, Your Honor, I -- I think that the -- the
10 argument here for the government has to be whether this charge,
11 you know, qualifies as the kind of crime of violence that
12 triggers this hearing. Because otherwise they've got to
13 prove that Mr. Fitzsimons poses a -- a danger to his
14 community; a risk of flight; a risk of tampering with a -- a
15 juror or a -- a witness in this case which is hard for them to
16 do when he lives in Maine and the case is going to be tried in
17 Washington.
18 THE COURT: I hear you. You've made your record.
19 I'm not hearing you requesting any additional time to further
20 research this issue. I think you would be on better ground if
21 there was just a complaint in front of me. I'm not going to
22 peek behind the indictment and try to figure out what was
23 presented to the grand jury and what wasn't. I'm sure this
24 will be an issue at trial when and if you get there -- the --
25 the sufficiency of the government's evidence with respect to
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61
1 111(b).
2 But I -- I do find based on the indictment, based on the
3 case law, which has been provided to me by the -- the
4 government, that there is a crime of violence here. And by
5 that I mean, the government has triggered its right to a --
6 a -- and your client's right to a full detention hearing and
7 I'm sure is -- and I can tell has -- based on the detention
8 memo I've already read, they're going to be arguing
9 dangerousness as -- as a result.
10 So with that, I'm going to go ahead and -- and
11 present -- allow the government to move forward.
12 Government, I have -- I did receive some exhibits. I
13 must say, I did not look through them in detail. I have no
14 video. I don't know if you plan on showing me video. I have
15 screenshots, and I have what looks to be slides from a
16 PowerPoint. I assume you're about to show those to me. I
17 encourage you to. I have not, again, studied these -- these
18 slides.
19 I assume the defense has already received them as well.
20 MR. HUNTER: Yes, Your Honor.
21 MS. BHATIA: Yes, Your Honor.
22 So we don't plan on showing video at this time. There
23 is one audio clip that's embedded in the PowerPoint that I hope
24 we'll have no issues in playing.
25 THE COURT: I mean, I haven't heard it, so --
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1 MS. BHATIA: Okay.
2 THE COURT: -- I hope you can play it for me, because
3 that was not -- if there was some way for me to play it in the
4 materials I received, I didn't figure it out.
5 MS. BHATIA: No problem, Your Honor. We'll -- we'll
6 try and play it right now.
7 So beginning, Your Honor, with obviously the standard
8 here, which under 3142(e) the Court must find that there are no
9 condition or combination of conditions which can effectively
10 assure the defendant's appearance or safety of the other
11 person -- of any other person or community, the Court will
12 obviously review the factors under 3142(g)(1) through (4). So
13 in our presentation, we've actually outlined the factors (1)
14 through (4) and attached exhibits as to how the Court cannot
15 find there are -- that there is a condition or combination of
16 conditions that can assure either one of those factors under
17 3142(e).
18 So I'll actually begin with the nature and circumstances
19 of the offense charged, which obviously Your Honor is aware of,
20 but I will go ahead and share my screen, and hopefully this
21 will work. Can you-all see the PowerPoint? Okay. Wonderful.
22 THE COURT: Yeah, I can see it.
23 MS. BHATIA: Okay. So beginning with the nature and
24 circumstances of the offense charged and as Your Honor is
25 aware, the government is proceeding obviously on the crime of
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1 violence theory, as well as the risk of flight; crime of
2 violence being under 3142(f)(1)(A) and risk of flight under
3 3142(f)(2)(A).
4 So under the nature and circumstances of the offense,
5 Your Honor, as Mr. Regan just talked about, we have two
6 offenses here with respect to two separate officers who were
7 injured. In Exhibit 1, we have the pulling by Mr. Fitzsimons
8 of Detective P.N.'s mask. Subsequent to this occurring,
9 Detective P.N. was sprayed in the face by another individual
10 behind Mr. Fitzsimons and, as a result, could not breathe, had
11 to actually be pulled back from this area of the lower west
12 terrace.
13 In addition, we have Mr. Fitzsimons -- and I believe
14 that this actually -- Exhibit 2 actually occurred just minutes
15 before Exhibit 1 with respect to Sergeant A.G. This is where
16 Mr. Fitzsimons -- and if you can see in the red circle here,
17 there's actually a hand that's popping out. That is actually
18 Mr. Fitzsimons' hand. You can't actually see his face in
19 this -- in this still shot, but this was the time that
20 Sergeant A.G. was being pulled by the shoulder and being
21 dragged outside in an attempt by Mr. Fitzsimons to be pulled
22 out of the lower west terrace tunnel.
23 And subsequent to this is when Sergeant A.G. actually
24 slipped and fell on several of the shields and, as Mr. Regan
25 explained, was the time that he actually fell and hit his
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1 shoulder. As a result, Sergeant A.G. actually had to use his
2 baton several times on Mr. Fitzsimons to actually loosen his
3 grip on him and avoid actually being dragged out into the lower
4 west -- lower west terrace area outside of the tunnel.
5 In Exhibit 3, this shows actually a break in between the
6 acts of violence where Mr. Fitzsimons moves from, as you see in
7 Exhibit 1 and 2, the left portion the lower west terrace tunnel
8 to actually the middle portion of the tunnel where
9 Mr. Fitzsimons is seen with his butcher coat and the
10 inscription, and you can obviously see him displaying sort of a
11 determined face as though he is ready to charge at the officers
12 again.
13 And then in Exhibit 4, Mr. Fitzsimons actually does just
14 that, pulls towards the officers, lowers his shoulder, and
15 charges towards the officers in the middle portion of the lower
16 west terrace, again, undeterred from the prior baton strikes or
17 the attempts to try to prevent him from entering into the
18 tunnel.
19 And then, finally, we have in Exhibit 5, obviously the
20 bloodied face of Mr. Fitzsimons. This was after he received
21 the baton strikes to his face but shows obviously this sort of
22 face of aggression and anger, even though officers were really
23 trying to stand their ground, hold their ground, to prevent
24 Mr. Fitzsimons from entering. And obviously Mr. Fitzsimons
25 even in an injured state showed this sort of aggressive,
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1 violent expression to -- to the camera.
2 So, Your Honor, then --
3 THE COURT: Government, can I ask -- I -- I'm
4 confused by the timeline, and maybe it's because the pictures
5 were out of order. What -- what is -- I understand this is
6 the -- I assume the last picture. But are those first three
7 exhibits out of chronological order?
8 MS. BHATIA: They are. And I apologize, Your Honor.
9 So actually if -- and -- and -- and perhaps I should have
10 clarified. Exhibit 1, as you can see on the time stamp happens
11 at around --
12 THE COURT: Exhibit 2?
13 MS. BHATIA: -- 4:11 p.m. Sorry. Exhibit 2. I
14 apologize. Actually happens at around 4:11 p.m. And then
15 subsequently, I believe it's just a couple minutes later, is
16 when Mr. Fitzsimons assaults Detective P.N. in Exhibit 1. So
17 it's actually Exhibit 2, then Exhibit 1.
18 And then after this happens on the left side of the
19 terrace, Mr. Fitzsimons then moves, as depicted in Exhibit 3,
20 towards the middle of the tunnel; where then, subsequent to him
21 appearing in the middle of the tunnel, he then lowers his
22 shoulder to battle with the officers again.
23 And then -- and then after that, after he's actually
24 pulled out of the tunnel, is where we see him outside in
25 Exhibit 5 with his bloodied face. So, yes, I apologize that
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1 they're slightly out of order, Your Honor.
2 THE COURT: Okay. Go right ahead.
3 MS. BHATIA: Okay. So the nature and the
4 circumstances of the offense as charged are obviously very
5 serious. Mr. Fitzsimons, as I mentioned, undeterred by the
6 officers who were trying to stand their ground, makes
7 continuous attempts to try to get through the lower west
8 terrace. He's not simply pulled into this area as he later
9 claims in interviews and statements that he makes. It is a
10 clear attempt that by all means he's going to enter and breach
11 that police line to try to get past the officers.
12 In this case, Your Honor -- and under 3142(g)(2), the
13 weight of the evidence is also extremely strong against
14 Mr. Fitzsimons. Not only do we have surveillance video and
15 body-worn camera capturing his actions, but we have
16 Mr. Fitzsimons' own words capturing what actually took place.
17 In Exhibit 6, we have an article that was written by the
18 Rochester Voice in which Mr. Fitzsimons himself is quoted as
19 saying if the republic was going to die that day, he wanted to
20 be there to witness it. He himself states that a scrum of
21 people pushed him unwillingly forward into the police line,
22 but, again, as I mentioned, this is contradicted by the earlier
23 Exhibits 1 through 5 where Mr. Fitzsimons is -- is very clearly
24 willingly pushing himself onto the police officers. And every
25 time he's sort of batted away by baton strikes, undeterred,
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1 continues to make his attempted entrance into the lower west
2 terrace tunnel.
3 And the -- and Exhibit 6 also contains pictures that
4 Mr. Fitzsimons took of himself, including that picture that we
5 see in Exhibit 6 of Mr. Fitzsimons in the white butcher coat
6 with the inscription Kyle in purple on the left shoulder, he
7 willingly provided to the Rochester Voice documenting his
8 presence at the Capitol.
9 We then have in Exhibit 7, as part of the weight of the
10 evidence, a Lebanon Maine Truth Seekers post on Facebook that
11 was actually -- we don't know if it was posted by
12 Mr. Fitzsimons, but it is a note to individuals about
13 caravanning down from Maine to Washington, D.C. And the end of
14 the note actually has Mr. Fitzsimons' name, as well as his
15 email address, listed as a point of contact in which he is
16 willing to be a driver if anyone wishes to hitch a ride or lead
17 a caravan of vehicles.
18 And he ends that note tellingly with, "If a call went
19 out for abled bodies, would there be an answer?" Basically in
20 a plan to ask individuals if they're willing to join him in --
21 in his presence at the Capitol if there -- there was a call out
22 for individuals, would people be willing to collect at the
23 Capitol with him.
24 And then, finally, we have Exhibit 8, which is a picture
25 taken by Mr. Fitzsimons' phone that was obtained pursuant to a
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1 lawfully obtained search warrant of Mr. Fitzsimons' phone where
2 he actually documents his bloodied butcher coat. That also has
3 that same inscription of Kyle on the left-hand portion of -- of
4 his coat.
5 And this really shows that Mr. Fitzsimons -- and this
6 is -- this is not an exhibit that I attached, but in addition,
7 Mr. Fitzsimons called into a town -- town of Lebanon meeting
8 subsequent to being at the Capitol on January 6th. And he
9 stated there that he was really there because if it were the
10 last day of the republic, he wanted to live it like he did
11 every day. And he attributed President Trump's words to being
12 a lion leading an army of lambs through what -- throughout
13 there.
14 So rather than --
15 THE COURT: When did he do that?
16 MS. BHATIA: I'm -- I'm sorry?
17 THE COURT: When -- when -- when did he make that
18 statement?
19 MS. BHATIA: The town of Lebanon meeting, Your Honor,
20 I know was subsequent to him coming down to the Capitol. I
21 can't remember if this was a day after or two days after, but
22 it was after the -- it was after his trip down to the -- down
23 to Washington, D.C.
24 And so rather than showing any sort of remorse or
25 showing any sense of understanding of the impact of his
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1 actions, he, instead, touted what he did, you know, in multiple
2 forums, whether it was through written format by giving the
3 interview through the Rochester Voice, calling into the town of
4 Lebanon, or taking pictures to depict what he basically did.
5 This really weighs in favor of the government in terms of the
6 weight of the evidence being extremely strong here that he was,
7 in fact, the same person who committed those offenses on
8 January 6th.
9 And then the history and characteristics of the
10 defendant, as well as the nature and seriousness of the danger,
11 we're going to actually be combining factors (g)(3) and (g)(4)
12 into the next few slides here. And here, Your Honor, before I
13 get into some of the exhibits, there was, in addition to
14 everything the government is going to present, a news story
15 that came out in Maine on January 23rd of a suspicious package
16 that was found in front of the Portland Museum of Art, and
17 Mr. Fitzsimons, by the police department, was actually
18 confirmed to be a person of interest.
19 Now, the government concedes that charges have not yet
20 been filed with respect to that case, but it does certainly
21 alert to the nature and seriousness of the danger to any person
22 or the community if Mr. Fitzsimons is released. Basically what
23 was found in front of the Portland Museum of Art was a spray
24 painted message on the ground. It spelled out -- bomb, but it
25 was actually spelled b-a-l-m. And then it was a -- there
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1 was -- there was some package that was placed that was made up
2 of tar and feathers surrounding a box.
3 And there was also an individual, an associate of
4 Mr. Fitzsimons, who actually told law enforcement that
5 Mr. Fitzsimons did talk about collecting tar and feathers and
6 having the intention to tar and feather members of the
7 Democratic party. So even though Mr. Fitzsimons is not charged
8 in that offense, I certainly think it is relevant in terms of
9 the danger that he would pose to the community that he lives in
10 if he's released as shown by his subsequent actions on
11 January 23rd.
12 And then in Exhibit 9, Your Honor -- and let's hope that
13 this works. This is the audio -- this is a voice mail that was
14 left by Mr. Fitzsimons to a congressional office on
15 December 20th, 2020, and I will just play that and we'll see
16 if -- if the volume works.
17 THE COURT: I must say, I can't hear it.
18 MS. BHATIA: You cannot hear it, Your Honor?
19 THE COURT: No. Can others hear that?
20 MR. HUNTER: No, Your Honor.
21 MS. BHATIA: I will try to see if I can increase the
22 volume, and maybe that will help. Otherwise, I have a
23 transcription of what was said. Hold on one second.
24 Is that any better, Your Honor?
25 THE COURT: No. It -- it's as if the audio is just
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1 not connected. It's --
2 MS. BHATIA: I see.
3 THE COURT: Mr. Hunter, can you hear that?
4 MR. HUNTER: No, Your Honor, I cannot.
5 MS. BHATIA: Okay. I -- I apologize. I have the
6 volume up, both on the message as well as on my computer, but
7 this -- I -- I listened to it a couple of times and transcribed
8 what was -- what was said on this. But he's leaving a message
9 at a congressional office saying -- asking --
10 THE COURT: I'm sorry, Counsel. A congressional --
11 like a state congressional office?
12 MS. BHATIA: No, a federal congressional office.
13 THE COURT: Okay.
14 MS. BHATIA: And asking if the member has the courage
15 to dispute what we all know is a garbage election. He then
16 goes on to say, "Because I certainly have the courage to
17 object to my entire life going forward if this is done to me."
18 He then says, "I'll be in D.C. on the 6th," clearly stating
19 his intention to come down to the Capitol to contest the
20 election.
21 And, Your Honor, this is obviously quite disturbing in
22 terms of the words that were used by Mr. Fitzsimons, but it
23 actually follows a pattern of calls that were made and -- we
24 don't know if it's the same congressional office, but other
25 congressional offices got messages as well talking about
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1 starting a war with China -- this was back in March of 2019 --
2 about his position against impeachment and giving it -- giving
3 it to her, meaning the -- the congressional woman, hard and
4 coming for her with respect to President Trump's impeachment.
5 And then another voice mail that was documented on --
6 THE COURT: What was the date of that?
7 MS. BHATIA: I'm sorry. So that was on December 17th
8 regarding his position on impeachment and giving it to the
9 congressional person hard and coming for her.
10 THE COURT: A federal congressperson?
11 MS. BHATIA: A federal -- from what we understand, a
12 federal congressional member.
13 And then subsequently another federal -- federal
14 congressional member that he also called into on December 18th
15 saying that the Electoral College was corrupt and that this was
16 going to be civil war.
17 I actually think Mr. Regan might be able to play the
18 audio for us from Exhibit 9 because he can play it directly
19 from his desktop. So I'll let him go ahead and do that. Let
20 me see if I can stop sharing.
21 MR. REGAN: Just a moment, Your Honor.
22 MS. BHATIA: It seems like we can't quite get the
23 audio to quite work. I'll go ahead and continue to share my
24 screen.
25 Your Honor, this -- this definitely shows a pattern of
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1 behavior in which Mr. Fitzsimons on continuous occasions is
2 willing to display not just his dissatisfaction towards
3 congressional members and their decisions in their official
4 acts of duty but is threatening potentially violence in talking
5 about civil war and objecting to his entire life going forward
6 if this is done to him. And, again, as I said, this is a
7 pattern of behavior.
8 In Exhibit 10 we have here a CNN article in which
9 Mr. Fitzsimons was documenting --
10 THE COURT: When is it dated?
11 MS. BHATIA: I'm sorry?
12 THE COURT: When is it dated?
13 MS. BHATIA: It is dated, Your Honor -- the article
14 is February 7th, 2021. The hearing that Mr. Fitzsimons
15 actually appeared at was from May 10th, 2017.
16 And I believe that that was a -- a state legislative
17 meeting in which a bill was being considered to expand teaching
18 of English to immigrants. And at that time Mr. Fitzsimons
19 stood at this public hearing and referred to the immigrants
20 that the bill was intended to help as being replacements. He
21 talked about the places that he grew up in becoming
22 multicultural hellholes. He talked about bringing in a third
23 new world and bringing in replacements and, again, talked
24 about --
25 Again, this -- this sort of racist xenophobic language
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1 continued when he talked about seeing a man standing in front
2 of a poster that had some image of navigating the juvenile
3 criminal justice system. Mr. Fitzsimons at this hearing said,
4 "What's wrong with your culture that you need to know that much
5 about how to teach your kids to stay out of jail?"
6 In addition, he referred to the state flag -- and I
7 don't know if this is the Maine official state flag -- but that
8 it had two white laborers on it, and -- and he basically told
9 the legislators who were in this hearing not to put those
10 laborers at the end of the line. So, again, very troubling
11 language that displays how Mr. Fitzsimons would continue to act
12 and continue to pose a danger to the community if he were
13 released because, again, this is a pattern and behavior that he
14 has displayed.
15 And in this CNN article there is actually a reference to
16 a time in which Mr. Fitzsimons confronted a state legislator,
17 and this goes on to Exhibit 11 where -- where this -- this
18 article -- where this incident is discussed in further detail
19 where state Representative Michele Meyer was accosted by
20 Mr. Fitzsimons in, I believe, the spring of 2019. We don't
21 have an exact date, but the article -- the article from the
22 Bangor Daily News, Exhibit 11, is dated February 11th, 2011.
23 But Representative Meyer recounts Mr. Fitzsimons
24 following her into the parking lot with his car and almost
25 cornering her with his car so that she couldn't actually leave
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1 the parking lot and that Mr. Fitzsimons spoke of the Second
2 Amendment. Again, sort of backed that language of a civil war.
3 He speculated that America was headed to a civil war over gun
4 rights. And I think most telling is that Representative Meyer
5 just stayed calm and didn't confront Mr. Fitzsimons because she
6 just hoped he wouldn't shoot her in the face.
7 And I think if there is any quote that best encapsulates
8 the potential danger that Mr. Fitzsimons poses to the
9 community, I think it's just that; that a state representative
10 would be scared that a constituent would accost her and to the
11 point of potentially actually exhibiting violence and shooting
12 her in the face; is the exact reason why the Court should hold
13 Mr. Fitzsimons under the 3142(g) factors.
14 So, again, we have multiple acts of violence, not only
15 in the District of Columbia on January 6th, the threats of
16 violence to congressional offices, and also several incidents
17 in Maine itself that show that Mr. Fitzsimons if released would
18 be a danger to the community that he lives in, Your Honor.
19 And it's for those reasons that the government argues
20 that there's just simply in this case no condition or
21 combinations that could assure either his appearance or, most
22 importantly, the safety of the community in which
23 Mr. Fitzsimons would be reentering upon his release.
24 THE COURT: Okay. Thank you.
25 Mr. Hunter.
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1 MR. HUNTER: Thank you, Your Honor.
2 It's -- it's concerning to me as -- as a -- as a
3 litigator here defending these -- these charges, even in terms
4 of a detention hearing where we're talking about the way these
5 charges and their nature impacts a decision under the -- the
6 Bail Reform Act. The government chose to represent their --
7 their evidence with still photos, and -- and that was a choice
8 they made because they -- they said that they have the video,
9 but then they represent that -- that the videos would -- would
10 clearly show you something, which is exactly the element that
11 they need to show you to make their case on -- on intent as
12 opposed to Mr. Fitzsimons possibly being pushed from behind by
13 the pulse of the crowd and -- and other -- other cues that they
14 say clearly show his intent to -- to break these specific laws.
15 THE COURT: Mr. Hunter, I do want to make sure. Have
16 you been -- have they produced the videos to you?
17 MR. HUNTER: They have not, Your Honor.
18 THE COURT: They have not. All you have are the
19 still photos?
21 THE COURT: Okay.
22 MR. HUNTER: I mean, I -- I take them at their word
23 that this is what's going to be shown, but we're here in court,
24 I guess in a way, by Zoom and this is what they've chosen to
25 bring.
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1 I'm -- I'm -- as a defense lawyer, Your Honor, I've
2 always known I -- I don't get that -- that -- the benefit of
3 the doubt from the Court. It's not what I've got for evidence.
4 It's what I've got and I bring with me to the Court. They --
5 they showed us one picture to say that he's got this determined
6 look that would prove something. Determined looks are not a
7 crime.
8 They introduced this newspaper article where
9 Mr. Fitzsimons gives his account without video, that they --
10 they've not produced here or -- or to me, his accounts of --
11 of -- a pretty reasonable account of what happened where he
12 says he was there and he was -- was -- was at the front of the
13 crowd and pushed -- pushed back and forth and that he wanted to
14 be there as a witness to what might be the last day of the
15 republic, not a participant, not someone who was looking to --
16 to crush the government or -- or -- or rebel against the
17 government, but that he wanted to be there to see it.
18 They -- they bring up this -- this internet posting from
19 the Lebanon Maine Truth Seekers -- Lebanon, Maine, is a pretty
20 small place, Your Honor. It is rural Maine -- and someone
21 who -- who may or may not be Mr. Fitzsimons, asking if others
22 would join, but there's no call in there of violence or
23 lawlessness. There's no proof that anyone read it until the
24 FBI was looking for it. And -- and -- and there's nothing as
25 to the nature of the Lebanon Maine Truth Seekers as opposed to,
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1 say, the Proud Boys or -- or one of the other known
2 insurrectionist groups that's -- that's engaged in violence.
3 You know, if he's proud of what he did and what he was
4 there for that day, what if he was -- really was pushed?
5 What if he really was sandwiched between the front of the crowd
6 and the police officers trying to -- to -- to defend
7 themselves?
8 This account of a suspicious package on the street in
9 Portland, Maine, with the -- the -- the balm, b-a-l-m, and the
10 feathers, that he's possibly a person of interest, he hasn't
11 been charged in that crime, Your Honor. We have no idea what
12 the government's interest in -- in Portland, Maine, is. In
13 talking to him, he might be a witness. He might know somebody
14 else involved with it.
15 The -- they couldn't play the call. I will give the
16 benefit of the doubt on that, Your Honor. These IT issues
17 are -- are difficult, but it is a call that I have heard. And
18 at no point in that call does he say anything about committing
19 any violence or threatening the member of Congress or
20 threatening a member of Congress' staff. He -- he's angry
21 about the election, but that's an opinion -- opinion he's
22 allowed to have. He's allowed to contest the election. He's
23 allowed to be against impeachment. More than a hundred members
24 of Congress contested the election, Your Honor.
25 A -- a majority of the Senate failed to -- well, I guess
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1 not a majority of the Senate. But the -- the Senate was unable
2 to -- to impeach, and it was a -- the impeachment vote that
3 the -- one of these phone calls is talking about is -- is the
4 2020 -- early 2020 impeachment, the pre-COVID impeachment of --
5 of President Trump.
6 And -- and, once again there, Your Honor, there were
7 over 200 members of Congress and -- and, what, 49 members of
8 the Senate who -- who thought that that was just fine; which
9 none of us have to agree with, but we -- we do have to
10 understand as officers of the court, that's a political opinion
11 that people are willing to have.
12 As for his -- his dangerousness to -- to his -- his
13 community in Maine, statutorily we're talking about his --
14 his -- his dangerousness to -- as someone who might do
15 something dangerous but also someone who might tamper with or
16 be -- be dangerous to a witness or a potential juror. There
17 are no witnesses or potential jurors in this case in Lebanon,
18 Maine. That -- that's just not an issue.
19 And -- and as for him being this menace to his -- to his
20 community, it's well known, his entire criminal record,
21 Your Honor, is a 2008 conviction for driving under the
22 influence of alcohol and -- and a -- a 2016 charge for having
23 an invalid registration on his motor vehicle. There's no
24 indication that he ever failed to show up for court for that.
25 There's no indication that he ever failed to comply with the --
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1 the orders of the courts in those cases. There are no other
2 charges known to be against him at any time.
3 He's -- he's said some things in -- in town meetings
4 that people find to be offensive. He's -- he's got very strong
5 opinions about political matters that would not -- would not be
6 in any way mainstream here in Washington, D.C., where we live,
7 but in -- in Lebanon, Maine, he -- he's -- he's allowed to have
8 those -- those opinions. And even if we think they're --
9 they're offensive or other people think they're offensive,
10 that's not dangerous as a matter of law.
11 We're in a court where -- where Chief Judge Howell has
12 issued the -- the Chrestman opinion. It's an enormously
13 helpful opinion to all of us, I think, about how we examine
14 these issues under the Bail Reform Act and pretrial release in
15 regards to those January 6th defendants. And there's no proof
16 here that -- unlike in Mr. Chrestman's case -- that
17 Mr. Fitzsimons ever held a weapon; participated in
18 coordination, planning, or communication with others before the
19 riot; communication or planning or -- or incitement,
20 encouragement of others during the riot; anything for escape
21 and evasion after the riot. He -- he didn't destroy the
22 evidence. He -- he didn't tamper with anything. He -- he
23 never possessed a weapon. He never assumed a -- a leadership
24 position.
25 His entire record, Your Honor, is a DUI. If -- if we
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1 were here on -- on sentencing, the -- the one mechanism we have
2 in the federal courts for assessing one defendant's prior
3 contact with the criminal justice system versus another is in
4 the federal sentencing guidelines. And as I wrote in my -- my
5 paper, he's a Criminal History I. He's among the -- the least
6 dangerous, least criminally culpable defendants that we ever
7 examined in our system.
8 Your Honor, we've -- I think we've presented a -- a
9 compelling case for why Mr. Fitzsimons is -- is not a danger to
10 his own community. There's no -- no evidence shown that
11 he's -- that he's ever failed to appear for court or -- or that
12 he's a risk of flight in any way.
13 We are prepared to present two separate plans for a
14 third-party custodianship; one with family in New Jersey where
15 his grandmother lives. He'd be living with his aunt and close
16 to a United States probation office, but also many hours closer
17 here to Washington, D.C., for -- for future court appearances,
18 and -- and caring for his elderly grandmother and otherwise
19 involved in the family in that way, perhaps with GPS
20 monitoring.
21 Lebanon, Maine, is more difficult. It's a rural area.
22 It's -- it's a fair distance from Portland, Maine, and the --
23 the nearest United States probation office, but if -- if
24 Mr. Fitzsimons was ever a danger of -- of nonappearance,
25 noncompliance, dangerousness to his community, there's --
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1 there's certainly no record of that ever happening.
3 Pretrial, what -- what is your recommendation in this
4 case?
5 Ms. Valentine-Lewis, if you're speaking, I can't hear
6 you. You're muted.
7 THE PRETRIAL SERVICES OFFICER: I'm sorry,
8 Your Honor.
9 No combination of conditions can reasonably assure the
10 defendant's appearance or the safety to the community.
11 THE COURT: Government, do you want to have --
12 respond to any of the arguments made by Mr. Hunter?
13 MS. BHATIA: Yes, Your Honor, I would.
14 Your Honor, I think the -- the Chrestman case, though
15 obviously not -- is -- is going to be factually slightly
16 different -- I think is -- is very analogous in terms of why
17 the Court there found that the defendant was a danger. And I
18 think that's exhibited by the actions that were taken and the
19 coordination with other individuals and the intention shown by
20 the defendant to potentially cause further harm.
21 I think that the situation is extremely appropriate here
22 where Mr. Fitzsimons was planning to go down there and to take
23 on any individuals who'd be willing to come with him. And
24 rather than sort of downplaying the actions subsequently, his
25 real intention is shown, I think, by -- by everything he says
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1 and talks about, which is his intention was to go down there
2 and was to really exhibit as much violence as possible and --
3 and to stop this lawful process from taking place.
4 And I think the Court has to consider both his actions
5 before but also his actions after that show that that really
6 was his intention. And the -- the violence that was exhibited
7 in the short period of time in the lower west tunnel really
8 encapsulates the dangerousness that Mr. Fitzsimons exhibited
9 that day. And just -- just briefly to address some of
10 Mr. Hunter's points, which is that Mr. Fitzsimons only has two
11 convictions. As pretrial services made clear, their position
12 is that there are no condition or combination of conditions of
13 release that would assure the safety of the community.
14 I will note in a pretrial services report in Maine -- in
15 Maine -- sorry -- dated February 10th, the pretrial services
16 report also stated that he had a risk of dangerousness, and
17 because of his unwillingness at that time to be interviewed,
18 detention was also recommended.
19 I will note that Mr. Fitzsimons, while he might have
20 alternative individuals to stay with, as the government
21 outlined in its detention memo, has text messages where the
22 individuals who would be closest to him are not necessarily
23 sources of support for him; where -- where his wife made clear
24 to him that if he decides to do what he's going to do, that's
25 sort of the -- the end of the line in terms of her support and
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1 their daughter's support of Mr. Fitzsimons.
2 I will also note that Mr. Fitzsimons is no longer
3 employed as a butcher. So in terms of the steadiness of income
4 and ties to the community, that's something that obviously
5 weighs against him when the Court determines release.
6 THE COURT: So let me ask a few questions. Are you
7 going to -- you're not playing the video; is that correct?
8 MS. BHATIA: Your Honor, we can go ahead and play the
9 video. I'm sorry that we hadn't embedded it before, and I --
10 I'm willing to go ahead and play the --
11 THE COURT: Sure. Has Mr. Hunter not seen the video?
12 MS. BHATIA: Mr. Hunter has not seen the video.
13 We -- we obviously wanted to provide the video as soon as the
14 protective order was in place in this case, to -- to provide it
15 to him.
16 THE COURT: Is there not a protective order in this
17 case yet?
18 MS. BHATIA: There was one that was filed, but I
19 don't believe that a protective order was signed as of yet.
20 THE COURT: Well, I have a few additional questions
21 for the government. I -- I am not willing to have the
22 government just play a video that defense counsel hasn't even
23 seen yet.
24 There is -- this is -- for me it's a -- it's -- you
25 know, it's -- both sides have made good arguments, and I'm
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1 going to want to think about this. I have -- I want to study
2 these various exhibits, which I did not have an opportunity to
3 do prior to the hearing today. So I'm going to, I'll tell you
4 right now, schedule this case for a continued detention
5 hearing. I'll render my decision tomorrow afternoon.
6 Understanding that, you know, Government, you should
7 produce the video to Mr. Hunter, and I'll permit you to play it
8 tomorrow, but I want him to see it first.
9 Is this protective order, is it pending before this
10 Court, before the district court?
11 MS. BHATIA: Your Honor, I believe it's in front of
12 the district court judge.
13 THE COURT: Okay. Well, I will instruct my law clerk
14 to reach out to -- who is it? Who's the judge?
15 MR. HUNTER: Jackson.
16 MS. BHATIA: Yes.
17 THE COURT: Amy Berman Jackson?
18 MR. HUNTER: No. Ketanji Brown Jackson, Judge.
19 THE COURT: All right. Well, reach out to
20 Judge Jackson's chambers to ask that they sign the protective
21 order, which I assume is a consent protective order,
22 Mr. Hunter?
23 MR. HUNTER: Your Honor, I have a -- a form objection
24 to a very small part of it. I -- I -- as an officer of this
25 court, I -- I applaud the government and the -- the court and
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1 the -- the public defender system service for coming up with
2 this.
3 But I -- I -- I don't think that I can consent to the
4 time being excluded for my client for the government's
5 convenience when it was their choice to -- to prosecute 400
6 defendants at the same time. I -- I -- I know I'm tilting at a
7 windmill here, Your Honor, but I -- I just have that one
8 objection as -- as -- as a form objection.
9 THE COURT: Well, that's an objection to tolling of
10 time, not to the actual protective order itself.
11 MR. HUNTER: Oh, no. I have no issue with the
12 protective order, Your Honor. I -- I'm incredibly grateful for
13 the government's willingness to -- to provide and -- and
14 produce evidence in this way.
15 THE COURT: Okay. Well then, I want to have my
16 chambers reach out to Judge Jackson's chambers, and they will
17 do what they can to get that signed, you know, this evening.
18 Government, I want you to produce then that video to my
19 chambers and to Mr. Hunter so that we can both review it. You
20 can play it on the public record tomorrow at the hearing, and
21 then I'll render my decision. But I want to see it just as
22 soon as possible.
23 Mr. Hunter, I'll give you an opportunity to, you know,
24 make whatever argument you want to make based on the video at
25 the beginning of the hearing tomorrow.
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1 MR. HUNTER: Thank you, Judge.
2 THE COURT: I have some additional questions, though.
3 Government, are you -- you're not saying that Mr. Fitzsimons is
4 a member of, you know, any of these -- the Three Percenters,
5 the Proud Boys, any other, you know, radical anti-establishment
6 organizations; is that correct, Government?
7 MS. BHATIA: We -- we don't have evidence at this
8 time, Your Honor, that he's part of any of those groups.
9 THE COURT: Okay. What about his arrest? Was
10 there -- did he evade arrest? What were the circumstances of
11 his arrest?
12 MS. BHATIA: Your Honor, from what I understand, law
13 enforcement up in Maine were able to contact Mr. Fitzsimons
14 while he was at his residence and he was -- they were able to
15 successfully arrest him without any efforts to try and avoid
16 detention by -- by the officers. So I don't think --
17 THE COURT: And do you have any evidence of
18 destruction of evidence in this case?
19 MS. BHATIA: No, we do not, Your Honor.
20 THE COURT: And you're not alleging that he possessed
21 weapons on that day; is that correct?
22 MS. BHATIA: That is correct. I will say,
23 Your Honor, in the pictures he does have an unstrung bow that
24 he carries with him that are part of the pictures that -- that
25 are then captured later by the Rochester Voice, but the
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1 government is not alleging that he used that unstrung bow on
2 that day.
3 THE COURT: I mean, the whole chronology as presented
4 here has been very confusing to me. You know, I -- I was
5 unaware that he -- if what you're saying now, he had an
6 unstrung bow on January 6th. I thought he had it in some later
7 discussion with one of the other news organizations. You're
8 saying that he had an unstrung bow?
9 MS. BHATIA: Yes. That's correct, Your Honor.
10 THE COURT: Okay. That wasn't clear to me before.
11 In any event, I mean, it is an unstrung bow. I don't know what
12 you can do with an unstrung bow. Are you saying that that was
13 a weapon?
14 MS. BHATIA: We -- we aren't alleging that,
15 Your Honor, and we certainly didn't charge that subsequent to
16 111(b). That was not our theory that we proceeded on.
17 THE COURT: Do you have any evidence that he attacked
18 anyone with the bow?
19 MS. BHATIA: No, Your Honor.
20 THE COURT: Mr. Hunter also said that there's no
21 evidence here that he incited anyone during the riot. Would
22 you agree with that?
23 MS. BHATIA: Your Honor, at this point we don't have
24 any evidence of words that were used by Mr. Fitzsimons, but I
25 will say his actions certainly did so, especially with respect
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1 to Detective P.N., when he pulled Detective P.N.'s gas mask,
2 allowing another individual to spray the officer. I think
3 that's sort of an -- an exhibition of inciting violence towards
4 the officer.
5 THE COURT: Okay. Mr. Hunter, quick question for
6 you. Is Mr. Fitzsimons -- is he employed or not?
7 MR. HUNTER: Your Honor, I hit the mute the wrong
8 way.
9 Mr. Fitzsimons is -- is self-employed. He has a
10 business as a -- a butcher tending to a lot of the farms in the
11 area, helping people to butcher the -- the pigs and -- and
12 cattle and -- and geese and ducks that they -- that they raise
13 there on their farms in the countryside.
14 He has been employed with -- with a -- a local grocery
15 chain. My understanding, speaking with -- with family and --
16 and others in Lebanon, Maine, is that that company likes him.
17 He -- he certainly, you know, is welcome to -- to come back
18 and -- and to cut meat for them, but we also have another
19 alternative plan where he would be employed in -- in -- in
20 New Jersey.
21 THE COURT: Would he have a job in New Jersey too?
23 THE COURT: I'm sorry. Doing what?
24 MR. HUNTER: In addition to full-time elder care for
25 a 90-plus-year-old woman, the --
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1 THE COURT: A relative?
2 MR. HUNTER: Yes, it's his grandmother. And -- and
3 they -- they are paying other elder care now and would replace
4 that with Mr. Fitzsimons, which in -- in many ways is -- is a
5 blessing, but it's also maybe not a temporary situation given
6 the -- the length of time we may be waiting for these cases
7 to -- to -- to filter out.
8 But also there are -- there's work that he could do
9 for -- for grocery stores there. I -- I will tell you my -- I
10 know this because my -- my sister is a manager with the Harris
11 Teeter chain. If you can cut meat, there's always a job for
12 you.
13 THE COURT: Okay. All right then. So let's go ahead
14 and -- and schedule a continual -- a continued detention
15 hearing for tomorrow. It will be remote, of course.
16 Mr. Tran, the -- the hearing that I have, the detention
17 hearing at 3 o'clock tomorrow, is that a Capitol case? I don't
18 think so. No, it is not. I recall now.
19 So let's schedule this for a continued detention hearing
20 at 3:30 tomorrow afternoon.
21 MS. BHATIA: Your Honor, I actually have another
22 matter set for 3:45 in another Capitol riot case.
23 THE COURT: What kind of case is that? What kind
24 of -- is it a status hearing? Is it a detention hearing?
25 MS. BHATIA: It is a status hearing, Your Honor.
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1 THE COURT: Okay. Well, we can schedule this at 4:30
2 then.
3 MS. BHATIA: That would be fine.
4 THE COURTROOM DEPUTY: Judge, if I may, I believe all
5 of your 1:00 p.m.s for the day should be continued. Might I
6 recommend 2 o'clock.
7 THE COURT: Oh. Well, I have got six. Do you think
8 they're all going to be continued?
9 THE COURTROOM DEPUTY: Yes, the overwhelming
10 majority. You might have one or two, but it looks like
11 everything else is going to be continued.
12 THE COURT: All right. Well, 2:30 then.
13 MR. HUNTER: 2:30 is fine with us.
14 MS. BHATIA: That's fine, Your Honor.
15 THE COURT: All right then. Let's schedule this for
16 2:30 tomorrow. Let's get that video to us this evening.
17 MS. BHATIA: Yes, Your Honor.
18 THE COURT: All right. Mr. Fitzsimons, we'll see you
19 back here -- 2:30 tomorrow -- for a continued detention
20 hearing.
21 The parties are excused.
22 (The proceedings concluded at 3:26 p.m.)
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1 CERTIFICATE
2 I do hereby certify that the foregoing is a true,
3 correct, and complete transcript of the audio-recorded
4 proceedings in this matter, audio recorded on April 6, 2021,
5 and transcribed from the audio recording to the best of my
6 ability, and that said transcript has been compared with the
7 audio recording.
8 Dated this 16th day of April, 2021.
10 /s/ Nancy J. Meyer

Nancy J. Meyer, Official Court Reporter
333 Constitution Avenue Northwest
13 Washington, DC 20001
202-354-3118
14 [email protected]
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2 ___________________________________________________________

) No. 1:21-cr-00158-KBJ
4 Plaintiff, )
) Detention Hearing,
5 vs. ) continued
)
) April 7, 2021
___________________________________________________________
8
Transcript of Detention Hearing, continued
9 Held Before
____________________________________________________________
11
12
15
Puja Bhatia
18
21 Joel W. Anders
23 Also Present: John Copes, Pretrial Services Agency
24 Proceedings reported by FTR Gold Electronic Recording Software.

____________________________________________________________
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Nancy J. Meyer
202-354-3118
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2 THE COURTROOM DEPUTY: This is Case 21-cr-158,
3 United States of America v. Kyle Fitzsimons. This is scheduled
4 to be a continued detention hearing held by video.
5 Will the parties please introduce themselves to the
7 MS. BHATIA: Good afternoon, Your Honor. Puja Bhatia
8 for the United States, appearing via video Zoom.
9 MR. REGAN: And Brandon Regan appearing via video
10 Zoom as well.
11 THE PRETRIAL SERVICES OFFICER: Your Honor, John
12 Copes, pretrial services.
14 appearing on behalf of the defendant who is, again, present by
15 video and -- and at our express consent.
16 MR. ANDERS: And good afternoon, Your Honor. Joel
17 Anders, co-defense counsel, appearing by telephone.
18 THE COURT: Mr. Fitzsimons, can you hear me? I just
19 want to make sure your audio is working.
20 THE DEFENDANT: Yes, Your Honor, it is. Good
21 afternoon.
22 THE COURT: Good afternoon.
23 So we're here for a continued detention hearing. I did
24 request that the government provide both the Court and the
25 defense with the videos that they made reference to yesterday.
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1 We -- we had seen screenshots up and to that point, and I have
2 been provided with what appears to me to be a -- a fixed
3 Capitol surveillance camera video and a second video which
4 appears to me to be the body-worn camera of one of the officers
5 who were in the police line that day. I reviewed both of
6 those.
7 And I also received video -- it was about an hour and a
8 half long. I watched about 15 minutes, when Mr. Fitzsimons was
9 talking. It appears to be a video, as I understand it, of a
10 meeting of the Lebanon town meeting. So I think it's the -- a
11 town that -- where he lives or is associated with, and they
12 were having a town meeting. The video was marked January 7th.
13 I don't know the precise date. But it's clear from
14 Mr. Fitzsimons' comments on the video it was soon after the
15 events at the Capitol. So I've seen all those.
16 Mr. Hunter, I hope you have too. I want to confirm that
17 you have and I want to hear if you want to make any argument
18 based on what you saw. I want to give you the opportunity to
19 do that.
20 MR. HUNTER: Your Honor, I -- I have received them,
21 and I -- I thank counsel for the government for making those --
22 those possible and for helping me with the -- with the IT
23 issues of -- of getting them to me. They really are doing --
24 doing a heck of a job here making all of this possible.
25 Honestly, having seen the videos, Your Honor, it's --
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1 it's -- it's clear from the -- both the fixed camera angle
2 video and the body cam video that Mr. Simons is present --
3 Mr. Fitzsimons is present and he's at the front of a crowd and
4 he finds himself between the police and -- and the front of the
5 crowd.
6 And as he's reaching his hands out to steady himself as
7 he's being pushed from behind, is he slipping on the -- the --
8 the same police shields that -- that are, you know, on the
9 ground and -- and that the police fell on? Or is he reaching
10 at a police officer to -- to grab their -- their gas mask or
11 their shoulder?
12 You know, he -- he -- at one point he beat feets out of
13 there. You know, he's been -- and we -- we know now that he's
14 been -- been clipped pretty good over the head and -- and blood
15 all over and that's why the -- the blood on the jacket, but as
16 far as showing any -- any intent, I -- I don't know if audio
17 would -- would be helpful. I don't know if there are other
18 camera angles that show more, but that -- that's a -- that's an
19 awful lot of intent to -- to read into -- into what we've been
20 presented by the government.
21 THE COURT: Okay. Government, any response? Do you
22 want to make any response?
23 MS. BHATIA: Yes, Your Honor. And I think Your Honor
24 mentioned the body-worn camera video, the CCTV footage, the
25 town of Lebanon meeting. And I also provided the voice mail
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1 that was left on, I believe, Congressman Golden's voice mail on
2 December 20th, 2020.
3 THE COURT: I did receive it and I have heard it.
4 Mr. Hunter, have you heard that too? I want to make
5 sure --
6 MR. HUNTER: I -- I had actually heard that some time
7 ago, Your Honor. And if -- if you want to argue about it, I --
8 he certainly sounds angry, but he's asking his congressman to
9 do the same thing that, what, 170 members of the GOP conference
10 and 49 senators did and -- and, you know, vote to -- to try and
11 overturn the election. He -- he's angry, but he's -- he's not
12 doing anything in that phone call that -- that, you know,
13 almost half of Congress did.
14 MS. BHATIA: So, Your Honor, just to clarify some of
15 the statements, some of the representations that Mr. Hunter
16 made about the video.
17 So Mr. Hunter said, you know, it's unclear whether
18 Mr. Fitzsimons is really steadying himself on the slippery riot
19 shields or whether he's actually reaching -- reaching for the
20 officer's gas mask. I just want to make very clear for the
21 record -- and I also want to clarify for my own purposes
22 because I may have switched some of the timelines. So I just
23 want to be very clear as to the sequence of events.
24 But on the -- on the body-worn camera that we see from
25 the officer, Mr. Fitzsimons actually starts with reaching for
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1 an officer in the high visibility jackets, the -- the green
2 jackets. That's Detective P.N. And at that point is when, a
3 few seconds later, I believe, at 16:11:35, he's beaten down by
4 a baton. And then you see Sergeant A.G., who's down on the
5 ground, with Mr. Fitzsimons' hand still on his arm.
6 So I just want to be extremely clear that Mr. Fitzsimons
7 is not trying to steady himself on these shields. He is
8 purposefully reaching back into the tunnel, grabbing at the
9 officers, undeterred from any strikes that he receives, in an
10 attempt to continue to violently hurt the officers. He then,
11 after all of that, steadies himself and then reappears in the
12 middle of the tunnel, which we see both on the CCTV footage as
13 well as on the body-worn camera.
14 He positions himself right in the middle of the tunnel
15 after all that activity happens on the left side of the tunnel
16 and then charges at the officers -- and I think the time stamp
17 on the body-worn camera is 16:12:40 -- and pushes against them
18 by lowering his head and pushing through -- through the line of
19 officers with his shoulder.
20 This is not an act of a person who is trying to steady
21 himself. This is an act of a person who is relentless in
22 trying to break a police line and continue his violence and who
23 is undeterred by any of these -- these actions.
24 And, again, a lot of that is repeated through the CCTV
25 footage that we see from a slightly higher angle. And, in
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1 fact, what we see at the end of the CCTV footage -- I think
2 it's right around 1:46 -- is that when he charges with his head
3 and his body down, right before he's seen exiting out of the
4 tunnel, he's wildly throwing his arms up and down at the
5 officers all around before he finally exits the tunnel at
6 around 1:51 on that CCTV footage. Therefore, even more
7 evidence.
8 Now, Mr. Fitzsimons was not simply trying to steady
9 himself or trying to get people off of him. He was trying to
10 exert as much violence, as much aggression as he could before
11 he was finally, essentially, kicked out of the tunnel or chose
12 to give up at that point and exit the -- the tunnel.
13 And, again, I think the actions -- I think his words
14 speak very clearly. Mr. Hunter thinks that this is sort of
15 dissatisfaction that Mr. Fitzsimons was exhibiting in the
16 comments that he made on the voice mail. But I will say,
17 saying that, you know, I have the courage to object to my
18 entire life going forward if this is done to me is more than
19 just a constituent who's unhappy with election results. It's
20 certainly the words of an individual who is really, really
21 willing to more than show his dissatisfaction, willing to come
22 down to D.C., and willing to basically do whatever is
23 necessary. As he said before, this is going to be civil war.
24 And he's made his intention clear.
25 And then when he recounts the events at the town of
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1 Lebanon meeting -- I don't want to obviously reiterate the
2 statements that I mentioned at yesterday's detention hearing,
3 but, again, you know, I -- even though he talks about this
4 being a peaceful revolution, he, again, talks about a lion
5 leading an army of lambs. I mean, all of these words that were
6 used continuously throughout different medias, whether it's
7 public hearings, whether it's calling into the town of Lebanon
8 meeting, whether it's through the Rochester Voice, it's very
9 clear that Mr. Fitzsimons wanted to not just disrupt the
10 election certification but was going to do so at any means
11 necessary.
12 THE COURT: Okay. Thank you. Anything further,
13 Mr. Hunter?
14 MR. HUNTER: The -- Your Honor, there -- there were
15 two things yesterday that we talked about, the words of the
16 defendant's wife and -- and the -- the pretrial services report
17 from Maine that I wanted to address. I didn't know if you
18 wanted to do that --
19 (Indiscernible simultaneous cross-talk.)
20 THE COURT: Under the rules, now is your time. If
21 you want to make a record, do it.
22 MR. HUNTER: I'm making the record.
23 The -- the government makes some allegations about
24 the -- the defendant not having a family support network and
25 uses evidence of that as a text message from the defendant's
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1 wife. And they misstate what it says, first of all. And --
2 and I'm -- I'm -- I'm troubled -- I know it's their job to read
3 through all the messages, but it's -- it's snooping on a
4 marital conversation. And then you -- you're using the
5 statement where the wife says: If you don't make a change
6 after this trip, we're going to have problems and maybe you and
7 your daughter and -- and me are -- are going to be split up.
8 But that's -- you know, I -- I don't know anybody else's
9 marital status, but I -- I can't imagine having -- thinking it
10 would be fair in my life to have something from an argument
11 with my wife from three months ago being held up as -- as the
12 measure of our relationship status now.
13 As I said, Your Honor, we have other relatives happy to
14 act as -- as third-party custodians in multiple court districts
15 to hold them. As to the main pretrial services report, it --
16 it says that he declined to be interviewed. That's absolutely
17 true; and he declined to have his detention hearing at that
18 time. And the reason being is for the exact thing that the
19 United States Attorney's Office says that they need this extra
20 time to -- to -- to prepare and -- and think about all these
21 cases for.
22 The advice to him from the -- the federal public
23 defender in Maine was have your one shot at detention in
24 Washington. Let the marshals service transport you to
25 Washington and foot the bill for that. But also every day that
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1 goes by, the -- the decisions are going to be made more likely
2 from a position of -- of sober reflection and -- and not simply
3 from -- from the immediate aftermath anger. And he didn't know
4 he'd be waiting 63 days to get the hearing, but that was a
5 decision he made. And, quite frankly, Your Honor, that --
6 that's advice that I would give to any client in that same
7 situation.
8 So to -- to say that he -- he shouldn't get any support
9 from pretrial services because he -- he declined an interview
10 and -- and a detention hearing in Maine 63 days ago, I -- I
11 think, does a -- a disservice to him and -- and the -- the
12 actually smart legal advice that he got to -- to wait until he
13 was in this court and -- and give the government and -- and the
14 court a -- a chance to consider these cases from -- from sober
15 reflective positions, which, you know, the court in Maine
16 didn't have Chief Judge Howell's memorandum opinion in -- in
17 Chrestman at the time.
18 We -- we didn't have the benefit of -- of literally
19 hundreds of other cases being -- being brought forth to -- to
20 have an idea of -- of -- of what the most guilty -- most
21 culpable people are accused of doing and what the least
22 culpable people are accused of doing.
23 So I would -- would simply ask Your Honor that he -- he
24 be given the -- the chance as though he was just arrested the
25 other day and -- and, you know, without incident, without
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1 evasion, not a member of a group like the Proud Boys, not
2 someone that there's any -- any evidence of or allegation that
3 he coordinated ahead of time or -- or assumed a position of
4 leadership or possessed a weapon.
5 And -- and with that, Your Honor, I think that he's --
6 he's a good candidate for pretrial release.
7 THE COURT: Okay. Well, thank you for all that. And
8 thank you for the presentation from both sides in this case. I
9 think it's been very good.
10 Mr. Fitzsimons, let me just start with the points that
11 your -- your -- your attorney made on your behalf, and he's
12 done an excellent job on your behalf to make all of his
13 points -- all of your points. But I want to just say a few
14 things before I forget them.
15 You know, the -- the lack of responding to pretrial,
16 I -- that doesn't enter my calculus at all. I do see that
17 time to time in cases based on advice of counsel that a
18 defendant makes that choice. So I -- I don't take anything
19 from that. You're not, in my book, required to say anything to
20 pretrial if you don't wish to. And I'm not going to hold it
21 against you if you made that choice, especially on the advice
22 of counsel.
23 I actually think you received very good counsel by the
24 Maine federal public defender, if that's what they told you, to
25 wait 60 -- well, you probably didn't -- they didn't tell you to
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1 wait 60 days; and that's unfortunate how long it took you to
2 get here. And those are just issues outside of the Court's
3 control. I -- the marshals service during the pandemic has
4 been struggling widely -- and even more so when we talk about
5 so many cases involved in this event, January 6th, at the
6 Capitol -- to get everyone here promptly. And they -- they
7 have not. They just cannot get the defendants here promptly,
8 and you know that better than anyone.
9 But, still, the advice was good. The advice was good to
10 take some time, let the evidence develop, allow for civil
11 reflection, as Mr. Hunter's just indicated, allow for perhaps a
12 few more people to -- to proceed to these detention hearings
13 before you so the Court can start to draw some lines as to who
14 may be held, who's -- and who should not be held in this case.
15 And we -- we have done -- we've done that.
16 Chief Judge Howell has listed -- has issued her
17 Chrestman opinion. Other district judges have as well. We
18 also recently had guidance from the circuit in the Munchel
19 decision. I'll talk about that, you know, decision here in a
20 moment.
21 But -- and -- and I also -- I've taken into
22 consideration all that Mr. Hunter has said, all the positive
23 attributes and the -- the distinguishing characteristics that
24 you have that does look different from some defendants who have
25 been held. You know, you don't have -- you effectively have no
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1 criminal record. I think there's an unregistered vehicle issue
2 there, a DWI many number of years ago.
3 Effectively no criminal record that's going to impact on
4 my decision today, and it doesn't. Nothing that I've seen in
5 your record impacts my detention decision here today. So you
6 effectively have no criminal record. You have no evidence of,
7 you know, failing to comply with conditions in the past.
8 With respect to January 6th, I think Mr. Hunter is
9 correct that you -- you know, you're not charged with using or
10 possessing a weapon. I don't consider your unstrung bow to be
11 a weapon. Symbolic in some way. I don't understand the
12 symbolism, I must tell you. In any event, I'm confident that
13 it was -- it was not being used or possessed as a weapon that
14 day.
15 You're not a member, to the Court's knowledge -- and the
16 government's presented no evidence -- of some -- one of these
17 more radical antigovernment militia groups, the Three
18 Percenters, the Oath Keepers, et cetera.
19 No real evidence that I can see of planning with respect
20 to violence that day. Certainly planning to be there, planning
21 to protest, a few statements that you made that are open to
22 interpretation, but not like what we've seen in other cases
23 where the courts have emphasized that as being an issue.
24 People who've come with, you know, tactical equipment,
25 came to the Capitol with weapons, people for whom the
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1 government does have clear evidence of, you know, calls to arms
2 and planning in anticipation of some sort of violence at the
3 Capitol. I don't -- I don't see that here. And so I -- I
4 think that is, you know -- is in your favor. And as has been
5 pointed out to courts, those are some of the things that we,
6 you know, should be considering.
7 Also not listed is that you destroyed evidence, that you
8 tried to evade arrest. I mean, I'll tell you right now, I
9 don't think you're a -- a risk of flight. The government has
10 not really argued -- not strongly -- that you were, but I
11 certainly don't think there's any basis on what I've seen that
12 you're a risk of flight, and I -- I credit Mr. Hunter that
13 you've got family members who'd be willing to -- to take you
14 in, if -- perhaps your wife, and if not your wife, someone
15 else. So, I mean, I considered all of that.
16 But there's another side to the coin as well. And none
17 of the things that I have said and the cases that have said
18 that we should look at those factors have said that those are
19 the only factors that we should look at, or somehow that that's
20 a floor for detention; that -- that Chrestman and what he did
21 is -- is -- is the floor for detention.
22 Chief Judge Howell is very clear that these were just
23 factors that we should consider in any given case. There might
24 be other factors to consider or some factors that we may
25 consider more than others. It all just depends. The Munchel
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1 decision came out from the circuit recently and also gave
2 additional guidance. Munchel and Chief Judge Howell and the
3 other judges that I can -- I'm aware that their decisions have
4 all had one class of case where it's been pretty consistent
5 with respect to detention decisions.
6 And unfortunately, sir, you fall within it, in my
7 judgment. Those are individuals who were -- did engage in
8 forcible assault, you know, forcible entry into the Capitol and
9 physical assaults on law enforcement; a factor which
10 Judge Howell said is of grave concern and would -- would
11 mitigate strongly in favor of detention. In the Munchel case
12 before the -- the circuit, again, all three judges -- there's
13 some dispute among the judges as to exactly how that -- the
14 method for resolving that case, but all three judges, I think,
15 also distinguished between what Mr. Munchel did and those who
16 were engaged in violence that day; Mr. Munchel and, I believe
17 it was, his mother.
18 You know, he did come with tactical equipment. He had a
19 TASER, but he didn't use it. For all of his bravado, he didn't
20 do anything. He walked through the Capitol for 12 minutes and
21 left. No one was assaulted. There's no forcible entry. No
22 property was destroyed. And all of the judges in the Munchel
23 case indicated that that's a different class of case. Those
24 individuals who's -- the Munchel court acknowledged who
25 would -- who would use violence to promote their beliefs are
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1 of -- were a concern to those judges and concern to every other
2 judge on this court.
3 I have considered these other decisions, other district
4 court decisions. I've looked at the one cited by Mr. Hunter.
5 I think I can fairly distinguish the Griffin case, the Couy
6 Griffin case, the Powell case. Griffin case, there again,
7 there was no assault. There was no forcible entry, no property
8 damage. He certainly was inciting people, had some threatening
9 language, which was of concern, but, nevertheless, he was
10 released.
11 Ms. Powell, she did breach a window and used, like,
12 something that looked like a battering ram to do it, but she
13 didn't physically assault anyone.
14 I know of two cases where police officers were assaulted
15 and those defendants were granted release. There might be
16 others. It's hard to keep track of all of them. I do have a
17 tracker trying to stay up to speed as to what other judges are
18 doing. It's very important to me that individuals who are
19 engaged in similar conduct -- conduct are treated similarly,
20 especially with respect to a decision as important as this one,
21 detention, which is -- impacts the defendant's liberty. I
22 think we have to. The challenge for the judges on this court
23 is to be consistent. So that's why I've looked at all of these
24 cases.
25 The two cases that I know of where the individuals
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1 assaulted police officers, as you've been charged with doing,
2 and were released, I think, are different too from this case.
3 There was a Mr. Leffingwell. He was one of the first people
4 who came in front of me. He apparently did punch a police
5 officer, was inside the Capitol, was not trying to forcibly
6 enter into one of the entrances of the Capitol. And as soon as
7 he punched the police officer, he turned and apologized. He
8 was also a veteran who had some brain injury as a result of his
9 service. There was suggestion of some sort of diminished
10 capacity.
11 There was also Emanuel Johnson or Jackson. I always
12 forget his last name. I actually held him. What he did sounds
13 a lot like what the government alleges you did. That he twice
14 attacked -- might have been the -- the lower west Terrence --
15 lower west terrace entrance too. I don't know. One of those
16 entrances -- entrances with the archway. He attacked once with
17 his fist and, like, I don't know, an hour or few hours later he
18 came back and attacked again, this time with a baseball bat.
19 That concerned me greatly. I -- I -- I held the man, the --
20 Judge Howell reversed me and released him, but because
21 he had mental health issues and an intellectual disability,
22 which she found he had diminished capacity, I guess, would be
23 the best way to characterize it that day.
24 And it's -- I've not seen any evidence of that with
25 respect to you. We'll talk about your passionate beliefs in a
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1 few minutes, but I'm not seeing evidence of diminished
2 capacity, not in a way that I think would be recognized by the
3 law.
4 So I do think you fall into a class of cases which
5 the -- this court has detained individuals, individuals
6 involved at the Capitol, who were engaged in violent assaults
7 on law enforcement. That's not the only basis of which
8 I -- I -- I rest my decision. I am going to -- to hold you in
9 this case, but it is certainly a very significant one and one
10 that I think puts you in -- as acknowledged by the circuit and,
11 I think, by Chief Judge Howell -- puts you in -- in a different
12 class, and a class which indicates to me, at the very least,
13 you do represent a danger to the community were you to be
14 released.
15 I did review the video, and I heard first -- I must tell
16 you, I heard first the statement that you made to the Lebanon
17 town meeting. So I heard your description first. I wanted to
18 do that. I wanted to hear, you know, your view of it, and then
19 I watched.
20 Sir, I did not see what you described. I understand
21 that I'm not the jury in this case. I'm not even going to be
22 the judge who's going to handle this case after today. So
23 ultimately this is just how I view the evidence. You have the
24 presumption of innocence, and you will have Mr. Hunter by your
25 side, if you choose to go to trial, to attempt to show frame by
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1 frame what -- what happened there that day; but I did view it,
2 and I viewed the videos a few times.
3 I did not see someone who was being pushed by the crowd
4 into the police, which is, you know, my interpretation at the
5 very least of what you were suggesting to the Lebanon town
6 meeting. You indicated that you were sort of sucked into the
7 crowd, you cycled through to the front, you received a beating,
8 and you left.
9 One of those things is true. You did receive a beating.
10 I did see that, but what was interest -- significant to me is
11 that you -- before that, what appeared to me is that you, you
12 know, lunged for the officer, you grabbed him, you pulled him,
13 and then when he did hit you with your [sic] baton any number
14 of times, you went to the ground, you got up, and you went
15 right back. You lunged in again.
16 I saw -- you know, I -- I saw hits. I saw, you know,
17 pulls. I saw you -- you lunging your shoulder into the -- into
18 the -- the police line. I saw aggressive, violent assaults
19 which, you know, unless my eyes are not to believe what it's
20 seeing, were voluntary movements made by you that day -- or
21 over about a minute and a half where there was a continual
22 series of -- of violent actions taken by you against that
23 police line.
24 And you face serious felonies now as a result; a
25 ten-count indictment, two counts of inflicting bodily injury on
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1 police officers. That's a 20-year offense. A number of
2 counts, I believe, of civil disorder. That's an 8-year
3 offense, and also corruptly impeding an official proceeding,
4 another 20-year offense.
5 So I -- I believe that those are significant felonies
6 that you face and also weigh in favor of your detention, both
7 because of how serious they are but also, again, because of the
8 danger represented by individuals who stand charged with having
9 committed those offenses.
10 So the first category, which is what we've been talking
11 about, the first factor the Court is supposed to consider in
12 making its detention determination is the nature and
13 circumstances of the offense. I do find that that factor
14 weighs in favor, and, you know, I've done that after
15 considering the full circumstances of what I saw you do that
16 day, as well as other decisions made by the circuit by other
17 judges in this court as I attempt to evaluate my detention
18 decisions based on the full range of conduct that has been
19 charged that day.
20 With respect to the strength of the government's
21 evidence, which is the second factor I'm supposed to consider,
22 I think the government's got a very strong case. Again, you
23 have the presumption of innocence. Case law has indicated that
24 it's probably the least important factor for the Court to
25 consider, but, nevertheless, it's a factor that we're supposed
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1 to consider.
2 I've seen both the stills but now the video, which I
3 think is pretty clear to me, about what you did that day and
4 what happened and also what didn't happen. As I said, I saw
5 violent, assaultive conduct on your behalf against the various
6 law enforcement officers in that police line.
7 So it does appear to me that the government has a strong
8 case, a case not only that you committed this offense but also
9 strong in the sense that it, again, shows why you represent a
10 danger. It's strong evidence of your own violence. So I think
11 that factor points to your detention in this case.
12 With respect to the history and characteristics, I --
13 I've indicated there are a number of them which are in your
14 favor. The most important of which is you don't have any prior
15 criminal record or any record of violating conditions of
16 release a court might set for you. But I've also considered
17 this factor with what the government has shown with respect to
18 other activities you've been involved with, the calls to
19 Congress people in December, the interaction with that Maine
20 legislator in 2017. So I have considered that in -- I mean,
21 you don't stand charged with threats. I think the -- the
22 government here and in Maine have probably made the right
23 decision.
24 But your conduct, especially viewed through the lens of
25 what happened on January 6th, did strike me as -- as menacing,
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1 intimidating. The fact that it was directed against
2 legislators in -- presumably based on what you've said, you
3 know, in the service of your political beliefs, concerns me
4 because of what we saw on January 6th. You're allowed to have
5 strongly held beliefs. You're allowed to reach out to your
6 Congress people. You're not allowed to threaten them, but
7 you're also not allowed to take violent action.
8 And what I see looking at the totality of the
9 circumstances here is someone who is -- has very passionately
10 held beliefs, perhaps abnormally so. And what I mean by that
11 is it appears they can get the best of you. If you lose
12 control, you can be violent. You're to me like a bomb waiting
13 to go off.
14 It's always difficult for a magistrate judge making that
15 sort of prediction, someone who might engage in violence if I
16 were to release him. It's made somewhat easier for me here
17 because the bomb did go off on December 6th -- on January 6th.
18 Excuse me. That's what that video shows; someone who's willing
19 to engage in violence to promote his political beliefs. The
20 First Amendment doesn't protect that, sir.
21 You've gone beyond any constitutional right that you
22 think you may have. Let me tell you, it does not permit that.
23 And if the government can prove its case at trial, those
24 beliefs may have caused you to violate very serious federal
25 laws.
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1 So I also consider all the other government's evidence
2 with respect to your political beliefs, the menacing conduct
3 that you've engaged in in the past directed towards political
4 leaders, of which January 6th was the most extreme example for
5 you. So I think all of those facts also weigh in favor when I
6 consider your case as a whole of your detention.
7 I mean, the -- the wife, I -- I don't know what's going
8 on with your wife. I -- I hope that whatever the issue is is
9 resolved, but for me, you know, I'm not -- I don't hold against
10 you that you somehow lack community ties. I think you plainly
11 do and perhaps with her, but for me, it is yet another example
12 of where your beliefs have led and the damage they have done
13 and your -- frankly, your inability, apparently, to control
14 your beliefs and to moderate your behavior.
15 I note as well that I've not seen any record of remorse,
16 any record of taking a responsibility or acknowledgment that
17 you did anything wrong. You don't ever have to do that, not at
18 this point, but other courts in this jurisdiction have looked
19 at that just in terms of while we are still in this political
20 moment -- and in my view we are. Some suggestion in the
21 Munchel opinion by one of the judges that we are somehow beyond
22 the moment. I don't agree with that.
23 But while we are in this moment, where the individuals
24 who were moved to violence on January 6th, have they shown
25 remorse for that or should the Court be concerned that in the
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1 next protest you might do the same thing? I would have that
2 concern. I would not want to go to a protest where you were at
3 because of fear that violence might break out. So I think it's
4 important the -- the no remorse, no backtracking. I didn't
5 hear any of that in that audio from that Lebanon town meeting.
6 I heard someone who was just as passionate, if not even more
7 so, on January 7th as they were on the 6th.
8 So for all these same reasons, I do find that your
9 release would present a danger to the community and I would not
10 feel confident that I could structure conditions of release
11 that would fairly, reasonably assure the safety of the
12 community. Again, sir, I don't think you're a flight risk. I
13 deny the government's request to hold you for that reason, but
14 I will hold you because I believe there's clear and convincing
15 evidence as I look at the totality of this case, what you're
16 alleged to have done, the strength of the government's
17 evidence, and other cases from this jurisdiction involving
18 events on January 6th; that this is an appropriate case for
19 detention because of the danger your release would represent to
20 the community.
21 That's my decision. I will be issuing a detention memo
22 shortly, which will put in writing the things I've said here
23 today.
24 Do we have a next date in this case? Government?
25 MS. BHATIA: Your Honor, I believe that the clerk had
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1 mentioned a status hearing was set for April 22nd in front of
2 Judge Jackson.
3 THE COURTROOM DEPUTY: Yes. April 22nd at 11:00 a.m.
4 before Judge Ketanji Brown Jackson.
5 THE COURT: April 22nd at 11:00 a.m. before
6 Judge Jackson.
7 Mr. Fitzsimons, I'll tell you, you -- you have the right
8 to, you know, appeal my decision. I'm not the last word on
9 your detention. So you'll be in front of Judge Jackson here in
10 a few weeks, and Mr. Hunter can advise you on whether or not
11 that's something you should do and how that's done. So you do
12 have a right to appeal your -- your detention decision that
13 I've just made. And that would be directed towards
14 Judge Jackson.
15 The next date in this case will be before her on -- I'm
16 sorry -- April the --
17 MS. BHATIA: 22nd.
18 THE COURT: April the 22nd. This will be your last
19 stop before a magistrate judge, Mr. Fitzsimons. It will be
20 Judge Jackson who will handle the case going forward and who
21 will be the judge for your trial, if you go to trial.
22 Any further requests from the government?
23 MS. BHATIA: Yes, Your Honor. So I believe looking
24 at the -- the docket entries, Judge Faruqui ruled under the
25 Speedy Trial Act to exclude the time up until the last hearing,
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1 which I believe was March 29th. We are asking that any time --
2 I'm sorry. Up until the detention hearing yesterday set on
3 April 6th. So we're asking for a similar exclusion of time
4 from April 6th through April 22nd under the Speedy Trial Act.
5 THE COURT: For what purpose?
6 MS. BHATIA: Yes, Your Honor. So obviously the
7 Chief Judge's standing order, but also that the interests of
8 justice outweigh the interests of the defendant, obviously this
9 being part of a set of complex cases in which there is
10 voluminous discovery, which we are going to attempt to start
11 providing to Mr. Hunter immediately. But for those reasons,
12 Your Honor, we ask for the exclusion of time.
13 THE COURT: Mr. Hunter?
14 MR. HUNTER: Your Honor, I -- I'm -- I'm -- I'm aware
15 of the challenges facing the government here, and as an officer
16 of this court, I know it's incumbent on me to -- to do what I
17 can do to -- to help all of us to -- to get through this
18 unprecedented number of cases being tried all at the same time.
19 As -- as counsel for Mr. Fitzsimons, I'm -- I'm deeply troubled
20 by stretching the -- the precedent about what -- and the rules
21 about what is a complex case and what are the -- the --
22 demanded by the ends of justice for -- for delays. His case --
23 they said nothing that makes this case complex. He -- he
24 doesn't have co-defendants here that he's being -- being tried
25 with for judicial economy.
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1 It's just inconvenient for the government because
2 they've chosen to prosecute 400 defendants from -- from one day
3 all at the same time, and -- and I know that they're unable
4 to -- to -- to do that. There just aren't enough hours in the
5 day or enough AUSAs in the building.
6 But why is that the defendant's problem? Why -- why
7 does the Speedy Trial Act not apply? Why do the --
8 THE COURT: Especially when he's held.
9 MR. HUNTER: Exactly, Your Honor. He's -- he's -- it
10 frustrates me and I -- I --
11 THE COURT: Well, Mr. Hunter, let me --
13 MR. HUNTER: -- a window.
14 THE COURT: Well, let me just -- I mean, maybe this
15 will make it somewhat easier for you. The -- there's motions,
16 the complex case, we want -- 60-, 90-day extension motions are
17 out there. I don't know if it's been filed in this case. I
18 don't hear the government is making that request right now.
19 They're requesting a -- a tolling just between now and the next
20 date. Perhaps at that date they will be making -- asking for a
21 longer period of time.
22 I think such request is best directed -- I would not
23 rule on it. It's Judge Jackson's case at this point. So we're
24 just talking between now and -- and April the 22nd. And I'm
25 certainly not -- would not make right now a complex case
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1 finding justifying that limited tolling. Again, you can still
2 say no. It's up to you.
3 MR. HUNTER: Your Honor, I -- and I -- I appreciate
4 your -- your making that finding. I would also point out the
5 difference when we set this hearing, we set it for March
6 the 31st. The government then was unable to make March
7 the 31st, and -- and it was on their motion that the case
8 was -- was -- was delayed another week to get in front of -- of
9 your court. And I'm happy to be here, but that delay is
10 entirely at their -- their convenience. And I don't think that
11 time should be excluded and -- and counted against the
12 defendant, especially while he's held.
13 And I -- and I know I'm probably just making that --
14 that objection for the record, but this -- this is my windmill
15 to tilt that.
16 THE COURT: So I don't -- just let me make clear.
17 What's your position? Are you willing to toll time between now
18 and the 22nd or not, and -- or is it just the period of time
19 between March 31st and today that you don't want to toll?
20 MR. HUNTER: I don't want to toll any of it, Judge.
21 I -- I realize that's the reality that -- that we live with.
22 And -- and I know this has just never happened in American
23 jurisprudence and certainly -- certainly not in our district
24 that we have our regular 2021 criminal docket, our regular 2021
25 civil docket, maybe more so because we're -- we're climbing out
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1 of the COVID thing and then we add, what, 400 cases to the
2 docket all at once? There's going to be problems. I -- I -- I
3 fully embrace that as an officer to this court. As
4 Mr. Fitzsimons' counsel, I have to complain about it.
5 THE COURT: Okay. Well, again, I think that for
6 longer extensions of time, I will leave it to Chief [sic] Judge
7 Jackson.
8 I will grant the government's request over the defense's
9 objection to just toll time between now and April the 22nd for
10 the -- the reasons stated by the government given, just at the
11 very least the volume of discovery that will need to be
12 presented.
13 Where is the government with respect to its plea policy?
14 Is it making plea offers, and has it made one to
15 Mr. Fitzsimons?
16 MS. BHATIA: Your Honor, not at this time. I think
17 that that should be forthcoming shortly. Now that the
18 protective order is in place, we've told Mr. Hunter that we're
19 going to be working diligently to informally provide him
20 discovery, and then our office is already undertaking the
21 efforts to do fast-track discovery where a large amount of
22 discovery will be provided in batches to defense counsel.
23 So I imagine we'll be able to provide Mr. Hunter with
24 some discovery at least by the end of this week, and we're
25 going to be undertaking that process to get this case
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1 fast-tracked, obviously, because Mr. Fitzsimons is detained.
2 So it's a priority to provide that as soon as possible. And I
3 think the turnaround time for that is about a week to two
4 weeks. Don't hold me to it, but I think we're --
5 THE COURT: Well, I'm not, but Mr. Hunter will. But
6 you'll see Judge Jackson. So I'm sure he will quote you.
7 MS. BHATIA: I'm sure he will. I'm sure he will.
8 THE COURT: It's just a question. I want to know
9 where his plea offer is.
10 MS. BHATIA: I -- I understand --
12 MS. BHATIA: So there is no plea offer at this time.
13 We have not been authorized, at least from what I understand,
14 to make plea offers. I know -- I know this is probably the
15 line from a lot of the AUSAs, but I have been told that they
16 will be forthcoming at some point. I hope soon after being
17 able to provide discovery, we can be in a position to engage in
18 plea negotiations. And just to clarify --
19 THE COURT: I've got to tell you, I mean, you -- you
20 might have an argument in some other cases. I don't see why
21 Mr. Fitzsimons' -- Fitzsimons' case should be held up, his plea
22 should be held up. You know, you've heard my ruling, but he
23 stilled seemed to be out there acting alone. You know, sort of
24 a different category of case, a little bit of a lone wolf,
25 which can be problematic, and I think is problematic. But it's
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1 not as if it appears to me that the government needs, you know
2 more -- more investigation in this case.
3 The case is what it is and it's pretty strong. And as
4 far as the co-conspirators and the like, I -- I just don't see
5 it. I don't see what the concern is and why his case can't
6 move forward and his plea offer be made.
7 MS. BHATIA: Understood, Your Honor. I -- we -- we
8 will certainly try to move it along as quickly as possible.
9 I also just want to clarify for the record, because
10 Mr. Hunter did point out that the original detention hearing
11 was set for, I believe, March 31st. I just want to clarify for
12 the record, I think I requested the time be tolled from
13 April 6th to April 22nd. I think Judge Faruqui's exclusion
14 only took us through March 31st. So I'd be asking from -- for
15 March 31st through April 22nd to make sure we have that -- the
16 entire time covered.
17 THE COURT: Well, I will -- look, I think it's
18 covered as well because the detention decision was being
19 briefed and pending. So there are --
20 MS. BHATIA: Yes.
21 THE COURT: -- any number of reasons, but I will also
22 exclude it because, you know, I -- we needed the time,
23 certainly the Court did, to -- as Mr. Hunter suggested, sober
24 reflection of the issues raised by this detention hearing.
25 So in any event, I am tolling all time between the 31st
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1 and April 22nd. You know, I suspect that Mr. Hunter's
2 objection will grow stronger every week as to, you know, why
3 this case shouldn't move forward, especially now that his
4 client is being held. At the very least, that he receive a
5 plea offer. That's just surprising to me. It is April
6 the 7th. We are three months in. No plea?
7 MS. BHATIA: I understand, Your Honor. We --
8 THE COURT: All right. That's all I can do,
9 Mr. Hunter.
10 MR. HUNTER: Listen, Judge, I -- I really appreciate
11 it. You made that -- that point beautifully. Usually --
12 usually defense lawyers are -- are happy to have a judge try
13 the case for -- for as long as they're not going to lose it,
14 but I thought you did better than I would have. So I
15 appreciate that.
16 THE COURT: All right. Well, good enough.
17 Mr. Fitzsimons, I do -- I wish you the best of luck in
18 your case going forward, and you do have the presumption of
19 innocence. The jury would never be told the decision I made
20 here today; all right? It's a clean slate.
21 All right. Parties are excused.
23
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1 CERTIFICATE
7 audio recording.

202-354-3118
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IN THE UNITED STATES DISTRICT COURT


:
:
v. : CRIMINAL NUMBER 21-158
:
:
KYLE FITZSIMONS :
MOTION TO REVOKE DETENTION ORDER

AND FOR PRETRIAL RELEASE
Defendant Kyle Fitzsimons, by and through his undersigned attorney, moves the Court,
pursuant to 18 U.S.C. §§ 3142(e) and 3145(b), to revoke the Magistrate Judge’s order of
detention and issue an order authorizing pretrial release with location monitoring or other
conditions deemed appropriate by the Court. Mr. Fitzsimons is neither a flight risk, nor a risk of
danger to his community. Monitoring, along with other conditions of release, reasonably will
assure Mr. Fitzsimons’s future appearances before this Court and the safety of other persons and
the community.
I. PROCEDURAL HISTORY
On February 1, 2021, the government filed a criminal complaint against Mr. Fitzsimons,
charging him with several offenses related to the breach of the Capitol on January 6, 2021. Mr.
Fitzsimons subsequently was arrested at his home in in Lebanon, Maine on February 4, 2021,
and the government orally moved for pretrial detention pending his transfer to the District of
Columbia. Mr. Fitzsimons was advised at that time to not participate in an interview that was
conducted by U.S. Pre-Trial services. He subsequently stipulated to detention and probable
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cause with the understanding that he could exercise his right to have a hearing on both upon
transfer from Maine to the District of Columbia.
On February 26, 2021, the United States Attorney in and for the District of Columbia
issued a 10 count Indictment charging Mr. Fitzsimons with two (2) counts of Civil Disobedience
in violation of Title 18 U.S.C. §231(a) 3; one (1) count of obstruction of an official proceeding in
violation of Title 18 U.S.C. §1512(c)(2), 2; two (2) counts of inflicting bodily injury on certain
officers in violation of Title 18 U.S.C. §111(a)(1) and(b); one (1) count of entering and
remaining in a restricted building or grounds in violation of Title 18 U.S.C. §1752(a)(1); one (1)
count of disorderly conduct in a restricted building or grounds in violation of Title 18 U.S.C.
§1752(a)(2); one (1) count of engaging in physical violence in a restricted building or grounds in
violation of Title 18 U.S.C. §1752(a)(4); one (1) count of disorderly conduct in the Capitol in
violation of 40 U.S.C. §5104 (e)(2)(D); and one (1) count of acts of physical violence in the
Capitol in violation of 40 U.S.C. §5104(e)(2)(F).
On March 29, 2021, Magistrate Judge Zia M. Faruqui conducted Mr. Fitzsimons’s initial
appearance in the District of Columbia and preliminary and detention hearings were scheduled
before Magistrate Judge G. Michael Harvey. On April 6, 2021, Magistrate Judge G. Michael
Harvey ordered the Government to file a supplemental motion for detention in this matter to
explain the inconsistencies with the assertion that Mr. Fitzsimons was charged with a crime of
violence based upon the concession on that issue in another matter pending before the Court 1.
Additionally, the Court began its detention hearing. The detention hearing was concluded on
1
Ultimately, the Court allowed the government to proceed with its argument that 18 U.S.C.§111 (b)
was a crime of violence.
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April 7, 2021, and an order granting the Government’s motion for detention was issued by the
Court.
II. FACTUAL BACKGROUND
Kyle Fitzsimons is a 37-year-old resident of the State of Maine. He was born in
Newburg, New York and was raised in Highland Falls and Ft. Montgomery, New York. His
father was employed at the United States Military Academy at West Point, and Mr. Fitzsimons
spent his formative years in the shadow of that great institution. He graduated from high school
with many of the children living in West Point and went on to complete his bachelor’s degree at
the State University of New York at New Paltz.
Mr. Fitzsimons grew up with a great love for our nation and tried to take an interest in the
wellbeing of his community during his adult life. His opinions may have been contrary to the
opinions of some; however, he was never violent. He has been married to his wife, Justine, for 3
years, and they own a home in Lebanon, Maine. The couple share a daughter, who just
celebrated her second birthday earlier this month.
He is also very close with his mother, Jeanean Fitzsimons, who resides in Titusville,
Florida; and his sister, Kaitlyn McKenzie, who resides in Chicago. Mr. Fitzsimons does not
possess a passport and prior to his arrest was working as a freelance butcher for small farmers
throughout York and surrounding counties in Maine.
Like many other Americans, Mr. Fitzsimons took a strong interest in the outcome of the
2020 Presidential election. When the results were announced, he was disappointed. Over the next
few months, Mr. Fitzsimons was inundated with comments from local, state and federal elected
officials about how the election process had been usurped. Convinced that the election results
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had been fraudulently reported, he was moved by the words of then-President Trump to travel to
the District of Columbia for the “Save America Rally.”
Mr. Fitzsimons traveled alone to the District of Columbia. He stayed at a local hotel, did
some sightseeing, and even visited the beautiful St. Peter’s Church.
On the morning of January 6, 2021, Mr. Fitzsimons traveled alone over to the Ellipse.
The park just south of the White House fence was buzzing. A large but peaceful crowd was
assembled. There, Mr. Fitzsimons stood and listened to speaker after speaker explain how the
elections results were fraudulent and what legal steps could be taken to petition Congress to act
to correct them. In fact, then-President Trump assured the crowd that then-Vice President
Michael Pence had “an absolute right” to send the votes of the electors back to their individual
states to be recertified. He told them that this was the only way “WE [would] become President”
and encouraged the attendees to “walk down to the Capitol” with him.
Mr. Fitzsimons had no prior intent to enter the Capitol building or engage in violence, but
the energy of the crowd that day is well-documented, and the mood shifted from one of
purported patriotism to agitation. Mr. Fitzsimons’s alleged conduct that day was contrary to how
he comported himself before and after January 6th.
Mr. Fitzsimons has minimal criminal history, and no history of substance abuse or mental
health issues. He is an anomaly for his generation, having almost no presence on social media.
He is not a member of a violent or extremist group. Rather, he is a lone individual who was
persuaded by the rhetoric of then-President Trump and the Republican party, and was led to
believe that the 2020 election was stolen. Mr. Fitzsimons believed voter fraud occurred, which
ultimately lead to his arrest in this instant matter. He, however, is not a threat to his community
and should not be detained pending trial.
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III. DISCUSSION
Mr. Fitzsimons seeks revocation of the detention order issued by Magistrate Judge
Harvey. “If a person is ordered detained by a magistrate judge, . . . the person 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); see also United States v. Hassanshahi, 989 F. Supp.2d 110, 113
(D.D.C. 2013) (“Authority to review the release order lies with the district judge.”). The district
court judge reviews the magistrate judge’s detention order de novo. Id.; see also Klein, 2021 WL
1377128, at *3 (“Although the D.C. Circuit has not ruled on the matter, every circuit to consider
the issue has found that a magistrate judge’s detention order is subject to de novo review.”).
Utilizing the “default rule favoring liberty,” Mr. Fitzsimons should be released pre-trial.
United States v. Cua, No. CR 21-107, 2012 WL 918255, at *8 (D.D.C. Mar. 10, 2021) (granting
defendant’s release to custody of parents in insurrection case involving, among other charges,
assault with dangerous weapon). Indeed, “‘[o]ur system of criminal justice embraces a strong
presumption against detention.’” Hassanshahi, 989 F. Supp.2d at 113 (quoting United States v.
Hanson, 613 F.Supp.2d 85, 87 (D.D.C. 2009)). “‘In our society liberty is the norm, and detention
prior to trial or without trial is the carefully limited exception.’” Id. (quoting United States v.
Salerno, 481 U.S.739, 755 (1987)). In light of these guiding principles, Mr. Fitzsimons should
be released pending trial because there is no serious risk that he will obstruct justice, nor is he a
flight risk or danger to the community. Therefore, the Bail Reform Act requires release in this
case because “there are conditions of release that will reasonably assure [his] appearance and the
safety of any other person and the community . . . .” 18 U.S.C. § 3142(f) and (g).
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A. Mr. Fitzsimons Cannot Be Detained on Obstruction of Justice Grounds Because

the Government Has Not Presented Any Evidence That There Is a Serious Risk
That He Will Obstruct or Attempt to Obstruct Justice.
Mr. Fitzsimons should not be detained on obstruction grounds because there is absolutely
zero evidence that there is a serious risk that he is likely to commit obstruction offenses if
released from detention. The Bail Reform Act requires the Court to hold a detention hearing
upon motion of the government where the case involves “a serious risk that such person will
obstruct or attempt to obstruct justice, or threaten, injure or intimidate, or attempt to threaten or
intimidate a prospective witness or juror.” 18 U.S.C. § 3142(f)(2)(B). The mere fact that Mr.
Fitzsimons has been charged with obstruction of an official proceeding cannot serve as the sole
basis for detention on obstruction grounds. Indeed, “[t]here is not a per se rule that an
obstruction of justice charge warrants detention.” United States v. Omar, No. 3:10-CR-00260.
2011 WL 902487, at *15 (M.D. Tenn. Mar. 15, 2011) (citation omitted); see also United States
v. Demmler, 523 F. Supp.2d 677, 683 (S.D. Ohio 2007) (“[T]he Court will not assume that just
because [defendant] has been charged with . . . obstruction of justice, he is likely to commit these
same offenses again during the course of these proceedings. Indulging in such an assumption
would be tantamount to creating a per se rule of detention in cases involving . . . obstruction[.]”).
Absent the obstruction charge against Mr. Fitzsimons in the instant matter, there is no adequate
reason to detain him on obstruction grounds.
B. The Government Cannot Prove by a Preponderance of the Evidence That Mr.

Fitzsimons Poses a Serious Risk of Flight.
There is no serious risk that Mr. Fitzsimons will flee if released on bail. Mr. Fitzsimons
has an extremely supportive and law-abiding family. His mother, who has retired to Titusville,
Florida, has offered to open her home to him. She has also agreed to ensure that he adheres to
the conditions of pre-trial release including, but not limited to, making himself available for any
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and all proceedings. He does not possess a passport and although the Government did make the
assertion that Mr. Fitzsimons was a flight risk, there was no evidence to support the same. He
made no attempts to evade arrest or obscure his identity after the events of January 6, 2021.
The government sought pretrial detention in this case on the grounds that this case
“involves . . . a risk of flight.” See, Detention Hearing (April 6, 2021) p.14. In support of this
motion for detention, the government argued that Mr. Fitzsimons is a flight risk because he was
charged in this case. That argument lacks merit. Otherwise, no individual arrested based upon
their actions on January 6, 2021, would be able to overcome this prong. Furthermore, the
government cannot rely solely on the potential penalty in this case to show risk of flight. “In
evaluating the likelihood of flight, the potential penalty has merit, but . . . the stability of
[defendant’s] relationship to the community” is much more persuasive. White v. United States,
412 F.2d 145, 147 (D.C. Cir. 1968).
The preponderance of evidence in this case establishes that Mr. Fitzsimons does not
“pose risk of flight [.]” See, Detention Hearing (April 7, 2021) p. 15. (holding government did
not prove by preponderance of evidence that Mr. Fitzsimons is a flight risk); see also United
States v. Xulam, 84 F.3d 441, 442 (D.C. Cir. 1996) (“[W]hen the government seeks pretrial
detention of an individual on the ground that he poses a risk of flight, the standard it must satisfy
is a ‘preponderance of evidence.’” (citation omitted)). Magistrate Judge Harvey was not
persuaded that the government had shown (or even really argued) that Mr. Fitzsimons was a
flight risk. Id. Nor does Mr. Fitzsimons have the financial resources to flee – at the time of the
detention hearing, Mr. Fitzsimons was working as a contract butcher for local farms and did not
possess a passport. In light of Mr. Fitzsimons’s strong family ties and lack of serious risk of
flight, detention on the basis of likelihood to flee is not warranted.
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C. The Government Cannot Prove by Clear and Convincing Evidence That Mr.
Fitzsimons Presents an Identified and Articulable Threat to an Individual or the
Community.
Outside of the unique set of circumstances that drew Mr. Fitzsimons to Washington, D.C.
on January 6th, he does not present any specific and identifiable threat to any individual or his
community. “To justify detention . . . [based on] dangerousness, the government must prove by
‘clear and convincing evidence’ that ‘no condition or combination of conditions will reasonably
assure the safety of any other person in the community.” United States v. Munchel, 991 F.3d
1273, 1279-80 (D.C. Cir. 2021) (citations omitted); see also 18 U.S.C. § 3142(f). In assessing
whether Mr. Fitzsimons must be detained on the basis of dangerousness, the Court considers the
following factors: “(1) the nature and circumstances of the offense charged . . .; (2) the weight of
the evidence against the person; (3) the history and characteristics of the person . . .; and (4) the
person’s release.” 18 U.S.C. § 3142(g). On balance, weighing these factors against the
backdrop of the notion that “[i]n our society liberty is the norm, and detention prior to trial or
without trial is the carefully limited exception[,]” Mr. Fitzsimons does not pose a “concrete,
prospective threat to public safety.” Munchel, 991 F.3d at 1279, 1280.
1. Nature and circumstances of the offense charged.
In considering the nature and circumstances of the offense charged, the Court considers
whether the offense charged is a crime of violence. 18 U.S.C. § 3142(g)(1). Counts Four and
Five of the indictment charges Mr. Fitzsimons with assaulting, resisting, or impeding certain
officers using a dangerous weapon, inflicting bodily injury, in violation of 18 U.S.C. §§
111(a)(1) and (b). The D.C. Circuit Court has yet to rule on the issue of whether § 111(b)
categorically constitutes a crime of violence. See United States v. Klein, No. CR 21-236, 2021
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WL 1377128, at *6 (D.D.C. Apr. 12, 2021) (noting the “D.C. Circuit has not yet weighed in” but
also recognizing that “every circuit to address the issue” has concluded that § 111(b) constitutes
a crime of violence).
Even if the Court ultimately deems § 111(b) to be a crime of violence, such a
determination should not weigh against release in this case, particularly in light of the fact that
other defendants charged with the same offenses have been released. co-defendant Paul Russell
Johnson, who is charged under the same statute, has been released. Not only has he been
released on bail, but the government did not even seek detention in his case in D. C. District
Court. See Minute Entry for Paul Russell Johnson (21-CR-332-01) Detention Hr’g of 4/29/21
(“Government does not seek the Defendant’s pretrial detention.”). Mr. Johnson’s release – and
the release of other Capitol defendants charged under § 111(b) – demonstrates that there is no
per se rule that individuals charged with a violation of § 111(b) must be detained. See, e.g.,
Klein, 2021 WL 1377128, at *1, *2 (D.D.C. Apr. 12, 2021); United States v. David Alan Blair,
Crim. No. 21-186 (D.D.C.); United States v. Clayton Ray Mullins, Crim. No. 21-035-4 (D.D.C.);
United States v. Robert Scott Palmer, Crim. No. 21-328 ((D.D.C.); United States v. Robert
Sanford, Crim. No. 21-086 (D.D.C.); United States v. Tristan Chandler Stevens, Crim. No. 21-
040-2 (D.D.C.); see also United States v. Chrestman, -- F. Supp. 3d --, 2021 WL 765662, at *7
(D.D.C. Feb. 26, 2021) (“Nonetheless, not all of the rioters charged with offenses stemming from
the January 6 attack will be held pending trial. Nor has this court uniformly granted the
government’s requests for pretrial detention.”).
In addition to taking into account whether this case involves a crime of violence, there are
other circumstances to consider. While not binding on this Court, Beryl Howell, Chief Judge for
the U.S. District Court for the District of Columbia, has set forth six factors to consider that are
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relevant to the nature and circumstances of offenses committed on January 6, 2021: whether
defendant (1) has been charged with felony or misdemeanor offenses (2) engaged in prior
planning before arriving at the Capitol; (3) carried or used a dangerous weapon during the riot;
(4) coordinated with other participants before, during, or after the riot; (5) assumed a formal or
de facto leadership role in the assault by encouraging other rioters’ misconduct; and (6) used
words and movements that reflected the egregiousness of his conduct. Chrestman, 2021 WL
765662, at *7-*8. Arguably, only two of the six factors in this case weigh in favor of detention –
(1) felony offense and (6) words and movements, but conditions of release are capable of
mitigating any perceived risk triggered by these two factors.
Mr. Fitzsimons has been charged with felony offenses. While felony offenses “are by
definition more serious than misdemeanor offenses[,]” this designation should not carry great
weight. Individuals charged with felonies routinely are released from pretrial custody and, in
this case, there are conditions of release that will mitigate any concerns about risk of danger and
assure Mr. Fitzsimons’s appearance.
Here, with respect to his words and movements, there are no allegations that Mr.
Fitzsimons used any words to rile up the crowd or that would evince intent to overthrow the
Capitol. While Mr. Fitzsimons’s movements arguably might cause concern for the Court, these
concerns may be alleviated through the use of tailored release conditions.
The remaining four factors weigh in favor of release. Mr. Fitzsimons did not engage in
any prior planning prior to traveling to the Capitol. Magistrate Judge Harvey found there was
“No real evidence … of planning with respect to violence that day.” Detention Hearing (April 7,
2021) p. 14. Magistrate Judge Harvey also found that Mr. Fitzsimons was not like “People
who've come with, you know, tactical equipment, came to the Capitol with weapons, people for
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whom the government does have clear evidence of, you know, calls to arms and planning in
anticipation of some sort of violence at the Capitol.” Id. Nor did Mr. Fitzsimons use or carry a
dangerous weapon during the riot.
On January 6th, Mr. Fitzsimons was dressed in civilian clothing (jeans, uniform coat, dark
sweatshirt), and did not bring or use any weapons, such as “a firearm, a large pipe, a wooden
club, an axe handle, or other offensive-use implement[.]” Chrestman, 2021 WL 765662, at *8.
There is absolutely no evidence that Mr. Fitzsimons coordinated with other participants
before, during, or after the riot. He has virtually no presence on social media; he drove his car to
the rally alone, visiting national landmarks and a Catholic church when he arrived in the District
of Columbia. Upon arrival, he did not meet up with anyone, but rather went alone to President
Trump’s rally. After leaving the rally, he walked to the Capitol by himself. There simply is no
evidence that Mr. Fitzsimons coordinated with others to overtake the Capitol. See, Chrestman,
2021 WL 765662, at *8 (contrasting coordination of Proud Boys, which included urging the
other Proud Boys to “take” the Capitol).
Finally, Mr. Fitzsimons did not assume any formal or de facto leadership role on January
6, 2021. Mr. Fitzsimons was a lone actor – he traveled alone, he attended the rally alone, and he
walked to the Capitol grounds alone. Moreover, the relevant video evidence does not show that
Mr. Fitzsimons actively encouraged others to advance or confront law enforcement. In fact, the
video corroborates this argument that he acted alone. Therefore, this factor weighs in favor of
release.
2. Weight of the evidence against Mr. Fitzsimons.
Although there is ample video evidence in this case, “[e]ven overwhelming evidence of
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guilt” does not amount to “clear and convincing evidence that no conditions of release can
reasonably assure the safety of the community.” United States v. Taylor, 289 F. Supp.3d 55, 66
(D.D.C. 2018) (instructing court must “review the weight of the evidence against the defendant
as an indicia of whether any conditions of pretrial release will reasonably assure the safety of the
community”). There are conditions of release to assure the safety of Mr. Fitzsimons’s
community.
3. History and characteristics of Mr. Fitzsimons.
In considering the history and characteristics of Mr. Fitzsimons, the Court must take into
account “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 appearance at court
proceedings . . . .” 18 U.S.C. § 3142(g)(3)(A). After a full detention hearing, Magistrate Judge
Harvey found that “this factor weighs in favor of release.” Id. at 14. A similar finding should be
made in the instant matter.
Mr. Fitzsimons is a college graduate. He has been married for 3 years and the couple has
a 2-year-old child. His mother is extremely supportive of his return to the community and has
agreed to help supervise him upon his release. In fact, his mother has contacted her local
telecommunications company to have a landline installed, so that he might be placed on location
monitoring if ordered to do so. Mrs. Fitzsimons – who is now retired – has also noted that she
could be of assistance helping her son obtain employment, so that he can help financially provide
for his young child.
Notably, Mr. Fitzsimons does not have substance abuse issues or mental health
conditions, and he is in good physical health. Nor does Mr. Fitzsimons have a history of
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violence or membership in violent or extremist groups. Mr. Fitzsimons has one misdemeanor
conviction for driving under the influence, and a traffic incident, but these contacts are not
probative of entire history and characteristics, nor indicative of future behavior. In addition, the
mere fact that Mr. Fitzsimons has been charged for his actions on January 6th cannot serve to
undermine his history and characteristics. Such an approach would amount to a per se rule that
all actors involved on January 6th should be detained. The release of others establishes that no
such rule exists. Accordingly, based on the history and characteristics outlined above, this factor
weighs in favor of release.
Furthermore, the government’s assertion that, by previously exercising his First
Amendment Right to petition the Government for a redress of grievances, Mr. Fitzsimons
presents a specific and articulable threat is without merit. Mr. Fitzsimons has never been
arrested for any threat or act of violence. He has an absolute constitutional right to contact his
elected officials to voice concerns about community issues. Additionally, Mr. Fitzsimons can be
placed on location monitoring to track and limit his movements. Therefore, the government has
failed to demonstrate how Mr. Fitzsimons’s release would pose a threat.
4. Nature and seriousness posed by Mr. Fitzsimons’s release.
The final factor to 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(4). This factor
was “determinative in the [Magistrate Court’s] decision to detain Fitzsimons” but, respectfully,
the court’s conclusion regarding this factor was wrong and contrary to the law. When analyzing
the nature and seriousness posed by Mr. Fitzsimons’s release, the Court must consider whether
the government has “proved by clear and convincing evidence that an arrestee presents an
identified and articulable threat to an individual or the community . . . .” Munchel, 991 F.3d at
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1280. Indeed, the point of detention is to “disable the arrestee from executing that threat.” Id.
(quotation omitted). In this respect, the Magistrate Court failed to adequately articulate the
specific threat posed by Mr. Fitzsimons.
The Court also must consider the threat in context. Id. at 1283. Here, when viewed in
context, the only threat arguably presented by Mr. Fitzsimons is limited to the particular
circumstances that transpired on January 6th. See, Id. Viewed within the context of January 6th,
the evidence shows that Mr. Fitzsimons was caught up in the frenzy of the rally and protest. His
lack of prior planning and coordination with others supports this determination. He was swept up
in the large crowd and behaved in a manner that was completely foreign to his actions before or
after January 6th. At most, one could assume arguendo that Mr. Fitzsimons might pose a danger
to, say, attempt to stop an act of Congress in the future, but this danger would require the same
set of unique circumstances that occurred on January 6, 2021 – rally, protest, Congressional tally
of votes – to take place again at some point in the future. This is simply too speculative a basis
to make a specific finding of danger to any person or the community.
The government must acknowledge that, if it considers the threat in context, there
absolutely are conditions to “mitigate, if not eliminate, the one very specific risk” that Mr.
Fitzsimons would engage in conduct during another political rally. To do otherwise is to
improperly reject the contextual consideration of dangerousness, instead opting to generalize the
threat to his theoretical capability of assaulting and injuring law enforcement. This generalized
threat is not based on the stale driving under the influence or traffic violation, which Magistrate
Judge Harvey has rightly discounted as a factor in favor of detention, but rather on Mr.
Fitzsimons’s anomalous acts on January 6th.
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Additionally, there is no clear and convincing evidence that Mr. Fitzsimons poses a
specific danger to law enforcement if released. When considering the danger posed by a person’s
release, it absolutely is appropriate to consider whether the individual will “engage in the same
kinds of inherently dangerous and illegal activities” at issue in the particular case. United States
v. Wiggins, -- F. Supp.3d --, 2020 WL 1868891, at *8 (D.D.C. Apr. 10, 2020) (holding defendant
did not show by clear and convincing evidence that if he were released he would not engaged in
the same kinds of dangerous activities) (emphasis added); see also United States v. Lee, 451 F.
Supp.3d 1, 7-8 (D.D.C. 2020) (concluding the danger posed by the person’s release is the “risk
that he will continue to engage in the same types of unlawful and potentially dangerous
conduct”) (emphasis added)).
Here, there is no danger that Mr. Fitzsimons will engage in the same type of conduct in
which he engaged on January 6th. Considering his “resources and capabilities,” Munchel, 991
F.3d at 1283, he has minimal financial resources and no social groups with which to foment
antisocial behavior; there are no weapons in his mother’s home; and he has not created any social
media posts threatening continued political violence. See Cua, 2021 WL 918255, at *7-*8
(granting release despite defendant’s violent social media postings). Simply put, absent a
coordinated political rally for a unique purpose, Mr. Fitzsimons poses no danger to his
community.
To be sure, Mr. Fitzsimons’s statements to the press after the events are regrettable. But
these statements should not outweigh every other factor in this case weighing in favor of release.
See United States v. Padilla, Crim. No. 21-214, 2021 WL 1751054, at *8 (D.D.C. May 4, 2021)
(finding defendant’s post-January 6th bragging resulted in “mixed” history and characteristics
that did not “point definitively in one direction or the other.”)
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Viewing the nature and seriousness of the danger in context, it is clear that he posed no
danger to his community before or after January 6th. Moreover, any risk concerns can be
mitigated through any number of conditions of release. If, however, the Court considers the risk
of danger in this case to be a close call, the decision regarding release should be “guided by the
default rule favoring liberty.” Cua, 2021 WL 918255, at *8.
IV. CONCLUSION
For the foregoing reasons, defendant Kyle Fitzsimons respectfully requests the
Court grant the instant motion and revoke the Magistrate Court’s order of detention and issue an
order for pretrial release.
/s/ Natasha Taylor-Smith

NATASHA TAYLOR-SMITH
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I, Natasha Taylor-Smith, Assistant Federal Defender, Federal Community Defender
Office for the Eastern District of Pennsylvania, hereby certify that I caused a copy of the
Defendant’s Motion to Revoke Detention Order and for Pretrial Release to be filed and served
electronically through the District of Columbia District Clerk's Office Electronic Case Filing
upon Brandon K. Regan, Assistant United States Attorney, United States Attorney’s Office, 555
4th St., NW, Washington, DC 20530.

DATE: August 27, 2021
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:
v. : Case No. FU5&
:
KYLE FITZSIMONS, :
:
Defendant.
____________________________________:
OPPOSITION TO DEFENDANT'S MOTION TO REVOKE DETENTION ORDER AND

FOR PRETRIAL RELEASE
The United States of America, by and through its attorney, the United States Attorney for
the District of Columbia, respectfully submits this opposition to the defendant, Kyle Fitzsimons,
being released from pre-trial detention. In reviewing the detention order, see 18 U.S.C. § 3145(b),
the Court should find that no conditions or combinations of conditions which can effectively
ensure the defendant’s appearance or the safety of any other person and the community, pursuant
to 18 U.S.C. § 3142(e).
The government respectfully requests that the following points and authorities, as well as
any other facts, arguments and authorities presented at the detention hearing, be considered in the
Court’s determination regarding pre-trial detention.
BACKGROUND
1. PROCEDURAL POSTURE
The defendant was arrested in Maine on February 4, 2021. He appeared before Magistrate
Judge John H. Rich III on February 5, 2021. The defendant waived a detention hearing and
preliminary hearing and asked that his hearings and further proceedings be held in the U.S. District
Court, District of Columbia. Judge Rich issued a temporary order of detention and a commitment
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to another district while the defendant was remanded to the custody of the U.S. Marshals for
transport to the District of Columbia. On April 6 and 7 a detention hearing was held, and
Magistrate Judge G. Michael Harvey held the defendant finding that the defendant’s release
“would present a danger to the community and [the Court] would not feel confident that [the Court]
could structure conditions of release that would fairly, reasonably, assure the safety of the
community.” See United States v. Kyle Fitzsimons, 21-CR-158 (RC)(oral ruling); see also Minute
Entry, 21-CR-158 (4/7/2021 and 4/25/21). 1 Notably, an additional factor the court noted, in
addition to the violent and assaultive nature of the defendant’s conduct, was the defendant’s lack
of remorse in the aftermath of the events of January 6th. Id.
On February 26, 2021, an indictment was returned against the defendant charging him with
following ten counts:
1. Obstruction of Law Enforcement During Civil Disorder (18 U.S.C. § 231(a)(3)) (Sergeant
A.G.) (5 year max);
2. Obstruction of Law Enforcement During Civil Disorder (18 U.S.C. § 231(a)(3)) (Detective
P.N.) (5 year max);
3. Obstruction of an Official Proceeding and Aiding and Abetting, in violation of Title 18,
United States Code, Sections 1512(c)(2) and 2 (20 year max);
4. Inflicting Bodily Injury on Certain Officers (18 U.S.C. § 111(a)(1), and (b)) (Sergeant
A.G.) (20 year max);
5. Inflicting Bodily Injury on Certain Officers (18 U.S.C. § 111(a)(1), and (b)) (Detective
P.N.) (20 year max);
6. Entering or Remaining in any Restricted Building or Grounds (18 U.S.C. § 1752(a)(1)) (1
year max);
7. Disorderly and Disruptive Conduct in a Restricted Building or Grounds (18 U.S.C. §
1752(a)(2) (1 year max);
8. Engaging in Physical Violence in a Restricted Building or Grounds (18 U.S.C. §
1752(a)(4)) (1 year max);
9. Disorderly Conduct on Capitol Grounds (40 U.S.C. § 5104(e)(2)(D)) (6 month max)
10. Act of Physical Violence in the Capitol Grounds or Buildings (40 U.S.C. § 5104(e)(2)(F))
(6 month max).
See United States v. Kyle Fitzsimons, 21-CR-158 (RC), ECF No. 5. The defendant now seeks to
1
The transcript of Magistrate Judge Harvey’s oral ruling on detention is appended to this motion as Exhibit 1 in
support of the government’s opposition motion.
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be released from detention and placed on location monitoring and any other conditions deemed
appropriate by the Court.
2. STATEMENT OF FACTS
The Attack on the United States Capitol on January 6, 2021
The government hereby proffers that, two months after the November 3, 2020 presidential
election, on January 6, 2021, a joint session of the United States Congress convened at the Capitol
to certify the vote count of the Electoral College of the 2020 Presidential Election. The joint session
began at approximately 1:00 p.m., with then–Vice President Mike Pence presiding. By 1:30 p.m.,
the United States House of Representatives and the United States Senate adjourned to separate
chambers within the Capitol to resolve an objection raised in the joint session. Vice President
Pence continued to preside in the Senate chamber.
As the House and Senate proceedings took place, a large crowd of protestors gathered
outside the Capitol. “[T]emporary and permanent barricades were in place around the exterior of
the . . . building, and U.S. Capitol Police were present and attempting to keep the crowd away from
the Capitol building and the proceedings underway inside.” Shortly after 2:00 p.m., a violent mob
of rioters “forced entry” into the Capitol, and mayhem broke out inside the building, putting an
hours-long halt to the electoral vote count while elected representatives, congressional staff, and
members of the press hid from the mob. The joint session, and thus the constitutional ritual of
confirming the results of the 2020 Presidential Election, “was effectively suspended until shortly
after 8:00 p.m.”
The Defendant’s Actions at the U.S. Capitol
On January 5, 2021 the defendant traveled from Lebanon, ME to Washington D.C and
returned home on January 6, 2021. On January 7, 2021, after participating in the Capitol Riot, the
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defendant called into a Town of Lebanon meeting, wherein he described his actions on January 6
to the town hall members. 2 Specifically, the defendant stated that after attending the rally at the
Ellipse to watch then-President Trump speak, he went to a nearby parking garage to put on a white
butcher’s coat and unstrung bow before traveling to the U.S. Capitol building. As the defendant
approached the U.S. Capitol building, he observed other rioters already involved in disorder, to
include individuals climbing the building.
In addition to the defendant’s own statements, his actions were also captured on
surveillance and body-worn camera footage from January 6. At approximately 3:45 p.m. the
defendant was present at the lower west terrace of the U.S. Capitol where a large crowd of rioters
had already formed and were attempting to breach a police line formed inside the lower west
terrace tunnel. Shortly thereafter the defendant moved to the front of the group of rioters, wearing
the white butcher’s coat over a dark blue sweater. The defendant’s actions were captured on
surveillance video (pictured below)3
Exhibit 3
2
The Town of Lebanon meeting was audio and video recorded. A copy of this recording has been appended to this
motion as Exhibit 2 in support of the government’s opposition motion.
3
The surveillance footage pictured in Exhibits 3-6 also included video footage. A copy of the relevant portions of
the video footage has been appended to this motion as Exhibit 7 in support of the government’s opposition motion.
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Once the defendant reached the police line the defendant was captured on surveillance reaching
down and grabbing at officers as he entered the archway (pictured below).
Exhibit 4
After the defendant was struck by officers’ batons, who were attempting to break the
defendant’s grip and avoid being pulled into the crowd of rioters, the defendant got up and moved
towards the middle of the archway. The defendant then appeared to steel himself for additional
violence, lowered his shoulder, and charged at the line of officers (pictured below).
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Exhibit 5
The defendant simultaneously appeared on MPD body worn camera, where he was
observed charging the police line and assaulting officers inside the lower west terrace tunnel
(pictured below). After officers fought off the defendant he retreated back into the crowd.
Exhibit 6
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Exhibit 8
During the course of the investigation the FBI was able to identify two of the officers the
defendant assaulted captured in the surveillance video described above. Specifically, the
defendant grabbed U.S. Capitol Police Sergeant A.G.’s left shoulder and was trying to pull
Sergeant A.G. into the crowd. Sergeant A. G. slipped and fell while standing on three police shields
that had been covered in pepper/mace spray. Sergeant A.G. had to strike the defendant with a baton
several times to get free from his grip. Sergeant A.G. suffered a shoulder injury as a result of the
defendant’s assault. Additionally, the defendant assaulted Metropolitan Police Department
Detective P.N.’s gas mask and pulled it to the side before another individual behind the defendant
covered Detective P.N. in spray. Both officers identified the defendant in surveillance footage as
the individual who assaulted them.
The Defendant’s Actions Before and After the Assaults on the Lower West Terrace
During the course of the investigation law enforcement were directed to the “Lebanon
Maine Truth Seekers” Facebook page in which a message posted on December 24, 2020 contained
the following messages:
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“I’m also seeing flags that this election was stolen and we are being
slow walked towards Chinese ownership by an establishment that is
treasonous and all too willing to gaslight the public into believing
the theft was somehow the will of the people.”
“Would there be an interest locally an organizing a caravan to

Washington DC for the Electoral College cote count on Jan 6th,
2021? I am arranging the time off and will be a driver if anyone
wishes to hitch a ride, or a lead for a caravan of vehicles. If a call
went out for able bodies, would there be an answer?”
The Facebook message was signed with the defendant’s first and last name and included a
Gmail address also containing his first and last name.
The day after the riots, as described above, the defendant called into a Town of Lebanon
meeting. The defendant stated that he believes that Trump is a lion leading an “army of lambs
through lawfare.” After Trump’s speech, the defendant stated he went to an unknown parking
garage to put on a costume which consisted of butcher’s jacket and an unstrung bow. The defendant
stated that if it were the last day of the republic, he wanted to live it like he did every day. The
defendant further stated he was near a group of individuals near a police line that was protecting a
doorway and anyone “sucked in” to the crowd was pushed into the police line and were subjected
to force.
Roughly four days later the defendant was interviewed by the Rochester Voice about his
experience at the U.S. Capitol during the course of the riot. The article included pictures taken by
the defendant at the riot, as well as photos from news coverage that day, which documented his
travel up towards the Capitol building (pictured below). Notably, the photos contained in this
article depict the defendant wearing the same clothing he is pictured wearing in surveillance
footage of the lower west terrace tunnel.
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Exhibit 9
Exhibit 10
In the Rochester Voice article, the defendant is also quoted as saying:
“[t]he speeches from the morning were overtly preaching the election was not
over, there was a path to victory through decertification, there was a plan to delay
the certification by the House and Senate and then state legislatures would
convene and (certify) the right result.” Moreover, the defendant provided that the
crowd at the Ellipse was asked by President Trump to walk to the Capitol to “give
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our Republicans, the weak ones ... the kind of pride and boldness that they need to
take back our country.”
As law enforcement continued to investigate the defendant, information was obtained that
the defendant made several calls to a Congressional office representing his district, stating the
following:
x On March 19, 2020, the defendant called-in, demanding the number for Chinese
President, Xi Jinping. The defendant said that he wanted to start a war with China
and if the individual answering the phone didn’t give him the number, he was
going to go out on the street and start talking to the Chinese people he saw. He
said many times that he wanted to start a war and when the staffer asked him for a
name, he said “This is Kyle Fitzsimons, the man who wants to start a war.” The
defendant’s tone was noted to be very aggressive and angry.
x On December 17, 2020, the defendant called-in and stated that he was against
impeachment. He was reported to be very aggressive, shouting and yelling. The
defendant said that he was going to "give it to her hard" and that "we're coming
for her" (referring to the Congressperson).
x On December 18, 2020, the defendant stated that the electoral college vote is
corrupt and total garbage. He urged the Congressperson to dispute the election
results in January. He stated that Biden is a corrupt skeleton and that this is going
to be Civil War.
Additionally, the defendant left a voicemail for a member of Congress stating “[. . .] I am
a constituent of Maine. My name is Kyle Fitzsimons, I live at [redacted]. I am asking for your
courage, sir, courage to dispute what we all know is a garbage election. Will you have the
courage to object on January 6th, because I certainly have the courage to object to my entire life
going forward if this is done to me. My name is Kyle Fitzsimons, and I’ll be in D.C. on the 6th.
Enjoy your day.” 4
4
The audio recording of this voicemail is appended to this motion as Exhibit 11 in support of the government’s
opposition motion.
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ARGUMENT
The defendant is eligible for detention pursuant to § 3142(f)(1)(A) [Crime of Violence]
and § 3142(e) [Risk of Flight] of the federal bail statute. Under the Bail Reform 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’ compared to other federal
offenses.” United States v. Singleton, 182 F.3d 7, 13 (D.C. Cir. 1999) (quoting United States v.
Salerno, 481 U.S. 739, 747 (1987)). The BRA “requires that detention be supported 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). 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. The defendant seeks review of Magistrate Judge Harvey’s detention order by filing a
motion to revoke the order or amend the conditions of release. 18 U.S.C. § 3145(b). This Court’s
review of the magistrate judge’s order is “de novo” to determine whether any “condition or
combination of conditions will reasonably assure the appearance of the defendant as required and
the safety of any other person and the community.” 18 U.S.C. § 3142(e). At a detention hearing,
the government may present evidence by way of a proffer. United States v. Smith, 79 F.3d 1208,
1209-10 (D.C. Cir. 1996).
To determine whether conditions exist that will reasonably assure the appearance of the
defendant as required and the safety of any person in the community, the judicial officer shall
consider four factors: (1) “the nature and the circumstances of the offense charged,” (2) “the weight
of the evidence against the person,” (3) “the history and characteristics of the person,” and (4) “the
person’s release.” 18 U.S.C. § 3142(g)(l)-(4). ”). Additionally, the Court has articulated several
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“guideposts” useful for assessing “the comparative culpability of a given defendant in relation to
fellow rioters.” See United States v. Chestman, 21-mj-218 (BAH), ECF No. 23, at *13, 16 (D.D.C.
February 26, 2021); see also See United States v. Jeffrey Sabol, 2021 WL 1405945 (Memorandum
Opinion issued by Judge Emmet G. Sullivan). These guideposts included (1) whether the
defendant has been charged with felony or misdemeanor offenses; (2) the extent of the defendant’s
prior planning; (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.
In consideration of these factors, the government respectfully submits that there remain no
conditions or combinations of conditions which can effectively ensure the safety of any other
person and the community or the appearance of the defendant, as required.
(1) The Nature and Circumstances of the Offense Charged:
To start, the gravity of the conduct that occurred on the U.S. Capitol writ large is an issue
that has been addressed by this Court when determining whether pretrial detention is appropriate.
See Sabol, 2021 WL 1405945 at 8. In Sabol, the court quotes United States v. Cua, No. 21-107
(RDM), 2021 WL 918255, where Judge Moss stated “[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
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concern about the security – not only of the Capitol building—but of our democracy itself.” While
the Court must consider the specific offenses for which each defendant is charged and the conduct
underlying those offenses, the government believes that this is an appropriate starting place for the
Court when assessing the defendant’s actions on January 6. See Sabol, 2021 WL 1405945 at 8.
Here, the defendant has been charged with grave offenses. He forcibly entered and
remained on the Capitol grounds and sought to stop, delay, and hinder Congress’s certification of
the Electoral College vote. He was at the front of the crowd in the Lower West Terrace tunnel and
engaged directly with officers by pulling them by the body parts, including the shoulder, in attempt
to pull them into the crowd. Not hindered by the batons meant to prevent further violence on the
defendant’s part, he pulled the gas mask off another officer, which was then followed by another
individual spraying the officer in the face. He persisted in his violence and was unhindered by the
line formed at the tunnel meant to protect the Capitol building from the rioters.
As made clear in the Facebook post on the Lebanon Truth seekers page, once a call “went
out for able bodies” to march to the Capitol, the defendant answered with violence, force and
aggression. Following up on his threatening calls made to the Congressional office on December
17-18, 2020, in which he stated he was going to “give it to her hard” (referring to the
Congressperson), stating that the fraudulent election was going to result in a Civil War, and the
voicemail where the defendant states he “has the courage to object to his whole life if [the election
results are certified] is done to [him],” the defendant prepared himself for a battle both in apparel
(butcher coat, rubber boots and apron, unstrung bow) and in his actions that day. The defendant
made clear his disgust for the election and was acting on the threats by use of violence and force.
Such conduct poses a clear risk to the community. As stated by Chief Judge Beryl A. Howell,
“[t]he actions of this violent mob, particularly those members who breached police lines and
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gained entry to the Capitol, are reprehensible as offenses against morality, civic virtue, and the
rule of law.” See United States v. Chestman, 21-mj-218 (BAH), ECF No. 23, at *13, 16 (D.D.C.
February 26, 2021) (“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
Here, as stated above, the defendant attempted to breach the police lines, but due to the
heroic efforts of law enforcement to consistently push him back, thankfully failed. Notably, the
defendant’s actions satisfy several of the guideposts delineated in Chrestman with respect to the
defendant’s comparative culpability, to include among others, felony charges, attempting to storm
the Capitol, and injuring others. For those reasons, the nature and circumstances of the charged
offenses strongly support a finding that no conditions of release would protect the community.
Additionally, someone who demonstrates such contempt from the rule of law cannot reasonably
assure future court appearances.
(2) The Weight of Evidence Against the Person:
The second factor to be considered, the weight of the evidence, also clearly weighs in favor
of detention. Substantial evidence supports the position that the defendant poses a threat to the
community. The defendant’s violent actions at the Capitol were captured on film, both through
body worn camera footage and Capitol building surveillance. The defendant’s statements on the
Facebook Lebanon Truth Seekers page and through calls to the Congressional office catalogued
that his intentions in Washington, D.C. were not harmless or “peaceful” as he later recounted to
the Rochester Voice, but instead filled with aggression and anger. The defendant then confirmed
his presence at the Capitol by providing an interview to the Rochester Voice, as well as pictures
taken from his phone documenting his travel up towards the Capitol building. Moreover, the
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defendant has been identified by several witnesses personally familiar with him in several pieces
of evidence in the government’s case. The weight of the evidence thus strongly supports a finding
that no conditions of release would protect the community.
(3) History and Characteristics of the Person:
The United States adopts the factual proffer related to the defendant’s history and
characteristics in the February 10, 2021 pretrial services report generated by Jennifer Metcalfe,
United States Probation Officer in Maine. Given the defendant’s unemployment, his prior
conviction in 2008 for driving under the influence and 2016 conviction for operating an
unregistered motor vehicle, he presents a high risk of non-compliance with any conditions, a
significant danger to the community, and a flight risk. Ms. Metcalfe’s assessment is that due to the
defendant’s risk of danger, which is due to the instant offense, and due to the defendant being
unwilling to be interviewed, there is no information to mitigate the risk of danger, and therefore
no condition or combination of conditions that would reasonably assure the appearance of the
defendant as required and the safety of the community.
In addition, one of the circumstances the court can consider when making a release decision
is the support network the defendant will or will not have available to him upon release. As stated
in the government’s previous filing, it is the government’s understanding that the defendant will
not have the support of his wife if he were to be released. The government understands the
representations made by the defense concerning the defendant’s mother being willing to take the
defendant into her home, however it appears that the defendant’s participation in political activity
prior to the Capitol riots has had a similarly negative impact on his personal life yet was not enough
of a limiting factor to dissuade him from the actions that led to his current detention. For all of
these reasons, the government submits that no condition or combination of conditions exist that
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would reasonably assure the appearance of the defendant as required and the safety of the
community.
(4) Nature and Seriousness of the Danger to Community
The fourth factor, the nature and seriousness of the danger to any person or the community
posed by a defendant’s release, also weighs in favor of the defendant’s detention. The defendant’s
words and actions evince a serious threat to the community. Per Chrestman, 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. 21-mj-218, at *13. On
several occasions, the defendant was seen engaging in acts of violence. If he were successful in
pulling Sergeant A.G. from the tunnel, he would have put Sergeant A.G.in serious danger, as
several other officers pulled into the crowd were severely beaten that day. See Chrestman, at *30
(“Nearly as significant is defendant’s use of force to advance towards the Capitol and his use of
words to lead and guide the mob in obstructing the police and pushing against police barriers”).
He then pushed aside Detective P.N.’s gas mask, allowing chemical irritants to affect him. 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.
Second, after the events, the defendant recounted the events by giving an interview in a
local newspaper and calling into this town’s meeting, expressing no remorse for what he did and
downplaying his violence and intentions at the Capitol. All of the release conditions available to
the Court depend-at least in part-on voluntary compliance. Accordingly, the potential danger the
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defendant poses to the community strongly supports a finding that no conditions of release would
protect the community.
CONCLUSION
The defendant came to the U.S. Capitol ready to “object to [his] entire life if [the 2020
Presidential Election results were certified].” The defendant made these views known well before
January 6, 2021 and continued to espouse those views well after the Capitol Riots, despite massive
media coverage condemning the rioter’s actions. Finally, the defendant assaulted two separate
officers in an incredibly violent and chaotic manner, at a point when officers were quite literally
fighting for their lives. Pretrial detention is necessary in this case to ensure the safety of people
and the community, and the appearance of the defendant as required. See 18 U.S.C. § 3142(f).
There is clear and convincing evidence that the defendant would pose a danger to the community
if released, and that there are no release conditions or combination of conditions that would ensure
the safety of the community. There is probable cause that the defendant would be a flight risk and
would not appear at trial as required.
CHANNING D. PHILLIPS
ACTING UNITED STATES ATTORNEY
/s/ Brandon K. Regan

BRANDON REGAN
U.S. Attorney’s Office for the District of Columbia
555 4th Street, N.W.
I certify that a copy of the Government’s Memorandum in Support of Pretrial Detention

was served on counsel of record via the Court’s electronic filing service.
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/s/ Brandon K. Regan

BRANDON REGAN
Date: September 9, 2021
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2 ___________________________________________________________

) No. 1:21-cr-00158-KBJ
4 Plaintiff, )
) Detention Hearing,
5 vs. ) continued
)
) April 7, 2021
___________________________________________________________
8
Transcript of Detention Hearing, continued
9 Held Before
____________________________________________________________
11
12
15
Puja Bhatia
18
21 Joel W. Anders
23 Also Present: John Copes, Pretrial Services Agency
24 Proceedings reported by FTR Gold Electronic Recording Software.

____________________________________________________________
25
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Nancy J. Meyer
202-354-3118
5
10
11
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13
14
15
16
17
18
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2 THE COURTROOM DEPUTY: This is Case 21-cr-158,
3 United States of America v. Kyle Fitzsimons. This is scheduled
4 to be a continued detention hearing held by video.
5 Will the parties please introduce themselves to the
7 MS. BHATIA: Good afternoon, Your Honor. Puja Bhatia
8 for the United States, appearing via video Zoom.
9 MR. REGAN: And Brandon Regan appearing via video
10 Zoom as well.
11 THE PRETRIAL SERVICES OFFICER: Your Honor, John
12 Copes, pretrial services.
14 appearing on behalf of the defendant who is, again, present by
15 video and -- and at our express consent.
16 MR. ANDERS: And good afternoon, Your Honor. Joel
17 Anders, co-defense counsel, appearing by telephone.
18 THE COURT: Mr. Fitzsimons, can you hear me? I just
19 want to make sure your audio is working.
20 THE DEFENDANT: Yes, Your Honor, it is. Good
21 afternoon.
22 THE COURT: Good afternoon.
23 So we're here for a continued detention hearing. I did
24 request that the government provide both the Court and the
25 defense with the videos that they made reference to yesterday.
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1 We -- we had seen screenshots up and to that point, and I have
2 been provided with what appears to me to be a -- a fixed
3 Capitol surveillance camera video and a second video which
4 appears to me to be the body-worn camera of one of the officers
5 who were in the police line that day. I reviewed both of
6 those.
7 And I also received video -- it was about an hour and a
8 half long. I watched about 15 minutes, when Mr. Fitzsimons was
9 talking. It appears to be a video, as I understand it, of a
10 meeting of the Lebanon town meeting. So I think it's the -- a
11 town that -- where he lives or is associated with, and they
12 were having a town meeting. The video was marked January 7th.
13 I don't know the precise date. But it's clear from
14 Mr. Fitzsimons' comments on the video it was soon after the
15 events at the Capitol. So I've seen all those.
16 Mr. Hunter, I hope you have too. I want to confirm that
17 you have and I want to hear if you want to make any argument
18 based on what you saw. I want to give you the opportunity to
19 do that.
20 MR. HUNTER: Your Honor, I -- I have received them,
21 and I -- I thank counsel for the government for making those --
22 those possible and for helping me with the -- with the IT
23 issues of -- of getting them to me. They really are doing --
24 doing a heck of a job here making all of this possible.
25 Honestly, having seen the videos, Your Honor, it's --
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1 it's -- it's clear from the -- both the fixed camera angle
2 video and the body cam video that Mr. Simons is present --
3 Mr. Fitzsimons is present and he's at the front of a crowd and
4 he finds himself between the police and -- and the front of the
5 crowd.
6 And as he's reaching his hands out to steady himself as
7 he's being pushed from behind, is he slipping on the -- the --
8 the same police shields that -- that are, you know, on the
9 ground and -- and that the police fell on? Or is he reaching
10 at a police officer to -- to grab their -- their gas mask or
11 their shoulder?
12 You know, he -- he -- at one point he beat feets out of
13 there. You know, he's been -- and we -- we know now that he's
14 been -- been clipped pretty good over the head and -- and blood
15 all over and that's why the -- the blood on the jacket, but as
16 far as showing any -- any intent, I -- I don't know if audio
17 would -- would be helpful. I don't know if there are other
18 camera angles that show more, but that -- that's a -- that's an
19 awful lot of intent to -- to read into -- into what we've been
20 presented by the government.
21 THE COURT: Okay. Government, any response? Do you
22 want to make any response?
23 MS. BHATIA: Yes, Your Honor. And I think Your Honor
24 mentioned the body-worn camera video, the CCTV footage, the
25 town of Lebanon meeting. And I also provided the voice mail
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1 that was left on, I believe, Congressman Golden's voice mail on
2 December 20th, 2020.
3 THE COURT: I did receive it and I have heard it.
4 Mr. Hunter, have you heard that too? I want to make
5 sure --
6 MR. HUNTER: I -- I had actually heard that some time
7 ago, Your Honor. And if -- if you want to argue about it, I --
8 he certainly sounds angry, but he's asking his congressman to
9 do the same thing that, what, 170 members of the GOP conference
10 and 49 senators did and -- and, you know, vote to -- to try and
11 overturn the election. He -- he's angry, but he's -- he's not
12 doing anything in that phone call that -- that, you know,
13 almost half of Congress did.
14 MS. BHATIA: So, Your Honor, just to clarify some of
15 the statements, some of the representations that Mr. Hunter
16 made about the video.
17 So Mr. Hunter said, you know, it's unclear whether
18 Mr. Fitzsimons is really steadying himself on the slippery riot
19 shields or whether he's actually reaching -- reaching for the
20 officer's gas mask. I just want to make very clear for the
21 record -- and I also want to clarify for my own purposes
22 because I may have switched some of the timelines. So I just
23 want to be very clear as to the sequence of events.
24 But on the -- on the body-worn camera that we see from
25 the officer, Mr. Fitzsimons actually starts with reaching for
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1 an officer in the high visibility jackets, the -- the green
2 jackets. That's Detective P.N. And at that point is when, a
3 few seconds later, I believe, at 16:11:35, he's beaten down by
4 a baton. And then you see Sergeant A.G., who's down on the
5 ground, with Mr. Fitzsimons' hand still on his arm.
6 So I just want to be extremely clear that Mr. Fitzsimons
7 is not trying to steady himself on these shields. He is
8 purposefully reaching back into the tunnel, grabbing at the
9 officers, undeterred from any strikes that he receives, in an
10 attempt to continue to violently hurt the officers. He then,
11 after all of that, steadies himself and then reappears in the
12 middle of the tunnel, which we see both on the CCTV footage as
13 well as on the body-worn camera.
14 He positions himself right in the middle of the tunnel
15 after all that activity happens on the left side of the tunnel
16 and then charges at the officers -- and I think the time stamp
17 on the body-worn camera is 16:12:40 -- and pushes against them
18 by lowering his head and pushing through -- through the line of
19 officers with his shoulder.
20 This is not an act of a person who is trying to steady
21 himself. This is an act of a person who is relentless in
22 trying to break a police line and continue his violence and who
23 is undeterred by any of these -- these actions.
24 And, again, a lot of that is repeated through the CCTV
25 footage that we see from a slightly higher angle. And, in
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1 fact, what we see at the end of the CCTV footage -- I think
2 it's right around 1:46 -- is that when he charges with his head
3 and his body down, right before he's seen exiting out of the
4 tunnel, he's wildly throwing his arms up and down at the
5 officers all around before he finally exits the tunnel at
6 around 1:51 on that CCTV footage. Therefore, even more
7 evidence.
8 Now, Mr. Fitzsimons was not simply trying to steady
9 himself or trying to get people off of him. He was trying to
10 exert as much violence, as much aggression as he could before
11 he was finally, essentially, kicked out of the tunnel or chose
12 to give up at that point and exit the -- the tunnel.
13 And, again, I think the actions -- I think his words
14 speak very clearly. Mr. Hunter thinks that this is sort of
15 dissatisfaction that Mr. Fitzsimons was exhibiting in the
16 comments that he made on the voice mail. But I will say,
17 saying that, you know, I have the courage to object to my
18 entire life going forward if this is done to me is more than
19 just a constituent who's unhappy with election results. It's
20 certainly the words of an individual who is really, really
21 willing to more than show his dissatisfaction, willing to come
22 down to D.C., and willing to basically do whatever is
23 necessary. As he said before, this is going to be civil war.
24 And he's made his intention clear.
25 And then when he recounts the events at the town of
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1 Lebanon meeting -- I don't want to obviously reiterate the
2 statements that I mentioned at yesterday's detention hearing,
3 but, again, you know, I -- even though he talks about this
4 being a peaceful revolution, he, again, talks about a lion
5 leading an army of lambs. I mean, all of these words that were
6 used continuously throughout different medias, whether it's
7 public hearings, whether it's calling into the town of Lebanon
8 meeting, whether it's through the Rochester Voice, it's very
9 clear that Mr. Fitzsimons wanted to not just disrupt the
10 election certification but was going to do so at any means
11 necessary.
12 THE COURT: Okay. Thank you. Anything further,
13 Mr. Hunter?
14 MR. HUNTER: The -- Your Honor, there -- there were
15 two things yesterday that we talked about, the words of the
16 defendant's wife and -- and the -- the pretrial services report
17 from Maine that I wanted to address. I didn't know if you
18 wanted to do that --
20 THE COURT: Under the rules, now is your time. If
21 you want to make a record, do it.
22 MR. HUNTER: I'm making the record.
23 The -- the government makes some allegations about
24 the -- the defendant not having a family support network and
25 uses evidence of that as a text message from the defendant's
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1 wife. And they misstate what it says, first of all. And --
2 and I'm -- I'm -- I'm troubled -- I know it's their job to read
3 through all the messages, but it's -- it's snooping on a
4 marital conversation. And then you -- you're using the
5 statement where the wife says: If you don't make a change
6 after this trip, we're going to have problems and maybe you and
7 your daughter and -- and me are -- are going to be split up.
8 But that's -- you know, I -- I don't know anybody else's
9 marital status, but I -- I can't imagine having -- thinking it
10 would be fair in my life to have something from an argument
11 with my wife from three months ago being held up as -- as the
12 measure of our relationship status now.
13 As I said, Your Honor, we have other relatives happy to
14 act as -- as third-party custodians in multiple court districts
15 to hold them. As to the main pretrial services report, it --
16 it says that he declined to be interviewed. That's absolutely
17 true; and he declined to have his detention hearing at that
18 time. And the reason being is for the exact thing that the
19 United States Attorney's Office says that they need this extra
20 time to -- to -- to prepare and -- and think about all these
21 cases for.
22 The advice to him from the -- the federal public
23 defender in Maine was have your one shot at detention in
24 Washington. Let the marshals service transport you to
25 Washington and foot the bill for that. But also every day that
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1 goes by, the -- the decisions are going to be made more likely
2 from a position of -- of sober reflection and -- and not simply
3 from -- from the immediate aftermath anger. And he didn't know
4 he'd be waiting 63 days to get the hearing, but that was a
5 decision he made. And, quite frankly, Your Honor, that --
6 that's advice that I would give to any client in that same
7 situation.
8 So to -- to say that he -- he shouldn't get any support
9 from pretrial services because he -- he declined an interview
10 and -- and a detention hearing in Maine 63 days ago, I -- I
11 think, does a -- a disservice to him and -- and the -- the
12 actually smart legal advice that he got to -- to wait until he
13 was in this court and -- and give the government and -- and the
14 court a -- a chance to consider these cases from -- from sober
15 reflective positions, which, you know, the court in Maine
16 didn't have Chief Judge Howell's memorandum opinion in -- in
17 Chrestman at the time.
18 We -- we didn't have the benefit of -- of literally
19 hundreds of other cases being -- being brought forth to -- to
20 have an idea of -- of -- of what the most guilty -- most
21 culpable people are accused of doing and what the least
22 culpable people are accused of doing.
23 So I would -- would simply ask Your Honor that he -- he
24 be given the -- the chance as though he was just arrested the
25 other day and -- and, you know, without incident, without
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1 evasion, not a member of a group like the Proud Boys, not
2 someone that there's any -- any evidence of or allegation that
3 he coordinated ahead of time or -- or assumed a position of
4 leadership or possessed a weapon.
5 And -- and with that, Your Honor, I think that he's --
6 he's a good candidate for pretrial release.
7 THE COURT: Okay. Well, thank you for all that. And
8 thank you for the presentation from both sides in this case. I
9 think it's been very good.
10 Mr. Fitzsimons, let me just start with the points that
11 your -- your -- your attorney made on your behalf, and he's
12 done an excellent job on your behalf to make all of his
13 points -- all of your points. But I want to just say a few
14 things before I forget them.
15 You know, the -- the lack of responding to pretrial,
16 I -- that doesn't enter my calculus at all. I do see that
17 time to time in cases based on advice of counsel that a
18 defendant makes that choice. So I -- I don't take anything
19 from that. You're not, in my book, required to say anything to
20 pretrial if you don't wish to. And I'm not going to hold it
21 against you if you made that choice, especially on the advice
22 of counsel.
23 I actually think you received very good counsel by the
24 Maine federal public defender, if that's what they told you, to
25 wait 60 -- well, you probably didn't -- they didn't tell you to
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1 wait 60 days; and that's unfortunate how long it took you to
2 get here. And those are just issues outside of the Court's
3 control. I -- the marshals service during the pandemic has
4 been struggling widely -- and even more so when we talk about
5 so many cases involved in this event, January 6th, at the
6 Capitol -- to get everyone here promptly. And they -- they
7 have not. They just cannot get the defendants here promptly,
8 and you know that better than anyone.
9 But, still, the advice was good. The advice was good to
10 take some time, let the evidence develop, allow for civil
11 reflection, as Mr. Hunter's just indicated, allow for perhaps a
12 few more people to -- to proceed to these detention hearings
13 before you so the Court can start to draw some lines as to who
14 may be held, who's -- and who should not be held in this case.
15 And we -- we have done -- we've done that.
16 Chief Judge Howell has listed -- has issued her
17 Chrestman opinion. Other district judges have as well. We
18 also recently had guidance from the circuit in the Munchel
19 decision. I'll talk about that, you know, decision here in a
20 moment.
21 But -- and -- and I also -- I've taken into
22 consideration all that Mr. Hunter has said, all the positive
23 attributes and the -- the distinguishing characteristics that
24 you have that does look different from some defendants who have
25 been held. You know, you don't have -- you effectively have no
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1 criminal record. I think there's an unregistered vehicle issue
2 there, a DWI many number of years ago.
3 Effectively no criminal record that's going to impact on
4 my decision today, and it doesn't. Nothing that I've seen in
5 your record impacts my detention decision here today. So you
6 effectively have no criminal record. You have no evidence of,
7 you know, failing to comply with conditions in the past.
8 With respect to January 6th, I think Mr. Hunter is
9 correct that you -- you know, you're not charged with using or
10 possessing a weapon. I don't consider your unstrung bow to be
11 a weapon. Symbolic in some way. I don't understand the
12 symbolism, I must tell you. In any event, I'm confident that
13 it was -- it was not being used or possessed as a weapon that
14 day.
15 You're not a member, to the Court's knowledge -- and the
16 government's presented no evidence -- of some -- one of these
17 more radical antigovernment militia groups, the Three
18 Percenters, the Oath Keepers, et cetera.
19 No real evidence that I can see of planning with respect
20 to violence that day. Certainly planning to be there, planning
21 to protest, a few statements that you made that are open to
22 interpretation, but not like what we've seen in other cases
23 where the courts have emphasized that as being an issue.
24 People who've come with, you know, tactical equipment,
25 came to the Capitol with weapons, people for whom the
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1 government does have clear evidence of, you know, calls to arms
2 and planning in anticipation of some sort of violence at the
3 Capitol. I don't -- I don't see that here. And so I -- I
4 think that is, you know -- is in your favor. And as has been
5 pointed out to courts, those are some of the things that we,
6 you know, should be considering.
7 Also not listed is that you destroyed evidence, that you
8 tried to evade arrest. I mean, I'll tell you right now, I
9 don't think you're a -- a risk of flight. The government has
10 not really argued -- not strongly -- that you were, but I
11 certainly don't think there's any basis on what I've seen that
12 you're a risk of flight, and I -- I credit Mr. Hunter that
13 you've got family members who'd be willing to -- to take you
14 in, if -- perhaps your wife, and if not your wife, someone
15 else. So, I mean, I considered all of that.
16 But there's another side to the coin as well. And none
17 of the things that I have said and the cases that have said
18 that we should look at those factors have said that those are
19 the only factors that we should look at, or somehow that that's
20 a floor for detention; that -- that Chrestman and what he did
21 is -- is -- is the floor for detention.
22 Chief Judge Howell is very clear that these were just
23 factors that we should consider in any given case. There might
24 be other factors to consider or some factors that we may
25 consider more than others. It all just depends. The Munchel
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1 decision came out from the circuit recently and also gave
2 additional guidance. Munchel and Chief Judge Howell and the
3 other judges that I can -- I'm aware that their decisions have
4 all had one class of case where it's been pretty consistent
5 with respect to detention decisions.
6 And unfortunately, sir, you fall within it, in my
7 judgment. Those are individuals who were -- did engage in
8 forcible assault, you know, forcible entry into the Capitol and
9 physical assaults on law enforcement; a factor which
10 Judge Howell said is of grave concern and would -- would
11 mitigate strongly in favor of detention. In the Munchel case
12 before the -- the circuit, again, all three judges -- there's
13 some dispute among the judges as to exactly how that -- the
14 method for resolving that case, but all three judges, I think,
15 also distinguished between what Mr. Munchel did and those who
16 were engaged in violence that day; Mr. Munchel and, I believe
17 it was, his mother.
18 You know, he did come with tactical equipment. He had a
19 TASER, but he didn't use it. For all of his bravado, he didn't
20 do anything. He walked through the Capitol for 12 minutes and
21 left. No one was assaulted. There's no forcible entry. No
22 property was destroyed. And all of the judges in the Munchel
23 case indicated that that's a different class of case. Those
24 individuals who's -- the Munchel court acknowledged who
25 would -- who would use violence to promote their beliefs are
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1 of -- were a concern to those judges and concern to every other
2 judge on this court.
3 I have considered these other decisions, other district
4 court decisions. I've looked at the one cited by Mr. Hunter.
5 I think I can fairly distinguish the Griffin case, the Couy
6 Griffin case, the Powell case. Griffin case, there again,
7 there was no assault. There was no forcible entry, no property
8 damage. He certainly was inciting people, had some threatening
9 language, which was of concern, but, nevertheless, he was
10 released.
11 Ms. Powell, she did breach a window and used, like,
12 something that looked like a battering ram to do it, but she
13 didn't physically assault anyone.
14 I know of two cases where police officers were assaulted
15 and those defendants were granted release. There might be
16 others. It's hard to keep track of all of them. I do have a
17 tracker trying to stay up to speed as to what other judges are
18 doing. It's very important to me that individuals who are
19 engaged in similar conduct -- conduct are treated similarly,
20 especially with respect to a decision as important as this one,
21 detention, which is -- impacts the defendant's liberty. I
22 think we have to. The challenge for the judges on this court
23 is to be consistent. So that's why I've looked at all of these
24 cases.
25 The two cases that I know of where the individuals
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1 assaulted police officers, as you've been charged with doing,
2 and were released, I think, are different too from this case.
3 There was a Mr. Leffingwell. He was one of the first people
4 who came in front of me. He apparently did punch a police
5 officer, was inside the Capitol, was not trying to forcibly
6 enter into one of the entrances of the Capitol. And as soon as
7 he punched the police officer, he turned and apologized. He
8 was also a veteran who had some brain injury as a result of his
9 service. There was suggestion of some sort of diminished
10 capacity.
11 There was also Emanuel Johnson or Jackson. I always
12 forget his last name. I actually held him. What he did sounds
13 a lot like what the government alleges you did. That he twice
14 attacked -- might have been the -- the lower west Terrence --
15 lower west terrace entrance too. I don't know. One of those
16 entrances -- entrances with the archway. He attacked once with
17 his fist and, like, I don't know, an hour or few hours later he
18 came back and attacked again, this time with a baseball bat.
19 That concerned me greatly. I -- I -- I held the man, the --
20 Judge Howell reversed me and released him, but because
21 he had mental health issues and an intellectual disability,
22 which she found he had diminished capacity, I guess, would be
23 the best way to characterize it that day.
24 And it's -- I've not seen any evidence of that with
25 respect to you. We'll talk about your passionate beliefs in a
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1 few minutes, but I'm not seeing evidence of diminished
2 capacity, not in a way that I think would be recognized by the
3 law.
4 So I do think you fall into a class of cases which
5 the -- this court has detained individuals, individuals
6 involved at the Capitol, who were engaged in violent assaults
7 on law enforcement. That's not the only basis of which
8 I -- I -- I rest my decision. I am going to -- to hold you in
9 this case, but it is certainly a very significant one and one
10 that I think puts you in -- as acknowledged by the circuit and,
11 I think, by Chief Judge Howell -- puts you in -- in a different
12 class, and a class which indicates to me, at the very least,
13 you do represent a danger to the community were you to be
14 released.
15 I did review the video, and I heard first -- I must tell
16 you, I heard first the statement that you made to the Lebanon
17 town meeting. So I heard your description first. I wanted to
18 do that. I wanted to hear, you know, your view of it, and then
19 I watched.
20 Sir, I did not see what you described. I understand
21 that I'm not the jury in this case. I'm not even going to be
22 the judge who's going to handle this case after today. So
23 ultimately this is just how I view the evidence. You have the
24 presumption of innocence, and you will have Mr. Hunter by your
25 side, if you choose to go to trial, to attempt to show frame by
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1 frame what -- what happened there that day; but I did view it,
2 and I viewed the videos a few times.
3 I did not see someone who was being pushed by the crowd
4 into the police, which is, you know, my interpretation at the
5 very least of what you were suggesting to the Lebanon town
6 meeting. You indicated that you were sort of sucked into the
7 crowd, you cycled through to the front, you received a beating,
8 and you left.
9 One of those things is true. You did receive a beating.
10 I did see that, but what was interest -- significant to me is
11 that you -- before that, what appeared to me is that you, you
12 know, lunged for the officer, you grabbed him, you pulled him,
13 and then when he did hit you with your [sic] baton any number
14 of times, you went to the ground, you got up, and you went
15 right back. You lunged in again.
16 I saw -- you know, I -- I saw hits. I saw, you know,
17 pulls. I saw you -- you lunging your shoulder into the -- into
18 the -- the police line. I saw aggressive, violent assaults
19 which, you know, unless my eyes are not to believe what it's
20 seeing, were voluntary movements made by you that day -- or
21 over about a minute and a half where there was a continual
22 series of -- of violent actions taken by you against that
23 police line.
24 And you face serious felonies now as a result; a
25 ten-count indictment, two counts of inflicting bodily injury on
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1 police officers. That's a 20-year offense. A number of
2 counts, I believe, of civil disorder. That's an 8-year
3 offense, and also corruptly impeding an official proceeding,
4 another 20-year offense.
5 So I -- I believe that those are significant felonies
6 that you face and also weigh in favor of your detention, both
7 because of how serious they are but also, again, because of the
8 danger represented by individuals who stand charged with having
9 committed those offenses.
10 So the first category, which is what we've been talking
11 about, the first factor the Court is supposed to consider in
12 making its detention determination is the nature and
13 circumstances of the offense. I do find that that factor
14 weighs in favor, and, you know, I've done that after
15 considering the full circumstances of what I saw you do that
16 day, as well as other decisions made by the circuit by other
17 judges in this court as I attempt to evaluate my detention
18 decisions based on the full range of conduct that has been
19 charged that day.
20 With respect to the strength of the government's
21 evidence, which is the second factor I'm supposed to consider,
22 I think the government's got a very strong case. Again, you
23 have the presumption of innocence. Case law has indicated that
24 it's probably the least important factor for the Court to
25 consider, but, nevertheless, it's a factor that we're supposed
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1 to consider.
2 I've seen both the stills but now the video, which I
3 think is pretty clear to me, about what you did that day and
4 what happened and also what didn't happen. As I said, I saw
5 violent, assaultive conduct on your behalf against the various
6 law enforcement officers in that police line.
7 So it does appear to me that the government has a strong
8 case, a case not only that you committed this offense but also
9 strong in the sense that it, again, shows why you represent a
10 danger. It's strong evidence of your own violence. So I think
11 that factor points to your detention in this case.
12 With respect to the history and characteristics, I --
13 I've indicated there are a number of them which are in your
14 favor. The most important of which is you don't have any prior
15 criminal record or any record of violating conditions of
16 release a court might set for you. But I've also considered
17 this factor with what the government has shown with respect to
18 other activities you've been involved with, the calls to
19 Congress people in December, the interaction with that Maine
20 legislator in 2017. So I have considered that in -- I mean,
21 you don't stand charged with threats. I think the -- the
22 government here and in Maine have probably made the right
23 decision.
24 But your conduct, especially viewed through the lens of
25 what happened on January 6th, did strike me as -- as menacing,
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1 intimidating. The fact that it was directed against
2 legislators in -- presumably based on what you've said, you
3 know, in the service of your political beliefs, concerns me
4 because of what we saw on January 6th. You're allowed to have
5 strongly held beliefs. You're allowed to reach out to your
6 Congress people. You're not allowed to threaten them, but
7 you're also not allowed to take violent action.
8 And what I see looking at the totality of the
9 circumstances here is someone who is -- has very passionately
10 held beliefs, perhaps abnormally so. And what I mean by that
11 is it appears they can get the best of you. If you lose
12 control, you can be violent. You're to me like a bomb waiting
13 to go off.
14 It's always difficult for a magistrate judge making that
15 sort of prediction, someone who might engage in violence if I
16 were to release him. It's made somewhat easier for me here
17 because the bomb did go off on December 6th -- on January 6th.
18 Excuse me. That's what that video shows; someone who's willing
19 to engage in violence to promote his political beliefs. The
20 First Amendment doesn't protect that, sir.
21 You've gone beyond any constitutional right that you
22 think you may have. Let me tell you, it does not permit that.
23 And if the government can prove its case at trial, those
24 beliefs may have caused you to violate very serious federal
25 laws.
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1 So I also consider all the other government's evidence
2 with respect to your political beliefs, the menacing conduct
3 that you've engaged in in the past directed towards political
4 leaders, of which January 6th was the most extreme example for
5 you. So I think all of those facts also weigh in favor when I
6 consider your case as a whole of your detention.
7 I mean, the -- the wife, I -- I don't know what's going
8 on with your wife. I -- I hope that whatever the issue is is
9 resolved, but for me, you know, I'm not -- I don't hold against
10 you that you somehow lack community ties. I think you plainly
11 do and perhaps with her, but for me, it is yet another example
12 of where your beliefs have led and the damage they have done
13 and your -- frankly, your inability, apparently, to control
14 your beliefs and to moderate your behavior.
15 I note as well that I've not seen any record of remorse,
16 any record of taking a responsibility or acknowledgment that
17 you did anything wrong. You don't ever have to do that, not at
18 this point, but other courts in this jurisdiction have looked
19 at that just in terms of while we are still in this political
20 moment -- and in my view we are. Some suggestion in the
21 Munchel opinion by one of the judges that we are somehow beyond
22 the moment. I don't agree with that.
23 But while we are in this moment, where the individuals
24 who were moved to violence on January 6th, have they shown
25 remorse for that or should the Court be concerned that in the
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1 next protest you might do the same thing? I would have that
2 concern. I would not want to go to a protest where you were at
3 because of fear that violence might break out. So I think it's
4 important the -- the no remorse, no backtracking. I didn't
5 hear any of that in that audio from that Lebanon town meeting.
6 I heard someone who was just as passionate, if not even more
7 so, on January 7th as they were on the 6th.
8 So for all these same reasons, I do find that your
9 release would present a danger to the community and I would not
10 feel confident that I could structure conditions of release
11 that would fairly, reasonably assure the safety of the
12 community. Again, sir, I don't think you're a flight risk. I
13 deny the government's request to hold you for that reason, but
14 I will hold you because I believe there's clear and convincing
15 evidence as I look at the totality of this case, what you're
16 alleged to have done, the strength of the government's
17 evidence, and other cases from this jurisdiction involving
18 events on January 6th; that this is an appropriate case for
19 detention because of the danger your release would represent to
20 the community.
21 That's my decision. I will be issuing a detention memo
22 shortly, which will put in writing the things I've said here
23 today.
24 Do we have a next date in this case? Government?
25 MS. BHATIA: Your Honor, I believe that the clerk had
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1 mentioned a status hearing was set for April 22nd in front of
2 Judge Jackson.
3 THE COURTROOM DEPUTY: Yes. April 22nd at 11:00 a.m.
4 before Judge Ketanji Brown Jackson.
5 THE COURT: April 22nd at 11:00 a.m. before
6 Judge Jackson.
7 Mr. Fitzsimons, I'll tell you, you -- you have the right
8 to, you know, appeal my decision. I'm not the last word on
9 your detention. So you'll be in front of Judge Jackson here in
10 a few weeks, and Mr. Hunter can advise you on whether or not
11 that's something you should do and how that's done. So you do
12 have a right to appeal your -- your detention decision that
13 I've just made. And that would be directed towards
14 Judge Jackson.
15 The next date in this case will be before her on -- I'm
16 sorry -- April the --
17 MS. BHATIA: 22nd.
18 THE COURT: April the 22nd. This will be your last
19 stop before a magistrate judge, Mr. Fitzsimons. It will be
20 Judge Jackson who will handle the case going forward and who
21 will be the judge for your trial, if you go to trial.
22 Any further requests from the government?
23 MS. BHATIA: Yes, Your Honor. So I believe looking
24 at the -- the docket entries, Judge Faruqui ruled under the
25 Speedy Trial Act to exclude the time up until the last hearing,
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1 which I believe was March 29th. We are asking that any time --
2 I'm sorry. Up until the detention hearing yesterday set on
3 April 6th. So we're asking for a similar exclusion of time
4 from April 6th through April 22nd under the Speedy Trial Act.
5 THE COURT: For what purpose?
6 MS. BHATIA: Yes, Your Honor. So obviously the
7 Chief Judge's standing order, but also that the interests of
8 justice outweigh the interests of the defendant, obviously this
9 being part of a set of complex cases in which there is
10 voluminous discovery, which we are going to attempt to start
11 providing to Mr. Hunter immediately. But for those reasons,
12 Your Honor, we ask for the exclusion of time.
13 THE COURT: Mr. Hunter?
14 MR. HUNTER: Your Honor, I -- I'm -- I'm -- I'm aware
15 of the challenges facing the government here, and as an officer
16 of this court, I know it's incumbent on me to -- to do what I
17 can do to -- to help all of us to -- to get through this
18 unprecedented number of cases being tried all at the same time.
19 As -- as counsel for Mr. Fitzsimons, I'm -- I'm deeply troubled
20 by stretching the -- the precedent about what -- and the rules
21 about what is a complex case and what are the -- the --
22 demanded by the ends of justice for -- for delays. His case --
23 they said nothing that makes this case complex. He -- he
24 doesn't have co-defendants here that he's being -- being tried
25 with for judicial economy.
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1 It's just inconvenient for the government because
2 they've chosen to prosecute 400 defendants from -- from one day
3 all at the same time, and -- and I know that they're unable
4 to -- to -- to do that. There just aren't enough hours in the
5 day or enough AUSAs in the building.
6 But why is that the defendant's problem? Why -- why
7 does the Speedy Trial Act not apply? Why do the --
8 THE COURT: Especially when he's held.
9 MR. HUNTER: Exactly, Your Honor. He's -- he's -- it
10 frustrates me and I -- I --
11 THE COURT: Well, Mr. Hunter, let me --
13 MR. HUNTER: -- a window.
14 THE COURT: Well, let me just -- I mean, maybe this
15 will make it somewhat easier for you. The -- there's motions,
16 the complex case, we want -- 60-, 90-day extension motions are
17 out there. I don't know if it's been filed in this case. I
18 don't hear the government is making that request right now.
19 They're requesting a -- a tolling just between now and the next
20 date. Perhaps at that date they will be making -- asking for a
21 longer period of time.
22 I think such request is best directed -- I would not
23 rule on it. It's Judge Jackson's case at this point. So we're
24 just talking between now and -- and April the 22nd. And I'm
25 certainly not -- would not make right now a complex case
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190
1 finding justifying that limited tolling. Again, you can still
2 say no. It's up to you.
3 MR. HUNTER: Your Honor, I -- and I -- I appreciate
4 your -- your making that finding. I would also point out the
5 difference when we set this hearing, we set it for March
6 the 31st. The government then was unable to make March
7 the 31st, and -- and it was on their motion that the case
8 was -- was -- was delayed another week to get in front of -- of
9 your court. And I'm happy to be here, but that delay is
10 entirely at their -- their convenience. And I don't think that
11 time should be excluded and -- and counted against the
12 defendant, especially while he's held.
13 And I -- and I know I'm probably just making that --
14 that objection for the record, but this -- this is my windmill
15 to tilt that.
16 THE COURT: So I don't -- just let me make clear.
17 What's your position? Are you willing to toll time between now
18 and the 22nd or not, and -- or is it just the period of time
19 between March 31st and today that you don't want to toll?
20 MR. HUNTER: I don't want to toll any of it, Judge.
21 I -- I realize that's the reality that -- that we live with.
22 And -- and I know this has just never happened in American
23 jurisprudence and certainly -- certainly not in our district
24 that we have our regular 2021 criminal docket, our regular 2021
25 civil docket, maybe more so because we're -- we're climbing out
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191
1 of the COVID thing and then we add, what, 400 cases to the
2 docket all at once? There's going to be problems. I -- I -- I
3 fully embrace that as an officer to this court. As
4 Mr. Fitzsimons' counsel, I have to complain about it.
5 THE COURT: Okay. Well, again, I think that for
6 longer extensions of time, I will leave it to Chief [sic] Judge
7 Jackson.
8 I will grant the government's request over the defense's
9 objection to just toll time between now and April the 22nd for
10 the -- the reasons stated by the government given, just at the
11 very least the volume of discovery that will need to be
12 presented.
13 Where is the government with respect to its plea policy?
14 Is it making plea offers, and has it made one to
15 Mr. Fitzsimons?
16 MS. BHATIA: Your Honor, not at this time. I think
17 that that should be forthcoming shortly. Now that the
18 protective order is in place, we've told Mr. Hunter that we're
19 going to be working diligently to informally provide him
20 discovery, and then our office is already undertaking the
21 efforts to do fast-track discovery where a large amount of
22 discovery will be provided in batches to defense counsel.
23 So I imagine we'll be able to provide Mr. Hunter with
24 some discovery at least by the end of this week, and we're
25 going to be undertaking that process to get this case
(Page 195 of Total)

192
1 fast-tracked, obviously, because Mr. Fitzsimons is detained.
2 So it's a priority to provide that as soon as possible. And I
3 think the turnaround time for that is about a week to two
4 weeks. Don't hold me to it, but I think we're --
5 THE COURT: Well, I'm not, but Mr. Hunter will. But
6 you'll see Judge Jackson. So I'm sure he will quote you.
7 MS. BHATIA: I'm sure he will. I'm sure he will.
8 THE COURT: It's just a question. I want to know
9 where his plea offer is.
10 MS. BHATIA: I -- I understand --
12 MS. BHATIA: So there is no plea offer at this time.
13 We have not been authorized, at least from what I understand,
14 to make plea offers. I know -- I know this is probably the
15 line from a lot of the AUSAs, but I have been told that they
16 will be forthcoming at some point. I hope soon after being
17 able to provide discovery, we can be in a position to engage in
18 plea negotiations. And just to clarify --
19 THE COURT: I've got to tell you, I mean, you -- you
20 might have an argument in some other cases. I don't see why
21 Mr. Fitzsimons' -- Fitzsimons' case should be held up, his plea
22 should be held up. You know, you've heard my ruling, but he
23 stilled seemed to be out there acting alone. You know, sort of
24 a different category of case, a little bit of a lone wolf,
25 which can be problematic, and I think is problematic. But it's
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193
1 not as if it appears to me that the government needs, you know
2 more -- more investigation in this case.
3 The case is what it is and it's pretty strong. And as
4 far as the co-conspirators and the like, I -- I just don't see
5 it. I don't see what the concern is and why his case can't
6 move forward and his plea offer be made.
7 MS. BHATIA: Understood, Your Honor. I -- we -- we
8 will certainly try to move it along as quickly as possible.
9 I also just want to clarify for the record, because
10 Mr. Hunter did point out that the original detention hearing
11 was set for, I believe, March 31st. I just want to clarify for
12 the record, I think I requested the time be tolled from
13 April 6th to April 22nd. I think Judge Faruqui's exclusion
14 only took us through March 31st. So I'd be asking from -- for
15 March 31st through April 22nd to make sure we have that -- the
16 entire time covered.
17 THE COURT: Well, I will -- look, I think it's
18 covered as well because the detention decision was being
19 briefed and pending. So there are --
20 MS. BHATIA: Yes.
21 THE COURT: -- any number of reasons, but I will also
22 exclude it because, you know, I -- we needed the time,
23 certainly the Court did, to -- as Mr. Hunter suggested, sober
24 reflection of the issues raised by this detention hearing.
25 So in any event, I am tolling all time between the 31st
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194
1 and April 22nd. You know, I suspect that Mr. Hunter's
2 objection will grow stronger every week as to, you know, why
3 this case shouldn't move forward, especially now that his
4 client is being held. At the very least, that he receive a
5 plea offer. That's just surprising to me. It is April
6 the 7th. We are three months in. No plea?
7 MS. BHATIA: I understand, Your Honor. We --
8 THE COURT: All right. That's all I can do,
9 Mr. Hunter.
10 MR. HUNTER: Listen, Judge, I -- I really appreciate
11 it. You made that -- that point beautifully. Usually --
12 usually defense lawyers are -- are happy to have a judge try
13 the case for -- for as long as they're not going to lose it,
14 but I thought you did better than I would have. So I
15 appreciate that.
16 THE COURT: All right. Well, good enough.
17 Mr. Fitzsimons, I do -- I wish you the best of luck in
18 your case going forward, and you do have the presumption of
19 innocence. The jury would never be told the decision I made
20 here today; all right? It's a clean slate.
21 All right. Parties are excused.
23
24
25
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195
1 CERTIFICATE
7 audio recording.

202-354-3118
15
16
17
18
19
20
21
22
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(Page 199 of Total)

196
AO 472 (Rev. 11/16; DC 1/19) Order of Detention

for the
DistrictDistrict
__________ of Columbia
District of
of __________
United States of America )

v. )
) Case No. 1:21-FU-
.\OH)LW]VLPRQV
)
Defendant )
ORDER OF DETENTION PENDING TRIAL

Part I - Eligibility for Detention
Upon the
✔ Motion of the Government attorney pursuant to 18 U.S.C. § 3142(f)(1), or

ޭ
ޭ Motion of the Government or Court’s own motion pursuant to 18 U.S.C. § 3142(f)(2),
the Court held a detention hearing and found that detention is warranted. This order sets forth the Court’s findings of fact
and conclusions of law, as required by 18 U.S.C. § 3142(i), in addition to any other findings made at the hearing.
Part II - Findings of Fact and Law as to Presumptions under § 3142(e)
ޭ A. Rebuttable Presumption Arises Under 18 U.S.C. § 3142(e)(2) (previous violator): There is a rebuttable
presumption that no condition or combination of conditions will reasonably assure the safety of any other person
and the community because the following conditions have been met:
ޭ (1) the defendant is charged with one of the following crimes described in 18 U.S.C. § 3142(f)(1):
ޭ (a) a crime of violence, a violation of 18 U.S.C. § 1591, or 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; or
ޭ (b) an offense for which the maximum sentence is life imprisonment or death; or
ޭ (c) an offense for which a maximum term of imprisonment of 10 years or more is prescribed in the
Controlled Substances Act (21 U.S.C. §§ 801-904), the Controlled Substances Import and Export Act
(21 U.S.C. §§ 951-971), or Chapter 705 of Title 46, U.S.C. (46 U.S.C. §§ 70501-70508); or
ޭ (d) any felony if such person has been convicted of two or more offenses described in subparagraphs (a)
through (c) of this paragraph, or two or more State or local offenses that would have been offenses
described in subparagraphs (a) through (c) of this paragraph if a circumstance giving rise to Federal
jurisdiction had existed, or a combination of such offenses; or
ޭ (e) any felony that is not otherwise a crime of violence but involves:
(i) a minor victim; (ii) the possession of a firearm or destructive device (as defined in 18 U.S.C. § 921);
(iii) any other dangerous weapon; or (iv) a failure to register under 18 U.S.C. § 2250; and
ޭ (2) the defendant has previously been convicted of a Federal offense that is described in 18 U.S.C.
§ 3142(f)(1), or of a State or local offense that would have been such an offense if a circumstance giving rise to
Federal jurisdiction had existed; and
ޭ (3) the offense described in paragraph (2) above for which the defendant has been convicted was
committed while the defendant was on release pending trial for a Federal, State, or local offense; and
ޭ (4) a period of not more than five years has elapsed since the date of conviction, or the release of the
defendant from imprisonment, for the offense described in paragraph (2) above, whichever is later.
197
(Page 200 of Total) Page 1 of 4
ޭ B. Rebuttable Presumption Arises Under 18 U.S.C. § 3142(e)(3) (narcotics, firearm, other offenses): There is a
rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the
defendant as required and the safety of the community because there is probable cause to believe that the defendant
committed one or more of the following offenses:
ޭ (1) an offense for which a maximum term of imprisonment of 10 years or more is prescribed in the
Controlled Substances Act (21 U.S.C. §§ 801-904), the Controlled Substances Import and Export Act (21
U.S.C. §§ 951-971), or Chapter 705 of Title 46, U.S.C. (46 U.S.C. §§ 70501-70508);
ޭ (2) an offense under 18 U.S.C. §§ 924(c), 956(a), or 2332b;
ޭ (3) 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;
ޭ (4) an offense under Chapter 77 of Title 18, U.S.C. (18 U.S.C. §§ 1581-1597) for which a maximum term of
imprisonment of 20 years or more is prescribed; or
ޭ (5) an offense involving a minor victim under 18 U.S.C. §§ 1201, 1591, 2241, 2242, 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.
ޭ C. Conclusions Regarding Applicability of Any Presumption Established Above
ޭ The defendant has not introduced sufficient evidence to rebut the presumption above, and detention is ordered on
that basis, with the evidence or argument presented by the defendant summarized in Part III.C.
ޭ The defendant has presented evidence sufficient to rebut the presumption, but after considering the presumption
and the other factors discussed below, detention is warranted for the reasons summarized in Part III.
OR
ޭ The defendant has not presented sufficient evidence to rebut the presumption. Moreover, after considering
the presumption and the other factors discussed below, detention is warranted for the reasons summarized in
Part III.
Part III - Analysis and Statement of the Reasons for Detention
A. After considering the factors set forth in 18 U.S.C. § 3142(g) and the information presented at the detention
hearing, the Court concludes that the defendant must be detained pending trial because the Government has
proven:
✔ By clear and convincing evidence that no condition or combination of conditions of release will reasonably
ޭ
assure the safety of any other person and the community.
ޭ By a preponderance of evidence that no condition or combination of conditions of release will reasonably

assure the defendant’s appearance as required.
B. In addition to any findings made on the record at the hearing, the reasons for detention include the following:
✔ Weight of evidence against the defendant is strong

ޭ
ޭ Subject to lengthy period of incarceration if convicted
ޭ Prior criminal history
ޭ Participation in criminal activity while on probation, parole, or supervision
198
Page 2 of 4
(Page 201 of Total)
ޭ History of violence or use of weapons

ޭ History of alcohol or substance abuse
ޭ Lack of stable employment
ޭ Lack of stable residence
ޭ Lack of financially responsible sureties
ޭ Lack of significant community or family ties to this district
ޭ Significant family or other ties outside the United States
ޭ Lack of legal status in the United States
ޭ Subject to removal or deportation after serving any period of incarceration
ޭ Prior failure to appear in court as ordered
ޭ Prior attempt(s) to evade law enforcement
ޭ Use of alias(es) or false documents
ޭ Background information unknown or unverified
ޭ Prior violations of probation, parole, or supervised release
C. OTHER REASONS OR FURTHER EXPLANATION:
The Gefendant’s evidence/arguments for release:
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Nature and circumstances of offenseV:
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The VWUHQJWK of the government’s evidence:
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199
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(Page 202 of Total)
The Gefendant’s history and characteristics, including criminal history:
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Part IV - Directions Regarding Detention
The defendant is remanded to the custody of the Attorney General or to the Attorney General’s designated representative for
confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being
held in custody pending appeal. The defendant must be afforded a reasonable opportunity for private consultation with
defense counsel. On order of a court of the United States or on request of an attorney for the Government, the person in
charge of the corrections facility must deliver the defendant to a United States Marshal for the purpose of an appearance in
connection with a court proceeding.
Date: $SULOQXQFSURWXQF
United States Magistrate Judge
Page 4 of 4
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200
1 BEFORE THE UNITED STATES DISTRICT COURT

2
3 UNITED STATES OF AMERICA, .

. Case Number 21-cr-158
4 Plaintiff, .
.
5 vs. .
. Washington, D.C.
6 KYLE FITZSIMONS, . September 16, 2021
. 11:03 a.m.
7 Defendant. .
- - - - - - - - - - - - - - - -
8
9 TRANSCRIPT OF MOTION HEARING

BEFORE THE HONORABLE RUDOLPH CONTRERAS
10 UNITED STATES DISTRICT JUDGE
11
12 APPEARANCES:
13 For the United States: BRANDON REGAN, AUSA

United States Attorney's Office
14 555 Fourth Street Northwest
15
16 For the Defendant: NATASHA TAYLOR-SMITH, AFPD

Federal Community Defender Office
17 Trial Unit
601 Walnut Street
18 Suite 545 West
Philadelphia, Pennsylvania 19106
19
20 Official Court Reporter: SARA A. WICK, RPR, CRR

United States District Court
21 for the District of Columbia
22 Room 4704-B
23 202-354-3284
24
Proceedings recorded by stenotype shorthand.
25 Transcript produced by computer-aided transcription.
(Page 204 of Total)

201
2 (Call to order of the court.)
3 COURTROOM DEPUTY: This is Criminal Action 21-158,
4 United States versus Kyle Fitzsimons.
5 For the United States, I have Brandon Regan. For Kyle
6 Fitzsimons, I have Natasha Taylor-Smith. Our court reporter
7 today is Sara Wick. All parties are present.
8 THE COURT: Good morning, everybody. Thank you for
9 pivoting to have this in person rather than by Zoom. Things
10 have changed considerably at the jail because of the reopening
11 of Superior Court, and so we got bumped. They've reduced the
12 number of rooms available for video hearings, and we got bumped.
13 So rather than postpone the hearing, I thought it best to have
14 it in person. So thank you. In particular, thank you for those
15 that had to travel to get here.
16 All right. It's the defendant's motion, but the -- on the
17 motion to revoke the detention, but it's the government's
18 burden, and it's a de novo review, and I have not seen all of
19 the evidence that was presented to Judge Harvey. So I think it
20 might make sense to have the government go first so that the
21 defendant can respond to the evidence when it comes in.
22 So go ahead.
23 MR. REGAN: Understood, Your Honor. Thank you.
24 Just for purposes of the record, I have a PowerPoint with
25 most of the exhibits up on the screen that I will scroll
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1 through. I've also provided courtesy copies to the Court and
2 the defense. If at any point it stops playing, just let me
3 know, Your Honor, or technical issues.
4 THE COURT: And you will introduce the exhibits that
5 were not on the disk that you provided to me; is that right?
6 MR. REGAN: There are a handful of exhibits, Your
7 Honor, that were not on the disk. Notably for audio/video,
8 there are a handful of jail call snippets, as well as one
9 additional body-worn camera, and then the rest are photos which
10 will be captured in the PowerPoint itself.
11 THE COURT: Okay.
12 MR. REGAN: So to start, Your Honor, as the Court
13 accurately pointed out, the standard of review for this is de
14 novo. And understanding that the Court is going to review it de
15 novo, we do think an accurate starting point is where we started
16 at the beginning of this case with the detention hearing in
17 front of Judge Harvey, if for no other reason than just to
18 highlight some of the points that Judge Harvey made which the
19 government believes are salient in terms of the decision before
20 the Court here today.
21 THE COURT: Let me stop you for just a moment.
22 Can you catch everything with the mask and from that
23 distance?
24 COURT REPORTER: Yes. Thank you, Your Honor.
25 THE COURT: Okay. Go ahead.
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1 MR. REGAN: So to start, Your Honor, pursuant to the
2 Bail Reform Act, the Court is essentially looking at four
3 factors, those being the nature and circumstances of the
4 offense, the weight of the evidence against the defendant, the
5 history and characteristics of the defendant, and the nature and
6 seriousness of the danger that the defendant presents to the
7 community should he be released.
8 And the government has gone through step by step, as has
9 the defense, with respect to those four factors to be considered
10 by the Court. And I will just touch on them briefly, and then I
11 will go through Chrestman, which I think provides useful guide
12 posts that this court has set forth with respect to the Capitol
13 riot cases.
14 So with respect to the nature and circumstances of the
15 offense charged, as the government pointed out in its motion, I
16 think an appropriate place for the Court to start is how Judge
17 Moss has characterized January 6 just writ large. There's been
18 some back and forth about the seriousness of January 6 vice the
19 seriousness of an independent defendant, and I think there's a
20 distinction to be made there.
21 But I think to start, it's worth noting that January 6 was
22 something that we've never seen before in this country. To call
23 it an insurrection, I think, is to put it lightly. And the way
24 Judge Moss characterized it, I think, is appropriate in that
25 this was a momentous occasion in United States jurisprudence and
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1 something that shouldn't be taken lightly.
2 Judge Moss stated, "The defendant and hundreds of others,"
3 referencing a separate defendant, "took over the United States
4 Capitol, caused the vice president of the United States, the
5 Congress, and their staffs to flee the Senate and House
6 chambers, engaged in violent attacks on law enforcement officers
7 charged with protecting the Capitol, and delayed the solemn
8 process of certifying a presidential election. This was a
9 singular and chilling event in U.S. history, raising legitimate
10 concern about the security not only of the Capitol building but
11 of our democracy itself."
12 And I would ask the Court to start there in terms of
13 viewing the seriousness of January 6 itself and then move to the
14 seriousness of the defendant's actions that day.
15 So as you can see in Government Exhibit 3, this is where we
16 first see the defendant in the area of the lower west terrace.
17 Notably, he's boxed in the red box. He's wearing what appears
18 to be a white butcher's coat with a blue jacket underneath.
19 The defendant has since stated that after attending the
20 rally with then President Trump he went back to his vehicle, put
21 on a white butcher coat, which is also monogrammed with his name
22 on the front, "Kyle," and then proceeded to the U.S. Capitol.
23 Now, before we even discuss what it is that he actually
24 does in Exhibits 3 through 6 and the subsequent videos, I think
25 it's important to take a look at Exhibit 3 and see what's
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1 happening in just this moment in time.
2 When the defendant arrives at the Capitol, chaos has
3 already ensued. Officers are being assaulted. Barriers are
4 being broken. Tear gas and smoke grenades are being deployed by
5 law enforcement. The defendant is undeterred. He walks into a
6 situation where it is very clear, and you will see in the
7 videos, violence is occurring. And despite his assertions that
8 he was there to peacefully demonstrate that day, he puts himself
9 in a violent situation that he himself then makes more violent.
10 So as you can see in the lower left-hand column of Exhibit
11 3 where the defendant is, in the foreground of this picture are
12 the officers that are protecting the Capitol that day. Notably,
13 inside the U.S. Capitol lower west terrace tunnel, as we've
14 colloquially called it, you will see all of these helmets are
15 either MPD or U.S. Capitol police officers attempting to prevent
16 a breach of this entrance, because directly behind them is
17 direct access into the U.S. Capitol building.
18 In Exhibit 4, again moving just moments in time ahead, the
19 defendant is now reaching forward and grabbing at one of the
20 officers who is attempting to stop what is thousands of rioters
21 from breaching this entrance. He is successful in grabbing an
22 officer. He takes that officer to the ground. That officer has
23 subsequently been identified as Sergeant A.G. from the U.S.
24 Capitol Police, and he is injured in this assault. Notably, in
25 addition to the injury, Sergeant A.G.'s biggest concern at this
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1 moment is that he is going to be pulled into the mob like other
2 officers were and potentially killed.
3 Undeterred, the defendant is struck with a baton several
4 times. He doesn't break his grip, still trying to pull that
5 officer into the crowd. It takes several baton strikes and
6 several other officers to engage with the defendant before they
7 can get him to just even release his grip on this one particular
8 officer.
9 Exhibit 5 shows moments later. Once they are able to break
10 the defendant's grip, he then steels himself, walks to the
11 middle of the tunnel, and this is just moments later, and you
12 can see in his face, he raises himself for what is about to be
13 round 2 of this fight. He then charges the line of officers,
14 flailing his arms, attempting to strike as many officers as
15 possible.
16 And then in Exhibit 6, just another view from the body-worn
17 camera of one of the officers at the front of the line that day.
18 He then engages with the officers. You will get a better view
19 of this in the body-worn camera.
20 So now in Exhibit 7, this is the surveillance video that we
21 saw from the lower west terrace tunnel at the detention hearing.
22 You can see it's caked in what appears to be pepper spray or
23 bear spray, which was a common weapon that day.
24 And then in Exhibit 7A, which I will play for the Court
25 here, body-worn camera that's about to capture the defendant
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1 assaulting the officer for a second time.
2 (Video recording played.)
3 MR. REGAN: And I played Exhibit 7A in its entirety.
4 Your Honor, with respect to Exhibit 7A, I think something
5 notable for the Court that differentiates this is there is a
6 momentary break in time from when the defendant first engages
7 that officer that he brings to the ground and attempts to drag
8 him to the crowd to when he then rushes head long into the line
9 of officers again.
10 At the detention hearing, prior counsel, there was some
11 suggestion that perhaps he was being forced into the tunnel by
12 the throng of rioters behind him. When you watch that video and
13 the next video that we're about to watch, it becomes abundantly
14 clear, nobody is forcing him the second time to do anything. In
15 fact, he steels himself, gets a look on his face as though he's
16 about to attack, and then that's exactly what he does.
17 The suggestion that he is doing anything other than
18 attempting to assault the officers in that tunnel should be
19 dismissed by this Court. It just doesn't make sense based on
20 the review of the video. And that's exactly what he does.
21 The government was actually able to obtain a second
22 body-worn camera video, which I have marked as Exhibit 7B. In
23 the beginning of Exhibit 7A, you can see there's an MPD officer
24 who was sort of standing on the side wall who had a bird's eye
25 view of what's happening. That's this officer, and I'm going to
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1 start it at 7:42.
2 So before I hit play, Your Honor, I will just note for the
3 Court the defendant appears to be right against the left side of
4 the lower left tunnel wall, if you're looking from the
5 perspective of the police officers here, in that white butcher's
6 coat and the blue sweatshirt underneath, and I will play it from
7 here.
9 MR. REGAN: So there, Your Honor, you got another
10 perspective of what's happening that day. The defendant
11 approaches from the left side of the lower west terrace tunnel
12 as the officers see him. He engages not once but twice and
13 unsuccessfully attempts to drag an officer into the crowd.
14 Undeterred, he then moves behind the rioters to the center
15 of the stage and tries to break the line one more time, striking
16 as many officers as possible.
17 Now, the aftermath of that is this, Your Honor. This is an
18 open source photo that was taken of the defendant as he was
19 walking away from -- he's facing the crowd at this point, as
20 he's walking away, and the injuries he sustained appear to have
21 been from his first interaction with law enforcement where he
22 was hit over the head several times in an effort to prevent that
23 officer from being dragged into the crowd.
24 Your Honor, it is not an exaggeration to say that the lower
25 west terrace was by far the most violent and dangerous place at
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1 the U.S. Capitol on January 6, and that is because of defendants
2 like Mr. Fitzsimons. The officers stationed in there in what is
3 roughly a 10-by-10 or 12-by-12 tunnel were essentially in a pill
4 box attempting to keep out thousands of rioters from entering
5 through that portion of the building for hours on end, throngs
6 of rioters continuing to attack.
7 You will notice in the videos, in addition to having to
8 deal with the actual physical people, they're being hit with
9 ladders, pepper spray, bear spray, crutches. Eventually, he is
10 deterred, which is why he's not able to get in the building, but
11 that's only because of the heroism of the officers that were
12 stationed there that day, and that continued for hours on end.
13 Two of the officers that he did engage were, in fact,
14 injured. One of them, as I described earlier, was taken to the
15 ground and suffered a shoulder injury. The second one, again
16 right next to Sergeant A.G., is an MPD detective. The defendant
17 was able to pull down his riot gear and his mask, and he was
18 pepper sprayed in the face by the person behind the defendant.
19 So for the nature and circumstances of the offense, Your
20 Honor, he is charged with grave offenses. He is charged with
21 civil disorder, and he is also charged with 111(b), which is
22 assaulting officers and actually causing injuries on January 6,
23 assaulting federal officers.
24 He forcibly entered and remained on Capitol grounds and
25 made it very clear why he was there that day. In the additional
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1 exhibits, you will see that. He was not hindered by batons
2 meant to prevent further violence on the defendant's part,
3 assaulted two officers, and then persisted in his violence and
4 was unhindered by the line formed at the tunnel meant to be the
5 last action of defense before the Capitol was breached by these
6 rioters.
7 The next factor the Court is supposed to consider is the
8 weight of the evidence against the person. So here, as the
9 government has briefed in both the original detention hearing
10 and the hearing we are here for today, the defendant after
11 January 6 was not shy about the role he played. In fact, he
12 provided an interview to a local news article, the Rochester
13 Voice, where he is identified by name, and he's also pictured
14 here on the left in a photo that shows the same injuries that we
15 just saw in Exhibit 5, that same white butcher's coat, and on
16 the right, a clear photo where you can see the actual monogram
17 on that butcher's coat that says "Kyle," the defendant's first
18 name, in what appears to be a selfie taken by Mr. Fitzsimons and
19 then sent to this news article.
20 In this news article, he explains why he is there. He
21 doesn't deny being there. But in fact, he describes what he
22 said was harmless or peaceful intentions of being in Washington,
23 D.C., not only for him but for the other rioters. Now, what we
24 saw in that video is the exact antithesis to peacefulness. It
25 is a man filled with aggression and anger.
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1 He confirmed his presence to the Rochester Voice and
2 provided pictures, and the government was able to identify him
3 through several witnesses.
4 Exhibit 10 is another photograph provided by the defendant,
5 and the government only provides this to the Court to sort of
6 give context for what it is the defendant is seeing that day.
7 This is clearly not what the Capitol is supposed to look like
8 any day, let alone January 6 when they're trying to certify the
9 Electoral College vote. Again, the defendant undeterred.
10 The next factor is the --
11 THE COURT: Hold up.
12 (Pause.)
13 THE COURT: Go ahead.
14 MR. REGAN: Thank you, Your Honor.
15 Your Honor, with respect to the history and characteristics
16 of the person, the government doesn't disagree with the defense
17 in terms of the defendant's criminal history. He does have some
18 criminal history, which gives the government some pause, but
19 more importantly, as the presentence report writer pointed out,
20 the defendant was unwilling to be interviewed or cooperate in
21 the process whatsoever. So there was no explanation by Pretrial
22 about whether they could mitigate any of the risks that he
23 presents to the community, based on his unwillingness to
24 cooperate.
25 Additionally, the government presented several exhibits,
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1 some of which I will play here now and some of which have been
2 provided to the Court, that talk about the defendant's past. In
3 the original detention hearing, one of the facts that the
4 government brought forward was that the defendant is no longer
5 going to have the support of his wife and child if he were to
6 return to the community. In his most recent motion, the
7 defendant has posited that he will then stay with his mom in
8 Florida.
9 I think the most important point the government can make
10 with respect to that fact is in the original hearing the
11 government presented evidence that the defendant was presented
12 with a choice from his wife. The quote was, "It's either
13 politics or Holly and I," Holly being his daughter. That did
14 not deter the defendant from going on January 6 and committing
15 what was one of the most egregious offenses of the Capitol riot
16 defendants that day.
17 So the government would suggest to the Court that if losing
18 his entire family, his daughter and his wife, was not enough to
19 stop him on January 6, it seems unlikely that having the
20 supervision of his mother is going to do anything different.
21 And added to that, Your Honor, is the fact that the
22 defendant, as Judge Harvey has pointed out, has shown no remorse
23 for what he did that day. In fact --
24 THE COURT: Hold on.
25 COURTROOM DEPUTY: Can I start the call all over
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1 again, Judge? I just got a complaint.
2 THE COURT: Hold on one second. We're getting a
3 recording on the phone.
4 (Pause.)
5 THE COURT: All right. Go ahead.
6 MR. REGAN: Thank you, Your Honor.
7 So Your Honor, I was just explaining to the Court that the
8 situation that the defendant found himself in just prior to
9 January 6 and undeterred took it even a step further from some
10 of his prior political affiliations and expressions of politics
11 that had gotten him into the situation he was in.
12 And as an example of that, Your Honor, Exhibit 11, as the
13 government explained in our brief, is a voicemail that the
14 defendant left for one of his local congresspersons, which I
15 would like to play for the Court.
16 (Audio recording played.)
17 MR. REGAN: And Your Honor, I think Exhibit 11
18 perfectly captures the essence of what it is that the defendant
19 not only wanted to do on January 6 but has made his entire life
20 about at this point. He says he's willing to risk his entire
21 life if the certification of the Electoral College vote goes
22 through.
23 THE COURT: He said "object," not "risk."
24 MR. REGAN: I apologize. He said "object to my entire
25 life," not "risk my entire life." I apologize, Your Honor.
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1 And that's notable because at this point this ultimatum has
2 been put to him. But regardless, this dovetails nicely not only
3 into the history and characteristics of the defendant but the
4 nature and seriousness he poses and danger to the community,
5 because this isn't the defendant's first foray into politics.
6 As we presented to Magistrate Judge Harvey, and this is an
7 exhibit from the prior detention hearing, the defendant has made
8 himself well-known in local political circles, which is
9 absolutely his right. The defendant absolutely has a right to
10 express himself politically. What's notable is that it has been
11 captured in several news articles with several quotes from
12 lawmakers that talk about being scared of the defendant, about
13 him having a vitriol for certain classes of people, but also
14 just for lawmakers in general who do not agree with him
15 politically. And we see what is a rising tide up until
16 January 6. Judge Harvey said, "To me, you're like a bomb
17 waiting to go off." And that bomb went off on January 6.
18 The defendant has shown absolutely no remorse, and instead,
19 like I mentioned earlier, has double-downed on not only the
20 rhetoric of January 6, but what it is that he did that day. And
21 I have various jail calls that I would like to play for the
22 Court, but I will do that later.
23 So in addition, the government would posit that all four of
24 the factors that the Court is supposed to look at here weigh
25 heavily in favor of detention of the defendant. It is -- in
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1 essence, nothing has really changed with respect to January 6
2 and the defendant here today. His personal circumstances have
3 not changed. His opinion on January 6 or any remorse has not
4 changed.
5 The only difference between now and then is that his mother
6 is willing to take him in, into a community where he doesn't
7 live, where the only person he presumably knows is his mother,
8 and the Court would have to assume that he would now for some
9 reason change his previous behavior, which was being willing to
10 risk -- excuse me, to object to his entire life in order to stop
11 the vote.
12 Now, the guideposts that I mentioned earlier, Your Honor,
13 that come from Chrestman, there's six of them, and the
14 government would posit that several, if not all, weigh in favor
15 of detention.
16 First, whether the defendant has been charged with felony
17 or misdemeanor offenses. He has been charged with several
18 felony offenses, to include obstruction of a federal proceeding,
19 civil disorder, and multiple assaults against federal law
20 enforcement officers.
21 The extent of the defendant's prior planning. The defense
22 suggests that this is a factor that weighs in favor of release
23 based on what they consider a lack of planning. I would point
24 to Government Exhibit 12, which is up on the screen now, which
25 was presented to the magistrate court judge as well, which is a
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1 Facebook post signed Kyle Fitzsimons with his e-mail address
2 that is trying to organize a caravan of like-minded individuals
3 to the Capitol on January 6. He says, "I'm also seeing flags
4 that this election was stolen, and we are being slow-walked
5 toward Chinese ownership by an establishment that is treasonous
6 and all too willing to gaslight the public into believing the
7 theft was the will of the people."
8 Now, Your Honor, admittedly, that is not the defendant
9 planning with other people to assault law enforcement officers
10 or to commit any further acts other than appearing. But it's
11 notable when you take -- when you see in Exhibit 12 and what the
12 defendant does when he gets there, because the defendant, in
13 order to prior plan what he is doing, doesn't need to travel
14 with anybody. He can plan all on his own to go, and then
15 notably, when he gets there, he becomes a part of the most
16 violent mob that we saw on January 6 outside of the U.S. Capitol
17 on the lower west terrace. And he does so in conjunction with
18 throngs of rioters --
19 THE COURT: Hold on one second. So presumably, you've
20 gone through his phone and the like at this point in time. Is
21 that right?
22 MR. REGAN: For the most part, yes, Your Honor.
23 THE COURT: Is there any indication that anyone
24 responded to this or that he did coordinate with other people?
25 MR. REGAN: Not that we know of right now, Your Honor.
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1 THE COURT: Okay.
2 MR. REGAN: And with respect to coordination,
3 something I would submit to the Court is coordination just
4 doesn't include things done prior or actually communicating with
5 people about intentions. When he gets there that day, he's
6 coordinating with the people all around him. He's pulling gas
7 masks down so that they can be pepper sprayed. He's tearing
8 officers to the ground in an effort to allow other rioters to
9 potentially get into the building.
10 So I would ask the Court to consider that with respect to
11 that second factor for the extent of the defendant's prior
12 planning.
13 Now, for the third factor, whether the defendant used or
14 carried a dangerous weapon, the government isn't suggesting that
15 at any time the defendant used a weapon when he engaged with law
16 enforcement officers. He didn't need to. He was a part of a
17 large crowd where multiple people around him have weapons. And
18 by engaging with the police, he made them vulnerable to every
19 single person around him. Now, he's not using the weapon, and
20 the government is not suggesting he is. The weapon that day
21 were his fists and his hands and his feet. But nonetheless,
22 undeterred, he ran into that police line three times in an
23 effort to hurt as many police officers as he could.
24 The fourth, similar to the second, is evidence of
25 coordination with other protestors before, during, and after the
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1 riot. Now, here, the government's also shown you Government
2 Exhibit 12, and we've shown you the videos from the lower west
3 terrace. The government would submit that there is clear
4 evidence of a coordinated effort by that entire group to get in
5 the building through the lower west tunnel entrance by any means
6 necessary. And by any means necessary, that includes, as you've
7 seen in the video, the defendant attempting to drag officers
8 into the crowd of rioters, which happened that day to other
9 officers, the defendant pulling gas masks down, the defendant
10 fighting officers with his hands and feet while other officers
11 are trying to pull those officers back and simultaneously being
12 pummeled by the rest of the rioters with crutches and ladders
13 and pepper spray and batons.
14 THE COURT: Let me ask you a question. I have the
15 PowerPoint, but the underlying newspaper articles that are
16 referred to, are those in the record somewhere?
17 MR. REGAN: They were presented at the detention
18 hearing earlier, Your Honor.
19 THE COURT: I understand that, but I don't have them.
20 Do you have them to introduce today?
21 MR. REGAN: I believe I do, Your Honor, and I have --
22 so Grand Jury Exhibit 9 is that article itself, which is a
23 screen shot of it, and I would be happy to provide the Court
24 with the full .pdf copy of that article.
25 THE COURT: Why don't you make a point of looking back
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1 at what was presented to Magistrate Judge Harvey and reintroduce
2 all the information.
3 MR. REGAN: Understood, Your Honor.
4 And then finally, Your Honor, the last two are whether the
5 defendant played a leadership role in his words and movements
6 during the riot, with specific reference to whether the
7 defendant remained only on the grounds surrounding the Capitol
8 or stormed the Capitol interior or injured or attempted to
9 injure or threatened to injure others.
10 Now, there's no suggestion by the government that the
11 defendant played a leadership role in the sense of leading some
12 of the malitias that were there that day or the other
13 politically affiliated groups in a combined effort. The
14 government would submit based on the video that he's playing a
15 leadership role in the lower west terrace when he storms in
16 there while other people are also trying to storm, setting an
17 example for how it is they can get through that police line that
18 day.
19 And the defendant very clearly injured or attempted to
20 injure or threatened to injure others, others being several
21 police officers in the line that day.
22 So Your Honor, at this point there are jail calls I would
23 like to play. I would like to do so perhaps after the defense
24 presents argument.
25 THE COURT: Present everything now so that she can
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1 respond.
2 MR. REGAN: So Your Honor, I briefly spoke earlier,
3 and I will move it along. One of most important things for the
4 Court to consider in this case when trying to fashion a
5 combination of conditions that can reasonably assure the safety
6 of the community, the defendant's remorse and acknowledgment for
7 what happened on January 6 is important, because it suggests --
8 a lack of remorse suggests he doesn't think he did anything
9 wrong, and it also suggests that his past is going to be relived
10 again.
11 And I've clipped a couple of jail call videos where the
12 defendant talks about his feelings that day and why he was
13 there.
14 THE COURT: Before you do that, let me take a
15 two-minute break, and we will resume.
16 (Recess taken from 11:37 a.m. to 11:40 a.m.)
17 THE COURT: Okay. Go ahead.
19 MR. REGAN: And then, Your Honor, in a second jail
20 call -- and there, just for context, the defendant is talking
21 about why he was there that day and what his intentions were.
22 MS. TAYLOR-SMITH: Your Honor, I'm going to object to
23 him proffering what the defendant meant in his words. His words
24 are what they are.
25 THE COURT: Remind me. I don't know if you've said
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1 this, but who is he talking to? His mother?
2 MR. REGAN: That is my understanding, Your Honor,
3 correct.
4 THE COURT: All right. And is there a transcript of
5 the call?
6 MR. REGAN: There is not, Your Honor. I do have the
7 entire call for the Court, if the Court would like to hear it as
8 well.
9 THE COURT: I would like to hear it. So when you
10 submit the other exhibits, submit that as well.
12 And Ms. Johnson, I'm going to try to plug in the audio
13 again to see if it will play through, because I noticed the
14 Court was having a hard time hearing it. Playing from 3 minutes
15 and 7 seconds.
17 MR. REGAN: And I played through 3:30, and starting
18 again at the 11-minute mark.
20 MR. REGAN: And then finally from 13 minutes.
22 MR. REGAN: And I've stopped it at 14:04.
23 Your Honor, with respect to that jail call, it is notable
24 for several reasons. First, the defendant is talking about once
25 again engaging with elected officials, whether it be through
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1 writing, which is his only method right now to do so, including
2 he mentioned Susan Collins, the senior senator from Maine. This
3 is the same rhetoric and behavior that the defendant displayed
4 before January 6, to include directly before January 6 when he
5 tells Congressman Golden that I will be there on January 6 and
6 he is willing to object to his whole life.
7 He also says that this is a "show me the man and I will
8 show you the crime" case, suggesting that there's some sort of
9 government conspiracy afoot to entrap him into something that he
10 didn't do, which the evidence in this case strongly disputes.
11 But most concerning, he says that one of the other inmates
12 at the jail is telling him that the best thing he can do is bail
13 out and rally the troops, use the momentum of Trump and segue
14 that into his own little power base.
15 Your Honor, the defendant is giving us a playbook for what
16 it is he plans on doing when he leaves jail if he were released
17 today by this Court. That is the same rhetoric and behavior we
18 saw beforehand that led to the individual that we saw on
19 January 6 assaulting federal law enforcement officers.
20 And then finally in the last one, Your Honor, starting at 2
21 minutes and 42 seconds.
23 MR. REGAN: And then again at 5:57.
25 MR. REGAN: And then finally from 7:13.
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2 MR. REGAN: And I've paused it at 8:06.
3 And Your Honor, that concludes the jail calls. Just to
4 close on that point from the jail calls, throughout you can hear
5 the defendant has absolutely no remorse, in fact doesn't even
6 think that he did anything wrong, is talking about how it is --
7 what he can do when he gets out to have a ground swell of
8 support, things like he's going to ride the Trump wave again.
9 All of that suggests, as Magistrate Judge Harvey pointed
10 out in the detention hearing, somebody who not only lacks
11 remorse, but doesn't even believe they did anything wrong. The
12 government has a hard time believing he's then going to follow
13 conditions of release set by this Court and follow the rules
14 when he's on the outside.
15 The actions of the defendant that day are so incredibly
16 dangerous, not only then but now, because he just goes -- if
17 he's released here today, the government has -- excuse me, the
18 defendant has those same opinions he had on January 6 today, and
19 nothing has changed since the defendant was held the first time
20 other than now he may move to a different state with the only
21 connection being his mother, who is also the woman on these
22 calls and, to be fair, does posit some good ideas for the
23 defendant in terms of staying out of trouble, but also appears
24 to enable some of those ideas as well when talking about elected
25 officials. There's nothing to suggest that the defendant is not
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1 going to continue the same path that got him detained once he's
2 released -- if he were to be released by this Court.
3 So for those reasons, Your Honor, the government would ask
4 that the Court again hold the defendant until trial based on
5 3142(f) for a crime of violence.
6 Thank you, Your Honor.
7 THE COURT: Thank you.
8 All right. Ms. Taylor-Smith, are you ready to go forward?
9 MS. TAYLOR-SMITH: I am, Your Honor. I'm going to
10 move the microphone as close to me as I can get it to assure
11 that the Court can hear me. Is that good?
12 THE COURT: Yes, I can hear you very well.
13 MS. TAYLOR-SMITH: Thank you.
14 Your Honor, I'm going to break up my argument into three,
15 maybe four sections. The first section is prior to the
16 incident, prior to January 6.
17 The government proffers that my client somehow was
18 coordinating his visit to Washington, D.C., on January 6. In
19 support of that, they provide a letter purportedly written by
20 Mr. Fitzsimons. However, as the Court was not advised,
21 Mr. Fitzsimons doesn't have any social media presence. He did
22 not himself post anything anywhere. He couldn't, because he
23 doesn't have a Facebook page.
24 And telling individuals -- even if the letter is from him,
25 telling individuals that he intends to go to Washington, D.C.,
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1 to do something that many local, state, and federal officials
2 has told him he has a right to do is not the same as
3 coordinating an attack on the country.
4 The government started off by asking the Court to begin its
5 analysis with the fact that what happened on January 6 is
6 something unlike we've ever seen in our lifetime. But I would
7 ask the Court to start its evaluation of whether or not
8 Mr. Fitzsimons should be released on a bedrock of our system of
9 criminal justice, and that is that every individual defendant
10 who appears before this Court is in fact an individual and
11 should be judged on his actions and not necessarily on the
12 actions of individuals who may have been around him.
13 There's some sort of suggestion that Mr. Fitzsimons went
14 from one end of the Capitol to the other end of the Capitol to
15 another end of the Capitol until he found the most violent area
16 and then decided to engage. There's just no evidence of that,
17 Your Honor.
18 The fact of the matter is, he went to Washington, D.C.,
19 alone. He stayed in a hotel. He visited the Washington
20 Monument, the Lincoln Memorial, and Catholic churches. And
21 although the government did provide the Court with some of the
22 photographs that were downloaded from my client's phone, they
23 didn't provide them with client's sightseeing photographs
24 because it doesn't fit their motive that his only reason for
25 being in Washington, D.C., was to be violent and to be
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1 aggressive.
2 THE COURT: I'm sorry. I didn't understand. The what
3 photograph? The one they didn't provide was the what
4 photograph?
5 MS. TAYLOR-SMITH: The only photograph they provided,
6 Your Honor, was the photograph that my client took while he was
7 standing on the parapet and you could see the crowd. That was
8 the only photograph that the government took from my client's
9 phone that they provided for the Court. But it was not the only
10 photograph that was taken while he was in Washington, D.C.
11 There were other photographs taken of him doing what individuals
12 do when they come to Washington, D.C., which is sightseeing.
13 And they didn't provide those to the Court because it doesn't
14 fit their narrative that his sole purpose in coming to
15 Washington, D.C., on January 6 was so that he could be violent.
16 There just is no evidence of that.
17 Your Honor, I want to move on to what he did while he was
18 in D.C. The Court at this point has had an opportunity to view
19 the video, Exhibit 7A and 7B. I'm going to ask the Court to
20 take a look at the video again but this time from my computer
21 where I slow it down.
22 THE COURT: Okay.
24 MS. TAYLOR-SMITH: Your Honor, this is the exact same
25 view that the government showed of what happened, and it just
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1 starts a few moments before the government's video. As you can
2 see, there is an officer who is perched higher up who has just
3 maced the entire crowd, and Mr. Fitzsimons at this point is not
4 seen on the video.
5 The government has proffered that Mr. Fitzsimons was
6 somehow a leader here. But as you can see, he's not even
7 present 15 seconds at this point in the video.
8 I'm going to pause it.
9 At this point is the first time that you can see
10 Mr. Fitzsimons in the video. His head is down. There's one
11 individual -- two individuals in front of him, and he is on the
12 right side near the archway. His head is down just after we see
13 the Capitol officers mace the entire crowd.
15 MS. TAYLOR-SMITH: You can see there's an individual
16 in front of Mr. Fitzsimons who is engaging in physical
17 altercation, but Mr. Fitzsimons is just standing behind him.
18 I'm going to pause it here.
19 At this point in time, Your Honor, you can see that there
20 is an officer who is down on the ground, an individual who has
21 his hand on that officer wearing a black tactical helmet and a
22 black jacket, and Mr. Fitzsimons with one part of his body, the
23 right side of his body outside of the view and the left side of
24 his body touching the individual, not the officer.
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1 MS. TAYLOR-SMITH: You can see that person pulling on
2 the officer, and then the officer stands up. Mr. Fitzsimons at
3 this point has not touched anyone. The Court can see that
4 Mr. Fitzsimons's hand reaches out, but he does not make physical
5 contact with anyone before he is maced again. Mr. Fitzsimons is
6 bending over, and it is at this point in time that an officer,
7 not the sergeant who allegedly struck Mr. Fitzsimons, but
8 another officer about three officers back begins to raise his
9 baton and lower his baton. You can see from that vantage point
10 that there are at least three or four people with their heads
11 bent down.
12 I'm going to just rewind for one second, because I missed
13 the portion that I wanted the Court to notice. I'm sorry.
14 Court's indulgence. Your Honor, I've rewinded it back to
15 16:11:21.
17 MS. TAYLOR-SMITH: There are a number of individuals,
18 Your Honor -- this is what I wanted the Court to see. There are
19 a number of individuals who are underneath Mr. Fitzsimons at
20 this point, both protestors and, I assume, although I cannot
21 see, an officer. But there are at least three or four people
22 under Mr. Fitzsimons at this point.
24 MS. TAYLOR-SMITH: He's hit once. You will see the
25 baton go back and come down and strike again.
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1 Your Honor, at this point in time, you can see that Kyle
2 Fitzsimons's left arm is raised up. It's not touching anybody.
3 And the rest of his other arm is somewhere under his body.
4 THE COURT: Can you point on the screen?
5 MS. TAYLOR-SMITH: Yes. Your Honor, this is his left
6 arm. You will see the white coat --
7 THE COURT: Okay. I see it.
8 MS. TAYLOR-SMITH: -- with the sweatshirt. And the
9 rest of his body is underneath him somewhere not visible, but
10 certainly not dragging a sergeant down -- or out of the archway.
12 MS. TAYLOR-SMITH: This is the portion of the video
13 that the government showed where now you can no longer see
14 Mr. Fitzsimons. This is before the second interaction occurs.
15 Your Honor, I only show that to say that the video speaks
16 for itself, and the fact that Mr. Fitzsimons has at this point
17 maintained his innocence, he is charged in a 10-count
18 indictment, 10 counts, and the fact that he at this point is
19 maintaining his innocence on one or some or all of those counts
20 does not mean that he does not -- has not acknowledged
21 wrongdoing in some way, shape, or form. We haven't gotten to
22 that point yet, Your Honor. We have not gotten to the point
23 where Mr. Fitzsimons would be able to acknowledge any
24 wrongdoing. He has an absolute constitutional right to a trial
25 and enjoys the same presumption of innocence as every other
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1 member of our community.
2 He went to the rally alone. He left the rally alone. He
3 walked to his car alone. He walked to the Capitol alone. And
4 but for the fact that there are other individuals who are also
5 engaging in conduct, he's not a leader, he's not an organizer,
6 and Your Honor, he is not working in concert with anyone else.
7 After -- shortly after the second incident that the Court
8 saw, Mr. Fitzsimons is taken to the hospital where he received
9 eight staples. The photograph that the government provided of
10 the white coat with the blood on it was taken at the hospital.
11 And then he returned to Maine. He did not go to Maine and rally
12 the troops. He did not go to Maine and start discussing next
13 steps. He went back home. That was it.
14 And by the way, he went back home to the same house that he
15 shared with his wife. There was no discussion at that point of
16 him moving out. There was no discussion at that point of them
17 ending their marriage. He went back home where he was
18 surveilled by the FBI agents and ultimately arrested. So the
19 whole indication that his wife gave him an ultimatum prior to
20 January 6, it's either politics or your daughter, it's just a
21 salacious rumor, Your Honor. The fact of the matter is, after
22 January 6, he went back home and continued his marriage with his
23 wife living with his daughter.
24 Subsequent, and I think that this was captured on the phone
25 calls, his wife has experienced some harassment as a result of
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1 his arrest, and the parties have agreed that it would probably
2 not be best for him to return to that home, which is why his
3 mother has offered to open up her home.
4 The government points to my client's prior advocacy as a
5 reason why in his nature and history and circumstances that he
6 poses some sort of dangerousness to the community. They point
7 to these newspaper articles, all of which, by the way, were
8 published subsequent to January the 6th, in which everybody has
9 on their Monday morning quarterback headsets and want to talk
10 about how he was irritable, agitated, and violent.
11 But the truth of the matter is, not during one of those
12 interactions with any lawmaker was law enforcement ever called,
13 was he ever removed from a setting, were any steps taken by any
14 individual, whether or not it be the selectmen in his township,
15 his state representatives, or his federal representatives, to
16 either change their security protocols as a result of him, to
17 change any policy or procedures as a result of him.
18 His opinions may not have been popular, and yes, they may
19 have been, you know, littered with xenophobia and racism and
20 sexism, but we don't punish people in this nation because of
21 their thoughts and their opinions. I ask the Court to take that
22 into consideration as well.
23 In the government's response to my motion, they cited the
24 case of Sabol as a guide to what this Court could look toward
25 when deciding whether or not to grant or deny release of my
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1 client. I don't want there to be any misconceptions. Mr. Sabol
2 is accused of taking an officer, dragging him down a flight of
3 steps, and beating him and then standing over another officer
4 and beating that officer and then going back home and attempting
5 to commit suicide.
6 Those are not the facts that we have in this case, Your
7 Honor. They're not analogous. Mr. Mr. Fitzsimons's case is
8 more analogous with the case of Brian Bingham, 21-mj-430.
9 THE COURT: Is that one cited in your brief?
10 MS. TAYLOR-SMITH: It is not, Your Honor.
11 THE COURT: Okay. Let me get that information. Brian
12 Bingham?
13 MS. TAYLOR-SMITH: Bingham, B-i-n-g-h-a-m, which is at
14 21-mj-430, who was accused of punching and kicking officers.
15 The only exception is he was actually inside the Capitol
16 building when he was doing it.
17 Or the case of Steven Cappuccio, C-a-p-u-c-c-i-o, which is
18 at 21-cr-40, who can be seen visibly removing the gas mask of an
19 officer who is being pressed against a door inside the Capitol
20 and screaming while that officer was being maced.
21 Or Bruno Cua, C-u-a, which is cited in my case and also in
22 the government's case, where he was inside the Capitol building
23 pushing officers.
24 THE COURT: Hold on one second. Where is that?
25 MS. TAYLOR-SMITH: It's the government's motion, page
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1 12, 21-cr-107.
2 THE COURT: Okay. Got it.
3 MS. TAYLOR-SMITH: Or the case of David Judd,
4 21-cr-40.
5 THE COURT: No, 40 was Cappuccio, unless they're
6 co-defendants in the same case.
7 MS. TAYLOR-SMITH: Yes, they're co-defendants, where
8 Mr. Judd is accused of trying to ram the line and throwing a lit
9 item at law enforcement while in the lower west terrace, some 30
10 minutes after Mr. Fitzsimons had already left the lower west
11 terrace.
12 Your Honor, all of these individuals have been released
13 with some conditions, and those cases are a lot more analogous
14 to Mr. Fitzsimons's case than the case that the government cites
15 as kind of seminal, which is the Sabol case.
16 I would ask that the Court take into consideration -- you
17 can stop sharing my screen.
18 Your Honor, in the Munchel case, there are two factors that
19 I would like to draw the Court's attention to, factor 3 and
20 factor 6, and the statements that were made by the Court in that
21 case.
22 In 3, the case is overturned because it is determined that
23 the district court did not demonstrate that it adequately
24 considered, in light of all the record evidence, whether the
25 defendants who were a part of a mob or assault on the Capitol
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1 illegally entered the Capitol, carried weapons onto the grounds,
2 and showed no remorse for their actions but had limited criminal
3 history, whether or not that group, the group I just described,
4 whether or not they actually presented an identifiable, an
5 articulable risk to some individuals in the community.
6 THE COURT: All right. Can you repeat to me, what
7 case is that you're quoting?
8 MS. TAYLOR-SMITH: It's the Munchel case.
9 THE COURT: The circuit case, yeah.
10 MS. TAYLOR-SMITH: And also, Your Honor, whether or
11 not the defendant posed such a threat outside the specific
12 context of where the government wanted you to start its inquiry,
13 January 6.
14 Your Honor, taking those things into consideration, taking
15 into consideration the fact that he has a limited criminal
16 history, there was no planning involved -- he's not one of those
17 individuals who arrived in Washington, D.C., with firearms,
18 knives, mace, zip ties, tactical gear. Whether or not he was a
19 leader, he acted alone, Your Honor.
20 This is -- the government has infinite discretion in
21 charging individuals and literally could have charged each and
22 every single one of those individuals in the lower west terrace
23 with some sort of conspiratorial or aiding and abetting. He's
24 not charged with that.
25 Whether or not there are conditions that the Court can put
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1 into place that will ensure both his appearance in court -- and
2 just so the record is unblemished, there has been no suggestion
3 that Mr. Fitzsimons is a flight risk.
4 THE COURT: Is a?
5 MS. TAYLOR-SMITH: Flight risk.
6 THE COURT: I agree with that.
7 MS. TAYLOR-SMITH: And so that is why I focus most of
8 my argument on the dangerousness. And the idea that the Court
9 should first and foremost look at the context of January 6
10 diminishes the fact that there are other factors for the Court
11 to consider. And I would argue that after weighing those
12 factors, they weigh in favor of my client's release.
13 There are two letters that I would like to provide to the
14 Court at this time. I've already provided a copy to counsel.
15 One letter is a letter I received yesterday from
16 Mr. Fitzsimons's mother, who has agreed not only to let her son
17 come live with her, she has gone through the expense of having a
18 landline placed in her home so that he might be able to do so on
19 electronic monitoring.
20 And also, his neighbor who knew him prior to January the
21 6th and engaged in discussions with him -- and the Court will be
22 able to read them. I will let his words speak for him, not my
23 words interpreting his words as to Mr. Fitzsimons's character or
24 level of dangerousness in the community which he came from prior
25 to January 6.
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1 May I approach?
2 THE COURT: You may. Give me a moment to look at
3 them.
4 (Pause.)
5 THE COURT: Okay. I've read them both. Go ahead.
6 MS. TAYLOR-SMITH: Your Honor, the last two things
7 that I would like to address are the issues with Pretrial
8 Services.
9 As the government is aware, because prior counsel proffered
10 this to the Court, Mr. Fitzsimons did not participate in the
11 interview with Pretrial Services in Maine on the advice of
12 counsel in Maine. There was no subsequent refusal to do so, no
13 subsequent refusal to cooperate in any way, shape, or form. He
14 has had zero, zero infractions while he is in custody at this
15 point.
16 And really, if the government is really concerned about him
17 coordinating with others, then maybe moving him out of the CTF
18 where he's being held with, you know, two dozen other
19 individuals charged with similar offenses with their own ideas,
20 maybe that's a good start, removing him from CTF.
21 And finally, Your Honor, as it relates to the jail calls,
22 imagine being punished for motherly advice about how to stay out
23 of custody. Imagine, Your Honor, being punished for expressing
24 viewpoints. I would argue that that's what we heard on those
25 calls. There was no idea that he was going to be released from
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1 custody and join the Proud Boys or the Three Percenters or any
2 other extremist groups whereby he would have access to
3 additional methods to wreak havoc on our country.
4 I ask that the Court consider releasing him so that he
5 might reside with his mother in Titusville, Florida, that the
6 Court, in order to ensure the safety of the community and
7 others, may place him on electronic monitoring or location
8 monitoring, that the Court give him an opportunity to show the
9 Court that he can adhere to the rules and regulations of
10 pretrial supervision in a similar manner as he's done while
11 incarcerated up to this point.
12 Mr. Fitzsimons has been in custody now since, I think,
13 April. His trial is likely to take place in 2022. And I ask
14 that the Court take all of those things into consideration when
15 deciding this motion.
16 Thank you.
18 MR. REGAN: May I, Your Honor?
19 THE COURT: You may.
20 MR. REGAN: And I will keep it brief and use the same
21 format: Before, during, and after.
22 So just to address some of the points about the defendant
23 before January 6 and, I guess, on January 6, the suggestion that
24 the defendant came to the Capitol on January 6 for anything
25 other than to attend the rally and then ultimately participate
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1 in the events of that day is, in the government's opinion,
2 ludicrous. The suggestion that he came here as a sightseer is
3 completely disproved by all the evidence in this case, to
4 include the defendant's own words on his jail calls where he
5 states, "I did exactly what was asked of me," because he is
6 somebody that ardently supports then President Trump. The
7 defendant was not here as a sighseer that day. The defendant
8 was here to express his political beliefs, which we
9 wholeheartedly agree with the defense he has a right to do. As
10 Judge Harvey pointed out, your First Amendment rights are
11 completely curtailed when your First Amendment rights involve
12 violently assaulting federal law enforcement officers, which it
13 is very clear that he did on that day.
14 With respect to during, Your Honor, the government isn't
15 asking the Court to judge the actions of others around him. The
16 government is asking the Court to use that as context, because
17 this is not the defendant walking into a situation where he
18 didn't know what was happening. When the defendant walked up to
19 that lower west terrace, the defendant had a choice. He's
20 actually at the lower west terrace for approximately 45 seconds
21 before he engages in any violence. Instead of leaving, the
22 defendant then finds somewhere closer where he can actually
23 engage in violence and assaults federal law enforcement
24 officers.
25 The defendant wasn't looking to express his political
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1 beliefs at that point. The defendant was looking to either get
2 in the building or hurt as many law enforcement officers as he
3 could, because the crowd that day considered federal law
4 enforcement traitors because they wouldn't let them inside the
5 building, and that's exactly what the defendant did that day,
6 not once, but twice.
7 The suggestion by the defense, when you slow that video
8 down, that the defendant is not doing anything wrong again the
9 government considers preposterous. Because what is the
10 defendant trying to do there? What is he reaching for? And
11 when you watch that video, Your Honor, curiously, the moment
12 that the defendant reaches for that officer is when the officer
13 is on the ground and he is most vulnerable, and that is exactly
14 what the defendant is trying to do.
15 Now, ultimately, by the heroism of the officers, he is
16 unsuccessful in dragging that officer into the crowd, but that
17 doesn't stop the fact that that's exactly what he was doing, and
18 they had to beat him with a baton to break his grip. Beaten
19 with a baton, undeterred, he then moves to the center of the
20 crowd, steels himself, stares directly at the officers, and goes
21 head long into a group of officers, those same officers that he
22 just assaulted and then hit him with a baton to stop him.
23 The defendant didn't stop, because he wasn't there to
24 express his First Amendment rights that day or his support for
25 President Trump. At this point in time, the defendant is there
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1 to assault officers.
2 Now, it's worth noting, Your Honor, in the Munchel opinion,
3 there's some conversation about the moment and whether or not
4 that political moment still exists and whether or not that's
5 even relevant. Judge Harvey posited in the detention hearing in
6 this case that there's some suggestion that that political
7 moment is over. However, he disagrees with that, and the
8 government does as well, because that political moment is still
9 currently here. As the Court well knows, the rhetoric that
10 brought the defendant to the Capitol on January 6 is alive and
11 well. It is all over the news. It's all over the defendant
12 when he's talking about his jail calls. It is still the number
13 1 news story in the United States.
14 That is the world that the defendant is asking to be
15 released into, the same world that got him here that led him
16 from town hall meetings to harassing calls to congressmen to
17 more harassing calls to congressmen, to include the suggestion
18 that he is willing to object to his whole life and I will be
19 there on January 6, to ultimately what we saw on those videos.
20 To release the defendant, who has shown no remorse and has
21 made very clear his political opinions about that day, would
22 create a serious danger to the community, a community to which
23 he has no ties other than his mother.
24 And then finally after, Your Honor, and perhaps this might
25 be the most salient point. The defense likes to characterize
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1 what the defendant did that day, he went to the hospital and got
2 stitches and then he went home, and that's true. And that's
3 true. The defendant absolutely did go home. And he went home
4 to his wife, who at the time, including the defendant, had no
5 idea the enormity of the trouble that the defendant was about to
6 be in.
7 But regardless, what does the defendant do when he gets
8 home? The very first thing, the defendant calls Lebanon Town
9 Hall, which is Exhibit 2, and gives a 15-minute monologue of the
10 things that he saw and the things that he did. He says things
11 like, "Trump is leading an army of lions through lawfare. If
12 the republic was going to die that day, I was going to be there
13 to see it." Those are the things he's saying after January 6.
14 He then provides the interview to the Rochester Voice. And
15 the reason the government included the photo that is seen in
16 Exhibit -- just a moment, Your Honor -- 10, is, one, it provides
17 context. That's what the Capitol looked like that day. That's
18 what the defendant saw when he decided that he was going to
19 assault police officers. And most importantly, that was
20 provided by the defendant to the Rochester Voice, because in the
21 days after January 6 the defendant still didn't think he had
22 done anything wrong.
23 In fact, he wanted to tell the world about it. He is still
24 trying to tell the world about it. In those jail calls, the
25 government has somewhat -- some reservations about the way his
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1 mother handles, but if you want to characterize it as motherly
2 advice, that's fine. The government is more troubled by what it
3 is that the defendant said. A groundswell of support. He's now
4 famous because he's all over the news. Again, quotes like, "I'm
5 going to write letters. I've got Susan Collins's ear. Show me
6 the man, I'll show you the crime. I need to get bailed out and
7 rally the troops, use momentum, segue into my own little power
8 base." Those are direct quotes. That is the defendant not only
9 after January 6, after he has been arrested and charged.
10 If the defendant in this moment does not know the enormity
11 of the consequences he is facing, then when will he? And
12 despite that, he is still saying things to suggest that he is
13 politically motivated to continue the movement. To the
14 government, that strikes as somebody who will not be willing to
15 comply with conditions of release and is just going to continue
16 the way he was acting beforehand after.
17 Now just a couple of points of clarification, Your Honor.
18 The government cites the Sabol opinion not for the proposition
19 that the facts are analogous, although the beginning facts are,
20 but for some of the quotes within, to include Judge Moss's
21 exposition on January 6 writ large.
22 In Munchel, which again the defense referenced, there's a
23 quote in the Munchel opinion that says those who actually
24 assaulted police officers are in a different category of
25 dangerousness than those who cheered on the violence or entered
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1 the Capitol after others cleared the way.
2 To be absolutely clear, the defendant is in the category of
3 people who actually assaulted police officers, multiple police
4 officers. He is not somebody casually there. He is not
5 somebody just cheering on the violence. And he is not somebody,
6 as the defense suggested, who is sort of happening upon the
7 lower west terrace. There are throngs of people behind the
8 defendant, thousands of people. The defendant had to make his
9 way all the way up there and witness the incredible violence
10 that was happening. That did not stop him.
11 And that's because, Your Honor -- the government doesn't
12 believe there is a condition or combination of conditions that
13 can stop the defendant, because the defendant is in the same
14 place he was on January 6th.
15 And then finally, I don't know the facts of all of the
16 cases that the defense cited. I am somewhat familiar with Cua,
17 and I would distinguish Cua quite a bit. Cua, although inside
18 the building, it is my understanding that he is charged with
19 shoving an officer as he attempted to enter the Senate gallery
20 door. Albeit still an assault, a much less violent assault in a
21 much less violent portion of the Capitol on January 6, because
22 again, Your Honor, context matters. The defendant goes to the
23 most violent place of the Capitol and decides that he is going
24 to participate. And you can see in that video, he is a rallying
25 cry for others around him. There are crutches, pepper spray,
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1 bear spray, at certain points ladders, riot shields. The
2 defendant is at the very front of that line.
3 The defendant doesn't need to say things like follow me or
4 be an organizer. He is leading by his actions. Others are
5 watching him and then joining in, and that's what made it so
6 dangerous. When other people are at the front of the line
7 assaulting officers, everybody behind them then jumps in, and
8 that is why that was so tremendously dangerous that day. Those
9 officers were literally fighting for their lives because of
10 defendants like Mr. Fitzsimons.
11 Your Honor, it's for those reasons that the government asks
12 that the defendant continue to be held until trial. Thank you.
14 Ms. Taylor-Smith, because it was your motion, I will give
15 you the last word.
16 MS. TAYLOR-SMITH: Thank you, Your Honor. Your Honor,
17 I just have four very quick points.
18 THE COURT: Sure.
19 MS. TAYLOR-SMITH: My first point is that my assertion
20 in saying what Mr. Fitzsimons did when he arrived in D.C. was
21 not that he was only here as a sighseer. I wasn't asserting
22 that.
23 THE COURT: I understand.
24 MS. TAYLOR-SMITH: Okay. So I will move on from that.
25 Secondly, Your Honor, the idea that my client might still
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1 be politically motivated, the Court could order him as a
2 condition of release to refrain from using -- well, he doesn't
3 use social media, but from, you know, calling legislators,
4 local, federal, state, and writing letters to them in reference
5 to both his case and, you know, the incident that occurred on
6 January the 6th, because that's really what he's talking about
7 on these phone calls. Right? He's talking about how he can
8 find a way to help himself, the groundswell of support, you
9 know, the people like the Congress people who show up at the CTF
10 and attempt to get inside.
11 But that's the echo chamber that the government has placed
12 him in. He's only getting that side of the news. And so I ask
13 that the Court remove him from that echo chamber so that he can
14 see what's going on with the rest of the world.
15 THE COURT: Sure. I'm not concerned with letter
16 writing or telephone calls or anything of that nature unless
17 they're intimidating. I'm more concerned with him cornering
18 someone in a parking lot, as the article -- granted, it is a
19 statement post-January 6, but it is a concerning statement.
20 That's what I'm more concerned about.
21 There's lots of people under threat, you know, vote
22 counters and election officials in various states, and there's
23 lots of demonstrations. The threat is not over. The fences are
24 literally going up around the Capitol as we sit here today. So
25 the threat is not over. That's what I'm more concerned about.
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1 The government overplays a lot of the jail calls and the
2 like. I don't care if he fund-raises. That's his prerogative.
3 I'm more concerned that he repeat what he did on January 6.
4 And I understand your point that January 6 is a very unique
5 context. Let's hope that it is. It's still -- given that the
6 fences are going up as we speak, it's still unclear how unique
7 it is. Hopefully, it is unique, but it's still unclear whether
8 that's in fact the case.
9 So that will be the focus of my entire thinking.
10 MS. TAYLOR-SMITH: Just so the Court is clear, like I
11 said, even the Monday morning quarterbacking with the state
12 legislator, it's not as if this woman was shopping at a
13 supermarket and Mr. Fitzsimons cornered her there. His local
14 elected officials have monthly town halls, and he was attending
15 one of her monthly town halls. And now, after she's hearing
16 that he's at January 6, she has decided that that was a very
17 aggressive and assertive way to get his point across. But she
18 didn't call law enforcement at the time. She didn't call
19 anybody. She didn't tell anybody about it. She didn't put his
20 picture up at the office. She didn't prevent him from attending
21 any future town halls. She said odd bird, go away, I heard you,
22 and then she continued about her responsibilities and her
23 duties.
24 And that just goes to show that although he is charged with
25 what he's charged with for January the 6th, he has not
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1 demonstrated himself to be this kind of, you know, individual
2 who came to Washington with weapons and zip ties and duct tape
3 and flak jackets and, you know, other items to show that he was
4 here to commit violence. And that's what I would ask the Court
5 to take into consideration.
7 All right. I will take the motion under advisement. I
8 want to review all of the evidence, only part of which has been
9 presented to me, and I want to look very closely at the
10 comparators.
11 I've only had to have made this decision once before. All
12 my other defendants are on release. But that was a more clear-
13 cut case in which the defendant had sprayed an officer with bear
14 spray, and every case I looked at of a defendant in that
15 situation the defendant had been detained, which is what I did.
16 This is a closer case, you know. Part of the problem we
17 have is that we have a multitude of prosecutors making
18 decisions. We have a multitude of magistrate judges making
19 decisions. So there is a gradation of decisions across the
20 board, and it's hard to draw any firm rules other than the bear
21 spray.
22 So I will have to study some of these cases and comparators
23 and kind of figure out how best to proceed, and I will do that,
24 obviously, as quickly as practical.
25 All right. Putting that motion aside, what's the next step
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1 for the substance of the case?
2 MR. REGAN: So Your Honor, I think at the last hearing
3 we had discussed potentially setting a trial date. However, we
4 were waiting until this happened. I don't know if the defense
5 is ready to set a trial date. I think that may be influenced by
6 the Court's decision on the motion here today.
7 So I would suggest to the Court that until the Court makes
8 a decision we just set a status hearing out, and then based on
9 that decision, we can set a trial date.
10 THE COURT: Okay.
11 MS. TAYLOR-SMITH: Your Honor, I'm fine with that
12 suggestion.
13 THE COURT: Okay. So my schedule is still wide open
14 essentially for December and possibly January as well. So I
15 think putting off the decision now as to a trial date will not
16 negatively impact scheduling it. Now, there's -- we are still
17 under COVID protocols as far as space and only three trials
18 going forward at any one time. So we may face that problem,
19 aside from my personal availability.
20 But let's come back in 30 days, and then hopefully we can
21 set a trial date then.
22 COURTROOM DEPUTY: By Zoom or in person?
23 THE COURT: By Zoom.
24 MS. TAYLOR-SMITH: Your Honor, is that going to be an
25 in-person hearing or virtual?
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1 THE COURT: My preference is Zoom, if that's the
2 preference of the parties. My practice has been if folks demand
3 in person I consent to that. So it's kind of up to the
4 defendant.
5 MS. TAYLOR-SMITH: He would like it to be via video,
6 if at all possible. I guess there's some consequences as a
7 result of him having left the prison today.
8 THE COURT: No, that's understandable. He's not alone
9 in that position. So if we can do it by Zoom, that is my
10 preference as well.
11 MS. TAYLOR-SMITH: Thank you.
12 COURTROOM DEPUTY: Is everyone available on the 20th
13 of October at 12:30?
14 MS. TAYLOR-SMITH: Yes.
15 COURTROOM DEPUTY: It looks to be available right now,
16 but I can't tell because I don't have access to all of the
17 calendars. So 12:30 looks to be available on October 20th.
18 MS. TAYLOR-SMITH: Ms. Johnson, just so that you are
19 aware, the only bad day for me that week is the 18th.
20 Otherwise, I will make myself available.
21 COURTROOM DEPUTY: Okay.
22 THE COURT: All right. So that's October 20th at
23 12:30.
24 And the motion is still pending. So the time under the Act
25 is still tolled. But I hope to rule before October 20th. So
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1 what do the parties want to do with respect to the speedy trial
2 from whatever point in time I rule to October 20th?
3 MS. TAYLOR-SMITH: Your Honor, I will agree to waive
4 the time between your ruling and the 20th of October.
5 THE COURT: All right. So in the interest of justice
6 and with the consent of the parties, I will toll the Act between
7 any gap in the period between which I rule on the pending
8 motion, which is currently tolling the time, and the next status
9 hearing that is now set for October 20th at 12:30.
10 Anything else we need to resolve today?
11 MR. REGAN: Your Honor, does the Court request any
12 additional briefing based upon the cases cited by the defense
13 today?
14 THE COURT: No, I don't think so. I just want to look
15 at the evidence. I think the easiest thing to do would be to
16 put all the exhibits on a single disk and then hand-deliver that
17 to the Court. What you recently hand-delivered had like four of
18 the exhibits on it, and I think, just for completeness, it makes
19 sense to have them all in one place.
21 MS. TAYLOR-SMITH: Would the Court also like me to
22 provide you with the slowed-down version? I assume the Court
23 has the ability to slow it down, but I never assume anything.
24 THE COURT: I assume I have that ability, but I have
25 never done it myself, and the body-worn camera is a unique
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1 program that --
2 MS. TAYLOR-SMITH: I'm happy to provide it to the
3 Court. You have a young law clerk who might be able to assist.
4 THE COURT: If it's not too much effort on your part,
5 go ahead and submit it. That might save me a little bit of time
6 and frustration.
7 All right. Anything else we need to resolve today?
8 MR. REGAN: No, thank you, Your Honor.
9 MS. TAYLOR-SMITH: Nothing for the defense.
10 THE COURT: Thank you. You're excused.
11 (Proceedings adjourned at 12:47 p.m.)
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1 CERTIFICATE OF OFFICIAL COURT REPORTER
3 I, Sara A. Wick, certify that the foregoing is a
4 correct transcript from the record of proceedings in the
5 above-entitled matter.
9 Sara A. Wick October 23, 2021
10 SIGNATURE OF COURT REPORTER DATE
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:
v. : Case No.: 21-cr-158
:
KYLE FITZSIMONS, : Re Document No.: 34
:
Defendant. :
ORDER
DENYING DEFENDANT’S MOTION TO REVOKE DETENTION ORDER
For the reasons stated in the Court’s memorandum opinion separately and
contemporaneously issued, the Defendant’s motion to revoke the detention order and for pretrial
release (ECF No. 34) is DENIED. It is hereby:
ORDERED that Defendant shall be detained pending trial.
SO ORDERED.
Dated: September 24, 2021 RUDOLPH CONTRERAS

United States District Judge
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:
v. : Case No.: 21-cr-158
:
KYLE FITZSIMONS, : Re Document No.: 34
:
Defendant. :
MEMORANDUM OPINION
DENYING DEFENDANT’S MOTION TO REVOKE DETENTION ORDER

AND FOR PRETRIAL RELEASE
I. INTRODUCTION
Defendant Kyle Fitzsimons was among the hundreds of people who stormed the Capitol
to stop Congress from certifying the results of the 2020 presidential election. Video footage
from that day shows him grabbing, pulling, and charging at a line of officers in the tunnel at the
Lower West Terrace. He was arrested at his home in Maine on February 4, 2021 and charged
with a 10-count indictment on February 26, 2021. Following a pretrial detention hearing before
Magistrate Judge G. Michael Harvey of the District Court for the District of Columbia,
Fitzsimons was ordered detained pending trial. Fitzsimons now asks the Court to revoke that
detention order and release him. Def.’s Mot. to Revoke Detention Order (“Def. Mot.”), ECF No.
34. For the reasons below, the Court will deny the motion.
II. BACKGROUND 1
Fitzsimons has a long history of strongly held political beliefs leading up to January 6,
2021. In years prior, he made inflammatory remarks at a local public hearing in 2017 and
1
This background is drawn from the government's charging instruments, the record
before Magistrate Judge Harvey, the parties’ briefing, and the exhibits tendered to the Court in
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confronted a state representative in a grocery store parking lot in 2019. Gov’t Ex. 14; Gov’t Ex.
15. Over the course of 2020 he made multiple irate calls to his Congressional representative’s
office referencing civil war and election fraud, Gov’t Opp’n Def. Mot. to Revoke Detention
Order at 10 (“Gov’t Opp’n”), ECF No. 35. Although he attempted to reach out to other
individuals in his community, Fitzsimons traveled to Washington D.C. alone to attend the “Save
America” march on January 6. See Gov’t Ex. 12 (social media post offering to give rides or lead
a caravan); Gov’t Ex. 2, at 39:02–39:15 (audio of defendant recounting his efforts and travel).
After watching the speeches at the Ellipse, Fitzsimons returned to his car in a nearby
parking garage and put on a white butcher coat. Gov’t Ex. 2, at 40:21–41:03; see also Ex. 9
(photo of Fitzsimons in that outfit). As he approached the Capitol, a large crowd had already
gathered, and Fitzsimons could observe individuals scaling the walls of the Capitol. See Gov’t
Ex. 2, at 41:47–42:02 (audio of the defendant recounting to a local board of supervisors that he
could see people “climbing on top of the building” from “very far away”); Gov’t Ex. 10 (photo
of the crowd taken by Fitzsimons). He told local news that as he approached, an individual who
had been shot was being evacuated in the other direction. Gov’t Ex. 9, at 4. He nevertheless
worked his way to the tunnel entrance on the Lower West Terrace, where a line of law
enforcement officers in riot gear were trying to prevent rioters from entering the Capitol. See
generally Gov’t Exs. 7, 7A, 7B (video footage of Fitzsimons in the tunnel).
Once there, surveillance footage and body-worn camera footage show Fitzsimons
engaging in a series of violent actions. After reaching the front of the tunnel, the recordings
show Fitzsimons reaching out and attempting to grab at the officers, despite pepper spray being
support of each party’s motion. It does not represent the Court's findings of fact on the merits of
the case.
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deployed nearby. Gov’t Ex. 7A, at 00:10–00:14; Gov’t Ex. 7B, at 07:48–07:54. Instead of
retreating, the video shows Fitzsimons reaching down to grab an officer who had fallen. Gov’t
Ex. 7B, at 08:06–08:30; Gov’t Ex. 7, at 00:36–01:01. The officer, later identified as Sergeant
A.G., sustained a shoulder injury from the incident. Gov’t Opp’n at 7. The government proffers
that Fitzsimons attempted to drag Sergeant A.G. into the crowd and did not loosen his grip until
after being struck several times with a police baton. Id. Even after having been seriously
injured, Fitzsimons can again be seen charging into the tunnel and grabbing at the officers.
Gov’t Ex. 7B, at 09:07–09:14; Gov’t Ex. 7, at 01:34–01:42. Finally, the video shows Fitzsimons
visibly steeling himself and charging headlong into the tunnel, flailing his arms and striking
officers before eventually exiting back into the crowd. Gov’t Ex. 7B, at 09:14–09:23; Gov’t Ex.
7A, at 01:39–01:49; Gov’t Ex. 7, at 01:42–01:51. During that melee, Fitzsimons purportedly
pulled the mask off of an officer, Detective P.N., causing Detective P.N. to be pepper sprayed by
another rioter. Gov’t Opp’n at 7.
After leaving the Lower West Terrace, Fitzsimons sought and received medical treatment
for his injuries before returning home to Lebanon, Maine. Gov’t Ex. 9. Following his return, he
was vocal about his participation in the events of January 6th, including calling into a local town
hall meeting, see Gov’t Ex. 2, and giving a statement to a newspaper, see Gov’t Ex. 9.
Fitzsimons was arrested on February 4th, 2021. See Arrest Warrant Returned Executed on
2/4/2021 in Lebanon, Maine, ECF No. 8. The Government charged Fitzsimons with: 2 counts of
Obstruction of Law Enforcement During Civil Disorder (18 U.S.C. § 231(a)(3)), Obstruction of
an Official Proceeding and Aiding and Abetting, (18 U.S.C. § 1512(c)(2), 2 Counts of Inflicting
Bodily Injury on Certain Officers (18 U.S.C. § 111(a)(1), and (b)), Entering or Remaining in a
Restricted Building or Grounds (18 U.S.C. § 1752(a)(1)), Disorderly and Disruptive Conduct in
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a Restricted Building or Grounds (18 U.S.C. § 1752(a)(2), Engaging in Physical Violence in a
Restricted Building or Grounds (18 U.S.C. § 1752(a)(4)), Disorderly Conduct in a Capitol
Building (40 U.S.C. § 5104(e)(2)(D)), Act of Physical Violence in the Capitol Grounds or
Buildings (40 U.S.C. § 5104(e)(2)(F)). See Indictment as to Kyle Fitzsimons, ECF No. 5.
Fitzsimons declined a pretrial detention hearing in Maine and was transported to the
District of Columbia pending trial. Tr. of Proceedings before Magistrate Judge G. Michael
Harvey held on 04/07/2021 (“4/7/21 Tr.”) at 10:13–25, ECF No. 20; Def. Mot. at 1–2. He
eventually appeared before Magistrate Judge Harvey on April 6 and 7, 2021 for a detention
hearing. See generally Tr. of Proceedings before Magistrate Judge G. Michael Harvey held on
04/06/2021 (“4/6/21 Tr.”), ECF No. 19; 4/7/21 Tr. In a thoughtful opinion, Magistrate Judge
Harvey denied Fitzsimons’s request for release and ordered him detained pending trial. 4/7/21
Tr. at 12:7–25:20; Order of Detention Pending Trial, ECF No. 36. After reviewing the evidence
and the parties’ briefing, the Court determines that Fitzsimons’s release poses a threat to public
safety and denies the motion to revoke that detention order.
III. LEGAL STANDARD
When a magistrate judge detains a person pending trial, “the person 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). The D.C. Circuit has “not squarely decided” what the standard of
review should be for such proceedings. See United States v. Munchel, 991 F.3d 1273, 1280
(D.C. Cir. 2021). But every circuit to address the issue has held that a district court’s review of a
magistrate’s detention order is de novo. See United States v. Chrestman, --- F. Supp. 3d ----,
2021 WL 765662, at *5 & n.5 (D.D.C. 2021) (collecting cases). Neither party argues otherwise.
Accordingly, the Court will review the detention order de novo.
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IV. ANALYSIS
The Bail Reform Act permits the detention of a defendant awaiting trial only in “carefully
defined circumstances.” United States v. Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987). For a
defendant to qualify for pretrial detention, his case must “involve[]” an offense that falls into one
of five enumerated categories, 18 U.S.C. § 3142(f)(1), or pose a serious risk of flight or of trying
to obstruct justice 2 or threaten, injure, or intimidate a witness or juror, id. § 3142(f)(2)(A)–(B).
The court “shall order the detention” of a qualifying defendant if it “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 other words, the court
must ask “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).
Fitzsimons is eligible for pretrial detention. One kind of offense that qualifies a
defendant for pretrial detention is a crime of violence. 18 U.S.C. § 3142(f)(1)(A). A crime of
violence includes “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.” Id. § 3156(a)(4)(A).
Among other offenses, Fitzsimons is charged with assaulting, resisting, or impeding federal
officers resulting in bodily injury in violation of 18 U.S.C. § 111(b). See Indictment as to Kyle
Fitzsimons at 3 (Counts 4 and 5). Because that offense is “categorically a crime of violence,”
Fitzsimons is eligible for pretrial detention. See United States v. Quaglin, 851 F. App’x 218
2
Fitzsimons’s motion argues that he should not be considered eligible for detention based
on 18 U.S.C. § 3142(f)(2)(B), relating to obstruction of justice, merely because he is charged
with obstruction of an official proceeding. Def.’s Mot. at 6. Section 3142(f)(2)(B) was not
relied on in Magistrate Judge Harvey’s detention order, and the Government does not ask the
Court to consider it now. Order of Detention at 1.
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(D.C. Cir. 2021); see also United States v. Klein, --- F. Supp. 3d ----, 2021 WL 1377128, at *5–7
(D.D.C. 2021).
The more difficult question is whether the Bail Reform Act demands Fitzsimons’s
detention due to his risk of flight or dangerousness. See 18 U.S.C. § 3142(e)(1) (requiring
detention where “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”).
The Government argues both that Fitzsimons is a flight risk and a danger to the community.
Gov’t Opp’n at 11, 17. A finding of flight risk must be supported by a preponderance of
evidence, but a finding of dangerousness must be supported by clear and convincing evidence.
Simpkins, 826 F.2d at 96. Although danger to the community alone can justify pretrial detention,
a defendant should only be detained on this basis if his “history, characteristics, and alleged
criminal conduct make clear that he . . . poses a concrete, prospective threat to public safety” and
the court is satisfied that “no condition or combination of conditions will reasonably assure the
safety of any other person and the community.” Munchel, 991 F.3d at 1280 (quoting 18 U.S.C.
§ 3142(f)).
Assessing whether the Government has made either showing requires consideration of
four factors: (1) “the nature and circumstances of the offense charged,” (2) “the weight of the
evidence against the person,” (3) “the history and characteristics of the person,” and (4) “the
person’s release.” 18 U.S.C. § 3142(g)(1). The Court will address each in turn.
A. Nature and Circumstances of Fitzsimons’s Charged Offenses
While not all the rioters who stormed the Capitol on January 6 should be or have been
detained pending trial, “those who actually assaulted police officers . . . are in a different
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category of dangerousness than those who cheered on the violence or entered the Capitol after
others cleared the way.” Munchel, 991 F.3d at 1284. Fitzsimons, who is charged with
attempting to violently break through police lines and causing actual injury to two federal
officers, see Indictment at 2–3, is in the former category.
Chief Judge Howell’s six considerations for assessing the relative severity of a Capitol
rioter’s conduct provide a helpful framework for the Court’s analysis. See Chrestman, 2021 WL
765662, at *7–9. Those considerations include whether a defendant: (1) “has been charged with
felony or misdemeanor offenses,” (2) “engaged in prior planning before arriving at the Capitol,”
(3) carried or used a dangerous weapon during the riot, (4) “coordinat[ed] with other participants
before, during, or after the riot,” or (5) “assumed either a formal or a de facto leadership role in
the assault by encouraging other rioters’ misconduct,” and (6) the nature of the “defendant's
words and movements during the riot,” including whether he “threatened or confronted federal
officials or law enforcement.” Id. at *7–8. Balancing those considerations, the Court concludes
that the seriousness of Fitzsimons’s offenses favors detention.
First, Fitzsimons is charged with multiple felonies. See generally Indictment. Felonies
“are by definition more serious than misdemeanor[s],” so “the nature of a felony offense is . . .
substantially more likely to weigh in favor of pretrial detention than the nature of a misdemeanor
offense.” Chrestman, 2021 WL 765662, at *7. In particular, Counts 3, 4, and 5 each carry a
maximum sentence of 20 years in prison. See Indictment at 2–3; 18 U.S.C. § 1512(c)(2); 18
U.S.C. § 111(a)(1) and (b). And Counts 4 and 5—assaulting, resisting, or impeding federal
officers resulting in bodily injury—are crimes of violence, which the Bail Reform Act
specifically instructs courts to account for when evaluating the nature of an offense. See 18
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U.S.C. § 3142(g)(1). The gravity of Fitzsimons’s charged felonies thus weighs in favor of
pretrial detention.
The second Chrestman factor, prior planning, weighs in favor of Fitzsimons’s release.
See Chrestman, 2021 WL 765662, at *8. Although Fitzsimons put out a call on social media for
“able bodies” to attend the rally, he ultimately traveled alone and maintains that he planned only
to engage in a peaceful demonstration, as is certainly his right. Def. Mot. at 10–11; Gov’t Ex. 9
(describing his peaceful intentions to the press). The Government does not proffer that he
brought any weapons or special tactical gear, and he carried only an unstrung bow that was
purportedly symbolic in nature and does not appear to have been used as a weapon. Gov’t Ex. 2,
at 40:32–41:32 (describing his “costume” consisting of an “unstrung bow” that he was using as a
“staff”). These facts indicate that Fitzsimons may have been “caught up in the frenzy of the
crowd” rather than having planned in advance to engage in violence. Chrestman, 2021 WL
765662, at *8. Closely related, Fitzsimons does not appear to have used a weapon in attempting
to breach the line of officers at the capital as described under Chrestman’s third factor. Id. Even
the unstrung bow that he purportedly carried to the Capitol is not evident in the video footage.
See, e.g., Gov’t Ex. 7B, at 07:35–09:26.
The fourth and fifth Chrestman factors address whether the defendant coordinated “with
other participants before, during, or after the riot” and whether they “assumed either a formal or
a de facto leadership role in the assault by encouraging other rioters’ misconduct.” Chrestman,
2021 WL 765662, at *8. As discussed above, it does not appear that Fitzsimons engaged in any
meaningful coordination in advance of the riot. At oral argument, the Government urged the
Court to consider Fitzsimons’s actions in the tunnel both as coordination with other rioters and as
evidence of a de facto leadership role, essentially arguing that Fitzsimons led by example.
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There is some evidence of coordination in the video footage where Fitzsimons engages in
the same actions as other rioters, such as grabbing and attempting to pull officers into the crowd
and rushing into the line of officers while flailing his arms. Gov’t Ex. 7B, at 07:35–09:26. He is
also charged with pulling off Detective P.N.’s mask and allowing another rioter to pepper spray
Detective P.N. Indictment at 3 (Count 5); Gov’t Opp’n at 7. But such “ad hoc, spur-of-the-
moment collaboration—while troubling—does not generate nearly the same kind of coordination
concerns as other cases.” See Klein, 2021 WL 1377128, at *8 (citing contrasting cases in which
defendants “arrang[ed] concealed means of communicating by radio” or led “co-conspirators in
deliberate efforts to prevent Capitol Police from closing . . . barriers” (citations omitted)).
The issue of whether his actions amounted to a de facto leadership role that
“encourage[ed] other rioters’ misconduct” is close. Chrestman, 2021 WL 765662, at *8. On one
hand, Fitzsimons was only engaged in the violent actions for a matter of minutes. See Klein,
2021 WL 1377128, at *8 (finding that the defendant had not assumed a leadership role despite
being present in the tunnel for around thirty minutes). But Fitzsimons’s actions during those few
minutes were arguably more concerning than the actions at issue in Klein, in which the defendant
did not demonstrate any intent to injure officers. Id. Here, Fitzsimons did in fact “attempt[] to
battle or fight the officers with his bare hands,” see id. (internal quotations removed). The video
footage shows Fitzsimons, even after having been beaten with a police baton, pause and gather
his force before charging at the officers. Gov’t Ex. 7, at 01:40–01:50; Gov’t Ex. 7B, at 09:14–
09:23. This kind of intentional action could have set an example for his fellow rioters—but any
such example was also likely a drop in the bucket in the context of that afternoon. The Court is
ultimately unpersuaded that it rises to the level of de facto leadership.
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Sixth and finally, Fitzsimons’s “words and movements during the riot reflect the
egregiousness of his conduct.” Chrestman, 2021 WL 765662, at *8. The Government does not
proffer any particular statement that Fitzsimons made during the riot, but his movements that are
captured on video are deeply concerning. He was one of the rioters “who injured, attempted to
injure, or threatened to injure others,” not one who “merely wandered” the Capitol grounds. See
id. at *8. He worked his way to the front lines of the conflict with law enforcement officers and
used his body to forcefully attack and attempt to injure officers. See Quaglin, 851 F. App’x at
219 (finding it significant that the defendant was “on the front line of a group of individuals
attempting to violently force their way inside the Capitol by physically overcoming a defensive
line of police officers”); United States v. Ballard, 21-cr-00553 at *8, ECF. No. 15 (D.D.C. Aug.
20, 2021) (determining that a defendant’s conduct was egregious “by virtue of having physically
assaulted police officers in attempting to overwhelm a police line and gain entry to the Capitol
building”). In fact, two officers did sustain injuries as a result of those actions, as reflected in the
charges against Fitzsimons. See Indictment at 2–3 (Counts 4 and 5).
In sum, Fitzsimons’s behavior during the riot “reflect[s] a contempt for the rule of law
and law enforcement, a disturbing disregard for the safety of others, and a willingness to engage
in violence.” See United States v. Gieswein, 21-cr-24, 2021 WL 3168148, at *11 (D.D.C. July
27, 2021); see also Klein, 2021 WL 1377128, at *9. The seriousness of his conduct weighs in
favor of detaining him pending trial.
B. The Weight of the Evidence Against Fitzsimons
The weight of the evidence against Fitzsimons also strongly favors detention. Multiple
videos and photographs from security cameras, body-worn cameras, and news footage,
corroborate the Government’s account of events that day. See, e.g., Gov’t Ex. 7, at 01:35–01:51
(Page 267 of Total)

264
(security camera footage showing Fitzsimons charging at officers in the tunnel of the Lower
West Terrace); Gov’t Ex. 7A, at 01:35–01:44 (body-worn camera video depicting the same);
Gov’t Ex. 7B, at 07:35–9:26 (same).
There is little disputing that Fitzsimons is the person depicted in the videos and photos.
He self-reported to have been wearing the distinctive white butcher’s coat that can be seen on the
video footage, which was even embroidered with his name. Gov’t Ex. 5; Gov’t Ex. 9; cf.
Gieswein, 2021 WL 3168148, at *12 (noting that a rioter’s “distinctive outfit” helped to identify
him in video and photographic evidence). And in the days following the Capitol riot, Fitzsimons
himself publicly shared his account of that day, which despite characterizing events differently
than the Government, still places him both at the Capitol and at the front lines of the attack. See
Gov’t Ex. 2, at 44:51–45:14 (describing how he twice “cycled through” being “pushed to the
front” to “receive a beating”); Gov’t Ex. 9 at 4 (quoting Fitzsimons in a local paper as saying “I
was pressed into the front two times”). He was identified by three separate tips from concerned
citizens who had interacted with him on multiple occasions. Crim. Compl. at 7–9, ECF No. 1.
The evidence against Fitzsimons is overwhelming and thus weighs in favor of detention.
Nevertheless, it “is the least important” detention factor. See Klein, 2021 WL 1377128, at *10
(quoting United States v. Gebro, 948 F.2d 1118, 1121–22 (9th Cir. 1991)).
C. Fitzsimons’s Personal History and Characteristics
When evaluating a defendant’s personal history and characteristics, a court should take
into account the defendant’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). Some of these factors clearly weigh in favor of
(Page 268 of Total)

265
release. Fitzsimons has no purported history of substance abuse and has only a minor criminal
record involving “one misdemeanor conviction for driving under the influence,” Def. Mot. at 13,
and a conviction for “operating an unregistered motor vehicle,” Gov’t Opp’n at 15. Those
relatively minor offenses from several years ago have little relationship or relevance to the
conduct here. See Munchel, 991 F.3d at 1275, 1282 (noting that two misdemeanor marijuana
possession convictions were “limited criminal history” that favored release).
The Government’s contention that Fitzsimons presents a flight risk is premised primarily 3
on this factor, specifically, his limited familial support network and lack of employment. Gov’t
Opp’n at 15. Prior to his detention, Fitzsimons lived in Maine with his wife of three years and
young daughter but appears to have lost the support of that nuclear family in no small part due to
his political radicalization. Id.; see also 4/7/21 Tr., at 24: 11–14 (noting that Fitzsimons’s
potential “lack of community ties” with his wife “is yet another example of where your beliefs
have led and the damage they have done”). While he does have the strong support of his mother,
who has agreed to take him into her home in Florida, Def. Mot. at 12, he does not appear to have
any support system in Florida other than his mother. Although his mother has offered to help
Fitzsimons find employment, Def. Mot. at 12, he does not have any guaranteed employment in
Florida and appears to have had at least unsteady employment prior to his arrest, Gov’t Opp’n at
15 (proffering the mention of his “unemployment” in the Pretrial Services report).
3
The government also proffers the Pretrial Services report from February recommending
against release in part because Fitzsimons had refused to be interviewed by Pretrial Services.
Gov’t Opp’n at 15. As the transcript from Magistrate Judge Harvey’s decision demonstrates,
Fitzsimons refused to be interviewed in part on the advice of counsel to allow some time to pass
and to seek his detention hearing here in D.C. 4/7/21 Tr. at 10:22–11:22; see also Def. Mot. at
1–2. The Court agrees with Magistrate Judge Harvey’s view that the refusal to speak with
Pretrial Services, especially on the advice of counsel, is not probative of flight risk. Id. 12:19–
22.
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However, there is also no indication whatsoever that Fitzsimons tried to evade arrest or
destroy relevant evidence. See United States v. Sabol, --- F. Supp. 3d ----, 2021 WL 1405945, at
*53–54 (D.D.C. 2021) (finding an “unquestionabl[e]” risk of flight where the defendant
attempted to destroy electronics and took concrete steps to try and flee the country). Quite to the
contrary, Fitzsimons’s public sharing of his story and photos from that day made him
comparatively easy to find. See generally, Crim. Compl. And he did not attempt to flee or even
relocate following January 6th, rather, he was arrested at his home in Maine. See Arrest Warrant
Returned Executed on 2/4/2021 in Lebanon, Maine. In total, this Court disagrees with the
Government that Fitzsimons presents a flight risk or would be unlikely to appear in court.
But danger to the community is an additional justification for pretrial detention, and other
considerations under this third factor are pertinent to that inquiry as well. The Court finds
particularly concerning some of Fitzsimons’s past conduct. It is undisputed that Fitzsimons has
strongly held political beliefs and has been civically active over several years, which is of course
protected First Amendment activity. But when viewed together and in light of Fitzsimons’s
eventual actions described above, his past conduct demonstrates a severe lack of judgment as to
identifying the line between political expression and threats.
For example, the first incident that the government proffers, in which Fitzsimons made
xenophobic comments at a public hearing in May 2017, was indeed offensive and
inflammatory—but did not escalate to threats or violence. See Gov’t Ex. 14 (news article
describing that hearing and noting that the law enforcement officer stationed in the hearing felt
“exposed” and “not terribly safe”). But in 2019, Fitzsimons reportedly followed a state
representative into a parking lot, parked his truck behind her car, and positioned himself by the
door of her car. Id. He angrily confronted her over a gun safety bill that she was co-sponsoring
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267
at the time and “speculated America was headed to civil war over gun rights.” Id. Again, the
incident did not escalate into violence but was described by the representative as “unsettling and
intimidating.” Gov’t Ex. 15. Over the course of 2020, Fitzsimons made multiple calls to his
Congressional representative’s office, saying among other things: “This is Kyle Fitzsimons, the
man who wants to start a war,” “we're coming for [the Congressperson],” and “Biden is a corrupt
skeleton and [] this is going to be Civil War.” Gov’t Opp’n at 10. His references in those calls
to the 2020 election show a clear connection between his threats of violence and his actions on
January 6th. Taken together, they demonstrate an escalating pattern of conduct that culminated in
Fitzsimons’s participation in the Capitol riot.
Also relevant here is Fitzsimons’s lack of remorse or even acknowledgment of
wrongdoing. “[A]lthough contrition is not a defense, it has some bearing on the character of the
defendant.” United States v. Cua, No. CR 21-107, 2021 WL 918255, at *4 (D.D.C. Mar. 10,
2021). After returning to Maine, Fitzsimons’s statements at the local government meeting and to
news sources attempt to cast his role as having been a victim, a characterization drastically at
odds with the video footage from that day and overtly conspiratorial in tone. See, e.g., Gov’t Ex.
2, at 44:43–45:12 (“If you got close enough… you would get sucked in. . . and you would get
pushed to the front . . . . I cycled through that wave of humanity twice before I was bloodied
enough to get off the steps . . . .”); id., at 46:03–46:14 (“I can tell you right now, as an American,
and as a thinking man, that it was a set up.”); Gov’t Ex. 9 at 2 (“Fitzsimons . . . almost died when
a police officer clubbed him over the head with a baton after a scrum of young men behind him
pushed him unwillingly forward into a police line.”); id. at 5 (“I'm not the one who is rebelling,
it’s the leadership of this country.”). And jail calls proffered by the government similarly
suggest that Fitzsimons’s conviction has not dampened since then. See Jail Call #1, at 06:14–
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268
06:20 (“I know this sounds pretty crazy, but it’s exactly what was asked of me.”). Such
statements suggest a troubling lack of remorse—or even awareness—about the severity of his
actions.
Fitzsimons’s personal history and characteristics suggest that while he is not a flight risk.
However, this factor weighs in favor of a finding that he is a danger to the community, and
therefore in favor of detention.
D. The Nature and Seriousness of the Danger Fitzsimons’s Release Poses
The final factor in assessing dangerousness also supports detention. Assessing the
“‘nature and seriousness of the danger . . . posed by the defendant’s release’ . . . ‘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.’” United States v. Cua, No. 21-cr-107,
2021 WL 918255, at *5 (D.D.C. Mar. 10, 2021) (first quoting 18 U.S.C. § 3142(g)(4); and then
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 safety of any other person and the community,’ it bears heavily on the
Court’s analysis.” Id. (quoting 18 U.S.C. § 3142(e)). The conduct involved in Fitzsimons’s
offense and his personal history demonstrate that his release would threaten the community.
Fitzsimons’s actions at the Capitol show that he is willing to use violence—even against
law enforcement—to achieve his political aims. He sought out conflict with law enforcement by
making his way to the front lines. Quaglin, 851 F. App’x at 219; United States v. Caldwell, No.
21-cr-181, 2021 WL 2036667, at *10 (D.D.C. May 21, 2021). And the Government has
provided robust evidence that his actions were intended to injure law enforcement officers and
did in fact injure two law enforcement officers that day. Such egregious conduct “reflect[s] the
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269
depth of [his] disregard for the safety of others, for our democratic institutions, and for the rule
of law.” See Chrestman, 2021 WL 765662, at *15.
And Fitzsimons’s prior conduct suggests that his actions that day were not an anomaly.
While his history of civic engagement is in some respects laudable, his actions leading up to and
at the Capitol riot suggest that his strong beliefs can and do get the better of him. Cf. Sabol,
2021 WL 1405945, at *17 (noting that the rioter “did not simply hold . . . misguided beliefs”
about “a tyrannical government that ‘stole’ a presidential election”; “he acted on them”). The
previous instances of threatening behavior toward government officials follow a clear pattern
increasing in severity over several years. Given his lack of remorse—and even pride—in his
actions that day, the Court lacks confidence that Fitzsimons has somehow broken this pattern,
and fears that the escalation of his behavior will continue and result in a graver act of violence
given that the trigger for his violent acts—the election of President Biden—will be present for, at
least, three more years. See Gov’t Ex. 11, at 00:34–00:43 (asking his Congressional
representative to object to the election results and saying “I certainly have the courage to object
to my entire life going forward if this is done to me”).
As Magistrate Judge Harvey aptly explained when reaching the initial detention decision
in this case:
[W]hat I see looking at the totality of the circumstances here is someone who is -- has
very passionately held beliefs, perhaps abnormally so. And what I mean by that is it
appears they can get the best of you. If you lose control, you can be violent. You're to
me like a bomb waiting to go off. It’s always difficult for a magistrate judge making that
sort of prediction, someone who might engage in violence if I were to release him. It's
made somewhat easier for me here because the bomb did go off . . . on January 6th . . . .
That's what that video shows; someone who’s willing to engage in violence to promote
his political beliefs. The First Amendment doesn’t protect that, sir.
4/7/21Tr. at 23:8–20. Even on de novo review, this Court agrees. When considering both
Fitzsimons’s history of confrontational and threatening conduct in furtherance of his political
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270
views and his actions on January 6th, he has demonstrated a disregard for the safety of others and
the rule of law. Accordingly, no combination of pretrial release conditions could reasonably
guarantee the safety of the community.
V. CONCLUSION
For the foregoing reasons, the Defendant’s Motion to Revoke the Detention Order (ECF
No. 34) is DENIED. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: September 24, 2021 RUDOLPH CONTRERAS

United States District Judge
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271
IN THE UNITED STATES DISTRICT COURT


:
:
v. : CRIMINAL NUMBER 21-158
:
:
KYLE FITZSIMONS :
NOTICE OF APPEAL
Notice is hereby given that the above-named Defendant hereby appeals to the United
States Court of Appeals for the District of Columbia from the Order entered on September 24,
2021, denying the Defendant’s Motion to Revoke Detention Order and for Pretrial Release.

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I, Natasha Taylor-Smith, Assistant Federal Defender, Federal Community Defender
Office for the Eastern District of Pennsylvania, Federal Court Division Defender Association of
Philadelphia, hereby certify that I caused a copy of the Notice of Appeal to be filed and served
electronically through the District of Columbia District Clerk's Office Electronic Case Filing
upon Brandon K. Regan, Assistant United States Attorney, United States Attorney’s Office, 555
4th St., NW, Washington, DC 20530.

DATE: October 7, 2021
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Firefox https://www.therochestervoice.com/west-lebanon-man-recounts-the-hope...
West Lebanon man recounts the hope, then terror he encountered on Jan. 6
Harrison Thorp 7:52 a.m.

Monday, January 11, 2021 10:31 am
A screenshot of a Right Side Broadcast Network shows a bloodied Kyle Fitzsimons descending from the west side of the Capitol after he was clubbed by police; inset a picture of
Fitzsimons taken earlier in the day.
WEST LEBANON, Maine - Kyle Fitzsimons of West Lebanon said he traveled to the "Stop the
Steal" protest in Washington on Wednesday, because if the Republic were going to die that day, "I
wanted to be there to witness it."
In fact, it was Fitzsimons who almost died when a police officer clubbed him over the head with a
baton after a scrum of young men behind him pushed him unwillingly forward into a police line that
had formed just outside the west front of the Capitol.
After he was struck and profusely bleeding from his head, he managed to edge toward the perimeter
of what he called a "horde of humanity" where several Good Samaritans helped him down the
Capitol steps to the street and an ambulance. He took six stitches at a local hospital to close a gash
on the crown of his head, he told The Rochester Voice on Friday.
Fitzsimons,
whose
forbears were
among those
who attended
the first
Continental
Congress of
1774, said he
felt
compelled to
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attend what
was supposed
to be a
peaceful
protest that
would serve
as a backdrop
to a process
in which it
was hoped a
Congressional
initiative
would
decertify the
Biden
electors and
replace them
with those
supportive of
President
Trump's re-
election.
Interestingly, The thousands who went to protest at the Capitol found themselves in tight spaces as they ascended from the
he said the west front. (Kyle Fitzsimons photo)
day went
south at almost the same time the objections were filed over state electors in Arizona, the first state
to be contested on Wednesday. The proceedings were quickly dissolved after the news of the Capitol
unrest.
But on this day that Fitzsimons ended up battered and bloodied on the Capitol steps, a morning series
of speeches from President Trump and others touting a peaceful path to voiding what half the
country saw as a corrupt election began peacefully and beautifully as well, he said.
A morning of hope and peace

Fitzsimons said he went to the rally where President Trump and others were to speak and was inspired by the
diverse array of humanity before him.
"I saw people of every faith, color and creed," he said. "There were tons of people who spoke that
were from Cuba, Vietnam and China that had fled communism. They were all begging attendees to
wake up and understand how corrupt things had become here.
"The speeches from the morning were overtly preaching the election was not over, there was a path
to victory through decertification, there was a plan to delay the certification by the House and Senate
and then state legislatures would convene and (certify) the right result," Fitzsimons noted.
He said former New York Mayor Rudy Giuliani broke down how Dominion voting machines
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software had stolen the election.
"All those who spoke were confident that good things were happening," Fitzsimons said. "We were
reminded that the media was failing their duties, that a lot of stories of election fraud were untold
and that this wasn't just about Trump but about taking away a man or women's vote.
They said, "If we let this happen, we will be ruled by technocrats," Fitzsimons recounted.
They (the speakers) also asserted the decertification of Biden electors could be done "legally and
peacefully."
After a hopeful morning, a hellish afternoon
Fitzsimons said as the rally at the Ellipse ended they were asked by President Trump to walk to the Capitol, about
1.8 miles away, to "give our Republicans, the weak ones ... the kind of pride and boldness that they need to take
back our country."
Fitzsimons, who works as a butcher, said before heading to the Capitol he went to his car at a local
parking garage and changed from regular clothes into his butcher whites. He said he carried an
unstrung bow as a sign of his peaceful intent.
But as he walked up Pennsylvania Avenue toward the Capitol he noticed from a great distance
something very bizarre: some people were already climbing on top of the building.
"I was thinking 'How'd they get there so quickly (from the rally) and get past security," he said. "I'd
been outside the Capitol on Tuesday, and it was heavily guarded."
He said
as the
crowd
reached
the
Capitol
he heard
people
singing
the
national
anthem,
chanting
"We the
People,"
taking
selfies
and
smoking
marijuana.
"I made my way toward the front and heard someone say, 'Get outta the way someone's been shot.'"
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He said
he
watched
as the
woman
who was
shot was
hustled
past him.
"Then the
tear gas
started,
and it
began
getting
hot,
violent,"
he said.
He said it
was
around
then that
Looking out from the west front of the Capitol at a huge throng of humanity and the Washington Monument. (Kyle
Fitzsimons photo)
he began
to notice
"an
enormous number of young men" surrounding him.
"I don't know if they were MAGA or Antifa," he said, "but it seemed there was a strong element that
was specifically agitated."
He noticed one of the group had a sledgehammer, he said.
He attempted to stay on the ramparts, but was soon caught up in a "scrum" of men surging its way to
the police line "that had an organizational level to it."
"The scrum was a barbarian horde, a crush, you couldn't breathe," he said. "It was such a push of
men and women. If you had gone under foot, if you fought, you would have gone down and not
come up.
"I was pressed into the front two times ... the only way out was to get hit by police or pepper sprayed.
Police in riot gear clubbed me. Then I was pulled out by people on the side."
Fitzsimons, who also told his story to the Lebanon Board of Selectmen on Thursday, said the Good
Samaritans were wonderful to him, helping him escape the violence and get to an ambulance out on
the street.
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Screen shot appears to show a man being pushed off a rampart at the Capitol building during Wednesday protest and melee, by
whom it's not clear. (RSBN screenshot)
He said he was taken to a DC hospital where he got six stitches on the crown of his head.
Looking back
Fitzsimons, who passionately loves his country, says he feels betrayed and used in a political
struggle. He just doesn't know which side played him.
What was he hoping for?
Reflecting back he expresses an almost whimsical notion.
"I was thinking it could go down like we would link hands around the Capitol and it would be like
Whoville," he said. "That was what I was hoping."
On the other hand he is angry that people were waltzing right into the Capitol.
"I had seen the Capitol defended a day earlier," he said. "Why were they so lax on Jan. 6?"
But he said mainstream media has it all wrong thinking they were there to wreak havoc on the
Capitol.
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"We are patriots, we are not gonna burn the house we own," he said. "This was not an insurrection; it
(the violence) was an attempt to hijack a peaceful protest by agents provocateur.
"I understand that rebellion gets you nowhere and not what God wants, but I'm not the one who is
rebelling, it's the leadership of this country. I was used. By whom? That's anyone's guess. In the end
the American patriot was made the sucker."
To watch the Right Side Broadcast Network video of Jan. 6 Capitol protest click here.
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Legislator says she had tense encounters in 2019 with Mainer charged i... https://bangordailynews.com/2021/02/11/politics/legislator-says-she-had...
Legislator says she had tense encounters

in 2019 with Mainer charged in DC riot
by Judy Harrison
February 11, 2021
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280 11/2/2021, 3:21 PM
Michele Meyer Credit: Courtesy ofMichele Meyer
A southern Maine legislator said she had two unnerving encounters in

2019 with Kyle Fitzsimons, the rst Mainer charged in connection with the
Jan. 6 U.S. Capitol riot. They show why an Augusta oce building where
legislative committees meet should have metal detectors and security
screening, as the neighboring State House does, she said.
Rep. Michele Meyer, an Eliot Democrat, said Fitzsimons followed her into
a Kittery parking lot in the spring of 2019, parked his truck behind her
vehicle so she could not exit and asked her how she planned to vote on a
gun safety bill.
About two weeks later, Fitzsimons called out to Meyer from across the
fourth-oor rotunda at the State House in Augusta.
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281 11/2/2021, 3:21 PM
She outlined those encounters in a Feb. 6 email to Maine Public Safety

Commissioner Michael Sauschuck, who is responsible for policing the
State House complex in Augusta. She shared a copy of the email with the
Bangor Daily News.
Meyer, who is the House chairperson of the Health and Human Services
Committee, said she “has been deeply concerned” about the lack of
security at the Cross Building given the dangers lawmakers now face
because of their work.
“The absence of any security left me, my colleagues, sta and the
thousands of Mainers who visit and participate in state government,
vulnerable and unsafe,” she said. “Multiple entry points and no metal
detectors or screening are an invitation for violence should someone have
such an intent.”
While Meyer recognized Fitzsimons, she said in the email that she did not
know his name until she saw news reports of his arrest last week.
“It frightens me that I had come

face to face with him in the
manner I did 2 years ago,” she
wrote.
During the encounter in the

Kittery parking lot, Meyer said, it
was clear Fitzsimons had
researched bills she had
cosponsored and votes she had
taken in the Maine House, where
she’s serving her second term. Kyle Fitzsimons of Lebanon, Maine, has been
charged in connection with the Jan. 6 riot at the
U.S. Capitol in Washington, D.C. He’s shown here
“He spoke of the Second in footage from a police body camera. Credit:
Amendment, made disparaging Courtesy of Federal court documents
remarks about the governor and
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speculated America was headed to civil war over gun rights,” Meyer wrote.
“He was mildly agitated and the situation was unsettling and intimidating.”
The lawmaker said she listened to Fitzsimons, who was not one of her
constituents, but did not respond, except to ask him to move his truck so
she could be on her way, which he did.
“I did not report this to the local police but in retrospect perhaps should
have,” Meyer wrote.
About two weeks later, Meyer saw Fitzsimons again. He called out to her
from across the fourth-oor rotunda at the State House, where he was
preparing to testify against the so-called “red ag” bill, she said. She did
not respond to him and continued on to her committee room.
The “red ag” bill would have allowed family members, police and others
to petition judges to take dangerous weapons away from people found to
be a danger to themselves and others. That bill was sponsored by then-
Sen. Rebecca Millett, D-Cape Elizabeth.
Fitzsimons attended a hearing on that bill before the Legislature’s

Judiciary Committee on April 22, 2019, according to committee records.
Fitzsimons lled out a one-page sheet of paper opposing the legislation.

He wrote: “Rebecca Millet’s (sic) travesty is unconstitutional and make a
bully out of ME.”
Millett’s bill failed but a more limited compromise supported by Gov.

Janet Mills and some guns rights groups passed. It allows police and
district attorneys to petition courts to take people’s guns if a mental
health professional determines they are dangerous.
Fitzsimons did not testify at a hearing on the compromise legislation.
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It was “jarring” to see Fitzsimons’ photo in media reports following his

arrest, Meyer said. The photo “triggered the recall” of a number of other
legislators, who remembered an angry Fitzsimons testifying “in a racist
rant” in front of the Education and Cultural Aairs Committee in 2018 on a
bill to fund a $390,000 job training and welcome center for immigrants in
Lewiston.
READ MORE
Read all of our coverage of the riot at the

Capitol
by Lindsay Putnam
During that hearing, Fitzsimons told lawmakers he had moved to Maine to

escape “multi-cultural hell holes” and that lawmakers were doing nothing
as immigrants moved to the region and were “killing o yankee New
England culture,” according to a press report from the time.
Meyer said that connecting the dots from Fitzsimons’ appearances in

Augusta to a Kittery parking lot to “the violent insurrection in Washington
DC on Jan. 6” wasn’t dicult.
“Hate and intolerance leave a trail,” she said. “Alarmingly, this trail has led
of late to seats of government nationwide, with legislators in the sites of
those radicalized and unhinged. Could it lead to ours? Of course it can.”
Because committee meetings are happening virtually this year due to the
coronavirus pandemic, Meyer said, now would be a good time to plan for
more security at the Cross Building.
Sauschuck said Thursday that he could not discuss specics around

security plans but took Meyer’s concerns seriously.
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He told Meyer in a reply email that she had raised “some valid points that
mirror our concerns and we’re looking at options, short and long term, to
better secure the state house complex for all those that visit and work in
the area on a daily basis. I would expect these conversations to continue
with the legislative council’s facilities committee.”
A federal judge on Thursday granted Fitzsimons’ request that his bail and
probable cause hearing be held in Washington, D.C.
Watch more:
More articles from the BDN
Bangor bans flavored tobacco products
Subpoenas could shed light on how Jan. 6 rally came together
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UNDER SEAL
GOVERNMENT EXHIBITS 2 AND 7

(ATTACHED SEPARATELY ON FLASH DRIVE)
286
(Page 289 of Total)
UNDER SEAL
GOVERNMENT EXHIBITS 2 AND 7

(ATTACHED SEPARATELY ON FLASH DRIVE)
(Page 290 of Total)

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USCA Case #21-3069 Document #1921625 Filed: 11/09/2021 Page 1 of 289

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

APPEAL FROM THE UNITED STATES DISTRICT COURT

PUBLIC APPENDIX-SEALED MATERIAL IN SEPARATE

Federal Community Defender Office

Docket Entries ............................................................................................................ 1

Criminal Complaint .................................................................................................. 12

Memorandum in Support of Pretrial Detention ....................................................... 28

Arrest Warrant .......................................................................................................... 40

Transcript of Detention Hearing (April 6, 2021) ..................................................... 51

Transcript of Detention Hearing Continued (April 7, 2021) .................................... 94

Opposition to Defendant’s Motion to Revoke Detention Order and for Pretrial

Order of Detention Pending Trial ........................................................................... 197

Transcript of Motion Hearing (September 16, 2021) ............................................. 201

District Court’s Order Denying Defendant’s Motion to Revoke Detention

Memorandum Opinion ........................................................................................... 255

Notice of Appeal ..................................................................................................... 272

Government Exhibit 9 (Rochester Voice Article) .................................................. 274

Government Exhibit 15 (Bangor Daily News Article) .......................................... 280

TABLE OF CONTENTS - continued

VOLUME II (UNDER SEAL)

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U.S. District Court

Case title: USA v. FITZSIMONS Date Filed: 02/26/2021

Assigned to: Judge Rudolph Contreras

Joel William Anders

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Pending Counts Disposition

Highest Offense Level (Opening)

Terminated Counts Disposition

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Highest Offense Level (Terminated)

Date Filed # Docket Text

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NOTICE RE REDACTION OF TRANSCRIPTS: The parties have 21 days to file

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have 21 days to file

USCA Case #21-3069 Document #1921625 Filed: 11/09/2021 Page 10 of 289

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NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days

USCA Case #21-3069 Document #1921625 Filed: 11/09/2021 Page 12 of 289

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days

USCA Case #21-3069 Document #1921625 Filed: 11/09/2021 Page 13 of 289

USCA Case #21-3069 Document #1921625 Filed: 11/09/2021 Page 14 of 289

PACER Service Center

81,7(' 67$7(6 ',675,&7 &2857

18 U.S.C. § 1752(a)(4) - Knowingly Entering or Remaining in Any Restricted Building or

Benjamin Spinale, Special Agent

FITZSIMONS simultaneously appeared on MPD body worn camera, where he was

After officers fought off FITZSIMONS, surveillance footage depicted FITZSIMONS

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA :

MEMORANDUM IN SUPPORT OF PRETRIAL DETENTION

Court’s determination regarding pre-trial detention.

transport to the District of Columbia.

him with following ten counts:

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