DOJ does not normally dismiss a felony and
accept a guilty plea to a misdemeanor
“Normally” being the operative word — there is little that is “normal” about DOJ’s handling of January 6th prosecutions.
The background here is important to understanding what seems to be happening, and to understanding that this outcome will likely be limited to only a handful of cases.
At least at first, it will be only a handful of cases.
In the initial weeks following the January 6 protests, the Biden Justice Department was seeking from grand juries at least one felony count against defendants in every case filed. Typically the felony charge was a violation of 18 U.S.C. Section 1512(c)(2) — “Interfering with an official proceeding.”
After several weeks, when the pursuit of January 6 offenders began to focus mainly on the “tourist protesters” who did nothing more than enter the Capitol with the crowd, take some pictures, and leave, the prosecutors quit asking grand juries to charge this felony. I have not done a survey of the timeline of the charging decisions, but anecdotal information seems to peg this change in tactics somewhere in late February or early March.
The problem for DOJ is that some of these early cases where felonies were charged are now difficult to distinguish on their facts from latter cases where only misdemeanor charges were brought. Other felony cases where violence against property or law enforcement is alleged to have taken place can be readily distinguished from the “tourist protester” misdemeanor case. But a small number of felony cases might not have had a felony charge included if they had been brought in April or thereafter.
The statutory maximum penalty for a violation Sec. 1512(c)(2) is 20 years in custody. DOJ prosecutors have made references in court to plea discussions with defendants in some cases that the sentencing guideline range on the felony count is 15 to 21 months.
As I wrote here last week, Federal Judge Randolph Moss tossed a wrench into that calculation in the first case involving the sentencing of a defendant who pled guilty to the Sec. 1512(c)(2) felony charge.
Judge Moss disregarded the advisory guideline range of 15-21 months on the felony conviction — and the prosecution’s request to sentence the defendant to 18 months — when he imposed a sentence of only 8 months on Defendant Paul Hodgkins. Most misdemeanor charges carry a sentence up from 0-12 months, and some carry a sentence of only 0-6 months.
Judge Moss effectively sentenced Hodgkins as if he had pled guilty to a misdemeanor.
In my earlier story I wrote:
The sentence imposed by Judge Moss says that he does not view the felony violations of § 1512(c) as seriously as the DOJ prosecutors view them. He paid lip service to all their concerns, but then determined that Hodgkins’ case was outside the “heartland” of felony obstruction cases covered by the statute when he sentenced Hodgkins to only about one-half of what the guidelines called for. Taking Hodgkins’ case outside the “heartland” by departing down to 8 months as Judge Moss has done is commentary by him on his view of the offense itself. Pay attention to what he did, not what he said.
Today Biden Justice Department prosecutors walked into Court — they’ll do so more than once — and asked Judge Beryl Howell to dismiss a felony 1512(c)(2) charge against defendant Jack Griffith and to accept a guilty plea to a misdemeanor charge as a plea bargain in his case.
With the sentencing in the Hodgkins case last week, it seems that Justice might have gotten the message sent by Judge Moss that some of these felony cases are overcharged.
I will claim credit for the fact that in private conversations I have predicted to defense attorneys that this would eventually come to pass. Attorneys who regularly defend criminal cases in the District of Columbia were confident the US Attorney’s Office would never dismiss felonies in exchange for misdemeanor pleas — that’s just never done. In fact, it is against DOJ policy to do so.
But my view — based on my time in DOJ — was that the Judges would eventually put pressure on the US Attorney’s Office behind the scenes to start reducing the number of pending cases — especially if DOJ intends to continue to charge new cases. The judges will never acknowledge any such involvement on the record, and they will continue to make their individual expressions of outrage over the events of January 6th — just as Judge Moss did. But the decision to allow the dismissal of felonies in exchange for guilty pleas to misdemeanors is an extremely serious shift in DOJ policy, and Judge Howell went along with that shift in today’s change of plea hearing.
The DOJ Policy Manual — “Principles of Federal Prosecution” — provides instruction on the decision-making that is involved in resolving a case through a plea agreement. Section 9-24.430 states:
If a prosecution is to be concluded pursuant to a plea agreement, the defendant should be required to plead to a charge or charges:
That is the most serious readily provable charge consistent with the nature and extent of his/her criminal conduct;
That has an adequate factual basis;
That makes likely the imposition of an appropriate sentence and order of restitution, if appropriate, under all the circumstances of the case; and
That does not adversely affect the investigation or prosecution of others.
The problem is that when deciding that a misdemeanor is “the most serious readily provable charge” to accept in a plea agreement after having sought and obtained a felony charge in the indictment, the prosecutor is confronted with another DOJ policy — one he/she was supposed to have followed when the charges were brought. Section 9-27.310 states:
[T]he attorney for the government should bear in mind that he/she will have to introduce at trial admissible evidence sufficient to obtain and sustain a conviction, or else the government will suffer a dismissal, or a reversal on appeal. For this reason, he/she should not include in an information, or recommend in an indictment, charges that he/she cannot reasonably expect to prove beyond a reasonable doubt by legally sufficient and admissible evidence at trial.
This is why DOJ does not, as a matter of policy, allow cases where felony charges are filed to be resolved with a guilty plea to a misdemeanor. At the time the indictment was sought, the prosecutor was supposed to have made a judgment that there was sufficient admissive evidence to prove the felony offense at trial beyond a reasonable doubt.
Going before the court and asking that a guilty plea to a misdemeanor be accepted as the outcome calls into question the determination made at the start of the case.
Sometimes the availability of admissible evidence changes between indictment and trial — a crucial witness might die or otherwise become unavailable is one example.
But there is no apparent change to the available evidence in the January 6th cases where the prosecution is taking this step. The only change seems to be that the government misread the nature and extent of the evidence when it went to the grand jury, or the government has simply changed its view on the seriousness of the offense conduct at issue in these cases that were charged early.
This likely reflects a decision made in the Biden Justice Department last week after the Hodgkins sentencing to dismiss the felonies in the early cases where there is no evidence of violence and allow those cases to be resolved with guilty pleas to misdemeanors.
As noted, this is contrary to DOJ policy and reflects the Department’s reaction to Judge Moss. The sentence he imposed on Hodkins for a felony left DOJ in a position of having to continue to prosecute felony charges where only misdemeanor sentences will likely result. That problem, along with the discovery issues that continue to plague most cases, might have left the prosecution with unhappy and hostile presiding judges in trials to come.
Better to “pull the chute” on some of these early cases that shouldn’t have been charged as felonies at the outset and begin to resolve these cases in larger numbers than has been the case up until now.