After Losing in the Supreme Court the DOJ Looks to be Doubling Down By Filing New Felony Charges Against January 6 Defendants

"Sorry, we were wrong" cannot seem to be found anywhere in the Justice Department Manual.

Continuing with the unfolding saga of how DOJ is dealing with its loss in the Supreme Court in United States v. Fischer, another shoe dropped on Thursday evening.

To recap briefly — for more than three years DOJ used 18 U.S.C. Sec. 1512(c)(2) as its “felony of choice” for any January 6 defendant who did not engage in a violent felony assault on a law enforcement officer. That statute made it a crime to “corruptly obstruct” a congressional proceeding such as the counting of Electoral Votes on January 6. That statute carried a potential maximum sentence of 20 years, and the manner in which the Sentencing Guidelines treated the offense left most convicted January 6 defendants facing three to five years in prison, even if they engaged in no violent conduct.

The application of that statute was contested repeatedly by hundreds of defendants who filed motions to dismiss. Every district judge denied those motions and endorsed the manner in which DOJ was charging the crime for conduct on January 6 — every judge except one. That judge agreed with the defense argument that the language of that statute suggested a much narrower factual scenario for it to apply, and that it was not correct to use it in a “dragnet” fashion for any act that “obstructed” a congressional proceeding such as was being done by the DOJ.

After that single judge was reversed by the Court of Appeals, defendant Joseph Fischer took his case to the Supreme Court where, on July 26, the Court ruled that the defendants and the lone judge had it right all along, and DOJ and every other district judge had gotten the issue wrong. That decision has now set the stage for a multi-faceted knock-down drag-out fight between DOJ and J6 defendants of the issue of whether DOJ can still make use of this statute under the much narrower interpretation given to it by the Supreme Court.

If you want more background about the Fischer decision, I have written previously about it here and here.

There are different groups of J6 defendants who have faced — or still face — the 1512(c)(2) charge, and how Fischer impacts them depends on the status of their case. In the days that followed the Fischer decision defendants began to file motions seeking various forms of relief. The district judges began directing the DOJ to reply to motions to dismiss and petitions to set aside sentences or for resentencing. Within a few days after such directives being given, DOJ took one nearly uniform position — “Please give us 60 days to figure out how to respond.”

But that response didn’t solve DOJ’s problem for one particular group of defendants — those charged with Sec. 1512 violations with cases set for trial in August and September during the 60 day period DOJ asked for. The open question has been what would DOJ do about those cases during this interim period when it is still trying to figure out a way forward that might preserve the Sec. 1512 charge overall.

One answer landed Thursday evening when DOJ communicated to the attorney for J6 defendant Robert Norwood that it had obtained a Superseding Indictment from a grand jury, dropping out the Sec. 1512(c)(2) offense and charging him now with a different felony, a violation of Sec. 231(a)(3) — “Civil Disorder.”

Norwood was first arrested on Feb. 25, 2001 — only 7 weeks after the events of January 6. Like many defendants in the first year of indictments who engaged in no violent conduct, Mr. Norwood was charged with a single felony — the Sec. 1512(c)(2) offense — and four misdemeanors. Mr. Norwood’s case was pending before the same district judge who dismissed the Sec. 1512(c)(2) count in the Fischer case, and Mr. Norwood’s counsel filed a motion to dismiss that count filed against him as well. Because Mr. Norwood was charged only with misdemeanors besides the Sec. 1512(c)(2) offense, his motion was held in abeyance pending the outcome of the Fischer case first in the Circuit Court, and later in the Supreme Court.

After the Supreme Court’s decision, a trial date for Mr. Norwood’s case was set for August 26, 2024. The Government asked to move the trial date back as part of its request for more time to consider its options, but Mr. Norwood’s counsel objected. The district judge agreed that Mr. Nowood had the right to go to trial as scheduled and refused to give the DOJ additional time.

So one month before the scheduled trial date, the Government has now gone back to the grand jury and replaced Sec. 1512 felony charge it must dismiss with a Sec. 231 felony charge.

[The defense of Robert Norwood is being provided by private counsel at little/no cost to Mr. Norwood because the lacks the financial means to do so. I am not his attorney but I enjoy a very good working relationship with her. Mr. Norwood is compensating her to the best of his ability with the assistance of donations to his GiveSendGo page. Mr. Norwood has spent nearly 42 months in the cross-hairs of DOJ.]

As covered in more depth below, for purposes of sentencing, the charges are worlds apart. For most, the Sentencing Guideline Range will be 10-16 months. For some it might be much less — maybe even 0-6 months.

But one DOJ goal remains the same — to continue to stick non-violent J6 defendants with a felony conviction for life whenever possible.

DOJ is confident in this effort because, for the most part, everyone who goes to trial gets convicted of a felony if one is charged.

[Except Michael Greene and Dova Winegeart, two of my clients. ; > )].

I have three cases where I expect this same issue to arise over the next 7-10 days. In one case, with an early September trial date, my client is charged the same as Mr. Norvell — a felony Sec. 1512 count, and four misdemeanors. The Government has been given until next week to decide how it wants to deal with the narrower application of Sec. 1512 when considering the facts of this case. I will not be surprised at all if I get notice that a Superseding Indictment has been obtained the same as the Norvell case — dropping the Sec. 1512 count and replacing it with a Sec. 231 count.

I recently spoke with another attorney who has a similarly situated client but does not expect the Government to attempt to substitute the Sec. 231 because of the specific facts of that case. The attorney told me that his client, immediately upon entering the Capitol’s Columbus Doors on the East Side, encountered law enforcement officers and never moved more than a few feet from them. He conversed with them for a few minutes and when one suggested it would be better if he left he did so.

This raises the question as to what facts can lead to a conviction of a Sec. 231 charge? The relevant provision being used by DOJ is subsection (3), which reads as follows:

For practical purposes, it can best be described as refusing to follow the lawful commands of a law enforcement officer during a “civil disorder” — a riot. The elements are:

1. Any act to obstruct, impede, or interfere…

2. With a law enforcement officer engaged in his lawful duties…

3. During a “civil disorder’…

4. Where the “civil disorder” affects interstate commerce in any way.

To call this a low bar for DOJ to clear is an understatement. Congress defined a civil disorder in the statute as “any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual.”

“[A]cts of violence by assemblages of three or more persons — hard to get around that one given the events of January 6.

As for “affecting interstate commerce,” the Mayor of D.C. issued an Order imposing a city-wide curfew beginning at 6:00 p.m., requiring all businesses to close and all residents to be in their residences. From the very beginning of cases going to trial, the Government has used the same evidence to show the effect of the curfew on interstate commerce — a nearby Safeway grocery store closed at 4:00 p.m. so as to make sure its employees could deal with personal affairs and still comply with the curfew order by 6:00 p.m. The store was closed for eight hours that it would have normally been open, and the store’s manager has testified several times to the revenue lost by the store as compared to the average sales volume on a Wednesday night in January. Again, a very easy element for the DOJ to prove at trial, and there is no obvious cross-examination or contrary evidence to undercut it.

So, for purposes of defending against a Sec. 231 charge at trial, it comes down to a question of whether the video evidence — and there is always video evidence — shows “any act” by the defendant that “obstructed”, “impeded”, or “interfered” with a law enforcement officer on the Capitol grounds or inside the building.

Again — a very low bar to clear.

As noted above, substituting a Sec. 231 charge in place of a Sec. 1512 charge immediately is likely to happen to only a small handful of J6 defendants right now where there are upcoming trial dates and the Government is not yet sure if it can fashion a theory of prosecution that saves the Sec. 1512 charges under Fischer’s narrowed interpretation. If the DOJ cannot come up with a plausible theory of prosecution, it is likely many other cases will follow this same path — the Sec. 231 charge is included when the Sec. 1512 charge is dismissed.

Another related battle that is ongoing is the fight over how much time DOJ can stall before being forced to explain how it intends to continue to use Sec. 1512 — if at all — on cases not set for trial, or cases that are complete in the district court and pending appeal.

Some defendants are serving sentences when the only charge on which they were convicted is a Sec. 1512 count. It is quite likely that their sentences are illegal, but the DOJ wants them to continue serving time while it contemplates its options. The DOJ has routinely asked for 60 days and some judges have gone along — but not all.

It is worth mentioning that all of these cases — whether they involve a Sec. 1512 charge or they end up with only a Sec. 231 charge — have seen a dramatic change in the landscape for purposes of sentencing.

On March 1, 2024, the Circuit Court of Appeals issued its decision in United States v. Brock that dramatically undercut the sentencing guideline calculations that resulted in Sec. 1512 convictions ending up with Sentencing Guidelines in the three to five year range. The Government was requiring defendants to stipulate in plea agreements to 11 levels of “sentencing enhancements” under two sections of the Guidelines.

In cases that went to trial, all the judges — except one — applied these same two sections to add 11 levels of enhancements in the Sentencing Guidelines calculation for Sec. 1512 convictions over defense objections. Because these defendant’s went to trial, there sentence calculations were towards the higher end of the 3 to 5 year range.

In Brock the Circuit Court held that the defendants who objected to the 11 levels (including myself) were correct, and the District Judges and DOJ were wrong — the two sections contributing an 11 level increase did not apply to an event like January 6.

More recent Guideline calculations now produce a Guideline Range for a Sec. 1512 offense as low as 10 to 16 months — compared to the 41 to 51 months with the 11 levels.

But Sec. 231 convictions are treated even more favorably than Sec. 1512, and can result in a Guideline Range as low as 8-14 months if there was any “contact” with the officer, but even lower at 0-6 months if there was no contact.

But, it is still a felony conviction.

So while the DOJ may no longer get its “pound of flesh” in the form of a three to five year prison sentence that judges were imposing for nearly three years, it is still going to get its “pint of blood” in the form of making non-violent J6 defendants felons for life.

I’ll continue to update subscribers on this topic as events unfold over the next 4-6 weeks.