You don’t see this very often in federal court, but one of the January 6 (J6) Defendants, Lucas Denney, is being held illegally. He was arrested in Texas on December 13, 2021, and brought before a federal magistrate, who ordered him detained without bond on a criminal Complaint. It then took six weeks to transfer him to DC, where he is currently being held. He has not appeared before a federal judge in DC since his arrival, although that will change Monday afternoon as a result of his lawyer seeking his release.

Denney’s case involves two distinct, major screwups. The first is that he was not afforded a Preliminary Hearing, to which he is entitled under the Federal Rules of Criminal Procedure and the Constitution. The second is that he has not been indicted by a grand jury within 30 days of his arrest, as required by the federal Speedy Trial Act. Consequently, Denney’s detention has been unlawful since at least late January 2022.

The Department of Justice (DOJ) alleges that Denney participated in the riot on January 6, 2021, in Washington D.C. at the United States Capitol. It charged Denney with five felonies: assaults, civil disorder, and obstructions of an official proceeding, and with seven trespassing misdemeanors. An arrest warrant was issued for him in December 2021 based on a criminal Complaint sworn out by a law enforcement officer, not on an indictment returned by a grand jury.

Denney was arrested on December 13, 2021, in Texas, where he lives, and taken before a federal magistrate there. According to the docket of his case, he appeared before the federal magistrate on December 14, 2021, for what the Federal Rules of Criminal Procedure call an “Initial Appearance.” That is just what it sounds like: it’s the first time a judicial officer sees a person after they are arrested.  Its purpose is to make sure the person has been legally arrested. The Constitution requires that the Initial Appearance be held promptly, generally within 48 hours.

The Preliminary Hearing Defect

Once a person is arrested a number of REQUIRED procedures kick in that are set forth in the Federal Rules of Criminal Procedure or the Speedy Trial Act. At the Initial Appearance, the magistrate must advise the Defendant of certain things and take certain actions. To make sure people see a magistrate promptly as required by the Constitution, the Rules address WHERE the Initial Appearance has to take place.

If the person is arrested in the federal district where the offense took place (which is where the trial will be), the person must be taken to a magistrate in THAT district. We don’t want the government taking defendants someplace else to appear before a magistrate, because that would create an opportunity for abusive treatment.

But if the person is arrested in a federal district OTHER than where the offense took place, the person must be taken to a magistrate in the district where the arrest was made. This is again to preclude procedural gamesmanship, for example: to keep people from being transported for however long “the system” takes to move them before they actually see a judge.

The only exception to this rule is that the person can be taken to “an adjacent” district instead IF that will be faster or if the trial will be in that adjacent district AND the person can be taken there the same day.

So, to return to Denney’s case: He is charged with J6 offenses, so his trial will be in DC. But, like many J6 Defendants, he was arrested where he lives – Texas – so he was taken upon his arrest before a federal magistrate in the Western District of Texas. So far, so good.

At the Initial Appearance, the Texas magistrate reviewed the papers and set a Detention Hearing for three days later – December 17, 2021 – along with a Removal Hearing. The DOJ wanted Denney detained pending trial, and the Detention Hearing is to ensure that there is a lawful basis for doing so.  “Removal” is the term for transferring a person from one federal district to another, in this case from the Western District of Texas to DC. A Removal Hearing ensures that there is a lawful basis for the transfer.

The Federal Rule of Criminal Procedure that deals with these requirements is, “Rule 5. Initial Appearance.”

On December 17, 2021, the Texas magistrate held the Detention and Removal Hearings. He detained Denney on the usual grounds of dangerousness & flight risk, and he denied Denney bond. He confirmed that the DC criminal Complaint existed and pertained to Denney, so he also ordered Denney transferred to DC.

Those steps take care of most of what a magistrate has to do at an Initial Appearance. But Rule 5(c)(3)(C) also says that the magistrate MUST hold a Preliminary Hearing, which is a different proceeding from a Detention Hearing or a Removal Hearing.

A Preliminary Hearing tests whether the government has probable cause to support the criminal charge against the person in the first place. It is a procedural requirement to prevent the government from arresting and holding people based on insufficient evidence or on no charge at all. It generally applies to all cases where the defendant hasn’t yet been indicted by a grand jury. Rule 5.1 lists the exceptions where a Preliminary hearing is not required, and none of those exceptions applies to Denney.

Rule 5 requires that when a person has an Initial Appearance in a district other than where the offense was allegedly committed, the Preliminary Hearing – if one is required – must also be held in that district – where their Initial Appearance is, NOT in the district where the trial will be. That means that Denny should have had his Preliminary Hearing in Texas, but none was ever scheduled there.

Rule 5.1 also dictates WHEN a Preliminary Hearing must take place – within 14 days of the Initial Appearance. That meant the Preliminary Hearing for Denney had to take place (in Texas) no later than December 29, 2021. The 14-day deadline can be extended under certain circumstances, but the Government didn’t ask for an extension.

The Texas magistrate did not purport to hold a Preliminary Hearing. Indeed, in his Order of Removal & Detention, he says he’s “anticipating” that the Rule 5.1 Preliminary Hearing will be conducted in DC. Why he would think that when the Rules clearly say it should be conducted in Texas is unclear.

The Texas magistrate’s Order also says he’s anticipating the Preliminary Hearing will be held within the required 14 days, but he was apparently none too sure of that because he made a finding of probable cause as to one charge anyway, based on testimony given by the FBI agent at the Detention and Removal Hearing. It appears that the Texas magistrate was concerned Denney would end up being held without any judicial officer making a finding of probable cause within the required 14 days.

The magistrate was wise to be concerned because Denney spent the next 46 days in the federal prison system being “transported” to DC by the Marshal’s Service. On January 31, 2022, federal prosecutors handling the DC cases were notified that Denney had arrived in the DC federal district, after spending six weeks “in transport” from Texas.

Instead of being promptly taken before a federal DC judge, however, or scheduled for a Preliminary Hearing, his case was scheduled on the docket for an “Initial Appearance.” That is absurd, because he had already had his Initial Appearance in Texas, and by January 31, 2022, he had been in federal custody for 50 days.

To make things worse, this “Initial Appearance” was set for March 10th, which would be almost 90 days after his arrest, even though Rule 5 says an Initial Appearance has to be held promptly upon arrest, preferably the same day. Indeed, the Speedy Trial Act says a defendant’s TRIAL has to commence within 100 days of his arrest.

On March 2, Denney’s lawyer filed a motion demanding Denny’s release. He argued that there was a clear violation in Denny’s case of Rule 5.1 – the requirement to conduct a Preliminary Hearing – which meant no judge had ever found probable cause to support the charges. He also pointed out that Denney had not yet been indicted.

This motion triggered an immediate response by the DC federal court. The DC magistrate issued a Minute Order before noon the next day, directing the US Attorney’s Office in DC to respond to the motion by 5 PM that same day (Thursday).

The Government’s response points to the Texas magistrate’s finding of probable cause. They don’t expressly argue that he conducted a Preliminary Hearing under Rule 5.1, (probably because even the magistrate didn’t claim that’s what he was doing), they just mention it. But, they probably will argue at a hearing on the motion that the Texas magistrate’s finding of probable cause satisfied the purpose of a Preliminary Hearing, even if not labeled as such.

Incredibly, however, the Government’s response also argues that because Denney hasn’t had his “Initial Appearance” in DC yet, and since that appearance isn’t scheduled until March 10th, he will get his Preliminary Hearing within 14 days after that. This argument contravenes both the Rules of Criminal Procedure and the Constitution. It is an unbelievable argument for a federal prosecutor to make.

Boiled down, the government argues both that: “He already had his Preliminary Hearing” and “He’s going to get his Preliminary Hearing later this month. Don’t worry about it.” Plus, according to DOJ, Denney gets two “Initial Appearances,” which according to them, conveniently also gives DOJ a do-over on the deadline for conducting a Preliminary Hearing.

Denney’s counsel filed a Reply on Friday morning, insisting that there was no Preliminary Hearing in Texas, which is true because the docket doesn’t show one and the Texas magistrate didn’t call what he did a Preliminary Hearing either. He completely took apart the Government’s arguments. Even on their theory, he points out, since Denney showed up in DC on January 31, it will be 38 days until his “Initial Appearance” on March 10, which Rule 5 says is supposed to happen “without unnecessary delay.”

The DC magistrate, toward the end of the day on Friday, ordered that the Initial Appearance be moved up to the afternoon of Monday, March 7. I suspect the DC magistrate will say at that hearing that the Texas Magistrate’s actions constituted a Preliminary Hearing – in the district where it should have taken place – even if the Texas Magistrate did not call it a Preliminary Hearing or designate it as such on the docket. The Texas magistrate did, in fact, make a probable cause decision. If the DC magistrate concludes there was no Preliminary Hearing in Texas, then he has to decide what to do about that and there are not any easy answers to that question.

The Speedy Trial Act Defect

However, the Government has an even more significant problem in this case, which Denney’s lawyer raised in another motion he filed on Saturday. Under the Speedy Trial Act, 18 USC 3161, the Government must indict anyone that it arrests within 30 days and that deadline has been blatantly violated in Denney’s case.

The sanction for failing to file an indictment within 30 days of arrest is clear. Section 3162 of the code states that the case must be dismissed. The dismissal is mandatory.

Some time periods can be “excluded” (not counted) for purposes of the 30-day requirement. The allowable reasons for that are identified in Section 3161(h) and can include time for “transport” under section (h)(1)(F). But, under that section, any period of time longer than 10 days for transport is “presumed” unreasonable and therefore not excludable. (This is because we don’t want transport to be used punitively or as part of gamesmanship.)

So, even adding 10 days for the allowable transport time, Denney had to be indicted by January 22, 2022, but he wasn’t. (None of the other reasons for excluding time applies in Denney’s case),

Which means that Denney will have been illegally detained for 44 days as of Monday’s hearing date.

Based on the violation of the Speedy Trial Act, Denney’s counsel has demanded that Denney be released and that his case be outright dismissed. So far, the Government has not filed a response to this motion. Late on Sunday, the Chief Judge of the DC federal court issued an order directing a magistrate to prepare a report and make a recommendation to her concerning the Speedy Trial Act violation.

It is overwhelmingly likely that the courts will agree both to release Denney and that his case must be dismissed.

The DC court will have to decide whether to dismiss Denney’s case with prejudice (meaning it cannot be re-filed) or without prejudice (meaning it can be re-filed), which is more likely. There is a multi-factored test that the magistrate has to apply to figure out which kind of dismissal to enter. Denney’s counsel asks the judge to order his release on Monday and not delay that while the magistrate figures out what kind of dismissal to enter. He correctly points out that the kind of dismissal can be decided later as that decision is not a necessary condition for Denney’s release.

To refile the case, the Government would have to re-charge Denney on a new complaint or bring an actual indictment. But, if Denney is charged again, the Speedy Trial Act requires that the time between his original arrest in December & the day the original case was dismissed be counted toward the deadlines for the new case.

For example, if the DC magistrate dismisses the case on Monday, then 84 days of the 100 under the Speedy Trial Act (30 to indict, plus 70 to trial), will already have run, or 74 if the judge excludes 10 days for the transport.

That means that if – really when – Denney gets arrested again on either a new complaint or an indictment, the Government would have only 26 days until it must start his trial, unless time is extended for other, new reasons. It will be difficult to convince a judge that much more time should be excludable under the statute, so the Government will likely delay recharging Denney until they are better prepared to actually try his case.

In terms of pre-trial detention for a new case, since there will have been a judicial finding that Denney was illegally detained for more than 40 days, the courts will tread lightly before detaining him again, particularly since if he gets arrested in Texas again, there will be the transport delay problem again and that could result in a violation of Denney’s right to a speedy trial date, which would require the case to be dismissed (probably for good this time) again. All in all, Denney is probably looking at more favorable pre-trial detention conditions if a new case is filed.

Denney’s individual circumstances aside, this case constitutes an extremely troubling incident.  Transport with the federal criminal system is notoriously slow. While that is a problem even for convicted offenders, it is an outrage for pre-trial detainees who are presumed innocent. The transport system also hinders the formation of attorney-client relationships, which could address problems of this kind.

And Denney’s case shows that apparently no one at DOJ, either at the U.S. Attorneys’ Office in D.C., at Main Justice, or in the U.S. Marshal’s Service, is paying attention to (or better yet tracking) these outside-of-D.C. pre-trial detention cases to ensure that the detainees are receiving all of the due process protections to which they are entitled and that the constitutional and statutory deadlines are met. Since it is the DOJ J6 prosecution team that is ordering arrests (instead of voluntary surrenders) and demanding detentions and transfers (instead of seeking reasonable conditions for pre-trial release), the failure to comply with the Constitution, the criminal code, and the Rules of Criminal Procedure rests entirely at the feet of the DOJ.

The operative principles and rules for these early proceedings in criminal cases are not obscure, complex, or ambiguous. Competent prosecutors have no excuse for not knowing that Rule 5 requires that the Preliminary Hearing take place in the district where the Initial Appearance occurs, that it must be held within 14 days of that Initial Appearance, that there is no such thing as two “Initial Appearances,” and that the Speedy Trial Act requires an indictment to be filed within 30 days of arrest.

The entire episode is an unmitigated disgrace.