Tarrio v. United States

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS Nos. 21-CF-615 & 21-CM-616 HENRY TARRIO, APPELLANT, V. UNITED STATES, APPELLEE. Appeals from the Superior Court of the District of Columbia (CF2-105-21 & CMD-106-21) (Hon. Harold L. Cushenberry, Jr., Trial Judge) (Submitted June 15, 2022 Decided September 8, 2022) Lucas I. Dansie was on the brief for appellant. Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, John P. Mannarino, Paul V. Courtney, and Daniel J. Lenerz, Assistant United States Attorneys, were on the brief for appellee. Before GLICKMAN, EASTERLY, and DEAHL, Associate Judges. GLICKMAN, Associate Judge: Appellant Henry Tarrio contends the trial judge who presided over his guilty pleas and sentencing should have recused himself sua sponte due to facts giving rise to an impermissible appearance of bias. Appellant asserts the appearance of bias arose from the judge’s past relationship with the 2 church whose property appellant was convicted of destroying, and was manifested by certain adverse rulings by the judge at sentencing. We reject appellant’s contention, both because he waived it by expressly declining the judge’s offers to recuse himself, and because the judge’s relationship with the church and rulings do not show any appearance of bias. We thus affirm appellant’s convictions. I. Appellant is a resident of Florida and the National Chairman of the Proud Boys, which has been described as an organization “whose members routinely attend rallies, protests, and other First Amendment-protected events, where they sometimes engage in violence against individuals whom they perceive as threats to their values.” 1 On December 12, 2020, appellant and other individuals ostensibly associated with the Proud Boys congregated outside the Asbury United Methodist Church at 11th and K Streets in Northwest Washington D.C. Unidentified members of the group stole a “#Black Lives Matter” (BLM) banner from the church and carried it to the intersection of 11th and E Streets NW. At that location, appellant 1 United States v. Chrestman, 525 F. Supp. 3d 14, 19 (D.D.C. 2021) (quoting the affidavit in support of the arrest warrant for an alleged co-conspirator and participant in the violent storming of the U.S. Capitol on January 6, 2021). 3 and others in the group used lighters to set fire to the banner. The burning was recorded and preserved on video. Appellant afterwards claimed responsibility for destroying the banner on social media, including in a photograph on his Parler account, in comments to multiple media outlets, and in a podcast. 2 The United States Attorney’s Office applied for and obtained a warrant for appellant’s arrest. Pursuant to that warrant, appellant was arrested when he returned to the District of Columbia on January 4, 2021. During a search incident to that arrest, the police discovered two unloaded high-capacity firearm magazines in appellant’s backpack. Each magazine …

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