Government Commits Prosecutorial Misconduct to Deny a Jan. 6 Defendant his September Trial Date.

THIS is a sign of desperation from DOJ

The Biden Justice Department committed prosecutorial misconduct today in one of the January 6th cases.

Defendant Federico Klein was arrested on March 4, 2021. He was indicted on March 19 and charged with both felony and misdemeanor crimes.

He has been a single defendant in his case for five months. At a status conference on July 13, 2021, Senior Judge John Bates scheduled a trial date for September 12, 2021 — two months out from the status conference date, and just one month from now. I believe this is the first trial date scheduled for a January 6th defendant.

On July 12, 2021, the day before the scheduled Status Conference, the prosecution had filed its “Memo of Woe” in the Klein case, detailing the monumental task which investigating and prosecuting “Capitol Breach” cases had become, and explaining how it was impossible for DOJ to provide discovery of all the relevant information and evidence — including possible Brady material — to the defendants as it was obligated to do by law. I wrote about this “Memo of Woe” over at Human Events.

Even knowing what the DOJ had represented in this memo its inability to comply with its discovery production obligations, Judge Bates nevertheless set the trial for September 12, 2021. The upshot of Judge Bates’ decision is that the government is not entitled to all the time it claims to need to bring a case to trial after the government makes the decision to seek an indictment from a grand jury.

Two weeks ago, on July 29, 2021, the DOJ filed a “Notice” — stating it was required pursuant to a local rule — that the case of Defendant Klein was related to another case pending before a different judge, and that DOJ intended to supersede to charge all the defendants together in one case. The Notice also provided that two other unnamed individuals not yet charged would also be included in the newly combined superseding indictment when it was returned.

The second case identified in the Notice was the United States v. McCaughey, a six defendant case pending before Judge Trevor McFadden.

The Fourth Superseding Indictment in the McCaughey case dropper earlier today. Klein was added as a defendant and the new defendants now charged are David Mehaffie and Steven Cappuccio.

There is no conspiracy count charged in the indictment with regard to the nine named defendants.

The problem this creates for defendant Klein is that his case is no longer before Judge Bates. The nine defendant McCaughey case does not have a trial date, so Klein’s September 12th trial date set by Judge Bates is now gone (maybe).

The “Speedy Trial Act” statute sets a framework for the timeframe within which federal criminal cases are supposed to proceed from indictment to trial. When Klein was charged alone in a case by himself, that timetable was determined by the demands of his counsel on his behalf, and the Court’s decisions with regard to how quickly the government should be made to bring its case against Klein to trial before a jury. Judge Bates determined the case should be brought to trial by September 12 — that was all the time the government SHOULD need in order to give Klein the “speedy trial” he is entitled to. The fact that the government might have wanted more time doesn’t change the determination by Judge Bates as to whether more time would have been justified or not.

But superseding and moving Klein into the McCaughey case, DOJ pretty much “gave the finger” to Judge Bates and his September 12th trial date.

But maybe they didn’t.

Local Rule 57.12(b)(3), “Notice of Related Cases”, cited in the DOJ’s notice of its intention to supersede back on July 29 states:

Whenever an attorney for a party in a civil or criminal action becomes aware of the existence of a related case or cases, the attorney shall immediately notify, in writing, the judges on whose calendars the cases appear and shall serve such notice on counsel for all other parties. Upon receiving information from any source concerning a relationship between pending cases, the Clerk shall transmit that information in writing to the judges on whose calendars the cases appear and to all parties to the proceeding.

The Notice explains why it is that the prosecution believes these two cases are “related” under the local rule.

All nine of these individuals are or will be charged primarily with assaultive conduct on law enforcement officers in and around the first landing of the Lower West Terrace as well as the Lower West Terrace archway … of the United States Capitol Building on January 6, 2021, between approximately 1:00 p.m. and 4:30 p.m…. Each of these defendants was an active participant in the first wave of rioters to enter the tunnel between 2:40 p.m. and 3:18 p.m., at which time law enforcement successfully cleared the tunnel of rioters for the first time that day…. Accordingly, because the primary criminal conduct alleged against these individuals overlaps both temporally and geographically, and the evidence against them will be mutually admissible, including the testimony of witnesses and their victims, the government is preparing to charge this group in a single indictment and to present evidence against them in a single trial.

None of that explains why it has taken the government from March to August to determine that there is a common set of facts and evidence that applies to all nine defendants, now including Klien. The government had an obligation under the local rule to “immediately notify in writing” the Court about related cases.

Why is it that four weeks prior to Klien’s trial date, after he’s been a solo defendant for five months, and only after the DOJ told the court it cannot comply with its discovery obligations in time for Klein’s trial, did it suddenly decide he should be tried with the defendants in the McCaughey case? Everything about what the DOJ has done here with the Klein case reeks of bad faith and manipulation to get away from Judge Bates and the Sept. 12th trial.

Nothing would have precluded the government from charging the case in this fashion initially. Federal Rule of Criminal Procedure 8(b) states:

Joinder of Defendants. The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.

Once prosecutors filed the cases the way they did, and then allowed them to proceed separately until this point in time, they lost the flexibility that they might have had at the outset. What might happen next likely depends on Klein’s attorney. He can make a very persuasive argument for severance under Federal Rule of Criminal Procedure 14(a):

Relief. If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.

Klein will be prejudiced because the Speedy Trial Act provides that the time within which he is to be given a speedy trial may be extended by any reasonable period of delay caused by his joinder for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.

The two new named defendants, Mehaffie and Cappuccio, have full Speedy Trial Act timeframes applicable to them. That extends the Speedy Trial Act timeframe for all the others who have been defendants for months, including Klein.

In effect, the government has used this procedural device in an unethical manner — to gain the additional time needed to provide the discovery required by law and avoid having to go to trial in the Klein case without having done so.

If Judge McFadden has any integrity at all he should sever Klein from the other defendants and send his case back to Judge Bates. Judge Bates should tell the prosecutors to show up on September 12, 2021, having complied with all their discovery obligations and prepared to pick a jury.

Judge Bates — appointed by Pres. Bush 43.

Judge McFadden — appointed by Pres. Trump.