January 6 Protester Michael Curzio Pleads Guilty, Gets 6 Months In Custody, and Is Released

This is an "Instructive" Case on Some Procedural Issues

On Monday, protester Michael Curzio pled guilty to unlawfully “parading” inside the Capitol on January 6. That is a “petty” misdemeanor charge, punishable by no more than 6 months in custody.

He was released last week by U.S. District Court Judge Carl Nichols on the six-month mark since his arrest — he’s been detained pending trial — and he was sentenced today to “time served” since he had been in custody the maximum amount of time authorized by the statute.

There are several procedural issues involving Curzio’s case that are instructive on how some of the January 6 cases are being prosecuted, and the ways in which they are being handled differently than the long history of political protests in Washington DC.

First, the Criminal Complaint Affidavit filed by a Capitol Police Officer (not an FBI Agent) on January 7, 2021, reflects the unusual fact that Curzio was arrested by Capitol Police inside the building. The affidavit states that at approximately 3:00 p.m., Curzio and five others refused to comply with orders that they vacate the Capitol. All six were arrested, placed in handcuffs, and removed from the building.

As had long been the policy with all manner of civil disobedience and “protests” in Washington DC, Curzio and the others were issued “citations” and released by the Capitol Police. The following day the Capitol Police Officer signed the Affidavit in Support of a Criminal Complaint charging Curzio with four misdemeanors.

My good friend and collaborator Leslie McAdoo Gordon gave a detailed and thorough explanation on the ways the Biden Justice Department has changed policy on the handling of protest cases — at least as it relates to January 6 cases.

Curzio’s case could have been concluded in the exact manner described in Leslie’s piece — the same way protesters of the Kavanaugh Supreme Court confirmation was handled — by posting a “bond” and then forfeiting that bond as a “fine” by failing to appear in court to contest the citation.

Instead, the Biden Justice Department obtained a criminal complaint charging him with misdemeanors on January 7 before the “post and forfeit” process could play itself out.

I asked a few weeks ago on Twitter if anyone knew of a January 6 defendant who had been detained pending trial but was only charged with a misdemeanor. In my experience that would be more than just unusual — I’ve never heard of it before. No one came up with Curzio as such an example but he did fit the description in my question.

As it turns out, at the time of his arrest, Curzio had only been out of prison in Florida for two years, having served eight years on a conviction for “attempted murder.” Curzio is also a “certified” member of a Florida prison gang — the “Unforgiven.”

“Unforgiven” is a neo-Nazi white supremacist Florida prison gang identified by tattooed Nazi insignias and imagery.

“SS”, Swastika, and an Iron Cross — they seem to have it all covered.

Since Curzio was not unfamiliar with the concept of “doing time,” after having been denied bail he likely decided based on the advice of his attorney to simply do six months, knowing that was the maximum he would do on the charges filed against him. When six months arrived, the government would have no choice but to charge him with something more serious or let him go. They let him go.

The fact that they allowed him to plead guilty to a petty misdemeanor and walk free after six months reflects that they had no video showing him doing anything beyond simply refusing to leave the Capitol when told to do so.

Once released after doing six months, he had no reason to “defend” against the charges filed so he pled guilty. I suspect he’s not too troubled by having another misdemeanor conviction on his record.

The outrage here isn’t so much with regard to Curzio. The government’s tactics forced him to serve his entire sentence before ever having to establish that he was guilty of having committed any crime. He lost his opportunity to meaningfully defend because he’s already served his sentence. Other than a “moral” victory that might come from an acquittal, there is nothing to be gained by going through with a trial in the District of Columbia.

The bigger outrage that opposition to the January 6 prosecutions should prepare themselves to express will take place when one or more defendants being detained pending trial end up pleading guilty and are given a sentence shorter than the time they will have spent detained. The sentencing judge will cover this up by simply sentencing them to “time served” without specifying that he/she would have sentenced the defendant to less time if the defendant had not been detained pending trial.

There are many non-violent felony offenses under federal law that end up with 0-6 month guideline ranges for defendants with no prior criminal record. Many of the January 6 defendants being detained have no prior criminal record. Depending on the precise charge they plead guilty to, and some of the sentencing variables that might apply to their individual cases, I expect there will be some with guideline range sentence recommendations of 0-6 months — after they have already spent more than six months in custody.

This will mean that some number of defendants will have been “too dangerous” to release pending trial, but not “too dangerous” to release immediately upon pleading guilty — like Curzio.