January 6 defendants plot new strategy to delay cases

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By journalsofus.com

At least two dozen Jan. 6 defendants are trying to delay their cases until the Supreme Court decides whether the Justice Department legitimately pursued an obstruction charge used to prosecute dozens of rioters, court documents show.

Some defendants are seeking breaks in their upcoming trials or sentencing hearings. Others already sentenced are waiting to be released from prison or cancel their next deliveries.

If successful, the requests could cause months-long delays and pose new challenges for prosecutors as the third anniversary of the attack on the Capitol passes.

Events follow The Supreme Court’s announcement that it will hear Fischer v. USAa defendant’s Jan. 6 challenge to the obstruction statute that has allowed prosecutors to portray rioters’ actions as part of a broader plot to stop the certification of the 2020 presidential election results.

The high court’s eventual ruling threatens to derail the cases of hundreds of those charged Jan. 6 under the statute, including former President Trump.

But regardless of the outcome, prosecutors in the meantime must face the possibility that some defendants’ cases may be put on hold until the summer, as the Supreme Court’s decision is unlikely to come until May or June.

“The Supreme Court could say that Section 1512(c) is unconstitutional,” said Gene Rossi, a former federal prosecutor who later served as a defense attorney for an Oath Keeper charged on Jan. 6. “You don’t want to have a trial… waste resources, witnesses, court time, jury time, and then the government loses and the court says, ‘You shouldn’t have tried that 1512. That’s a poor application of the law.’

“Every judge, in my opinion, should pause and wait for the Supreme Court,” he added.

The Justice Department has insisted that prosecutions must still move forward, noting how many of the defendants are accused of other crimes and asserting a strong public interest in the timely adjudication of cases.

“The mere fact that the Supreme Court agreed to hear Fischer does not indicate that those opinions were wrongly decided,” prosecutors wrote in one case.

At issue before the judges is how prosecutors have charged dozens of rioters with obstruction of an official proceeding.

Enacted in the wake of the Enron scandal to curb corporate misconduct, the law criminalizes “corrupt” obstruction, impedance, or interference with an official government proceeding. It carries a maximum penalty of 20 years in prison.

Former police officer Joseph Fischer challenges his conviction, arguing that the law’s history suggests a more limited scope, one that would require the actual destruction of documents.

The charge has allowed federal prosecutors to include additional damning evidence in the Jan. 6 cases, such as videos from the halls of the Capitol and information about Congress’ certification of the 2020 election, by claiming that rioters were obstructing the voting procedure. the legislature that day, Rossi said.

“If you eliminate that 1512, you could say that … it dilutes the power of the (government’s) case and the seriousness of its case,” Rossi said. “That’s why this appeal to the Supreme Court is so important.”

But the impact of the Supreme Court’s decision could extend far beyond Fischer’s case. The charge has been filed against more than 332 defendants on Jan. 6 so far, according to a Justice Department recount.

More than two dozen of them have now asked for a pause, arguing that a favorable Supreme Court ruling could remake the future of their cases.

While some judges rejected some of the attempts, a federal judge overseeing the Jan. 6 cases in D.C. federal court agreed to issue breaks for two defendants.

Jacob Clark, who hit a police officer with a 2×4 inside the Capitol and was sentenced to 33 months in prison, was scheduled to turn himself in on Jan. 2.

US District Judge Dabney Friedrich, appointed by Trump, suspended his surrender date until after the Supreme Court’s decision, believing that a ruling in favor of Clark could lead to a new trial or the outright dismissal of some of his claims. charges.

“In this case, the Court concludes by clear and convincing evidence that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released,” Friedrich wrote in the brief ruling. “The defendant has not fled or endangered anyone during a long period of pretrial release. Rather, for more than two years, he has substantially complied with all of his pretrial release conditions.”

The next day, Friedrich similarly halted the sentencing hearing scheduled for Jan. 8 for Ethan Seitz, an Ohio man who was convicted on two charges.

“Fischer’s ruling directly implicates the only felony charge for which Mr. Seitz will be sentenced,” Seitz’s federal defender argued in court papers. “Therefore, in the interest of judicial economy, Mr. Seitz asks the Court to suspend the sentence until the Supreme Court has resolved the issues raised in the Fischer case.”

Thomas Caldwell, an affiliate of the right-wing Oath Keepers militia who was tried alongside the group’s leader, Stewart Rhodes, successfully delayed his long-awaited sentencing by referencing Fischer’s case.

Unlike Rhodes, Caldwell was acquitted of seditious conspiracy in connection with the Capitol riot, but was convicted of the 1512 obstruction statute and another felony. His attorney argued in court papers that the government’s request for a 14-year prison sentence is based “almost entirely” on his obstruction conviction.

Prosecutors responded that Caldwell’s co-defendants had already been sentenced, many of whom were also convicted on the obstruction charge and whose sentences were “heavily influenced” by those convictions. Allowing him to delay his sentencing, while the others were sentenced in May and June of last year, gives him an “unfair advantage” that his co-defendants did not receive, they said.

Rhodes was sentenced in May to 18 years in prison, the second-most severe punishment for the attack on the Capitol. The other three defendants tried alongside Caldwell and Rhodes in 2022 were sentenced to between four and 12 years in prison.

U.S. District Judge Amit Mehta ultimately vacated Caldwell’s sentencing, which was scheduled for December 20. Mehta did not comment on whether the sentence would be suspended until Fischer’s case is resolved.

Other judges have dismissed defendants’ motions.

Sara Carpenter, a former New York Police Department officer who waved a tambourine throughout the Capitol, made a last-minute effort to pause her sentencing hearing, which was scheduled for six days after the Supreme Court took up the case. .

Chief District Judge James Boasberg, an Obama appointee, ruled that Carpenter’s sentence would not be “heavily dependent” on the obstruction charge and allowed his sentence to move forward as planned. Boasberg sentenced Carpenter to 22 months in prison.

Motions from other defendants are still pending. The list includes Kevin Seefried, who is serving a three-year prison sentence after entering the Capitol on Jan. 6 and carrying a Confederate battle flag.

Seefried’s handover was delayed while an intermediate appeals court weighed the case now before the Supreme Court. But once the appeals court issued its decision upholding the use of the obstruction charge against the Jan. 6 defendants, the judge ordered Seefried to report to jail.

The Supreme Court’s resolution of the matter could “drastically alter” the way Jan. 6 rioters are sentenced, Rossi said.

“1512 added rocket fuel to the government’s argument in ruling on the seriousness of the defendant’s actions,” he said. “If Article 1512 is declared inapplicable, then these defendants – including my client – ​​have been convicted under a law under which they should not have been charged.”

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