Case 1:21-cr-00006-TJK Document 5 Filed 01/22/21 Page 1 of 16 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA : : : v. : Case No. 21-CR-6 (TJK) : DOUGLAS AUSTIN JENSEN, : : Defendant. : MOTION FOR EMERGENCY STAY AND FOR REVIEW OF RELEASE ORDER The United States of America, by and through its attorney, the United States Attorney for the District of Columbia, respectfully moves this Court to, first, stay Defendant’s release pending trial, and second, review the decision by the Magistrate Judge from the Southern District of Iowa to deny the government’s motion for pre-trial detention. In support thereof, the government states the following: I. BACKGROUND A. Procedural Posture On January 8, 2021, Defendant was arrested in his home state of Iowa on an arrest warrant issued from the United States District Court for the District of Columbia by Magistrate Judge G. Michael Harvey in connection with a Criminal Complaint arising out of the riot at the United States Capitol building on January 6, 2021. On January 11, 2021, a federal grand jury sitting in the District of Columbia returned a six-count Indictment charging Defendant with Obstructing a Law Enforcement Officer During a Civil Disorder, in violation of 18 U.S.C. § 231(a)(3); Assaulting, Resisting, or Impeding a Federal Law Enforcement Officer, in violation of 18 U.S.C. § 111(a)(1); Entering and Remaining, and 1 Case 1:21-cr-00006-TJK Document 5 Filed 01/22/21 Page 2 of 16 Disorderly and Disruptive Conduct inside a Capitol Building, in violation of 18 U.S.C. §§ 1752(a)(1)-(2); and Violent Entry and Disorderly Conduct, and Parading, Demonstrating and Picketing in a Capitol Building, in violation of 40 U.S.C. §§ 5104(e)(2)(A)-(G). (Docket Entry 3). Defendant appeared for Rule 5 proceedings in the Southern District of Iowa on January 12, 2021, in case Number 4:21-mj-11-HCA. The United States made a motion to detain the defendant without bond pending trial. The defendant is subject to detention pursuant to 18 U.S.C. § 3142(f)(1)(E), which provides for detention in cases where Defendant committed a crime while in possession of a deadly weapon—Defendant was in possession of a knife when he committed the charged crimes. Chief Magistrate Judge Helen C. Adams ordered Defendant’s temporary detention pending an identity and detention hearing. Id. (Docket Entry 10). Defendant waived the identity hearing, but a detention hearing was held on January 19, 2021. Id. (Docket Entries 14-16). On January 21, 2021, Magistrate Judge Adams ordered Defendant released pending trial and established release conditions. Id. (Docket Entries 17-18). Magistrate Judge Adams stayed her ruling until January 27, 2021, to allow the United States an opportunity to appeal to this Court pursuant to 18 U.S.C. § 3145(a). B. Statement of Facts 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. 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 are 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. During the joint 2 Case 1:21-cr-00006-TJK Document 5 Filed 01/22/21 Page 3 of 16 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 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 after 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 3 Case 1:21-cr-00006-TJK Document 5 Filed 01/22/21 Page 4 of 16 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 violations of local and federal law, including scores of individuals inside the U.S. Capitol building without authority to be there. Among those persons was Douglas Austin Jensen, who traveled from his home in Des Moines, Iowa, to participate. Defendant’s participation in the Capitol riot was reported to the Federal Bureau of Investigation (“FBI”) by numerous sources after The Guardian, a British news media outlet, published video showing Defendant chasing a police officer during the riot. That video, which was published on January 7, 2021, quickly went “viral” on multiple social media sites, and numerous individuals who knew Defendant personally called FBI to report that Defendant was the person in the video. On January 8, 2021, Defendant walked into the Des Moines Police Department and said that he wanted to talk to someone because he thought he was in trouble. Defendant was interviewed by a Detective and an FBI Special Agent, who identified themselves as such to Defendant before the interview began. Prior to conducting the interview, Defendant was informed that the interview was being conducted voluntarily at his request, and that he was free to leave at any time. Defendant was also informed that the interview was being recorded. Defendant explained that he was a firm believer in “QAnon” or “Q,” and was a proponent of President Trump’s exercise of the “Insurrection Act” to declare martial law and prevent the “fraudulent” election of Joseph R. Biden from being certified by Congress. Defendant said that, in his opinion, the first person to be arrested pursuant to the “Insurrection Act” would be Vice President Mike Pence. 4 Case 1:21-cr-00006-TJK Document 5 Filed 01/22/21 Page 5 of 16 Defendant stated that he traveled to Washington, D.C. to attend President Trump’s rally because he had seen “Q” publish that “The Storm has arrived,” and both “Q” and President Trump had called “all Patriots” to Washington, D.C. for the rally. Defendant stated that he believed that it was “Showtime” – which he clarified to mean that he believed President Trump would order that Vice President Mike Pence and the rest of the “corrupt government” were going to be arrested, and he wanted to be there to see it. Defendant described himself as a “true believer.” Defendant stated that he was disappointed that President Trump did not make such an announcement at the rally, but that he had heard President Trump encourage everyone to march on the Capitol and he believed that something was going to happen there. Defendant stated that, while walking to the Capitol, he heard other “Patriots” talking about how they were going to “Storm the Capitol.” Defendant admitted that he agreed to participate because it was “Showtime” and he wanted to be a part of it. Defendant stated that he wanted to participate in “Storming the Capitol” because “I was trying to fire up this nation,” and “I’m all about a revolution.” During the course of the interview Defendant admitted that he was the person seen in the video published on The Guardian. Defendant admitted that he entered the Capitol by climbing a wall, and running with a crowd of others to a location with multiple windows. Defendant stated that he entered the Capitol by climbing through a window after someone else used “tools” to break it. Defendant stated that, once inside the Capitol building, he pushed his way to the front because he was wearing a shirt with a large “Q” on it with their motto “Where We Go One, We Go All,” and he “wanted Q to get the credit” for what they were about to do. When asked to clarify, Defendant stated, “I wanted to stop this crap with Mike Pence.” Defendant specifically admitted chasing a Capitol Police officer, and that he had refused to obey the officer’s lawful orders to stop and leave the Capitol. Defendant further admitted to 5 Case 1:21-cr-00006-TJK Document 5 Filed 01/22/21 Page 6 of 16 yelling “I’ll take it” when the officer raised a baton to threaten Defendant to move back. Defendant further admitted to yelling “Why are you defending these m*****f*****s, why aren’t you arresting them” and “I’m only here to make you do your jobs and arrest these people” during his altercations with the officer. Defendant admitted that when he said “them” and “these people” he was referring to “the corrupt government,” including Vice President Mike Pence. During the interview, Defendant provided agents his cell phone and gave written consent for them to search it. Defendant admitted that he had deleted his social media accounts from his phone after January 6, 2021, so as not to be in possession of incriminating material. Law enforcement is in the process of searching the phone, which contains more than 100GB of data. When the interview concluded, Defendant was allowed to leave the Des Moines Police Station. FBI Special Agents and undersigned counsel then secured a criminal complaint and warrant for Defendant’s arrest. C. Order for Release On January 21, 2021, two days after a detention hearing the Southern District of Iowa, the magistrate judge issued an Order of Release for the defendant with certain conditions. The magistrate judge stayed the implementation of that order until January 27, 2021, to give the United States an opportunity appeal. III. ARGUMENT A. This Court Has the Authority to Stay and Review the Release Order Title 18, U.S.C. § 3145(a) states: (a) Review of a release order – If a person is ordered released by a magistrate, … (1) the attorney for the Government may file, with the court having original jurisdiction over the offense, a motion for revocation of the order or amendment of the conditions of release . . . 6 Case 1:21-cr-00006-TJK Document 5 Filed 01/22/21 Page 7 of 16 The motion shall be determined promptly. On the government’s motion to review a release order, this Court considers de novo the Magistrate Judge’s denial of pre-trial detention. In its discretion, the Court may proceed to rehear the evidence by recalling the witnesses, reviewing transcripts, or by proceeding through proffer and argument. It may take additional evidence from new witnesses or consider arguments not previously raised. In short, the Court may proceed as best enables it to resolve the question posed: whether any 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. As the legislative history of the 1984 Bail Reform Act amendments shows: [T]he language referring to the safety of the community refers to the danger that the defendant might engage in criminal activity to the detriment of the community. The committee intends that the concern about safety be given a broader construction than merely danger of harm involving violence. . . See S.Rep. No. 225, 98th Cong., 2d Sess. 307, reprinted in 1984 U.S. Code Cong. & Ad. News 3182, 3195-3196.1 1 To that end, it is worthwhile recalling Congress’ intent in 1984 when it enacted the current version of the Bail Reform Act: Many of the changes in the Bail Reform Act reflect the . . . determination that Federal bail laws must . . . give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released. . . . The constraints of the Bail Reform Act fail to grant the Courts the authority to impose conditions of release geared toward assuring community safety, or the authority to deny release to those defendants who pose an especially grave risk to the safety of the community. . . . This broad base of support for giving judges the authority to weigh risks to community safety in pretrial release decisions is a reflection of the deep public concern, which the Committee shares, about the growing problem of crimes committed by persons on release. See S.Rep. No. 225, 98th Cong., 2d Sess. 307, reprinted in 1984 U.S. Code Cong. & Ad. News 7 Case 1:21-cr-00006-TJK Document 5 Filed 01/22/21 Page 8 of 16 B. The Bail Reform Act Factors All Weigh in Favor of Detention The United States is seeking detention pending trial pursuant to 18 U.S.C. § 3142(f)(1)(E), which provides for the possibility of detention where the defendant possessed a dangerous weapon during the course of the charged offenses. Consequently, the government requests review of the magistrate judge’s decision to release the defendant and seeks a further stay of the order from this Court. As the Court is aware, there are four factors under Section 3142(g) that the Court should analyze in determining whether to detain the defendant pending trial: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the defendant; (3) his history and characteristics; and (4) the nature and seriousness of the danger to any person or the community that would be posed by his release. Each of these factors weighs in favor of pretrial detention in this case. 1. The Nature and Circumstances of the Offenses Favor Detention The nature and circumstances of the charged offenses weigh heavily in favor of detention. Defendant traveled from Des Moines, Iowa to the District of Columbia to attend President Trump’s rally on January 6, 2021. After the rally, Defendant and thousands of others marched to the U.S. Capitol building and, eventually, forced their way inside. Defendant entered the Capitol through a broken window after another rioter threw a piece of wood through it and another rioter used a plastic shield to break the glass out of the frame.2 3182, 3486-3487. (Emphasis added.) 2 The following photographs are “screenshots” of a video that was uploaded to YouTube on January 6, 2021. See https://www.youtube.com/watch?v=aUjtmt_9GcY (last visited January 19, 2021). 8 Case 1:21-cr-00006-TJK Document 5 Filed 01/22/21 Page 9 of 16 Once inside the Capitol, Defendant pushed his way to the front of the pack, and engaged in a confrontation with Capitol Police Officer Eugene Goodman.3 Officer Goodman repeatedly ordered Defendant and the other rioters to back up and leave the Capitol building. Defendant refused and, indeed, kept advancing toward Officer Goodman in a menacing manner – even as Officer Goodman retreated to recover a baton that had been dropped onto the floor. The video shows that Defendant was primary aggressor, and other members of the mob followed his lead in pursuing Officer Goodman into the Capitol building. 3 The following photographs are “screenshots” of a video that was uploaded to YouTube on January 7, 2021. See https://www.youtube.com/watch?v=_cA2l0n5gPE (last visited January 20, 2021). 9 Case 1:21-cr-00006-TJK Document 5 Filed 01/22/21 Page 10 of 16 When Officer Goodman recovered the baton, raised it, and ordered Defendant to “get back,” Defendant responded “I’ll take it,” indicating that he would physically take the baton from Officer Goodman if Officer Goodman tried to use it on Defendant. Officer Goodman, who was facing the mob on his own, then retreated up the stairs and radioed twice for backup to direct other officers to the mob’s location. Defendant, followed by the mob, chased Officer Goodman up the stairs. When Officer Goodman reached the second floor, he positioned himself so that he was between Defendant and the Senate floor – which had not yet been evacuated. During this altercation, Defendant was yelling that Officer Goodman should be arresting members of the 10