Federal Judge Tells DOJ "Not Good Enough" on January 6th Protest Case - Sets November Trial Date Over Objection

Prosecutor claims DOJ can't comply with discovery obligation in that time

This piece is a bit of a preview of a longer story currently being edited for Human Events. But an episode played out on Friday in the case of US v. Hale-Cusanelli that shows — once again — that the judges are watching the calendar and doing the math in terms of likely sentences in the January 6th cases.

The Hale-Cusanelli case is pending before Judge Trevor McFadden, an appointee of Pres. Trump. I wrote about Hale-Cusanelli previously, covering a decision by the Circuit Court of Appeals to affirm Judge McFadden’s pretrial detention of Hale-Cusanelli.

Hale-Cusanelli falls into the category of cases that, had he been charged in late March or thereafter, it’s likely no felony count would have been added. The government admits he committed no acts of violence and he’s not charged as part of a conspiracy with others. Hale-Cusanelli worked for a defense contractor and holds a top-secret security clearance. But Hale-Cusanelli has a long history of making racist and anti-semitic statements. In addition, after returning from the January 6th protests and discussing his actions there, Hale-Cusanelli was recorded by at least one co-worker as discussing his desire for an armed civil war and talked about the January 6th protests in those terms. Thirty-four of forty-four co-workers described him as a “white supremacist” and “unstable.”

The government sought and obtained a felony count for “obstructing an official proceeding” under 18 U.S.C. Sec. 1512(c). Two weeks ago, in the United States v. Hodgkins, Judge Moss sentenced a non-violent defendant who pled guilty to this same felony charge to 8 months in custody. Hale-Cusanelli has now been in custody for 7 months.

The hearing on Friday of last week was a status conference and trial setting. The status conference was to review the production of discovery by the government to the defense. This is the subject of my upcoming Human Events story.

Prosecutors have been filing a Memorandum in several January 6th cases explaining the problems being encountered in complying with the obligations under the Rules of Criminal Procedure to produce discovery to defendants. The document might as well be entitled “Woe is Us”, as it sings a sad song of a beleaguered Department of Justice saddled with the historic and unprecedented burden of conducting the single largest and most extensive investigation and prosecution in the history of the Republic.

“Your Honor, we just need more time…”

The prosecutor found an unsympathetic ear in Judge McFadden. The hearing was “live-tweeted” here.

The prosecutor noted that in all of DOJ, only one computer system is capable of hosting all the material that has been gathered by investigators during the course of the investigation, and DOJ is unable to use email to transmit such a huge volume of evidence to meet its discovery obligations. DOJ has personnel going through thousands of hours of videotape involving hundreds of persons as it works to isolate the video that applies in each individual case so it can be provided to the defense.

Yet, as Judge McFadden noted, DOJ continues to arrest and charge people, thereby adding to the burdens that it cannot now meet. And defendants like Hale-Cusanelli sit in jail waiting for DOJ to do its job.

The prosecutor at some point noted that she was normally assigned to white-collar investigations. Judge McFadden inquired whether it was normally the case in white-collar investigations to charge first and gather evidence after charging? The answer was obvious.

Judge McFadden asked if the government was prepared to set a trial date for Hale-Cusanelli, and the prosecutor said she could not do so without discussing the issue first with her supervisor — not the right answer.

Word of advice to young or aspiring AUSAs — it is never a good idea to respond to a question from a federal judge by saying “I need to talk to my supervisor.” The supervisor sent you into the courtroom as the “United States” in the case. If the question requires a supervisor’s input, he/she should be standing next to you in court.

When the prosecutor told Judge McFadden that the government could not go to trial in 2021 and that it would at least until 2022 to prepare and produce all discovery to the defense, that wasn’t good enough. Judge McFadden then did what nearly all federal judges do in that situation — “Are you available on November 9?” he asked. And just like that, the Hale-Cusanelli case is set for trial on November 9.

This means the Speedy Trial Act “clock” is now running on the government — the subject of yet another upcoming Human Events article. Judge McFadden set another hearing for August 24th, during which some intermediate dates will be established — most importantly the date by which all discovery must be produced to the defense. Any discovery material not timely produced is subject to being disallowed at trial.

The prosecutor stated on the record that DOJ could not comply with its discovery obligations prior to the November 9 trial date set by the court. Judge McFadden noted that the government previously advised the court that production of discovery would be complete by June, and now it is the end of July.

The prosecutor made the comment “the consideration here is the best interests of justice. We need more time.” This revealed a probable lack of experience since the correct reference under the situation would be an “ends of justice” extension of the Speedy Trial Act deadlines — although this could be a transcription error by the person live-tweeting the hearing.

As I have noted previously, there are few if any novel legal issues arising in the pretrial procedures that are taking place. Judge McFadden already knows quite a lot about Timothy Hale-Cusanelli from the various proceedings on his detention. He knows the nature of the felony Hale-Cusanelli is facing. He knows the nature of the government’s evidence — most particularly that there is no evidence of violent conduct by Hale-Cusanelli. He knows from the Hodgkin’s case that the guideline range after conviction is likely to be 15-21 months, and Judge Moss set a benchmark on felony cases by sentencing Hodgkins to 8 months.

Hale-Cusanelli has been detained on the motion by the government in what Judge McFadden referred to as a “close call”. By November he will have been in custody for 10 months.

It generally takes 12 weeks to prepare a Pre-Sentence report after a conviction. If Hale-Cusanelli goes to trial in early November and is convicted, Judge McFadden will likely sentence him somewhere in the 10 to 15 months range — more than Hodgkins because Hale-Cusanelli won’t get a benefit in his sentencing calculation for having “accepted responsibility” by pleading guilty.

A February sentencing date would mean Hale-Cusanelli will have been in custody for 12 months as of that time. If sentenced to 15 months, with a “good time” credit that is applied to all sentences greater than 12 months, Hale-Cusanelli would be subject to incarceration for 12 months and 3 weeks.

There are no accidents here. Judge McFadden does not want DOJ’s incompetent discharge of its discovery obligations to be put him in the position of having a defendant sit in pretrial detention for a period of time significantly longer than the defendant will be sentenced to serve if he or she is convicted at trial. So Hale-Cusanelli is going to get the trial which he is guaranteed by the Constitution on a schedule that does not make DOJ’s problems in producing discovery a Court problem when and if Hale-Cusanelli is ultimately sentenced.

DOJ has three options before the August 24 hearing:

First: go to trial as scheduled, produce the discovery as best they can, and take their chances on what evidence Judge McFadden may keep out of the case if they cannot comply with the production schedule.

Second: stipulate that Hale-Cusanelli should be released from pretrial detention with an agreement from him to move the trial into 2022 in order to give DOJ more time to meet its discovery obligations.

Third: dismiss the indictment against Hale-Cusanelli “without prejudice” which would allow it to be refiled at a later date when all the discovery is in order and ready to be produced.