Federal Judge Thwarts Checkmate Move of Illegally Detained January 6 Defendant – Opinion

Last week the case of January 6 defendant Lucas Denney gained considerable attention when the defense sought Mr. Denney’s release because of two Government violations of his pre-trial rights.  Denney, who was in jail for 80 days and refused to have a preliminary hearing within fourteen days or been charged with a crime under the Speedy Trial Act, had not been released. For each of these offenses, the defense moved for separate motions.

In an attempt to prevent Denney from being released by the court, the government rushed through the indictment on Monday just hours before a magistrate judge would consider Denney’s first defense motion. This maneuver was successful in keeping Denney inside, but Denney was only charged with assaulting a federal official instead of 12 for which he was initially arrested under a Complaint. It is probable that the Government wanted to indict Denney later on, which would have included all twelve original charges.

Denney, however, was surprised by the Government’s decision to plead guilty when he appeared before the court today to face the single charge. This was very astute lawyering by Denney’s counsel to take advantage of the Government’s tactical misstep. Denney is able to plead guilty to only one count of the charges. Denney also gets a more favorable resolution than the Government offered as a plea bargain. Denney’s constitutional protection against double Jeopardy prevents the Government from adding additional charges. It was the defense’s checkmate move in the criminal procedural chess game.

The court refused to allow Denney to plead guilty, however it did so temporarily. It stated that the court wanted to investigate the matter.  Thus, after a bit of drama today, the saga isn’t finished yet.  On Thursday, Denney will again be presented before the court.

The Background of Denney’s Case

Denney was taken into custody in Texas, on 12/12/2021. Denney was quickly brought to a Texas federal magistrate for an Initial Appearance. Following that, a Detention Hearing and Removal Hearing were held. The Court ordered him to be taken to DC and locked up. The Texas Federal Court did not hold a Preliminary Hearing regarding the Denney charges, contrary to Rule 5 of Federal Rules of Criminal Procedure.

Denney then spent 46 days in the federal prison system being “transported” by the U.S. Marshal’s Service to DC, where he finally arrived on January 31, 2022. In federal custody, Denney had been there for more than 50 days. He was not taken to Washington DC immediately, but he remained in federal custody for another month. The 30-day deadline to indict him by the Speedy Trial Act grand jury had passed. However, he was not indicted.

Denney’s counsel brought these defects to the attention of the DC court and demanded his immediate release and dismissal of the Complaint. A hearing was held by a federal magistrate to hear Denney’s first motion.

Later, the court issued an order saying it was ready to release Denney on the basis of the lack of a preliminary hearing. This meant that he was not being held with a judicial finding or probable cause to back the charges against. However, to head off Denney’s release, the Government had rushed into the grand jury the morning of the hearing and obtained an indictment.  A finding of probable cause is, under the law, an indictment. This means the Grand Jury has found the case and the Grand Jury will not be a judge. The hearing was held last Monday. Denney received an apology from the magistrate judge, and the Government got a verbal slap.

The defense motion to dismiss Denney’s Complaint was denied. A schedule was set for parties to present the issue. It will be heard by the magistrate on March 22nd, 2022.  On Monday, March 14, 20,22, the Government filed an answer in which they admitted to having violated the deadline for speedy trials. Denney’s charges must therefore be dropped.

Although the government requested that Denney’s charges be dismissed, it was open to Denney being re-indicted. According to case law, Denney would probably have been granted this permission. In practical terms, Denney would have been allowed to leave the country for a short time until a new Indictment or Complaint was filed. Then, the Government would have again arrested Denney and requested his detention in anticipation of trial.

Denney’s Arraignment

Denney was to appear today in court on the one count indictment, which the Government obtained last Monday.  Following the indictment’s filing, the case was randomly assigned to Judge Randolph Moss.

An arraignment serves two purposes: to provide a copy to the defendant, and for him to summarize or read the indictment (this step is often waived by defense) and to allow the defendant to plead guilty to the charges. In the vast majority of cases, the defendant enters a plea of “not guilty” and the case then proceeds toward trial. However, the defendant doesn’t have to plead not guilty. If the defendant chooses to plead not guilty, he may also plead guilty.

Because the Government conceded this morning that the charges against Denney in the Complaint and the Indictment had to be dismissed (as I explained last week here and here), both the Government and the court probably expected that Denney’s counsel would move to dismiss the indictment at the arraignment and demand his release, rather than seek to enter any plea to the indictment at all.

Although the overwhelming number of defendants in federal court ultimately plead guilty, this usually occurs farther down the road toward trial and involves a change of plea by them, from the initial “not guilty” they entered at the arraignment. Federal court almost always enters guilty pleas pursuant to written, formal agreements between the Government or the defendant. However, this is not mandatory.

These expectations were shattered by Denney. Denney did not ask for the dismissal of his indictment.  Instead, he pleaded guilty and continued with the arraignment. He did this without any benefit from any plea bargain with Government.

While this may appear questionable at first glance, it actually reflected excellent lawyering by Denney’s counsel. To understand why, it is necessary to understand something of plea bargaining, plus what the future held for Denney had he sought dismissal of the indictment or pleaded “not guilty” to it.

Pleas & Plea Bargaining

Plea bargains usually involve the Government dropping some charges and/or making other concessions in return for the defendant’s agreement to plead guilty. As part of the plea bargain, the defendant may also make other concessions. The defendant will usually have to give a detailed statement on the charges, which can impact the sentence. In some cases, he may need to also state the Federal Sentencing Guidelines that will apply in the case. The defendant agrees to all of these matters in his plea agreement. This waives any right to dispute them at sentencing.

Therefore, in most cases, a plea bargain has the effect of placing both a ceiling on the potential sentence (the defendant’s goal) and a floor under it (the Government’s goal). A plea deal will specify the sentencing guidelines applicable to the case. Although federal courts are authorized to impose sentences that exceed or fall below the Guidelines ranges, this is rare and the plea deal may specify that the defendant can’t ask for a reduction in sentencing.

A defendant in a criminal case only ever has two alternatives:  go to trial or plead guilty. The defendant wins if the trial is over. If he doesn’t get convicted of the entire list of charges the Government asked him to plead guilty under a plea agreement, he may be able to come out on top. He may receive a lower sentence if that is the case.

If the defendant is found guilty at trial on the same charges he could plead guilty to, the sentence will be longer than the one he received with the plea. That is because the Guidelines reduce the sentencing range when a defendant “accepts responsibility” by pleading guilty. Taking the case to trial is not “accepting responsibility,” so there is no reduction under the Guidelines.

Alternative to going to trial, plead guilty. You can either enter into a plea deal with the Government or simply plead guilty to the charges. Any guilty plea, whether by agreement with the Government or not, gets the defendant some reduction under the Guidelines for “accepting responsibility.”

A plea agreement with the Government allows the defense to nail down exactly what the Government’s positions are going to be on issues under the Guidelines, but it also requires the defendant to nail down his positions too. The Government may insist that the defendant give up any issues that are not in his favor to obtain the plea deal.

He has not pleaded guilty to the charges with no settlement with the Government. A guilty plea allows the defendant to challenge any issues under the Guidelines such as whether certain enhancements are applicable to him and whether or not the fact of the crime(s) is as serious as the Government asserts. These issues are not subject to compromise.

Although defendants are not likely to agree to plead guilty at their arraignment to the charges, there are good reasons. In many cases, there are more serious or severe charges in the indictment than defendants will be required to admit to. A plea to the charges would result in a harsher sentence than the plea.

A second problem is that defense counsel may not be able to give a thoughtful judgment on pleading guilty when they are arraigned. The defense counsel might not have sufficient information to make an informed decision about pleading guilty. And, in many cases, the defense doesn’t yet know what plea offer the Government will make. It might be the more advantageous option.

Third, it is convention. Because plea bargains are used overwhelmingly to resolve criminal cases. Defense counsel simply do not consider the possibility of pleading guilty even in situations where this is strategic.  However, a skilled defense attorney knows when it’s appropriate to do this unexpected move. There are many situations in which it would be the right move and best for the client.

The January 6, Cases: Plea Bargaining

The Government’s position on plea bargains has been quite consistent in the January 6 cases. For defendants like Denney, who engaged in some form of physical altercation with law enforcement officers, the Government has demanded a plea to two felonies — obstructing an official proceeding (18 U.S.C. § 1512) and assault on a federal officer (18 U.S.C. § 111). In Denney’s case, under the usual plea offer, the Government would have dropped the other ten charges.

In addition, in January 6 cases like Denney’s, the Government has demanded that defendants stipulate to the applicability of enhancements under the Guidelines that have the effect of raising the offense level (after credit for accepting responsibility by pleading guilty) to level 22. For a defendant with no prior criminal record, this results in a sentencing range of 41-51 months’ imprisonment.  In addition, the government insists on these defendants paying $2,000 to restitution for damage to Capitol in January 6.

The Government demands that defendants agree to specific facts to be considered by the judge when deciding on sentencing. In many cases, the Government’s version of the facts is worse than the defense believes is fair and accurate, and/or the Government is taking aggressive, debatable positions about how the Guidelines apply to the case and whether restitution can be ordered in that case. The defendants who agree to plea bargains forfeit the ability to raise any of these points at sentencing.

The January 6 cases are unlikely to go to trial because of video evidence from the Government and defendants who have no defense to major charges. Guy Reffitt was quickly convicted of all the charges in this month’s January 6 trial. The trial was, in effect, what defense lawyers call “a slow plea,” but without any of the benefits of a plea. Reffitt will not get a reduction in his sentence for “accepting responsibility,” which he would have gotten if he had instead pleaded guilty, either with or without a plea agreement.

According to what is available, the best option is to plead guilty or negotiate a plea deal. More specifically, pleading guilty to the indictment is a viable option in cases where (1) it will not increase the defendant’s Guidelines range, or will increase it only slightly, and (2) it frees the defense to argue for a significant reduction in the Guidelines range and/or ultimate sentence and to contest the Government’s position about exactly how bad the facts of the offense are or how the Guidelines apply to those facts. Essentially, without a plea bargain tying its hands, the defense can “try its case” to the court at sentencing and still get the Guidelines reduction for “accepting responsibility.”

The Advantages of A Guilty Plea at Denney’s Arraignment

Denney could have asked Judge Moss to order Denney’s dismissal of the indictment. This would be against his Speedy Trial Act rights. The Government would have agreed to the dismissal but would have also asked Judge Moss to order that it be “without prejudice,” which would let the Government re-charge Denney later. While his defense counsel could request that the dismissal be “with prejudice” (meaning the Government could not re-file the charges), the overwhelming odds (under governing law) were that Judge Moss would have granted dismissal without prejudice. While the dismissal would have secured Denney’s release, he would soon be re-arrested when the Government obtains a new indictment against him (on 12 charges instead of one). Denney could also have been taken into custody again, in order to be tried. The benefits of his dismissal were therefore short-lived.

Denney is able to obtain permanent benefits by agreeing to the current one-count Indictment, and waiving his Speedy Trial Act violation. Denney ends up having only one (Assault) felony on his record, rather than the usual two (Assault and Obstruction). Denney’s hands won’t be tied in any plea bargain. At sentencing, he will have the freedom to argue how the Guidelines are applied to him and whether restitution was legal in his particular case. Denney can also contest any fact the Government may use to increase the sentence.

Denney and anyone else in Denney’s situation were never offered by the Government a plea agreement to one count. However, he was allowed to appeal at sentencing. Denney’s ultimate sentence is likely to be lower than what it would have been under the Government’s standard January 6 plea offer and it will definitely be far lower than it would have been after a conviction at trial on multiple charges.

Denney will also be more successful pleading his case now than waiting for the trial to end. He will get closure quicker and be sentenced earlier. He, his family and friends will not be weighed down by uncertainty about his future. He will have a clear understanding of the future and can plan accordingly.

Denney, at his hearing before the magistrate judge, broke down last week explaining that his biggest wish was to be reunited with his family, which is suffering from his imprisonment. Denney is now on track to this goal by making an early plea and receiving his sentencing.

Denney’s conditions in confinement will be greatly improved if Denney pleads guilty immediately, even though he has not entered into a plea agreement. He was held in jail while awaiting trial.i.e.He will be kept in a cell (with no access to his family or home) located outside of the DC region. His liberty is severely restricted.  Once he starts serving his sentence, the Bureau of Prisons will place him at a facility – likely a minimum-security institution or a camp — within 300 miles of his home. He will be able to enjoy more freedom and have better opportunities for visits from his family and friends. His quality of life will increase tremendously, so he should plead his case as soon as possible.

Denney could benefit from a plea agreement to the single-count Indictment in almost every way possible. His counsel indicated that it was the most effective strategy and he pleaded guilty to it. He was arraigned.

A Judge Intrudes on the Defense Strategy

However, Denney’s careful and thoughtful strategy was somewhat thwarted, or at least delayed, by the Court Monday. Judge Moss was obviously surprised by Denney’s desire to plead guilty, and when the Government initially balked he announced that he needed time to study the issue. Denney’s counsel objected to any delay, expressing justified concern that the Government might again rush to the Grand Jury and obtain a superseding indictment on the 12 original offenses, thereby eliminating Denney’s opportunity to plead guilty to one charge.

The defense counsel is not required by law to inform the Court or Government about an intent to plead guilty in the arraignment. Although many times defense counsel would give the court and prosecutors advance notice in the interests of smooth processing, in cases of this kind – when the Government has previously engaged in sharp practices – it is entirely understandable that the defense did not do so. And, in any event, it is entirely within the defendant’s rights and the Rules of the court to simply announce the choice of plea at the arraignment hearing. Each side should know that the judge and the prosecution will be able to determine the plea of the defendant.

However, this is not the case. After much back and forth, it became clear that the court would not allow the case to go forward with today’s scheduled arraignment. Instead it demanded the postponement of the proceeding for Thursday.  This was the first time that this court encountered it and they were unsure of what to do. As Denney’s attorney noted, however, the federal rules require a defendant to enter a plea – either guilty or not guilty – at the arraignment. When a defendant chooses to plead guilty, the court’s only responsibility under the rules is to ensure that there is a factual basis for the plea (i.e.That the defendant committed an offense), and that the defendant entered the plea knowingly, and voluntarily.

The Court’s refusal to proceed with the arraignment today was totally unwarranted and contrary to the Rules of the court. Denney had the right to plead guilty at his arraignment according to the Rules. The fact that Denney wanted to did so wasn’t grounds for the judge stopping the proceedings. The delay could have ended up prejudicing Denney’s rights if he had lost the opportunity to plead to the existing one-count indictment.

The prosecutor spoke with her supervisor during a break and said that Denney could plead guilty to the present indictment.  (This probably signals that the Government does not intend to further abuse Denney’s rights during the interim between now and Thursday.) The Court indicated that Denney could be permitted to plead on Thursday at this point.

It is entirely unacceptable that Denney’s ability to exercise his rights is apparently dependent on whether the Government will agree that he may do so. Today, the Court did not fulfill its obligation to protect the rights of Denney. It is irrelevant that the Court entered an unannounced guilty plea at arraignment. This does not mean the Court can deny the Defendant his right to plead the plea of his choosing to a criminal case. The Court’s inability (or refusal) to apply basic rules of criminal procedure in this situation was a shocking display.

At this point, however, it seems likely that Denney’s plea will take place on Thursday, as it should have today. It will be interesting to see how time works in this instance, as it has become a crucial factor.