The January 6 Legal Defense Fund

Today's update is not what we had hoped for, but we were prepared for this outcome going into the trial.

Leo Bozell was convicted of all counts alleged against him by the Government. At trial we really only contested two counts -- Leo was clearly captured on CCTV and other video breaking a window on one Senate Wing door, breaking a window next to the Senate Wing door, and entering the Capitol through a window that was broken out completely by others. He then walked around inside the building for 55 minutes, including spending time in the Senate Gallery and on the Senate Floor. We did not deny the obvious as it was all captured on video and identification was not an issue.

The defense in the case related to a charge that he assaulted officers going up the stairs on the northwest side heading to the Capitol and that he "corruptly" intended to obstruct the proceedings taking place inside.  

He was convicted in a bench trial on both those counts, but with one favorable factual determination that he only "interfered" with the officers, he did not "assault" any of them.  

We were prepared for this outcome, and we have every expectation that issues that will be raised at sentencing will lead to a more favorable ultimate disposition than has been the case for many defendants who have found themselves in this position pending sentencing.  

As I've said here before, this was not a case where "acquittal" was a realistic outcome. Leo understood that. The goal from the outset has been to find a path to the "least bad outcome" for Leo.  

I believe that path is still open to us, and the work on his behalf continues in that pursuit. Sentencing will be in January.  

One feature of GiveSendGo is that individuals who have donated in the past receive an email of every update posted to the Fundraiser Page.  The Updates we have posted involve recent developments in case -- the good, the bad, and the ugly.  There is no effort here to hide what is happening in the cases that are supported by contributions to this site.  The reality of criminal defense practice -- and federal criminal defense practice specifically -- is that "good news" is always relative.  When the DOJ wins 95% of the cases that go to trial, expecting to achieve "acquittals" is a recipe for repeated disappointment.  Every case is different in terms of what a "good outcome" might look like.  So we put all the outcomes here.

But this message is about the need of the J6 Fund.  There are four upcoming trials that need help being funded.  I'm very confident three will go to trial -- the fourth one remains a bit up in the air.  The four clients are Leo Bozell (Sept. 6), Ryan Samsel (Oct. 23), Michael Olivares (November 13), and Jeffrey McKellop (Dec. 11).  In at least two of those cases will have a co-counsel so the entire burden of the defense will not be on me.  But all four cases involve multiple felony charges, all are seen as "meaningful" to DOJ in one respect or another, and all will be hard fought on both sides.  There will be no expense spared by the Government in seeking convictions of each, so the defense needs to be prepared to match that effort.
In addition to these four trials, there are four new cases that have just begun, there are three sentencing scheduled -- the preparation of defense sentencing statements and the hearings -- and I'm already working on two appeals with a third under consideration.
Now would be a very opportune time to continue to support this work if you are able and desire to do so.  We pretty much operate month-to-month with the revenue you provide -- there is no five-figure account balance sitting out there that we can just draw upon whenever necessary.  This fundraising appeals generally come when the balance is declining and we can see expenses drawing close on the horizon.  Recent fundraising was able to lift the fund out of the hole and got almost all our debts paid, but we're about to incur a bunch of new debts and put us right back in the same position we were in 60 days ago.  So any contributions now would be greatly appreciated.

On August 10, 2023, Daniel Phipps appeared for sentencing before Judge Karl Nichols.
We resolved Daniel's case without reaching a plea agreement with the Government by having Daniel plead guilty to each of the charges in the indictment.  That decision was based on a conclusion that the "benefit" that Daniel would receive from the plea agreement was not sufficient to give up his opportunity to contest certain factual disputes at sentencing and to waive his appeal rights -- both of which are required by the Government as part of a plea agreement.  
In drafting our own statement of facts, Daniel did not admit to having "assaulted" any law enforcement officer, although he did admit that his conduct interfered with and obstructed officers in performing their duties on January 6.  He also admitted to being unlawfully on the grounds of the Capitol and going inside the Capitol without being given lawful permission to do so.  
This approach allowed us to argue for the application of a less serious sentencing guideline provision, with fewer enhancements, which would have resulted in a lower sentencing range than that sought by the Government.  
The sentencing hearing took nearly two and one-half hours.  At the conclusion Judge Nichols described it as a very close decision, but found that Daniel's conduct -- though minor -- did meet the definition of "assault" as a technical legal matter.  Based on that finding, we did not get the more favorable sentencing guideline.  
The Government had asked for a sentencing range of 27-33 months, and a sentence at the top of the range -- 33 months.
Judge Nichols made a favorable adjustment to the guideline calculation, and gave Daniel the benefit of one additional level for "acceptance of responsibility."  He determined the range to be 24-30 months, and sentenced Daniel to 27 months, the middle of the guideline range.  
The outcome was not the "Home Run" that we were looking for, but it was a small win by obtaining a sentence below what the Government sought even after losing the factual issue on the question of "assault."  The sentence of 27 months was one of the lower sentences handed down for an "assault" conviction.  With various sentencing credits he should qualify for under BOP policies, Daniel will likely spend less than 12 months detained in a BOP facility.    

On August 8, 2023, Salvador Sandoval appeared for sentencing before Judge Kollar-Kotelly.  I came into Sandoval's case after he had been represented by other counsel during a bench trial before Judge Hogan.  Following the trial Judge Hogan retired, and the case was transferred to Judge Kollar-Kotelly for sentencing.  The matter was twice during the 8 months after trial so I could get up to speed on the evidence and trial transcript.  
Judge Hogan had entered very comprehensive verdicts at the conclusion of the trial, creating a challenging record to work from at sentencing. In the end, Judge Kollar-Kotelly was unwilling to stray from the language used by Judge Hogan in his factual findings and legal conclusions.  She applied all the sentencing enhancements requested by the Government based on Judge Hogan's findings, and she found a lack of regret and remorse by Salvador based upon his actions after January 6.  
In the end, there was simply no evidence of mitigation that she was willing to accept and credit, and she sentenced him to the middle of the recommended guideline range -- 88 months.  The biggest problem was that Judge Hogan had found that he assaulted four different Officers over a period of only 3 minutes, even though none were injured. I believe that is one of the longest sentences imposed for "assault" when there was no weapon used and no injury to any officer.  It was a disappointing result, and we will be filing an appeal on Salvador's behalf.

Michael Olivares appeared for what was expected to be a sentencing hearing on August 11, 2023, before Judge Beryl Howell.  I entered Michael's case only after he had signed a plea agreement and entered a plea of guilty while represented by a different attorney back in January.  
But there were errors in the paperwork filed in the case.  The Information charging him with a crime, and the plea agreement setting forth his plea did not match.  Those errors needed to be corrected prior to his sentencing, but the corrections would have required Michael to waive his right to a grand jury indictment as it would have related to a felony.  
Michael chose to not waive his right, the plea agreement was declared void, and he withdrew his previously entered guilty plea.  He is fully aware that Government intends to seek an indictment with additional felony charges.  Because the facts of the case will not change, and the evidence will be the same, we will proceed on a fairly rapid track to trial.  Initially that was going to be at the end of September, but calendaring conflicts have now moved the trial to December.   
Another week before Christmas spent in DC in trial -- two years in a row.   

The need for additional funding remains ongoing.  I have trials in September, October, and December, as well as 3 different sentencing hearings in that same time frame. I'm also working on two appeals now, as well as filing Notices of Appeal in 2 newer cases.  Whether I handle those appeals is a matter that remains to be determined based on available time and funding.

As always, your contributions to my efforts are greatly appreciated -- I could NOT do this work without the generous contributions received here.

On August 2 and 3, four members of the Robinson family from South Carolina were sentenced pursuant to their guilty pleas to misdemeanor offense for having gone inside the Capitol on January 6. The sentences imposed were -- for the most part -- between what we had hoped for and what the Government had asked. While it is true that many defendants who have pled guilty to the misdemeanor have received only a term of probation, it is also true that other defendants who have pled guilty to only the misdemeanor charge have been sentenced to some time in custody, up to the potential maximum of 6 months. The two biggest variables in that regard are the judge on the case, and the activities that happened in connection with the defendant while inside the Capitol. Unfortunately for the Robinson family members, they were "front and center" at the most tragic moment that day -- the moment Ashley Babbit was shot and killed. Three of the four family members were within mere feet of Ms. Babbit -- and one family member was momentarily in the line of fire only a second or two before the shooting happened. He was at doors that were being kicked, and took a step back just as Ms. Babbit stepped forward on his right side to go through the broken window. The fourth member had ducked into a nearby bathroom but came out just after the shooting to the scene of Ms. Babbit laying on the floor. There was just no escaping the fact that the video evidence played at sentencing was going to repeatedly capture the moments leading up to the shooting as the positions and movements of each of the Robinson family members were shown by the Government. It also was unavoidable that in the moments before the shooting, the videos reflected a demeanor of excitement and enthusiasm in their faces and actions, which only served to undercut their claims of regret and remorse over the manner in which events played themselves out and their small roles. The Judge noted pointedly that they had not come to Washington talking about revolution or civil war, and their actions inside the Capitol were largely peaceful --they didn't break anything and they didn't attack anyone. But their conduct was different from those who entered and simply walked around for a few minutes before leaving. For that reason, and others she took note of, she did not think they fit within the class of persons for whom probation was a sufficient sentence. Brittany Robinson was sentenced to 30 days in custody; Linwood Robinson Sr. to 60 days in custody; Linwood Robinson II to 60 days in custody; and Benjamin Robinson to 120 days in custody. The Government had asked for longer sentences for the first three. Benjamin was the family member at the taking part in the efforts to force open the doors at the moment Ms. Babbit was shot. The costs of representing the Robinson family was shared by a donation on behalf of all four by the Patriot Freedom Project, with the balance paid for with funds contributed to the January 6 Legal Defense Fund.

Michael "Whip" Greene, indicted as part of the Government's prosecution of members of the Oath Keeper organization in connection with the events of January 6, was sentenced to a term of probation for two years, as as well as community service, for the misdemeanor violation of having been on the grounds of the US Capitol while it was "restricted" on January 6.  

After a five week trial that ended in mid-March, Whip was convicted on that single misdemeanor violation while at the same time being acquitted on three felonies, with the jury being unable to reach a verdict on a fourth felony but suspected of being 10-2 in favor of acquittal on that count as well.

The DOJ referred to "Whip" as the Oath Keeper "On the Ground Commander" throughout the course of the three trials of Oath Keeper members, starting back in September 2022. Whip was a defendant in the third trial, and it is worth noting that he was only added to the indictment in the third case after he was contacted by, and agreed to testify as a witness for the defense in the first case involving Oath Keeper leader Stewart Rhodes and others. This was a subject of a dispute at trial between the Government and Whip's attorneys, with the DOJ denying that his agreement to testify had anything to do with the decision to charge him.

But the facts are hard to ignore -- Greene was first questioned by the FBI in May 2021, and he provided them all the information he had. In August 2021 he answered questions again, and he gave the FBI his cellular telephone. Yet it was not until June 2022 that he was added to the already existing indictment of the second group of "Oath Keepers" whose trial didn't begin until February 2023. All of the information in the indictment was information known to the Government as early as May 2021, but he was never charged until after he agreed to testify for the defense.

Even though he had been indicted on 4 felonies, Whip still testified as a defense witness in the first trial. The jury verdict in that case was "mixed" at best for the Government, with some defendants being acquitted of the most serious charge, "seditious conspiracy", and others -- including Rhodes -- being acquitted of the charge related to "corruptly obstructing" the Congressional vote certification.  

In the third trial, where Whip was a defendant, the Government focused attention on their claim that Whip was a member of the "Oath Keeper Leadership", including putting him in a line on a large organizational chart created by the Government, with other leaders of the group, including Stewart Rhodes. But Whip was never a member of the Oath Keepers -- he was hired by the group to provide his experience and expertise in the field of personal and location security. 

Whip had been hired by the Oath Keeper organization on previous occasions to perform similar work -- organizing security operations. On January 6 the Oath Keepers had agreed to provide "personal security details" for Roger Stone and Ali Alexander during the events of the day. A third group was to provide similar services for a group of elected officials from Florida, and the group as a whole was to provide security for speaker's stages at the Capitol that afternoon. It was Whip's job to coordinate those activities. He had no role in the actions taken by members of the group to enter the Capitol building between 2:30 and 3:15, and the Government was unable to prove any communications between him and other members of the group in that time frame. Whip's first face-to-face meeting with members of the group on Jan. 6 came only after the others had entered and then exited the Capitol building. For almost the entire afternoon he was far back in the crowd on the west side of the Capitol watching events play out from a distance.

The costs of defending Whip, including costs of travel and five weeks of accommodations, were covered by contributions to this Fund.    

Not surprisingly, the recent indictment of former President Trump has sucked up all the oxygen on the internet. Attention and focus on the continuing legal troubles of persons charged with offenses on January 6 has taken a back seat in a significant way.

Unfortunately this is happening just as the DOJ seems to be embarking on the long-rumored second wave of J6 indictments. I have picked up three new cases in the past 3 weeks -- a father and son from Mississippi, a young man in Chicago who was with his mother and aunt on January 6, and another Texas resident charged with two felonies.

Not every client is financially unable to support the legal defense being provided, but most cannot -- particularly in cases where felony offenses are charged and the stakes are much higher.

But in addition to these new clients -- and more that I expect in the weeks and months ahead -- I have more than 20 existing clients whose cases continue to progress. This is not just in the District Court in Washington DC, but I now have 2 clients with cases pending before the Court of Appeals.  

There has been a bit of a pause over the past 45 days after what was a very hectic schedule before that. The January 6 Legal Defense Fund slipped into a significant negative balance due to high costs during two back-to-back trials in DC from late Nov. 2022 to mid-March 2023, followed by a third trial in late April. Fundraising over the past 2 months has trimmed that deficit, but there are still outstanding debts to be paid.  

But I'm about to enter into another cycle of travel and court appearances in DC over the next 4 weeks, which will result in more travel costs that add to the "red" figures in our accounting. Again, some clients and their families are helping to defray these costs, but they can't give what they don't have.

In addition to new clients, I'm involved with two detained J6 defendants with particularly difficult cases -- Jeffrey McKellop and Ryan Samsel. Jeff is a retired Army Special Forces Operator who has a particularly difficult case on the facts, combined with having a very difficult time during his time in detention since his arrest. There are some dates coming up on the calendar which will give us an indication of the direction his case is likely to take. There is much work to be done in search of the best possible outcome for him.

Ryan Samsel has suffered multiple beatings at the hands of jail personnel in DC and Virginia during his time awaiting trial, and his injuries have resulted in lengthy delays in getting his case resolved. We're making an effort this week to get a new bail hearing scheduled in order to secure his release to seek medical treatment that he needs, as well as to better prepare his case for trial in October.

In addition to those two cases, here is a list of work to be done in the days and weeks ahead:

1. Roberto Minuta's motion to be released pending his appeal, as well as a very involved appeal following his conviction in the second Oath Keeper trial.

2. Sentencing of Michael Greene on 7/21.

3. Change of Plea for Anthony Sargent on 7/21.

4. Sentencing of 4 members of the Robinson family on 8/1 and 8/2 via Zoom.

5. Sentencing of Salvador Sandoval on 8/7. 

6. Sentencing of Michael Olivares on 8/11. The Sandoval and Olivares hearings -- whose cases I took over only for sentencing -- are both in person in DC.

7. Trial prep and pretrial motions work for Brett Bozell -- trial on 9/6.

8. Presentence Objections and Sentencing Statement for Christopher Worrell.

9. Presentence Objections and Sentencing Statement for Daniel Phipps.

10. Presentence Objections and Sentencing Statement for Tyler Tew.

Just today we received a briefing schedule from the Appeals Court for Lucas Denney, with our Opening Brief due 9/11 and Reply Brief due 11/1. 

The J6 Fund has existing debts now. Adding the upcoming costs means I will likely need to turn away any new clients until we get through the next several weeks, and hopefully fundraising will catch up and get us back into a more stable financial position.  

If you are able and willing to support the work that the J6 Fund covers, now would be a particularly helpful time to do so.  

On Friday I filed a Notice of Appearance on behalf of Jan. 6 defendant Ryan Samsel.  I'll be handling his case together with good friend and esteemed colleague Stanley Woodward.  Stanley and I worked closely together during the three Oath Keeper trials. 
As with all my Jan. 6 clients, Ryan does not have the financial ability to fund the costs of his defense so the January 6 Legal Fund will be funding my involvement. 
If you have followed his case you know that Ryan was the J6 defendant brutally beaten by guards at the DOC facility in DC.  He was later transferred to a jail facility in Virginia where he was assaulted again. Ryan has permanent injuries that resulted from the abuse he endured. 
He is set for trial in October.  Stanley and I are already started preparing and we expect some pretrial filings to take place in the weeks ahead.  Stanley is set for trial in another J6 case very soon, so I'll be doing some of the work on my own -- in between upcoming sentencing hearings on July 13, July 21, and August 7.  I'm trying to get a couple of those consolidated but right now it looks like 3 different round trips to DC are going to be necessary. 
So, if you are willing and able, any contributions to the January 6 Legal Defense Fund to offset the travel and lodging costs, as well as to help me keep the kerosene lamps burning and the dog stocked with cat food would be greatly appreciated right about now.

If you receive this information by email, that means that you have donated to this GiveSendGo account in the past.  Thank you for that.  Your generosity is the only reason I have been able to do this work over the past 20+ months I have been involved.

But, I must communicate to you that fundraising in this fashion has become more and more difficult over the past several months. Twitter has significantly limited the distribution of my tweets.  I think it is because of the Substack column I write. Twitter first took the position several weeks ago that it would not allow Substack links to be circulated in Tweets.  This was at the same time Substack rolled out a new feature that is nearly identical to Twitter in the way it works.  

As a result of the outcry against the policy, Twitter backed away from not allowing Tweets with links.  But there is no question that it has taken steps to dramatically "deboost" Twitter accounts that were connected to Substack authors such as Shipwreckedcrew.  My ability to reach my Twitter followers with fundraising requests has declined dramatically over the past 60 days.  My most recent effort -- very modest in nature -- produced only a handful of contributions totaling less than $500 combined in about a week.   

Since mid-Nov. of 2022, when I started the first Oath Keeper trial, I have spent 18 weeks in Washington DC involved in three different trials and sentencing hearings.  That is out of 27 weeks total in that time period.  All of the funds raised here have been exhausted by the expenses connected to that work.  The current balance of the account is below $2000, and the credit card bill for May expenses has not yet been paid.

So, if you are able and willing to make a further contribution to support my work, now would be a particularly helpful time for that to happen. With some cases having been resolved, I have only about 20 clients left.  But I get calls every week from J6'ers asking for my help.  Without confidence that I can continue to raise money, I can't volunteer to take on more cases.

Much has happened since the last update.

Roberto Minuta was sentenced on June 1 for his conviction in the second Oath Keeper trial.  The Government was requesting a sentence of 204 months -- 17 years -- for Roberto.  

The Government sought to label Roberto as a "Leader/Manager/Supervisor" of the Oath Keeper activities that day but we prevailed on that issue with the Court.  The Government also sought to have an enhancement applied to his sentence calculation based on a claim that he "obstructed" the grand jury investigation because on the morning of Jan. 7 he deleted a single video off of the "Signal" messaging app -- not off his phone, just from the app.  We argued strenuously against that, and prevailed on that issue too.  Rather than having a "Guideline Sentencing Range" of 168-210 months as argued by the Government, based in part on our arguments the Court determined the Guideline Range to be 78-97 months -- less than half what the Government wanted.  

After making that determination, the Court heard arguments and took into consideration the actual conduct of Roberto on Jan. 6 -- including the fact that the evidence presented by the Government didn't establish many of the factual claims made by the Government in its Sentencing Statement.  We were able to give the Court -- for the first time since Roberto did not testify at trial -- a full picture of Roberto and the life he lived leading up to Jan. 6.  The Court acknowledged that it learned much about Roberto from our efforts that it had not known before the sentencing.  

Based on the entirety of the effort made on his behalf, the Court imposed a sentence of 54 months -- 4.5 years -- which was 150 months (12.5 years) LESS than the Government wanted.  Given what we were facing, this was about the best possible outcome we could have hoped for going into the sentencing hearing.  

There are MANY legal issues that will be the basis for a robust appeal on his behalf of all the convictions.  The eight defendants sentenced so far have nearly all these issues in common, and the appellate efforts will be a combined and coordinated effort.  Roberto has asked me to stay on and handle the appeal effort on his behalf.  During my years as a federal prosecutor I handled more than 50 criminal appeals and argued before the Circuit Court of appeals more than 20 times. It was part of that job that I enjoyed, and I look forward to continuing to represent Roberto.  It is very likely that some of these issues will make their way to the Supreme Court given the unique nature of the Oath Keeper case and the way it was prosecuted by the Government.

The Sentencing Hearing for my other Oath Keeper client -- Michael "Whip" Greene -- is set for July 21.  Whip is the first January 6 defendant to prevail against the Government on all the felony charges filed against him.  He was acquitted by a jury in March on three felonies and the jury was unable to reach a verdict on the fourth felony.  The Government has decided to not retry that count.  He was convicted on a single misdemeanor offense of trespass on the Capitol grounds -- he never went inside.  

But the Government is going to go after him aggressively at sentencing so there is much work that remains to be done.  The Government already signaled in opposing modifications of his bail conditions that it is going to ask for the maximum term of jail time -- one year.

In mid-May we had an unfortunate result in the bench trial for Christopher Worrell, who was convicted on all counts against him by Judge Lamberth.  Because it was a bench trial, there are fewer options in terms of keeping irrelevant prejudicial information out of the case.  Before a Court can determine if evidence is unfairly prejudicial, it must know what the evidence is.  So, in a bench trial, the Judge hears the evidence to determine whether it is relevant, which then makes the objection about it being irrelevant sort of meaningless.  So in Chris's trial we heard almost two full days of testimony about the Proud Boys and Chris's membership in a Florida chapter of the Proud Boys.  I argued in closing that all that evidence was irrelevant and should be ignored by the Court since Chris wasn't charged as part of any conspiracy involving other Proud Boy members.  

Judge Lamberth agreed with my argument that the Proud Boys evidence was irrelevant and a waste of time.  But he nonetheless found that the evidence introduced about Chris's conduct on Jan. 6 around the West Front of the Capitol was sufficient to convict him on each of the Counts of the indictment.  Unfortunately, some of the most damaging testimony came from audio of Chris's comments capture on his own phone as he recorded many of the things that took place.  Sometimes there is no good way to respond in trial to a defendant's own words -- particularly when they aren't coming from a third-party witness where what was said and its meaning can be disputed.  Here, the words were recorded by Chris himself -- and others around him -- and the events provided the context that was difficult to escape.  

There are some legal issues that we might be able to take advantage of for purposes of sentencing and on appeal.  So, as is the case with others, the battle continues.

Nate DeGrave was also sentenced in April.  This sentencing has been postponed several times since his guilty plea in June of last year.  His was an "atypical" Jan 6 case where the evidence strongly suggested he was engaging in "role playing" for the benefit of video being shot by him and his companions which they intended to monetize by selling it on the internet.  But, much like in Chris Worrell's case, it was the audio of Nate and his co-defendants through the course of the day -- including while they were inside the Senate Chamber -- which did the most damage when it came time to be sentenced.  Nate's case was on track for a guilty plea when I first got involved.  He had already sat for one interview with the FBI while in custody, and was preparing to sit for a second interview when I entered the case.  I put the brakes on that because he had no "deal" in place at that point for how he would benefit from telling the FBI and DOJ what he knew.  That process took several months -- causing a delay in his guilty plea from September 2021 when I got involved, to June 2022 when he actually entered his plea.  

One huge success we achieved in the case was getting Nate released on bond for the period between his guilty plea and his sentencing -- he had been detained in custody for 16 months prior to this plea. That allowed Nate to return to his home town and resurrect online businesses he had managed to keep alive while in custody -- barely -- and return them to a somewhat healthy condition.  

We sought a sentence that would lead to Nate being in a "time served" situation -- anything under 24 months roughly.  We didn't get quite the outcome we were hoping for -- Nate was sentenced to 37 months.  That means he will have to go into BOP custody -- but given the way various credits work and with credit for the 16 months he has already served, it is anticipated that his total remaining time in custody will be only 8-10 additional months.  

The months ahead include three more trials and probably 6 more sentencing hearings -- including four members of the Robinson family next month.  I've also taken over two cases for purposes of sentencing -- one after a trial and one after a guilty plea -- where the outcomes have left the clients in difficult situations.  I'm hopeful that my experience will provide some opportunities at sentencing to move the clients in the direction of the "least bad outcome."  

Last night William Shipley filed a motion for Jacob Chansley to vacate, set aside or correct his sentence pursuant to 28 USC 2255.

The link to the filed motion can be located at:

https://drive.google.com/file/d/1ujS_KvJFhpQutEoj88x4H55wDGQE_SCB/view

More information to come.

On Friday 3/31/23, the Department of Justice advised the Court that it would not seek to retry Michael Greene on the charge of "Corruptly Obstructing Congress", the one count of the indictment against him that the jury was unable to reach a verdict on in his Feb-March trial.  The jury returned verdicts of "Not Guilty" on three other felony charges against him, but convicted him of one misdemeanor for being on restricted Capitol grounds on January 6.  This is the first case where a January 6 defendant has been acquitted by a jury on all felony charges brought by the Government -- a second "first" for defense counsel William Shipley, who also obtained the first acquittal on a felony charge in a bench trial of David Mehaffie in Aug-Sept. 2022.    As a result, the case against Michael his concluded, with only his sentencing on the misdemeanor remaining.  Michael's a maximum POTENTIAL sentence of up to one year in custody -- but that is only the "potential" sentence, and in no way suggests what sentence might be eventually imposed.  Michael was represented at trial by both Britt Redden and William Shipley, with assistance from Ryan Marshall.  This representation of Michael was provided at no cost to him because of the generosity of those who have supported this Fund.  But the work is not yet complete.  A sentencing hearing some time in the summer of 2023 remains, and it is certain the DOJ will attempt to cover up this embarrassing failure by seeking out a sentence from the Court that puts Michael in prison for the longest possible period they can ask for -- 1 year.  The fight will continue to make sure Michael doesn't spend a single day in jail over this politically motivated prosecution of him.

Just finished trial in United States v. Michael "Whip" Greene -- the third of possibly four trial involving members of the Oath Keepers.

After nearly six days of deliberations, the jury acquitted Whip on 3 of the 4 felonies filed against him, failed to reach a verdict on the 4th felony, and convicted him on one misdemeanor charge of being present on the Capitol grounds when it was restricted. I think the jury had those verdicts -- other than the count they hung on -- very early and were actually struggling with verdicts as to some other defendants.

The count the jury failed to reach a verdict on was "corruptly obstructing a congressional proceeding."  The evidence was undisputed that Whip never entered the Capitol.  The government's theory was that he "aided and abetted" other members of the Oath Keepers who did go inside for that alleged purpose.

Because that count remains subject to a possible re-trial I can't comment on the evidence now.  The Government has until March 31 to decide if they want to try again.

But the jury aquitted Whip on two different conspiracy counts -- conspiracy to obstruct a congressional proceeding, and conspiracy to interfere with member of congress in the performance of their duties. Yes, both conspiracies sound like the same thing -- just worded differently.  Remember the old saying "The law is an ass."   

So 12 jurors in the District of Columbia unanimously agreed that Whip was not the "On the ground commander" of Stewart Rhodes supposed plan to stage a seditious insurrection on January 6.  Through three trials the Govt had "Whip" listed among there Oath Keeper "Leadership" along with Rhodes and a couple of others, and that Whip was responsible for directing the efforts of all Oath Keepers in that regard on that day.  

Whip's presence complicated the government's narrative for the Oath Keeper's mission on January 6.  That's because Whip is a decorated combat veteran if the US Army, having served in Iraq, and later a combat veteran working with security companies on US Government contracts in Afghanistan.  He was a security professional with extensive training and licensing required by the Government contracts he worked under, which made him an "odd fit" as "commander" for the collection of senior citizens, misfits, and malcontents that Rhodes organized for January 6.  

And Michael Greene is also a 39 year old African American -- another odd-fit into a group the Government was happy to have perceived as a right-wing white supremacist domestic terror organization.

Whip was a late edition to the indicted defendants, as he was added in June 2022, more than 16 months after the event and even 5 months after Rhodes and others were indicted for seditious conspiracy.  More curious is the fact that Whip wasn't added to the Rhodes indictment and charged with seditious conspiracy himself. There is no real basis in the evidence for that particular decision given the manner in which the government presented and argued the evidence at all three trials.

I will write more on this in the days and weeks ahead as more of the case is resolved in post-trial motions and sentencing hearings.  Whip is facing a potential maximum sentence of up to 1 year in jail, but that is just the "maximum", not the likely sentence.

On February 24, 2023, David Mehaffie was sentenced to 14 months in custody to be followed by 24 months of supervised release -- which is federal "probation" that follows a custodial sentence.  Mr. Mehaffie was convicted of "aiding and abetting" the impeding or interfering with officers after a bench trial in September 2022 before District Judge Trevor McFadden.  He was acquitted by Judge McFadden on the charge of "corruptly obstructing" Congress in its certification of the electoral vote.

In its Sentencing Statement the DOJ asked for a 64 month sentence based on a quite dubious interpretation of the sentencing guidelines, arguing that Mr. Mehaffie's actions fell within the definition of "aggravated assault" in the sentencing guidelines.  David's Attorney, William Shipley, pointed out in his Sentencing Statement and in his comments at the hearing that the Court had exonerated Mr. Mehaffie at trial of being involved in or intending to "assault" or injure police officers.  

The distinction was critical because the answer to the question determined which provision of the United States Sentencing Guidelines would apply.  The DOJ claimed that the "aggravating" factor was the finding by the Court that acted with the intent to commit another felony -- "civil disorder" -- as part of his conduct that interfered with the officers.

Shipley pointed out that the definition of "aggravated assault" began by describing it as a "felonious assault" that then has the added factor as argued by the DOJ.  What the DOJ was lacking, however, was an "assault".  Shipley made the argument that in reading his verdict in September, Judge McFadden seemed to choose his words very carefully in that he deliberately avoided using the word "assault" in describing Mr. Mehaffies' guilt, but rather emphasized that it was his "nonassaultive" behavior that nevertheless violated the statute with with he was charged.  

Judge McFadden confirmed Shipley's view of the verdict, and agreed with Shipley's interpretation of the Sentencing Guidelines.  Without a factual finding that Mr. Mehaffie had committed, or aided and abetted another in committing a "felonious assault", the provisions for "aggravated assault" did not apply.

Shipley had asked for a sentence of 6-12 months, with some or all of that term being served via "home confinement" which was allowable under the guidelines for such a sentence.  Judge McFadden thought a longer sentence was appropriate given that Mr. Mehaffie's conduct caused more police officers to be needed in the "tunnel" where much violence occurred, thereby preventing them from going elsewhere in the Capitol where they might have been needed.  He determined that 14 months was an appropriate sentence under all the facts of the case.

This is a good example of why having an experienced federal criminal defense attorney can made a significant difference in the outcome of the case -- for Mr. Mehaffie it was a difference of more than 4 years in custody.  The DOJ wanted over 5 years in prison.  The sentence imposed was just over 1 year.  

Mr. Mehaffie will likely serve his sentence at a Bureau of Prisons "Camp" facility, and could be released to a "halfway house" in his home community to serve the remainder of his sentence after approximately 6 months.

Roberto Minuta was convicted after a six week trial of four of the five counts he was charged with. Roberto was in the second trial of members of the Oath Keepers, where all four defendants were convicted on various counts, while being acquitted on other charges.

But all defense counsel in the second case believe that the evidence heard by the jury fell significantly short of the evidence that would have been necessary to sustain verdicts of guilt "beyond a reasonable doubt." The legal and factual specifics with regard to those arguments are currently being assembled in written briefs that will be filed in the days ahead. All five defendants from the first Oath Keepers trial have already filed motions regarding their convictions in the first trial, and a third trial of Oath Keeper members is now underway. It is possible that all the various motions -- filed by all the Oath Keeper defendants as needed -- will be heard and decided at one time later in the spring of 2023. Further updates about the arguments made on behalf of Mr. Minuta will be provided as those arguments are motions are made public.