Last week the case of January 6 defendant Lucas Denney gained considerable attention when the defense sought Mr. Denney’s release because of two Government violations of his pre-trial rights.  Denney had been locked up for more than 80 days without having a Preliminary Hearing (to which he was entitled within 14 days) or being indicted within 30 days of his arrest, as required by the Speedy Trial Act. The defense filed separate motions for these violations.

To prevent the court from releasing Denney, the Government rushed through an indictment last Monday only hours before a magistrate judge was to consider the first defense motion. While this maneuver succeeded in keeping Denney locked up, in its hurry the Government charged Denney with only one count of assaulting a federal officer rather than the 12 offenses for which he was originally arrested on a Complaint. Doubtless, the Government intended to later obtain a superseding indictment against Denney that would include all 12 original charges.

Monday, however, when Denney was brought before the court to be arraigned on that single charge, he surprised the Government and the court by seeking to plead guilty to it. This was very astute lawyering by Denney’s counsel to take advantage of the Government’s tactical misstep. By pleading to a one-count indictment, Denney obtains a better resolution than the Government would have ever offered him as a plea deal, and the constitutional protection against double jeopardy would prevent the Government from bringing the additional charges against Denney. In the chess match of criminal procedure, it was a checkmate move by the defense.

But the court temporarily halted the move by refusing to let Denney enter a plea, saying that it wanted to research the issue. Thus, after a bit of drama today, the saga isn’t finished yet. It will resume on Thursday when Denney is again brought before the court.

The Background of Denney’s Case

Denney was arrested in Texas on December 13, 2021. He was promptly brought before a federal magistrate there for an Initial Appearance, followed by a Detention and Removal Hearing, which resulted in the Court ordering that he be locked up and transported to DC to face the charges against him. However, the Texas federal court did not conduct a Preliminary Hearing on the charges against Denney, as mandated by Rule 5 of the Federal Rules of Criminal Procedure.

Denney then spent 46 days in the federal prison system being “transported” by the U.S. Marshal’s Service to DC, where he finally arrived on January 31, 2022. By then, he had been in federal custody for 50 days. Instead of being promptly taken before a federal judge in Washington DC, however, he simply languished in jail for another month. Meanwhile, the 30-day deadline for him to be indicted by a grand jury under the Speedy Trial Act had long since come and gone with no indictment.

Denney’s counsel brought these defects to the attention of the DC court and demanded his immediate release and dismissal of the Complaint. Last Monday, March 7, 2022, a federal magistrate held a hearing to consider the first motion and rule upon the failure to provide Denney with a Preliminary Hearing.

The court later issued an order in which it said it had been prepared to release Denney based on the absence of a Preliminary Hearing because that meant he was being held without a judicial finding of probable cause to support the charges against him. However, to head off Denney’s release, the Government had rushed into the grand jury the morning of the hearing and obtained an indictment.  Under the law, an indictment is a finding of probable cause (by the Grand Jury instead of a judge) and it, therefore, moots the error of not conducting a Preliminary Hearing. Consequently, at the hearing last Monday afternoon, the magistrate judge gave the Government a tongue lashing and gave Denney an apology, but it did not release him.

On the defense motion to dismiss the Complaint for violating the 30-day deadline to indict Denney, the magistrate set a schedule for the parties to brief this issue and set a hearing on it for March 22, 2022.  This morning, Monday, March 14, 2022, the Government filed a pleading in which it conceded that the 30-day Speedy Trial Act deadline had been violated and that, as a result, the charges against Denney must be dismissed.

The Government asked that the charges be dismissed without prejudice, however, meaning that it could proceed to re-charge Denney. Under case law interpreting the Speedy Trial Act, the court probably would have granted that permission. So, in practical effect, Denney would have been released for a brief period until a new Complaint or Indictment was obtained, at which point the Government would have arrested him again and sought his detention pending trial.

Denney’s Arraignment

Denney was scheduled today to be arraigned on the one-count indictment that the Government rushed to obtain last Monday.  The arraignment occurred before Judge Randolph Moss, to whom the case was randomly assigned following the indictment.

The purpose of an arraignment is to ensure that the defendant has a copy of the indictment, to read or summarize the indictment to him (this step is usually waived by the defense), and to have the defendant enter a plea to the indictment. In the vast majority of cases, the defendant enters a plea of “not guilty” and the case then proceeds toward trial. But the defendant is not required to plead not guilty. He can instead plead guilty if he chooses.

Because the Government conceded this morning that the charges against Denney in the Complaint and the Indictment had to be dismissed (as I explained last week here and here), both the Government and the court probably expected that Denney’s counsel would move to dismiss the indictment at the arraignment and demand his release, rather than seek to enter any plea to the indictment at all.

Although the overwhelming number of defendants in federal court ultimately plead guilty, this usually occurs farther down the road toward trial and involves a change of plea by them, from the initial “not guilty” they entered at the arraignment. Further, almost all guilty pleas in federal court are entered pursuant to a formal, written plea agreement between the Government and the defendant, although that is not required either.

Denney confounded all of these expectations. He did not move for the indictment to be dismissed.  Instead, he sought to proceed with the arraignment and plead guilty. And, he did so without the benefit of any plea bargain with the Government.

While this may appear questionable at first glance, it actually reflected excellent lawyering by Denney’s counsel. To understand why, it is necessary to understand something of plea bargaining, plus what the future held for Denney had he sought dismissal of the indictment or pleaded “not guilty” to it.

Pleas and Plea Bargaining

Plea bargains usually involve the Government dropping some charges and/or making other concessions in return for the defendant’s agreement to plead guilty. The defendant also makes other concessions as part of the bargain. The defendant usually must agree to a statement about the facts of the offense(s), which will influence the sentence, and may also have to stipulate how the Federal Sentencing Guidelines will apply to the case. By stipulating to these issues in his plea agreement, the defendant waives the right to contest them at sentencing.

Therefore, in most cases, a plea bargain has the effect of placing both a ceiling on the potential sentence (the defendant’s goal) and a floor under it (the Government’s goal). The plea bargain will effectively specify the applicable sentencing range under the Sentencing Guidelines. While federal courts have the ability to impose a sentence above or below the Guidelines range, they do so infrequently, and the plea agreement may even specify that the defendant cannot ask the court to go below the range.

A defendant in a criminal case only ever has two alternatives:  go to trial or plead guilty. If the defendant is acquitted at a trial, he obviously comes out ahead. He may also come out ahead if he is not convicted at trial of all the charges that the Government demanded he plead guilty to as part of a plea deal. If that happens, he may well receive a lesser sentence than he would have under a negotiated plea deal with the Government.

However, if the defendant is convicted at trial of the same charges that he could have pleaded guilty to, he faces a longer sentence than he would have on the plea. That is because the Guidelines reduce the sentencing range when a defendant “accepts responsibility” by pleading guilty. Taking the case to trial is not “accepting responsibility,” so there is no reduction under the Guidelines.

The alternative to going to trial is to plead guilty, either by entering into a plea bargain with the Government or by simply pleading guilty to the charges in the indictment. Any guilty plea, whether by agreement with the Government or not, gets the defendant some reduction under the Guidelines for “accepting responsibility.”

A plea agreement with the Government allows the defense to nail down exactly what the Government’s positions are going to be on issues under the Guidelines, but it also requires the defendant to nail down his positions too. And to get the deal, he may have to give up issues on which he thinks he has a strong argument because the Government insists on it as part of the overall plea deal.

A guilty plea to the indictment with no agreement with the Government, in contrast, permits the defendant to contest any and all issues he wants under the Guidelines, such as the applicability of certain enhancements, and whether the facts of the offense(s) are as bad as the Government claims, at the sentencing hearing. He has not bargained away his ability to contest these issues

Defendants nevertheless seldom opt to plead guilty to the indictment at their arraignment, and for several good reasons. First, in many cases, the indictment contains more charges, or more serious charges, than the defendant will have to plead guilty to in a plea bargain, so a plea to the indictment would risk a longer sentence than the plea will generate.

Second, at the time of arraignment the defense often does not know enough about the case to make a considered judgment about pleading guilty. Defense counsel may not know enough about the facts of the case yet and what defenses are available to give appropriate advice on a plea. And, in many cases, the defense doesn’t yet know what plea offer the Government will make. That comes later in the case and it might be the better option.

The third reason is purely convention: because plea bargains are overwhelmingly used to resolve criminal cases, the idea of pleading guilty to the indictment is simply not considered by some defense counsel, even in cases where it presents a strategic advantage. But a savvy defense lawyer knows when to make this unusual move, and there are several scenarios in which it is not only appropriate but is the best move for the client.

Plea Bargaining in the January 6 Cases

In the January 6 cases, the Government has taken tough, and fairly uniform, positions on the plea bargains it is offering. For defendants like Denney, who engaged in some form of physical altercation with law enforcement officers, the Government has demanded a plea to two felonies — obstructing an official proceeding (18 U.S.C. § 1512) and assault on a federal officer (18 U.S.C. § 111). In Denney’s case, under the usual plea offer, the Government would have dropped the other ten charges.

In addition, in January 6 cases like Denney’s, the Government has demanded that defendants stipulate to the applicability of enhancements under the Guidelines that have the effect of raising the offense level (after credit for accepting responsibility by pleading guilty) to level 25. For a defendant with no prior criminal record, this results in a sentencing range of 57-71 months’ imprisonment. Further, the Government has insisted that these defendants agree to pay $2,000 as restitution for the damage done to the Capitol on January 6.

Finally, in these cases, the Government requires the defendants to stipulate to a set of facts on which the judge will determine issues at the sentencing. In many cases, the Government’s version of the facts is worse than the defense believes is fair and accurate, and/or the Government is taking aggressive, debatable positions about how the Guidelines apply to the case and whether restitution can be ordered in that case. By entering into plea bargains, defendants must give up the right to challenge all of these issues at their sentencing hearings.

In most of the January 6 cases, of course, going to trial is not a realistic option because the Government has videos of the offenses and the defendant has no viable defense or at least has no viable defenses to the major charge(s). The first January 6 trial resulted in the prompt conviction of Guy Reffitt on all charges this month. The trial was, in effect, what defense lawyers call “a slow plea,” but without any of the benefits of a plea. Reffitt will not get a reduction in his sentence for “accepting responsibility,” which he would have gotten if he had instead pleaded guilty, either with or without a plea agreement.

So, pleading guilty to the indictment is a better option in some cases than either going to trial or negotiating a plea bargain, depending on the facts and how the Sentencing Guidelines apply, and what the Government is offering. More specifically, pleading guilty to the indictment is a viable option in cases where (1) it will not increase the defendant’s Guidelines range, or will increase it only slightly, and (2) it frees the defense to argue for a significant reduction in the Guidelines range and/or ultimate sentence and to contest the Government’s position about exactly how bad the facts of the offense are or how the Guidelines apply to those facts. Essentially, without a plea bargain tying its hands, the defense can “try its case” to the court at sentencing and still get the Guidelines reduction for “accepting responsibility.”

The Advantages of A Guilty Plea at Denney’s Arraignment

Rather than proceed with his arraignment Monday, Denney could have moved to dismiss the indictment because it violates his Speedy Trial Act rights. The Government would have agreed to the dismissal but would have also asked Judge Moss to order that it be “without prejudice,” which would let the Government re-charge Denney later. While his defense counsel could request that the dismissal be “with prejudice” (meaning the Government could not re-file the charges), the overwhelming odds (under governing law) were that Judge Moss would have granted dismissal without prejudice. While the dismissal would have secured Denney’s release, he would soon be re-arrested when the Government obtains a new indictment against him (on 12 charges instead of one). And he would very possibly have been detained again to await his trial. Thus, the benefits of the dismissal would have been short-lived.

By instead pleading guilty to the existing one-count Indictment and waiving the Speedy Trial Act violation, Denney obtains permanent benefits. He ends up with only one felony (Assault), rather than two (Assault and Obstruction), on his record. And since his hands will not be tied by stipulations in a plea bargain, Denney will be free to make any arguments he wants at sentencing about how the Guidelines apply to his case and whether restitution is legally permitted in his case and to contest any facts that the Government wants to use to increase his sentence.

The Government was never going to offer Denney (or anyone else in his situation) a plea deal to only one count, with the freedom to contest issues at his sentencing. Denney’s ultimate sentence is likely to be lower than what it would have been under the Government’s standard January 6 plea offer and it will definitely be far lower than it would have been after a conviction at trial on multiple charges.

Moreover, Denney is better off by pleading now rather than having his case prolonged even if the court ultimately gives him the exact same sentence that he would have received pursuant to a later plea bargain. He will have achieved closure sooner and he will be sentenced sooner. Uncertainty about the future will no longer weigh on him, his family, and his friends. He will know what the future holds and be able to plan for it.

At his hearing before the magistrate judge last week, Denney broke down explaining to the judge that his greatest wish was to get back to his children, who are suffering greatly because of his incarceration. An early plea and sentencing gets him on track for this.

Finally, Denney will greatly improve his conditions of confinement sooner by pleading guilty now even without a plea bargain. While awaiting trial, he has been held in a jail (i.e., with cells) in the DC area, far from his home and family, and with great restrictions on his liberty.  Once he starts serving his sentence, the Bureau of Prisons will place him at a facility – likely a minimum-security institution or a camp — within 300 miles of his home. There he will have much more freedom day-to-day and he will have a much better opportunity to receive visits from family and friends. In short, his quality of life will improve immensely, and the sooner he enters his plea the sooner that will happen.

Thus, from virtually every angle, a plea to the one-count Indictment has potential advantages for Denney. And his counsel determined that it is the best overall strategy for him, and therefore sought to execute it at the arraignment.

The Judge Interferes With the Defense Strategy

However, Denney’s careful and thoughtful strategy was somewhat thwarted, or at least delayed, by the Court Monday. Judge Moss was obviously surprised by Denney’s desire to plead guilty, and when the Government initially balked he announced that he needed time to study the issue. Denney’s counsel objected to any delay, expressing justified concern that the Government might again rush to the Grand Jury and obtain a superseding indictment on the 12 original offenses, thereby eliminating Denney’s opportunity to plead guilty to one charge.

There is no requirement for defense counsel to alert the Court or the Government of an intention to plead guilty at arraignment. Although many times defense counsel would give the court and prosecutors advance notice in the interests of smooth processing, in cases of this kind – when the Government has previously engaged in sharp practices – it is entirely understandable that the defense did not do so. And, in any event, it is entirely within the defendant’s rights and the Rules of the court to simply announce the choice of plea at the arraignment hearing. Both the prosecutors and the court should be prepared to handle whatever plea the defendant chooses to enter.

That is not what happened in this case, however. After an extended back-and-forth, the court was simply unwilling to move forward today on the arraignment that it had scheduled and it insisted on postponing the proceeding until this Thursday.  It was clear that the court had never encountered this situation before and was apprehensive about just what it should do. As Denney’s attorney noted, however, the federal rules require a defendant to enter a plea – either guilty or not guilty – at the arraignment. When a defendant chooses to plead guilty, the court’s only responsibility under the rules is to ensure that there is a factual basis for the plea (i.e., the defendant did commit an offense) and that the defendant is entering the plea knowingly and voluntarily.

The Court’s refusal to proceed with the arraignment today was totally unwarranted and contrary to the Rules of the court. Denney was entitled to enter a guilty plea at his arraignment under the Rules, and the fact that he wanted to do so was not a basis for the judge to stop the arraignment proceedings. The delay could have ended up prejudicing Denney’s rights if he had lost the opportunity to plead to the existing one-count indictment.

However, during a brief break in the proceedings, the prosecutor conferred with her supervisor and announced that the Government did not object to Denney entering a plea to the current indictment.  (This probably signals that the Government does not intend to further abuse Denney’s rights during the interim between now and Thursday.) Only at that point did the Court indicate that Denney might be allowed to enter a plea on Thursday.

It is entirely unacceptable that Denney’s ability to exercise his rights is apparently dependent on whether the Government will agree that he may do so. The Court failed in its duty today to safeguard the rights of the Defendant. That the decision to enter a guilty plea at arraignment was unexpected is not a basis for denying the Defendant the right to enter the plea of his choice to a criminal charge. The Court’s inability (or refusal) to apply basic rules of criminal procedure in this situation was a shocking display.

At this point, however, it seems likely that Denney’s plea will take place on Thursday, as it should have today. Time, a factor that has taken on outsized importance in this case, will tell.