Capitol Rioter Loses Appeal for Pretrial Release

WASHINGTON (CN) — An Army reservist who joined the Jan. 6 insurrection at the U.S. Capitol cannot go free pending trial, the D.C. Circuit ruled Tuesday, affirming a decision based on the suspect's history of racist and antisemitic views.

Indicting him Jan. 29 on seven counts including trespass and disorderly conduct, authorities say Timothy Louis Hale-Cusanelli went through doors to the Capitol that had already been kicked open and left after learning someone had been shot. 

The 31-year-old New Jersey man is not alleged to have engaged in any violence during the riot, but U.S. District Judge Trevor McFadden still ruled him a threat to public safety and refused to grant bond.

“No condition or combination of conditions of release will reasonably assure the safety of any other person and the community,” the Trump appointee wrote in March.

The D.C. Circuit refused to disturb that finding Tuesday.

“Reasonable minds might disagree on that determination, but our standard of review is for clear error, not to substitute our judgment for that of the District Court,” U.S. Circuit Judge Robert Wilkins wrote for a three-judge panel.

Judge McFadden had called it concerning that, even though Hale-Cusanelli wasn’t charged with violence or a destruction-of-property offense, he admitted to having urged others to storm the building despite police and tear gas. The court also highlighted far-right and violent statements made by the suspect, who is a Navy contractor in addition to being an Army reservist.

A footnote of Tuesday's ruling notes that the vast majority of Hale-Cusanelli’s co-workers described him “as having extremist or radical views pertaining to the Jewish people, minorities, and women, and said that he made abhorrent statements like babies born with disabilities should be shot, that 'Hitler should have finished the job' and that 'Jews, women, and blacks were on the bottom of the totem pole.'”

Co-workers of Hale-Cusanelli also told Naval Criminal Investigation Service investigators that he had come to work wearing a Hitler mustache, that he appeared unstable and that he said he wanted to leave his job “in a blaze of glory.”

Compounding this evidence are several racist and anti-Semitic statements that an NCIS special agent found on Hale-Cusanelli’s phone and on his YouTube channel. 

Hale-Cusanelli was reported to authorities by a confidential source who, while wearing a wire, recorded Hale-Cusanelli comparing the riot to civil war and describing “the adrenaline, the rush, the purpose” he felt during it. 

After Hale-Cusanelli had said he “really wishes” there would be a civil war, and the source noted that it would mean many people would die, Hale-Cusanelli quoted a dark line from one of the Founding Fathers: “Thomas Jefferson said the tree of liberty should be refreshed with the blood of patriots and tyrants.”

“It is not obviously wrong to conclude that these statements, taken as a whole, demonstrate a potential danger to the community,” the Obama-appointed Wilkins wrote Tuesday. 

Hale-Cusanelli was recorded in the same conversation with the source as admitting that he used voice and hand signals at the Jan. 6 riot to urge other members of the mob to advance.

Before the riot, Hale-Cusanelli had one prior arrest for being part of a group that used a homemade potato gun etched with a Confederate flag along with the words “Widowmaker” and “White is Right” to fire frozen corn cobs at someone’s house. He was charged with conspiracy to commit criminal mischief and possession of a weapon, as he had a punch dagger with him. 

Hale Cusanelli said that he wasn’t the one who fired the potato gun, and he claims that the dispute was over bicycles not race. 

Judge McFadden nevertheless cited concern with the potential escalation of violence, especially since Hale-Cusanelli knew the identity of the source who recorded him, and had previously made comments about committing violence against those he thinks are pitted against him.

Hale-Cusanelli’s attorney Jonathan Zucker argued on appeal that his client is being detained for holding objectionable views, which isn’t a legally sound reason for keeping someone locked up. 

“The government maintains that defendant is a danger to the CHS and the community because of his white supremacist and Nazi sympathizing ideology,” Zucker wrote in a May 27 memorandum. “The government concedes that such ideology ‘would not be grounds for pretrial detention’ without more. The government, however, has failed to prove ‘more.’”

McFadden had said in March that the decision to keep Hale-Cusanelli behind bars was a “close call.”

It’s been six months since the deadly insurrection at the U.S. Capitol. Hale-Cusanelli is one of more than 500 people who have been arrested.

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