Thread by @McAdooGordon

Jan6 Defendant Being Illegally Held.

You don't see this very often in federal court, but one of the Jan 6 Defendants I think is actually being held illegally. I will explain. The Defendant is Lucas Denney. His case number in DC is: 21mj686. /1

/2 He has a slew of charges and an arrest warrant was issued for him in December 2021. He was charged on a complaint, NOT an indictment.

He was arrested on December 14, 2021 in Texas and taken before a magistrate there. /2

He appeared before the TX magistrate on December 14, 2021 for what the federal rules call an "Initial Appearance." That is just what it sounds like: it's the first time a judicial officer sees you after you are arrested. It's to make sure you have been legally arrested. /3

Once a person is arrested a bunch of procedures kick in. At the Initial Appearance the magistrate has to advise the Defendant of certain things/take certain actions. To make sure people see a magistrate promptly the rules address WHERE the Initial Appearance has to be./4

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 LEOs messing around by taking defendants some place else. /5

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 they were arrested. This is to keep people from being transported for however long the system takes before seeing a judge./6

The only exception to that 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. /7

Denney is charged with Jan6 offenses, so obviously the trial will be in DC. But, like many Jan6 Defendants, he was arrested where he lives, which in his case is in Texas. So he was taken on the day of his arrest before a federal magistrate in TX. So far, so good. /8

At the Initial Appearance, the TX magistrate reviewed the papers & set a Detention Hearing for 3 days later - on December 17 - along with a Removal Hearing because the DOJ wanted Denney detained & shipped back to DC for proceedings here. /9

The Federal Rule of Criminal Procedure that we're dealing with so far is "Rule 5. Initial Appearance." I've excerpted out the parts that apply and you can see it here: drive.google.com/file/d/16iHcjL…

On December 17, 2021, the TX magistrate held the Detention and Removal Hearings. He detained Denney on the usual grounds of dangerousness & flight risk, & denied Denney bond. He confirmed the DC complaint & ordered Denney transferred to DC. /11

Those steps take care of most of what a magistrate has to do at an Initial Appearance. But notice that Rule 5(c)(3)(C) also says the magistrate MUST hold a preliminary hearing, which is a different proceeding from a Detention Hearing (are we holding you) or a Removal Hearing. /12

A Preliminary Hearing tests whether the govt has probably cause to support the criminal charge against you in the first place. It's a procedural hurdle to prevent the govt from holding people on insufficient evidence or no charge at all. /13

Rule 5 says when a person has an Initial Appearance in a district OTHER than where the offense was allegedly committed, the Preliminary Hearing must be held in THAT district -where their Initial Appearance is, NOT where the trial will be - if a Preliminary Hearing is required./14

And a Preliminary Requiring is required under the next Rule, (Rule 5.1), unless 1 of 5 things happen to make it unnecessary - NONE of which happened in Denney's case. Denney's Preliminary Hearing had to be held in TX, but no Preliminary Hearing was ever scheduled there. /15

Here I've excerpted the applicable parts of Rule 5.1 and a federal statute, 18 USC 3161, which we will get to in a minute. drive.google.com/file/d/1uCaWo5…

/16

Under Rule 5.1, 5 things moot out a Preliminary Hearing: the defendant waives the Preliminary Hearing, the defendant is indicted, the defendant waives indictment, the govt charges only misdemeanors on an "information", the defendant is charged w/misdemeanors & goes to trial. /17

None of those happened in Denney's case, so he HAD to have a Preliminary Hearing under Rule 5.1, and Rule 5 says that if he had to have a Preliminary Hearing, then that Preliminary hearing HAD to happen in the district where he made his Initial Appearance - TX. /18

Notice also the Rule 5.1 says WHEN the Preliminary Hearing had to take place - within 14 days of the Initial Appearance. That meant the Preliminary Hearing had to take place in TX no later than December 29, 2021. /19

The 14 day deadline can be extended, the test for which is easier if the defendant agrees and harder if he doesn't. Then it can be done "only on a showing that extraordinary circumstances exist and justice requires
the delay." The Govt didn't even ask for a delay, however. /20

Instead, the Removal Order, issued by the magistrate December 17, 2021 was immediately executed. By which I mean, nothing else happened in TX. The removal was far less than "immediate," actually. Denney was "transported" to DC over 46 days. He arrived in DC on Jan 31, 2022. /21

And, as of today's date, March 3, 2022, Denney has still not made any appearance before a judge in DC and he has still not been indicted. /22

What happened to "the Preliminary Hearing had to be w/in 14 days of an Initial Appearance (December 17) or else delay had to be justified?" The TX Docket shows the Initial Appearance, Detention Hearing and Removal Hearing, but no Preliminary Hearing.

Link:drive.google.com/file/d/15yh_IW…

The TX magistrate was apparently concerned that the 14 day deadline would be a problem given the time it would take to transport Denney to DC, so he made a finding of "probable cause" that Denney had committed at least one of the offenses that the criminal Complaint alleges. /24

The magistrate heard evidence from an FBI agent on which to base that finding, but he didn't formally hold a Preliminary Hearing. In his Order of Removal & Detention he says he's "anticipating" the Rule 5.1 Preliminary Hearing will be in DC.
Link:
drive.google.com/file/d/1Ri5AXS…
/25

He also says he's anticipating it will be held w/in the 14 days, but I'm thinking he was none too sure of that or he wouldn't have made a finding of probable cause at all. It looks to me like he was concerned Denney would end up being held w/o a finding of probable cause. /26

So Denney rocks up to DC on Jan 31, after spending 6 weeks "in transport" from TX (probably could have walked here faster.) And does he get a "Preliminary Hearing" (even though it would be in the wrong district)? Nope. He gets . . . wait for it . . . an "Initial Appearance!"/27

Which can't be because he's already had that in TX (last year) and to make it even better, the "Initial Appearance" is set for March 10th, which will be almost 90 days since his arrest, even though Rule 5 says it has to be promptly upon arrest, preferably the same day. /28

So, now to a better part of the saga. Denney is now represented by @shipwreckedcrew, who drafted a motion that was filed yesterday, saying basically, "Hey, what is up with THIS?" & asking for Denney's immediate release. Ship's motion to appear pro hac vice was granted today. /29

Ship's motion says that Denney's case is a clear violation of Rule 5.1 - the requirement to conduct a Preliminary Hearing - which means he should be released because a judge hasn't said there's probable cause of the charge. /30

The DC magistrate got a load of that this morning & issued a Minute Order before noon ordering the DC US Attorney's Office to file a brief in response by 5 PM tonight, which they did. /31

The Govt points to the TX magistrate's finding of probable cause. They don't actually argue that that was a Preliminary Hearing. (Probably because even the Magistrate didn't claim that's what it was.) But they likely will argue that point at a hearing, if there is one. /32

Hilariously, (unless you're Denney), they argue that, "It's all fine, judge, don't you worry, because he hasn't had his Initial Appearance in DC yet, & that isn't until March 10th, so he can get his Preliminary Hearing 14 days after that. We've totally complied with 5.1" /33

Honest to God, it's like they don't even read the Rules. 🙄 /34

So basically their argument is: "He already had his Preliminary Hearing" and also: "He's going to get his Preliminary Hearing later this month."

Plus he gets 2, count them 2, Initial Appearances!

It's sort of like this 👇/35

So, obviously that "analysis" can not be right, so what will the DC magistrate do? /36

Attacking the problem as Ship did w/a frontal assault on Rule 5.1 & the lack of a Preliminary Hearing on the TX Docket was a good way to start. It grabbed attention & began to move the case toward a solution. It also forced the Govt to take a position (which they flubbed.) /37

Their response that "there's nothing to see here" is absurd. This man has been held for three months with no real movement on his case & a definitely flawed procedural process, which the Govt is responsible for handling properly. He's incarcerated! /38

The DC magistrate is not going to just blow this off as you can see from his prompt action today. The most wrong (how do you like that?) application of the Rules I think would be to do the Preliminary Hearing now in DC. Rule 5 makes it clear that should have happened in TX.

The problem can't really be fixed that way - by violating the rules in another fashion. I think the saving grace for the Govt is going to be that the TX magistrate anticipated this problem & made a probable cause finding. /40

I suspect the DC Magistrate will say that was a Preliminary Hearing - in the district where it should have taken place - even if the TX Magistrate did not call it a Preliminary Hearing or designate it as such on the docket. He did, in fact, make a probable cause decision. /41

However, the Govt has a bigger problem, which I do not think they will be able to fix or get out of. The requirement in Rule 5.1 to have a Preliminary Hearing within 14 days of the Initial Appearance is not the only time deadline that the Govt must meet. /42

The federal statute governing Speedy Trial, 18 U.S.C. 3161, (which I linked earlier) requires that an indictment in felony cases be filed w/in 30 days of the date of the person's arrest. That hasn't happened in this case. Denney was arrested December 14, 2021 w/no indictment./42

And no indictment has been returned in his case since then. I think it is just inescapable that Denney is no being held illegally. That happened on the 31st day after his arrest when no indictment had issued: that was January 13, 2022, while he was "in transport." /43

The sanction for failing to indict w/in 30 days of arrest is clear.

It is set out in the next section, 3162: Mandatory dismissal of the case.

Link:drive.google.com/file/d/1wVJMPh…

/44

Notice that the sanction language does contemplate that some time periods can be "excluded" (not counted) for purposes of the 30 days. Section 3162 points back to section 3161(h) for what time can be excluded. And it even includes time "in transport" under section (h)(1)(F)./45

But, unfortunately for DOJ & fortunately for Denney, if the reason time is being excluded is for "transport" under that section, anything longer than 10 days is "presumed" unreasonable & therefore not excludable (because, again, we don't want transport to be used punitively." /46

So. even adding 10 days for the transport time, (& because none of the other reasons for excluding time applies in his case) Denney had to be indicted by January 23, 2022, but he wasn't. Which means that he's been illegally detained so far for 40 days as of tomorrow morning. /47

In terms of a dismissal, the court can dismiss without prejudice (the case can be refiled) or with prejudice (the case can not be refiled). There is a multi-factored test that the magistrate has to apply to figure out which to do. /48

So, now that DOJ has filed it's laughable response, Ship should probably file a Reply pointing out the problems in their arguments & raising the 30 day indictment deadline problem, all of which the magistrate may already be on top of. We'll see what happens tomorrow. /49

Thread continues here:

https://twitter.com/McAdooGordon/status/1499609214913765379?s=20&t=-3E0wrDT2paWala-i_ldNg

Update: March 4:

So Ship filed his Reply this morning. He doubles down on the Rule 5.1 argument. His position is: there was no Preliminary Hearing in TX, not an unreasonable position because the docket doesn't show one & the TX magistrate didn't call what he did one either./50

He takes the govt's arguments completely apart: even on their theory, he points out, Denney showed up in DC on Jan 31 so it will be 38 days until his "Initial Appearance" that Rule 5 says is supposed to happen "without unnecessary delay." /51

He has no use for their nonsense: "The procedural issues involved here is not complicated and is clearly spelled out in the Rules of Criminal Procedure had anyone at DOJ taken the time to read them." /52

Also: "The Government’s response is not worth the time needed to read it." 🤣

That is how a former AUSA talks about Govt pleadings that suck. Ha!

/53

He concludes with: "The deprivation of Mr. Denny’s right to liberty must end as he has not been provided with his constitutional right to due process. Mr. Denny must be released immediately." /54

He does not make the argument about how Denney has also not been indicted w/in the required 30 days, which - much as I love Ship - I must say in my opinion is a mistake. I think there's a real risk that the DC magistrate doesn't agree that there is a Rule 5.1 violation . . . /55

but does agree that the statutory 30 day rule has been violated & the case must be outright dismissed, not just that Denney must be released. The magistrate may conclude this anyway. We'll see. /56

It does illustrate that there are sometimes differences in approach or strategy with how to argue a case even among lawyers who generally agree on the essential issue. /57

If the DC magistrate were to dismiss the case without prejudice (meaning it can be re-filed), which is the most likely way it would be dismissed, the Govt would have to re-charge Denney on a new complaint or bring an indictment. It would then arrest him again on those charges./58

But, the statute, 18 USC 3161, would still require the court to count all the days between when Denny was arrested in December & the day the case was dismissed against the 70 day Speedy Trial Act requirement to start his trial. /59

I also think you'd stand a better chance of getting Denney released pre-trial for the new case if there had been a judicial finding that he'd previously been held illegally & my own view is that the absence of the indictment argument is a better bet for that than Rule 5.1. /60

But lawyers can have differing views on these things. /61

If the DC magistrate were to dismiss the case today, then 81 days of the 100 under the Speedy Trial Act (30 to indict plus 70 to trial), will already have run, or 71 if the judge excludes 10 days for the transport. /62

That means if, really when, Denney got arrested again, the Govt would only have 29 days to start the trial, unless the time was extended for other reasons, & they will likely have a judge who's not feeling too generous about that in this case.

I’m not sure which magistrate will rule on this. Judge Faruqui ordered the Govt to respond yesterday, but the case is actually assigned to Judge Merriweather. No ruling yet. /64

Update: The clerk just posted a docket entry resetting the "Initial Appearance" from Wednesday, March 10th to Monday, March 7th, at 2 PM.

This is the kind of thing defense lawyers deal with all the time. This is a totally inadequate response by the court to the situation. /65

So, the good news is Denney got a hearing and his counsel has the magistrate's attention focused on the reality that there's a problem with this case.

(Trying to look on the good side of things. 👍) /66

Thread continues with an update here:

https://twitter.com/McAdooGordon/status/1500256293797380097?s=20&t=OYqLNoX4QH9xGZaA90gpjA