WASHINGTON — Capitol riot defendants accused of non-violent misdemeanors are seeing changes in the plea offers being made to them – changes for the worse, defense attorneys say – after a federal appeals court ruling last year limited what sentences judges could impose in their cases.
In August, a three-judge panel of the D.C. Circuit Court of Appeals ruled in favor of a challenge to so-called “split sentences” for the least serious category of offenses charged in Jan. 6 cases known as class “B” or “petty” misdemeanors. The challenge was brought by James Little, a North Carolina man who pleaded guilty to a petty misdemeanor charge of parading, demonstrating or picketing in a Capitol building that’s been used in hundreds of Jan. 6 cases. Little was sentenced in 2022 to two months in jail and three years of supervised release.
In their ruling, the panel found that federal law prohibits judges from imposing both jail time and probation for the same petty misdemeanor charge. The judges remanded Little’s case back to the D.C. District Court for resentencing.
In the three years since the Capitol riot, 370 Capitol defendants have been convicted on only a single petty misdemeanor charge, according to a WUSA9 analysis of sentencing data from the Department of Justice. Of those, roughly a third have received some amount of jail time – ranging from seven days to six months behind bars. Another quarter have received some period of home detention or confinement as part of their probation terms.
With the exception of a handful of defendants who reached plea deals with the government very early on, federal prosecutors have largely recommended at least some jail time, along with three years of supervised release, for petty misdemeanor defendants. At least 54 defendants have received both – the same “split sentence” the D.C. Circuit now says is unlawful.
Were those same defendants to be sentenced today, judges would now have to choose either jail time or probation but couldn’t impose both. However, defense attorneys who represent Capitol riot defendants say their clients now aren’t getting the same plea offers as even some of their co-defendants received before the Circuit’s ruling.
“Basically, DOJ changed its policy that it was not going to offer the petty misdemeanor anymore,” said Christopher Macchiaroli, a partner with the law firm of Silverman, Thompson, Slutkin & White.
Macchiaroli worked as a federal prosecutor with the U.S. Attorney’s Office in D.C. for eight years before becoming a defense attorney. He’s represented a number of Jan. 6 defendants, including former FreedomWorks organizer Brandon Prenzlin and former U.S. Capitol Police Officer Michael Angelo Riley, who was convicted of obstructing an investigation into his contacts with a riot defendant.
According to Macchiaroli and other defense attorneys who declined to go on the record so as not to impair their clients’ ongoing plea negotiations, since the Circuit’s ruling last year, the Department of Justice has started offering pleas to, at minimum, two petty misdemeanor counts. Under the Circuit’s ruling, a judge could impose jail time on one count and probation on the other. Macchiaroli said in some cases defendants who might have gotten petty misdemeanor plea offers before are now only being offered pleas to more serious class “A” misdemeanors – which carry up to a year in prison – or even a felony count of civil disorder.
“Normally when courts make a decision limiting the government regarding what it can ask for in punishment, the government respects that,” Macchiaroli said. “They don’t do an end-run around the order.”
In June, two months before the Circuit’s decision, federal prosecutors charged Nicholas Von Keudell, of Chicago, with four misdemeanor counts for his role in the Capitol riot. His mother, Trudy Castle, and aunt, Kimberly DiFrancesco, had already been charged for entering the building. Castle and DiFrancesco pleaded guilty in August 2022 to one count each of parading, demonstrating or picketing in a Capitol building and were sentenced to three years on supervised release, a $2,000 fine and $500 in restitution. Prosecutors had sought 30 days in jail for each.
In December, Von Keudell accepted a plea offer from the government on two petty misdemeanor counts – one count of parading, the same as his mother and aunt, and one count of disorderly and disruptive conduct. He’s scheduled to be sentenced in April.
Although Macchiaroli does not represent Von Keudell, he said defendants who now plead guilty to two petty misdemeanors are facing greater liability than they should under the Circuit’s ruling.
“Now you have defendants who decided not to take a plea pre-Little and now don’t have the advantage of a six-month misdemeanor and supervision or jail time,” Macchiaroli said. “And most judges are going to err on the side of wanting them supervised.”
Carmen Hernandez, another defense attorney who has represented nearly a dozen Jan. 6 defendants, said in petty misdemeanor cases prosecutors are seeking sentences out of line with the actual acts of defendants. Hernandez’s clients include defendants in both the Proud Boys and Oath Keepers conspiracy cases, as well as lower-level misdemeanor cases.
“The bottom line on these cases is these are petty offenses – designated so under the law,” Hernandez said. “Most people convicted of petty offenses serve zero time in prison. The idea that a person, after the Circuit finds that court were improperly imposing prison and supervision for petty offenses, would serve additional time in prison is very unfair and appears vindictive, as a matter of fact if not of law.”
A spokesperson for the U.S. Attorney’s Office declined to comment on whether the DOJ had changed its policy on misdemeanor plea offers for Capitol riot defendants and said prosecutors “assess each case individually” to determine whether to request jail time.
In court, however, federal prosecutors have made the case over and over again that Capitol riot defendants at all levels should serve at least some time behind bars – saying they believe it’s necessary to prevent another Jan. 6 from happening.
During a hearing last week for Chicago Police Officer Karol Chwiesiuk and his sister Agnes, who were both convicted at trial of four misdemeanor counts, Assistant U.S. Attorney Sean Murphy asked for a year in prison for Karol and eight months for Agnes – even as the presiding judge expressed her skepticism that incarceration was necessary.
“I do not believe that sentences of probation have the impact on these defendants or the nation that the court is suggesting,” Murphy argued.
U.S. District Judge Ana C. Reyes, who was nominated to the court by President Joe Biden last year, sentenced both Chwiesiuks to three years of supervised release and 200 hours of community service.
A second consequence of the Circuit’s ruling is that a number of petty misdemeanor defendants who received both jail time and probation have asked judges to end their supervision early. They include far-right streamer Anthime “Baked Alaska” Gionet, who completed his 60-day jail term last year and is now serving three years on supervised release, and Pam Hemphill, a 69-year-old Idaho woman who received the same sentence. The DOJ has uniformly opposed those requests. On Thursday, prosecutors filed a response to Hemphill’s motion saying the judge in her case should reimpose three years of supervision even though she has also completed her jail time.
While most judges have scheduled resentencing hearings for petty misdemeanor defendants, at least one judge, U.S. District Judge Carl Nichols, agreed to an early end to probation. In December, Nichols granted a motion to terminate probation for Suzanne Ianni, a former town official from Massachusetts who served 15 days in jail after pleading guilty to disorderly conduct in a Capitol building.
Little himself, whose appeal won before the Circuit, appeared in court last week before U.S. District Judge Royce C. Lamberth for resentencing. The DOJ asked Lamberth, a Reagan nominee who imposed Little’s original sentence, to order him to complete his three-year term of supervised release. Like Gionet and Hemphill, Little argued since he’d already served his jail time, Lamberth should terminate his probation early.
On Thursday, Lamberth chose a third route. He resentenced Little to 150 days in jail – 90 days more than his original sentence. Lamberth gave Little credit for the 60 days he’d already served and stayed an additional 30 days as a nod to the time he’d already spent on supervised release.
Hernandez said Lamberth’s decision might give her or other attorneys pause in recommending clients request early termination of their sentences. Another case currently pending before the Circuit could decide whether defendants with split sentences who’ve completed their jail time can be resentenced or must be released.
“With all due respect to Judge Lamberth, whom I greatly respect, I just see this development as more evidence that the law is being selectively enforced against Jan. 6 defendants in a much harsher manner than other petty offenders,” Hernandez said. “And I say that as a person who has represented criminal defendants in federal courts for decades.”
In the three years since the Capitol riot, more than 1,200 people have been charged with crimes ranging from unlawfully parading to seditious conspiracy. More than 700 defendants have taken plea deals, including more than 500 who have accepted deals to plead guilty to only misdemeanor charges. More than 140 people have also been convicted at trial on a range of charges.