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A Tale of Three Capitol Visitor Center Arrests: Why January 6 Is Different from Portland

By the end of the month, all of six January 6 defendants who were arrested in the middle of the riot will almost certainly have pled guilty to misdemeanor trespassing offenses.

The four guilty pleas, thus far, have led me to realize how thin their statements of offense are as compared to others who have pled guilty, even those pleading to the same trespassing offense:

The cornerstone to all these statements of offense is this paragraph describing how, shortly before 2:30 on January 6, after some Capitol Police officers told some rioters to leave and they didn’t, the officers started arresting people (the SOOs vary about whether the defendant claims not to have heard or, as with Curzio, admitted that he refused to leave).

10. Video surveillance depicted Sweet and Fitchett walking down a corridor in the Capitol Visitors Center, which is part of the Capitol building, shortly after 2:30 p.m., toward the end of the corridor area where U.S. Capitol Police officers had formed a defensive line. Other rioters also gathered in this corridor. The officers issued commands for the rioters to leave the building. Sweet maintains he did not hear those commands. When rioters refused their commands, the officers began arresting individuals who had unlawfully entered the building, including Sweet and Fitchett. The Federal Bureau of Investigation (“FBI”) uncovered no evidence that Sweet and Fitchett engaged in violent or disruptive conduct at the Capitol grounds or inside the building.

In Fitchett’s case, the government doesn’t even claim to know when she took a video of her approach to the Capitol with Sweet.

9. Sometime during the early afternoon of January 6, 2021, Fitchett recorded a video of herself and Sweet approaching an entrance into the Capitol with a large crowd around them yelling and making banging noises. Fitchett, with the camera turned on herself, stated in a raised voice, “We are storming the Capitol. We have broken in. Patriots arise.” Shortly after then, Sweet and Fitchett unlawfully entered the Capitol.

I find that interesting because these six arrests, almost alone of the the 560-some arrests so far, replicate a typical arrest from unrest in Portland where — according to a DOJ filing submitted in Garret Miller’s case last month — there’s just far less evidence with which to hold rioters accountable.

More fundamentally, the 45 Oregon cases serve as improper “comparator[s]” because those defendants and Miller are not similarly situated. Stone, 394 F. Supp. 3d at 31. Miller unlawfully entered the U.S. Capitol and resisted the law enforcement officers who tried to move him. Doc. 16, at 4. He did so while elected lawmakers and the Vice President of the United States were present in the building and attempting to certify the results of the 2020 Presidential Election in accordance with Article II of the Constitution. Id. at 2-3. And he committed a host of federal offenses attendant to this riot, including threatening to kill a Congresswoman and a USCP officer. Id. at 5-6. All this was captured on video and Miller’s social-media posts. See 4/1/21 Hr’g Tr. 19:14-15 (“[T]he evidence against Mr. Miller is strong.”). Contrast that with the 45 Oregon defendants, who—despite committing serious offenses—never entered the federal courthouse structure, impeded a congressional proceeding, or targeted a specific federal official or officer for assassination. Additionally, the government’s evidence in those cases often relied on officer recollections (e.g., identifying the particular offender on a darkened plaza with throngs of people) that could be challenged at trial—rather than video and well-documented incriminating statements available in this case. These situational and evidentiary differences represent “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions” in Miller’s case.

In fact, the affidavit used to arrest the six January 6 trespassing defendants shows that the Capitol Police officer who wrote it within a day of fighting rioters for what was likely hours, actually got the time of the arrest wrong by half an hour, an error which would have made it hard to charge felony obstruction if DOJ had considered it with these defendants.

In this context, at or about 3:00 p.m., I responded along with other members of the Capitol Police to a disturbance involving several dozen people who were inside the United States Capitol without lawful authority, under the circumstances described above. I observed the crowd moving together in a disorderly fashion, and I observed members of the crowd engage in conduct such as making loud noises, and kicking chairs, throwing an unknown liquid substance at officers, and spraying an unknown substance at officers.

In a loud and clear voice, Capitol Police Officers ordered the crowd to leave the building. The crowd did not comply, and instead responded by shouting and cursing at the Capitol Police Officers. I observed that the crowd, which at the time was located on the Upper Level of the United States Capitol Visitors Center near the door to the House Atrium, included the six individuals who were later identified to be Cindy Fitchett, Michael Curzio, Douglas Sweet, Terry Brown, Bradley Rukstales, and Thomas Gallgher. These six individuals were positioned towards the front of the crowd, close to the Capitol Police Officers who were responding, and to the officer who issued the order to leave. The six individuals, like others in the larger crowd, willfully refused the order to leave.

Even though they were caught on surveillance video, the Capitol Visitors Center was one of the least filmed places in the riot. To make things worse, Capitol Police Officers were not equipped with Body Worn Cameras that day, so there’s no record of this arrest.

In other words, for six people who entered the building, the FBI may have remarkably little evidence of their doing so, but because they alone among the thousands who did enter were arrested onsite and so were prosecuted.

It’s worth comparing those six arrests and resolution with the prosecutions of three others who were also in the Capitol Visitor’s Center at almost precisely that time, because it demonstrates how the FBI had so much other evidence covering the actions of most defendants.

First, there’s Robert Gieswein. He was arrested quite early in the investigation — on January 19 — based largely on his presence, kitted out in tactical gear and carrying a baseball bat, in some of the most spectacular scenes of the assault on the Capitol, including the initial breach with Dominic Pezzola.

But his initial arrest affidavit written ten days after the riot did not mention Gieswein’s actions inside the CVC at all.

That was only revealed in detention filing submitted in June. It revealed that, at about the same time and place where Curzio and others were being arrested, Gieswein was allegedly assaulting cops to avoid arrest.

Gieswein later went near the Capitol Visitor Center, where he and other rioters encountered a group of U.S. Capitol Police officers, and he again deployed his aerosol spray on those officers. Although there is not video of this incident that undersigned counsel is aware of, the defendant is charged with spraying and then assaulting a U.S. Capitol Police officer in the Capitol Visitor Center. According to that Officer, a person matching largely matching Gieswein’s description took out an unknown chemical-type aerosol agent, which one officer likened to OC spray, and sprayed a group of officers, causing irritation of the eyes. One officer recalls the person who matches the defendant’s description throwing punches at police. When the Capitol Police took the defendant to the ground to arrest him, other individuals around the defendant advanced on the officers, pushed them back, and freed Gieswein, who fled the area. Parts of the aftermath of this incident, including the defendant and Capitol police on the ground, and the defendant fleeing, are captured on Capitol surveillance video.

This is one of the rare assaults charged in January 6 of which there is not (yet, as far as we know) video evidence. If that were all Gieswein were arrested on — if he wasn’t also charged with assaulting two other sets of officers and obstruction — then his lawyers might be pushing to dismiss or plead down the charges, as happened with many Portland defendants.

But the rest of his actions were spectacularly caught on film, including this scene where he sprayed cops with some toxin.

In other words, in Gieswein’s case, police tried, but failed, to arrest him on January 6, probably along with the six who pled to misdemeanors. It took some days to track him down to Colorado and the FBI never recovered the clothes he wore or his phone. But even though he may have succeeded in hiding or destroying evidence he himself controlled, and even though one of his alleged assaults occurred in one of the few blind spots in the riot, there’s still a lot implicating him in the attack on the Capitol.

It took far longer to track down Jamie Buteau, along with his wife, Jennifer. They weren’t arrested until June 23, in Jamie’s case on charges of assault and civil disorder on top of trespassing.

At the moment everyone else discussed in this post was either being arrested or allegedly assaulting cops to avoid arrest, the Buteaus were nearby, with Jamie allegedly throwing chairs at cops on several occasions. As with Gieswein, there appears to be no Capitol CCTV of one of his assaults, one of several times he threw chairs, either. But a video posted to Parler captured him picking up a chair.

And while the closing doors hid Buteau at the moment he allegedly threw that chair (as the door also hid Gieswein’s face in the photo above), the Parler video captured the chair he had just been holding flying through the air.

By the time of their arrest, FBI had tracked the Buteaus from the moment they entered the Capitol at 2:25, to their presence at between the Crypt and CVC from 2:29 to 2:31, to their entry into the CVC just behind Gieswein, back through the Crypt at 2:44, and then out the South Door at 2:46.

Like Gieswein, the Buteaus appear to have succeeded in destroying some evidence of their involvement in the riot. Jennifer was livestreaming onto Facebook the day of the riot, but she deleted that livestream and replaced it with a post blaming Antifa.

But several tipsters — including a former co-worker of another person with whom Buteau was at the riot — told the FBI about her live posts.

Jennifer also changed her Facebook profile to claim she was a Democrat, but one of her family members anonymously informed the FBI about that attempt to deceive — and also offered that both Buteaus had been in a HBO VICE show that another tipster (possibly one of the Sedition Trackers) found based off a BOLO picture showing Jamie’s face. Altogether, four different tipsters were able to provide the FBI information that the FBI (remarkably, in the case of the HBO appearance) wasn’t able to find on their own.

There were blind spots in the panopticon of the January 6 insurrection. But even defendants alleged to have committed assaults in one of those blind spots were still trackable by a slew of other evidence.

The Rebellion Rorschach: The Many Faces of the January 6 Investigation

Four different things happened yesterday to demonstrate how differently judges presiding over the January 6 trial view it, and how little they seem to understand the intersecting nature of this investigation.

DC Circuit ignores its own language about co-conspirators and abettors

The final event was the reversal, by a per curiam panel including Karen Henderson, Judith Rogers, and Justin Walker, of Thomas Hogan’s decision to hold George Tanios pretrial.

As a reminder, Tanios is accused of both conspiring and abetting in Julian Khater’s attack on three cops, including Brian Sicknick, with some toxic substance.

I’m not going to complain about Tanios’ release. By way of comparison, Josiah Colt has never been detained, and he pled out of a conspiracy with Ronnie Sandlin and Nate DeGrave in which they, like Tanios and Khater, planned to arm themselves before traveling to DC together, and in which Sandlin and DeGrave, like Khater, are accused of assaulting cops that played a key role in successfully breaching the Capitol. The main difference is that Khater’s attack injured the three officers he targeted using a toxic spray purchased by Tanios.

It’s how the DC Circuit got there that’s of interest. Tanios had argued that Hogan had used the same language from the Munchel decision everyone else does, distinguishing those who assault or abet in assaulting police which the DC Circuit has returned to in upholding detention decisions since, and in so doing had applied a presumption of detention for those accused of assault and abetting assault.

In assessing Tanios’s risk of danger, the District Court placed too much emphasis on this sentence from Munchel: “In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.” Id. at 1284.

This is only one line in a ten-page opinion written by Judge Wilkins. It is dicta. It was not quoted or adopted by Judge Katsas’s separate opinion. This line does not create a new approach for evaluating detention issues in this Circuit. It does not mandate that defendants be placed in two separate categories. It does not require a separate, harsher treatment for defendants accused of specific violent offenses. Critically, it does not create a presumption of future dangerousness and should not create a presumption of detention. Rather, it seems that the line is merely intended to remind district court judges that violence is one factor to consider in making a determination about dangerousness. [my emphasis]

The DC Circuit specifically ruled against Tanios on his claim that Hogan had misapplied Munchel.

[A]ppellant has not shown that the district court applied a presumption of detention in contravention of the Bail Reform Act and precedent, see United States v. Khater, No. 21-3033, Judgment at *2 (D.C. Cir. July 27, 2021)

They had to! As their citation makes clear, just two weeks ago, a per curiam panel of Patricia Millet, Robert Wilkins, and Ketanji Brown Jackson upheld the very same detention order (which covered both defendants), holding that the same line of the Hogan statement that Tanios pointed to did not do what both Tanios and Khater claimed it had, presume that assault defendants must be detained.

Appellant contends that the district court misapplied our decision in United States v. Munchel, 991 F.3d 1273 (D.C. Cir. 2021), by making a categorical finding, based solely on the nature of the offense charged (assaultive conduct on January 6), that no conditions of release could ever mitigate the per se prospective threat that such a defendant poses. If the district court had proceeded in that fashion and applied some sort of non-rebuttable presumption of future dangerousness in favor of detention, it would have been legal error. See id. at 1283 (“Detention determinations must be made individually and, in the final analysis, must be based on the evidence which is before the court regarding the particular defendant. The inquiry is factbound.”) (quoting United States v. Tortora, 922 F.2d 880, 888 (1st Cir. 1990)). However, while the district court stated, “Munchel delineates an elevated category of dangerousness applied [to] those that fall into the category that necessarily impose a concrete prospective threat,” the district court also explained, “I think Munchel does not set a hard-line rule. I don’t think that the categories are solely determinative, but it creates something like a guideline for the Court to follow . . . .” Detention Hr’g Tr. at 42:21-24; 43:11-13, ECF No. 26 (emphasis added). In making its ruling, the district court discussed at length the facts of this case, and expressly noted that “we have to decide whether the defendant is too dangerous based upon that conduct to be released or is not,” “every circumstance is different in every case, and you have to look at individual cases,” and that “the government may well not overcome the concrete and clear and convincing evidence requirement.” Id. at 43:8-10, 43:16-18, 43:20-21. Based on our careful review of the record, we find that the district court made an individualized assessment of future dangerousness as required by the Bail Reform Act and that appellant has not shown that the district court applied an irrefutable presumption of mandatory detention in contravention of the statute and our precedent.

Yesterday’s panel cited the earlier affirmation of the very same opinion that detained Tanios.

It’s in distinguishing Tanios where the panel got crazy. The panel could have argued that the evidence that Tanios conspired with or abetted Khater’s assault was too weak to hold him — Tanios made a non-frivolous argument that in refusing to give Khater one of the two canisters of bear spray he carried, he specifically refused to join in Khater’s attack on the cops. But they don’t mention conspiracy or abetting charges.

Instead, the DC Circuit argued that Hogan clearly erred in finding Khater’s accused co-conspirator to be dangerous.

[T]he district court clearly erred in its individualized assessment of appellant’s dangerousness. The record reflects that Tanios has no past felony convictions, no ties to any extremist organizations, and no post-January 6 criminal behavior that would otherwise show him to pose a danger to the community within the meaning of the Bail Reform Act. Cf. Munchel, 991 F.3d at 1282-84 (remanding pretrial detention orders where the district court did not demonstrate it adequately considered whether the defendants present an articulable threat to the community in light of the absence of record evidence that defendants committed violence or were involved in planning or coordinating the events of January 6).

Munchel isn’t actually a precedent here, because that decision remanded for further consideration. The DC Circuit ordered Hogan to release Tanios. Crazier still, in citing the same passage from Munchel everyone else does, the DC Circuit edited out the language referring to those who abetted or conspired with those who assaulted cops, the language used to hold Tanios. It simply ignores the basis Hogan used to hold Tanios entirely, his liability in a premeditated attack he allegedly helped to make possible, and in so doing argues the very same attack presents a danger to the community for one but not the other of the guys charged in it.

If this were a published opinion, it would do all kinds of havoc to precedent on conspiracy and abetting liability. But with two short paragraphs that don’t, at all, address the basis for Tanios’ detention, the DC Circuit dodges those issues.

Beryl Howell has no reasonable doubt about January 6

Earlier in the day, DC Chief Judge Beryl Howell grew exasperated with another plea hearing.

This time, it was Glenn Wes Lee Croy, another guy pleading guilty to a misdemeanor “parading” charge. The plea colloquy stumbled on whether Croy should have known he wasn’t permitted on the Capitol steps — he claimed, in part, that because this was his first trip to DC, he didn’t know he shouldn’t have been on the steps, even in spite of the barricades. Croy was fine admitting he shouldn’t have been in the building, though.

Things really heated up when Howell started asking Croy why he was parading (Josh Gerstein has a more detailed description of this colloquy here).

Under oath, pleading to a misdemeanor as part of a deal that prohibits DOJ from charging Croy with anything further for his actions on January 6, he made some kind of admission that Howell took to mean he was there to support Trump’s challenge to the election, an admission that his intent was the same as the intent required to charge obstruction of the vote count.

When she quizzed AUSA Clayton O’Connor why Croy hadn’t been charged with felony obstruction for his efforts to obstruct the vote certification, the prosecutor explained that while the government agreed that contextually that’s what Croy had been doing, the government didn’t find direct evidence that would allow him to prove obstruction beyond a reasonable doubt, a sound prosecutorial decision.

O’Connor is what (with no disrespect intended) might be deemed a journeyman prosecutor on the January 6 cases. He has seven cases, five of which charge two buddies or family members. Of those, just Kevin Cordon was charged with the obstruction charge Howell seems to think most defendants should face, in Cordon’s case for explicitly laying out his intent in an interview the day of the riot.

We’re here to take back our democratic republic. It’s clear that this election is stolen, there’s just so much overwhelming evidence and the establishment, the media, big tech are just completely ignoring all of it. And we’re here to show them we’re not having it. We’re not- we’re not just gonna take this laying down. We’re standing up and we’re taking our country back. This is just the beginning.

O’Connor is prosecuting Clifford Mackrell and Jamie Buteau for assault and civil disorder. But otherwise, all his cases are trespass cases like Croy’s (including that of Croy’s codefendant Terry Lindsey).

This was the guy who, with no warning, had the task of explaining to the Chief Judge DOJ’s logic in distinguishing misdemeanor cases from felonies. Unsurprisingly, it’s all about what the government thinks they can prove beyond a reasonable doubt, based on evidence like that which Cordon shared with a journalist or, just as often, what people write in their social media accounts. This process has made sense to the few of us who have covered all these cases, but like O’Connor, Howell is dealing primarily with the misdemeanor cases and my not see how DOJ appears to be making the distinction.

Howell also demanded an explanation from O’Connor in Croy’s sentencing memo why DOJ is not including the cost of the National Guard deployment in the restitution payments required of January 6 defendants.

Both according to its own prosecutorial guidelines and the practical limitations of prosecuting 560 defendants, DOJ can’t use a novel application of the obstruction statute to charge everyone arrested in conjunction with January 6 with a felony. It’s a reality that deserves a better, more formal explanation than the one O’Connor offered the Chief Judge extemporaneously.

Trevor McFadden believes a conspiracy to overthrow democracy is not a complex case

Meanwhile, the Discovery Coordinator for the entire investigation, Emily Miller, missed an opportunity to explain to Trevor McFadden the logic behind ongoing January 6 arrests.

In advance of a hearing for Cowboys for Trump founder Couy Griffin, prosecutor Janani Iyengar submitted a motion for a 60-day continuance to allow for the government to work through discovery. She brought Miller along to a status hearing to explain those discovery challenges to McFadden, who had complained about them in the past and refused to toll the Speedy Trial Act in this case. Because Iyengar recently offered Griffin a plea deal, his attorney Nick Smith was fairly amenable to whatever McFadden decided.

Not so the judge. He expressed a sentiment he has in this and other cases, that the government made a decision to start arresting immediately after the attack and continues to do so. “There seems to be no end in sight,” McFadden complained, suggesting that if DOJ arrested someone in three months who offered up exculpatory evidence that affected hundreds of cases, those would have to be delayed again. In spite of the fact that several prosecutors have explained that the bulk of the evidence was created on January 6, McFadden persists in the belief that the trouble with discovery is the ingestion of new evidence with each new arrest.

Miller noted that the government could start trials based on the Brady obligation of turning over all exculpatory evidence in their possession, so future arrests wouldn’t prohibit trials. The problem is in making the universe of video evidence available to all defense attorneys so they have the opportunity of finding evidence to support theories of defense (such as that the cops actually welcomed the rioters) that would require such broad review of the video.

McFadden then suggested that because Griffin is one of the rare January 6 defendants who never entered the Capitol, Miller’s team ought to be able to segregate out an imagined smaller body of evidence collected outside. “Were that it were so, your honor,” Miller responded, pointing out that there were thousands of hours of surveillance cameras collected from outside, the police moved in and outside as they took breaks or cleaned the bear spray from their eyes so their Body Worn Cameras couldn’t be segregated, and the Geofence warrant includes the perimeter of the Capitol where Griffin stood.

McFadden then said two things that suggested he doesn’t understand this investigation, and certainly doesn’t regard the attack as a threat to democracy (he has, in other hearings, noted that the government hasn’t charged insurrection so it must not have been one). First, he complained that, “In other cases,” the government had dealt with a large number of defendants by giving many deferred prosecutions or focusing just on the worst of the worst, a clear comparison to Portland that right wingers like to make. But that’s an inapt comparison. After noting the data somersaults one has to do to even make this comparison, a filing submitted to Judge Carl Nichols in response to a selective prosecution claim from Garret Miller explained the real differences between Portland and January 6: There was far less evidence in the Portland cases, meaning prosecutions often came down to the word of a cop against that of a defendant and so resulted in a deferred prosecution.

This comparison fails, first and foremost, because the government actually charged nearly all defendants in the listed Oregon cases with civil-disorder or assault offenses. See Doc. 32-1 (Attachments 2-31). Miller has accordingly shown no disparate treatment in the government’s charging approaches. He instead focuses on the manner in which the government ultimately resolved the Oregon cases, and contrasts it with, in his opinion, the “one-sided and draconian plea agreement offer” that the government recently transmitted to him. Doc. 32, at 6. This presentation—which compares the government’s initial plea offer to him with the government’s final resolution in 45 hand-picked Oregon cases—“falls woefully short of demonstrating a consistent pattern of unequal administration of the law.”3 United States v. Bernal-Rojas, 933 F.2d 97, 99 (1st Cir. 1991). In fact, the government’s initial plea offer here rebuts any inference that that it has “refused to plea bargain with [Miller], yet regularly reached agreements with otherwise similarly situated defendants.” Ibid.

More fundamentally, the 45 Oregon cases serve as improper “comparator[s]” because those defendants and Miller are not similarly situated. Stone, 394 F. Supp. 3d at 31. Miller unlawfully entered the U.S. Capitol and resisted the law enforcement officers who tried to move him. Doc. 16, at 4. He did so while elected lawmakers and the Vice President of the United States were present in the building and attempting to certify the results of the 2020 Presidential Election in accordance with Article II of the Constitution. Id. at 2-3. And he committed a host of federal offenses attendant to this riot, including threatening to kill a Congresswoman and a USCP officer. Id. at 5-6. All this was captured on video and Miller’s social-media posts. See 4/1/21 Hr’g Tr. 19:14-15 (“[T]he evidence against Mr. Miller is strong.”). Contrast that with the 45 Oregon defendants, who—despite committing serious offenses—never entered the federal courthouse structure, impeded a congressional proceeding, or targeted a specific federal official or officer for assassination. Additionally, the government’s evidence in those cases often relied on officer recollections (e.g., identifying the particular offender on a darkened plaza with throngs of people) that could be challenged at trial—rather than video and well-documented incriminating statements available in this case. These situational and evidentiary differences represent “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions” in Miller’s case. Branch Ministries, 211 F.3d at 145 (quoting United States v. Hastings, 126 F.3d 310, 315 (4th Cir. 1997)); see also Price v. U.S. Dep’t of Justice, 865 F.3d 676, 681 (D.C. Cir. 2017) (observing that a prosecutor may legitimately consider “concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation” in plea negotiations) (brackets and citation omitted).

3 Miller’s motion notably omits reference to the remaining 29 Oregon cases in his survey, presumably because the government’s litigation decisions in those cases do not conform to his inference of selective treatment. [my emphasis]

McFadden ended with one of his most alarming comments. He said something to the effect of, he doesn’t feel that the January 6 investigation was a complex type of case akin to those (often white collar cases) where a year delay before trial was not that unusual.

This was a fairly breathtaking comment, because it suggests that McFadden sees this event as the magical convergence of thousands of criminals at the Capitol rather than the result of a sustained conspiracy to get a mass of bodies to the building, a conspiracy that started at least as early as the days after the election. While McFadden’s highest profile January 6 case is a sprawling assault case against Patrick McCaughey and others (the one that trapped Officer Daniel Hodges in the Capitol door), this view seems not to appreciate some larger investigative questions pertinent to some of his other defendants. For example, what happened to the laptops stolen from various offices, including the theft that Brandon Fellows may have witnessed in Jeff Merkley’s office. Did America First engaged in a conspiracy to gets its members, including Christian Secor, to the Capitol (and did a huge foreign windfall that Nick Fuentes got days before the insurrection have anything to do with that). What kind of coordination, if any, led a bunch of Marines to successfully open a second front to the attack by opening the East Doors also implicates Secor’s case. One of the delays in Griffin’s own case probably pertained to whether he was among the Trump speakers, as members of the 3-Percenter conspiracy allegedly were, who tied their public speaking role to the recruitment of violent, armed rioters (given that he has been given a plea offer, I assume the government has answered that in the negative).

It has become increasingly clear that one of the visible ways that DOJ is attempting to answer these and other, even bigger questions, is to collect selected pieces of evidence from identifiable trespassers with their arrest. For example, Anthony Puma likely got arrested when he did because he captured images of the Golf Cart Conspiracy with his GoPro. He has since been charged with obstruction — unsurprisingly, since he spoke in detailed terms about preventing the vote certification in advance. But his prosecution will be an important step in validating and prosecuting the larger conspiracy, one that may implicate the former President’s closest associates.

This is white collar and complex conspiracy investigation floating on top of a riot prosecution, one on which the fate of our democracy rests.

Melody Steele-Smith evaded the surveillance cameras

A report filed yesterday helps to explain the import of all this. Melody Steele-Smith was arrested within weeks of the riot on trespass charges, then indicted on trespass and obstruction charges. She’s of particular interest in the larger investigation because — per photos she posted on Facebook — she was in Nancy Pelosi’s office and might be a witness to things that happened there, including the theft of Pelosi’s laptop.

At a hearing last week, the second attorney who has represented her in this case, Elizabeth Mullin, said she had received no discovery, particularly as compared to other January 6 defendants. So the judge in that case, Randolph Moss, ordered a status report and disclosure of discovery by this Friday.

That status report admits that there hasn’t been much discovery, in particular because, aside from the surveillance photos used in her arrest warrant, the government hasn’t found many images of Steele-Smith in surveillance footage.

The United States files this memorandum for the purpose of describing the status of discovery. As an initial matter, the government has provided preliminary discovery in this case. On or about June 4, 2021, the government provided counsel for defendant preliminary discovery in this matter. This production had been made previously to the defendant’s initial counsel of record. Counsel for defendant received the preliminary production that had been provided to previous counsel. This preliminary production included the FBI 302 of defendant’s sole interview, the recorded interview of defendant which formed the basis of the aforementioned FBI 302, over one thousand pages of content extracted from defendant’s Facebook account, and thirty-nine photographs confiscated from defendant’s telephone.

The government is prepared to produce an additional discovery production no later than August 13, 2021. The production will include additional items that have been obtained by the government from the FBI. These items include, additional FBI investigative reports and the Facebook search warrant dated January 21, 2021. The FBI has provided the government with the full extent of the materials in its possession. While these items are few in number, the government is continuing to review body worn camera footage in an attempt to locate the defendant. Camera footage will be provided if it is located. The government has been diligent in its efforts to obtain all discoverable items in possession of the FBI.

That still leaves a thousand Facebook pages and 39 photos, some of them taken at a key scene in the Capitol a scene that — given the evidence against Steele-Smith and in other cases — is a relative blind spot in the surveillance of the Capitol. The interview described here is not reflected in her arrest warrant, and so may include non-public information used to support the obstruction case.

Beryl Howell might argue this is sufficient evidence to prove the government’s obstruction case. Trevor McFadden might argue that this case can’t wait for more video evidence obtained from future arrestees of what Steele-Smith did while “storm[ing] the castle” (in her own words), including the office of the Speaker of the House. But the theft of the Pelosi laptop — including whether Groypers like Riley Williams were involved — remains unsolved.

If a single terrorist with suspect ties to foreign entities broke into the office of the Speaker of the House and stole one of her laptops, no one would even think twice if DOJ were still investigating seven months later. But here, because the specific means of investigation include prosecuting the 1,000 people who made that break-in possible, there’s a push to curtail the investigation.

I don’t know what the answer is because the Speedy Trial issues are very real, particularly for people who are detained. But I do know it’s very hard for anyone to get their mind around this investigation.

The Hundred-Plus January 6 Defendants Accused of Assault

Yesterday, Merrick Garland marked two milestones in the January 6 investigation: 500 arrests, of which 100 were for assaulting police.

The Department of Justice reached several benchmarks in our investigation into the January 6th attack on the U.S. Capitol.

We have now crossed the threshold of 500 arrests, including the 100th arrest of a defendant on charges of assaulting a federal law enforcement officer. This morning, we arrested our first defendant on charges that include assaulting a member of the news media.

I could not be more proud of the extraordinary effort by investigators and prosecutors to hold accountable those who engaged in criminal acts that day. Particular credit goes to those serving as prosecutors and agents in Washington, D.C., as well as those in FBI field offices and U.S. Attorney’s Offices across the country, and with the Department’s National Security Division.

Our efforts to bring criminal charges are not possible without the continued assistance of the American public. To date, we have received their more than 200,000 digital tips.

I assure the American people that the Department of Justice will continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

I’ve been tracking the charged assaults (and a few related crimes). Here’s my list, which includes several people who really resisted arrest (but got charged under 18 USC 111). Note this list also tracks how the FBI identified the defendant, which shows that FBI has been relying on “Be On the Lookout” photos to identify assailants. As of right now, all these defendants have pled NOT guilty and are assumed innocent. [fixed typo]

As you read this list, keep in mind that FBI has released 410 BOLOs, most for assault, and well over 200 of those people remain at large. And of course, the FBI has not yet apprehended the pipe bomber.

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”). Tip SM
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby. BOLO 79
  3. Michael Alberts, who was arrested for gun possession the day of the riot but who had an assault charge added in a superseding indictment
  4. Wilmar Alvarado, who pushed cops in the mob trying to get in from the West Terrace. BOLO 65
  5. John Anderson, who after taking two riot shields from cops, needed their assistance after getting maced.
  6. Thomas Ballard, who used a police baton and threw a table in the Lower West Terrace. BOLO 325
  7. Julio Baquero, who resisted police efforts to empty out the Rotunda. Tip
  8. Logan Barnhart, who pulled one of the cops out of the Capitol.
  9. Matthew Beddingfield, accused of assaulting a cop on January 6 while out on bail for suspected murder in NC. Sedition Hunters
  10. Aiden Billyard, who joined the Air Force after being caught on video spraying a cop with suspected bear spray. Sedition Hunters
  11. Craig Bingert, who allegedly helped shove cops with a barricade. BOLO 105
  12. Tim Boughner, accused of pepper spraying a cop. BOLO 337
  13. Brian Glenn Bingham, who scuffled with two cops after Ashli Babbitt got shot. BOLO 93
  14. David Blair, who poked a cop with a lacrosse stick with a Confederate flag attached. Onsite arrest
  15. Jason Blythe, charged in the assault at the first barrier.
  16. Michael Brock, who hit two cops with a four-foot rod. BOLO 319
  17. Nicholas James Brockhoff, who sprayed a fire extinguisher from the Terrace at cops. BOLO 255
  18. Benjamin Burlew, who participated in a 6-person assault on an AP journalist.
  19. Jamie Buteau, whom surveillance video showed throwing chairs at cops several times in the Capitol. (BOLO 188)
  20. Alan Byerly, who allegedly beat up a cop and then beat up an AP cameraman. BOLO 193
  21. Daniel Caldwell, who was filmed macing 15 cops. SM
  22. Steven Cappuccio, who pulled Daniel Hodge’s gas mask and beat him with his own baton. BOLO 123
  23. Matthew Caspel, who was filmed charging the National Guard. Tip SM
  24. Ralphie Celentano, accused of knocking a cop off a terrace. BOLO 107
  25. William Chrestman, who is accused of threatening a cop as Proud Boys pushed their way past the original line of defense (charged with 18 USC 115). NM
  26. Reed Christensen, who was videotaped swinging at cops. BOLO and video 191
  27. Luke Coffee, who was videotaped beating several cops with a crutch. Tip SM and BOLO 108
  28. Cody Connell, who with his cousin was in a direct confrontation with cops. Tip SM
  29. Lance Copeland, who admitted to fighting with cops on the barricades.
  30. Matthew Council, who was arresting for shoving cops the day of the riot.
  31. Mason Courson, accused as part of a group that dragged cops from the Capitol and beat them. BOLO 129
  32. Kevin Creek, who was filmed hitting and kicking officers on the West Terrace. BOLO 296
  33. Bruno Cua, who was filmed shoving a cop to be able to get into the Senate. Tip LE
  34. Matthew DaSilva, who fought over shields with cops in the Lower West Terrace. BOLO 230
  35. James Davis, the Proud Boy with a big stick who charged some cops.
  36. Nathan DeGrave, whom security cameras caught threatening to fight cops. Network Sandlin
  37. David Dempsey, a Proud Boy with a history of assaulting anti-Trump protestors who used a crutch to assault police in the Tunnel. Sedition Hunters
  38. Robert Dennis, alleged to have assaulted officer JS on the terrace
  39. Timothy Desjardins, alleged to have beat police in the tunnel with a table leg. BOLO 348
  40. Michael Dickinson, accused of throwing things at cops. Tip SM
  41. Josh Doolin, who is part of Johnny Pollack’s cell that assaulted multiple cops. Network Pollack
  42. Michael Eckerman, who pushed an officer down a small flight of stairs, thereby opening a new hallyway. Tip anon
  43. Daniel Egdvedt, a large man who took swipes and grabbed at several officers as they tried to remove him from the Capitol. BOLO 76
  44. James Elliott, who goes by Jim Bob, is a suspected Proud Boy accused of beating cops with a flagpole.
  45. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer. Tips, including SM
  46. Alan Fischer, a Proud Boy involved in the Tunnel assault who also threw chairs and a traffic cone at cops.
  47. Joseph Fischer, a cop who got in a tussle with another cop. Tip SM
  48. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol. BOLO 139
  49. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick. Tip SM
  50. Kevin Galetto, who allegedly knocked an MPD officer to the ground in the Tunnel. BOLO 146
  51. Vincent Gillespie, who screamed traitor and treason why fighting in the Tunnel. Unspecified BOLO
  52. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops. NM
  53. Vitali Gossjankowski, who was interviewed about whether he had tased MPD officer Michael Fanone, causing a heart attack; instead he was charged with assaulting CPD officer MM. BOLO 98 — with a second one mentioned
  54. Daniel Gray, who got into several confrontations with officers inside the Capitol, including knocking down a female cop. Tip SM
  55. Brian Gunderson, charged with assault while committing a felony on a superseding.
  56. Jimmy Haffner, accused of breaching the cops defending the East doors using pepper spray. Network Nordean
  57. Tom Hamner, involved in an attack using a Trump sign while wearing a “Guns don’t kill people, Clintons do,” sweater.
  58. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault. Tip SM
  59. Richard Harris, who assaulted a journalist in Oregon weeks before threatening cops, Nancy Pelosi, and Mike Pence during the riot.
  60. Uliyahu Hayah, who was in the vicinity of Ashli Babbitt’s death and shoved a cop on his way out. NM
  61. Albuquerque Cosper Head, accused of assaulting Michael Fanone.
  62. Dillon Herrington, who threw a 4X4 at cops, then threw a barrier. Sedition Hunters picture
  63. Joseph Hutchison, who is part of Johnny Pollack’s group, but who was caught via his own BOLO. BOLO 320
  64. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat. BOLO 31
  65. Joshua James, an Oath Keeper accused of shoving a cop.
  66. Shane Jenkins, alleged to have used a crowbar to break in a window, later threw things including a pole, a desk drawer, and a flagpole at cops.
  67. Douglas Jensen, the QAnon who chased Officer Goodman up the stairs, got charged with resisting him. NM, BOLO 10
  68. Justin Jersey, accused of being part of a mob that assaulted some cops dragged out of the Capitol.
  69. Taylor Johnatakis, charged with 111.
  70. Paul Johnson, who carried a bullhorn and was in the initial assault from the west side with Ryan Samsel. BOLO 49
  71. Zachary Johnson, a Proud Boy accused of assaulting cops with pepper spray.
  72. David Judd, who threw a firecracker at cops in the tunnel. Tip and BOLO 137
  73. Riley Kasper, who bragged of pepper spraying cops. Tip SM
  74. Josiah Kenyon, accused of attacking two cops with a broken table leg with a nail sticking out. BOLO 94
  75. Julian Elie Khater, who allegedly sprayed Brian Sicknick and two others with very powerful bear spray. BOLO 190
  76. Freddie Klein, the State Department employee who fought with three different officers while trying to break through police lines. BOLO 136
  77. Matt Krol, Genesee County militia executive who stole a baton and used it. BOLO 291
  78. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat. Tip SM
  79. Nicholas Languerand, accused of throwing a bollard, a can of pepper spray, and a stick at cops in the Lower West Tunnel.
  80. Samuel Lazar, who was caught on video spraying chemicals and cops and claimed to be the tip of the spear.
  81. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him. Onsite arrest
  82. Joshua Lollar, who described fighting cops and was caught in pictures showing himself in the front lines confronting cops. Tip SM
  83. Michael Lopatic, who allegedly assaulted some cops with Stager and Sabol, then took a BWC to hide the assault. BOLO 133
  84. Avery MacCracken, accused of punching cop JG. BOLO 387
  85. Clifford Mackrell, who attempted to strip an officer’s gas mask after someone else sprayed bear spray. BOLO 124
  86. Markus Maly, accused of spraying a cop then handing his spray bottle to Jeffrey Brown. BOLO 324
  87. Jake Maxwell, who tousled with cops on the West side. probable Sedition Hunters
  88. Mark Mazza, who is accused of assaulting cops with a baton, and remains under investigation for assault while still in possession of the gun he lost at the riot.
  89. Logan McAbee, who was part of a gang assault on a cop pulled out of the Capitol.
  90. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol. BOLO 62
  91. James McGrew, who shoved some cops in the Rotunda then bared his King James belly tattoo, Tip Network
  92. Sean McHugh, accused of spraying some yellow substance at cops and using a sign as a battering ram, BOLO 59
  93. Jeffrey McKellop, a former Special Forces guy accused of assaulting 4 cops, including one by using a flagpole as a spear. BOLO 215
  94. David Mehaffie, who directed the assaults in the Tunnel
  95. Jonathan Mellis, who used some kind of stick to try to jab and beat police. Tip SM
  96. Jalise Middleton
  97. Mark Middleton, the Middletons fought the cops outside the West entrance to the Capitol. BWC
  98. Garret Miller, who pushed back at cops and then threatened both AOC and the cop who killed Ashli Babbit. Tip LE
  99. Matthew Ryan Miller, who released fire extinguisher in close quarters. Tip SM
  100. Jordan Mink, who used a pole to assault the police.
  101. Brian Mock, who kicked a cop when he was down and bragged about it. BOLO and Tip SM
  102. Patrick Montgomery was charged with assault against MPD officer DJ in a follow-up indictment.
  103. Robert Morss, who in addition to tussling with a cop, was a key organizer of shield walls in the Tunnel. BOLO 147
  104. Aaron Mostofsky, possibly for stripping a cop of his or her armored vest and riot shield. NM
  105. Clayton Mullins, alleged to be part of the mob that assaulted AW and two other police. Tip
  106. Jonathan Munafo, alleged to have fought with cops in two different locations, including punching one in the Lower West Terrace. (BOLO and video 170)
  107. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol. Tip SM
  108. Gregory Nix, who is accused of beating one of the cops at the East door with a flagpole. Network
  109. Grady Owens, who allegedly hit a cop in the head on the Mall with a skateboard, as he was heading to reinforce the Capitol. BOLO 109
  110. Jason Owens, accused of assaulting a second officer after his son attacked one with a skateboard. Network Owens
  111. Jose Padilla, who shoved cops at a barricade, then helped use a Donald Trump sign as a battering ram against them. Tip SM
  112. Robert Palmer, who sprayed cops with a fire extinguisher then threw it at them.
  113. Michael Perkins, who is part of the Pollack group. Network Pollack
  114. Dominic Pezzola, a Proud Boy who stole a shield from cops. NM and BOLO 43
  115. Johnny Pollack, who serially assaulted cops and then went on the lam. BOLO 144
  116. Olivia Pollack, Johnny’s sister who also allegedly punched a cop. Pollack network
  117. Mark Ponder, filmed repeatedly attacking cops with poles.
  118. Joshua Portlock, filmed attacking cops with a piece of plywood. BOLO 97
  119. Christopher Quaglin, accused of assaulting cops both at the initial breach of the barriers and later in the Lower West Terrace.
  120. Barry Ramey, accused of spraying toxins at cops. BOLO 329
  121. Stephen Chase Randolph, who shoved cops at the initial barricade and later bragged about a female cop’s head bouncing off the pavement. BOLO 168
  122. Howard Richardson, who allegedly beat a cop with a flagpole.
  123. Daniel Rodriguez, whom videos appear to show tasing Michael Fanone. Sedition Hunter-based reporting
  124. Edward Rodriguez, who sprayed pepper spray at cops while wearing a suit. Sedition Hunter-based reporting
  125. Greg Rubeacker, Tip SM
  126. Jeffrey Sabol, helped drag a cop from the Capitol and beat him while prone. LE arrest (erratic driving)
  127. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs. BOLO 51 (though not IDed by BOLO)
  128. Salvador Sandoval, Jr, who went to the insurrection with his mother and shoved some cops.
  129. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher. Tip NM
  130. Ronald Sandlin, who tried to wrestle cops to keep the door to the Senate open. MPD tip
  131. Troy Sargent, who appears to have punched some cops holding a line. Tip SM
  132. Peter Schwartz, a felon who maced several cops. Tip NM (BOLO 120)
  133. Dan Scott, AKA Milkshake, who shoved some cops in the initial assault. Network.
  134. Christian Secor, a UCLA self-described fascist who helped shove through some cops to break into the Capitol and then sat in the Senate chamber. Tip NM
  135. DJ Shalvey. The details of the assault charged against Shalvey are not public, but he did get charged for lying about it to the FBI.
  136. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another. BOLO 55
  137. Thomas Sibick, accused of being among a group of men who attacked Michael Fanone and stole his badge.
  138. Geoffrey Sills, alleged to have used both a pole and a baton in several assaults on cops in the tunnel.
  139. Audrey Southard-Rumsey, the talented singer deemed one of the main agitators in the Statuary Hall Connector. Tip SM
  140. Peter Francis Stager, who was involved in beating a prone cop with a flagpole. Tip SM
  141. Shelly Stallings, Peter Schwartz’s spouse indicted for spraying cops with pepper spray. Schwartz network
  142. Ezekial Stecher, whom videos showed pushing in the Lower West Tunnel.
  143. Tristan Stevens, who fought cops with a shield and baton. Video
  144. Isaac Sturgeon, who is accused of using a barricade to attack some officers.
  145. Andrew Taake, who is accused to have used a metal whip and pepper spray against the cops. Tip SM
  146. George Pierre Tanios, who allegedly conspired with Julian Khater to attack Brian Sicknick and two other cops. BOLO 254
  147. Kenneth Joseph Owen Thomas, who organized a MAGA Caravan from AL and then selfied himself attacking cops. BOLO 214
  148. Christopher Warnagiris, the Marine Major who fought to keep the East door open. BOLO 241
  149. Jerry Waynick, accused of throwing a cone at cops. BOLO 157
  150. Mark Waynick, who tousled with cops with his son. Network Waynick
  151. Thomas Webster, who attacked a cop with a flagpole. BOLO 145
  152. Wade Whitten, accused of dragging AW down the steps of the Capitol and hitting him with a crutch. BOLO 130
  153. Ricky Willden, who allegedly sprayed cops with a chemical.
  154. Duke Wilson, accused of assaulting several officers in the Lower West Tunnel. BOLO 87
  155. Jason Woods, who allegedly used the same tripping attack on a female cop and a cameraman. BOLO 238
  156. Christopher Worrell, a Proud Boy who apparently sprayed pepper spray at a line of police.
  157. Kyle Young, accused of attacking Michael Fanone and another officer, and stealing Fanone’s weapon.