Most people arrested in connection with January 6 have been charged in separate cases. The number of defendants is approaching nearly 800, and that number is expected to continue to rise: Prosecutors said in court they believe more than 2,000 people entered the Capitol, in addition to an as yet unspecified number of people charged with assaulting police on the ground or committing other crimes in restricted outdoor areas.
Until now, prosecutors have opposed splitting the cases they chose to bring with two or more defendants. Some of these cases involve conspiracy charges. In others, prosecutors have pointed to shared evidence, such as the photo outside the Capitol of Sandoval, which prosecutors said they took from Deborah’s phone, and allegations that the people were traveling or moving around the Capitol together. There are also cases where a group of defendants are accused of jointly assaulting police, even if there is no indication that they knew each other or planned in advance.
There are typically two issues at stake when a defendant asks a judge to separate their case: whether the prosecutors were right to join the defendants in the first place and, even if they had, whether any bias toward a defendant outweighs the interest of the government or the court. on the effectiveness of a joint trial. Under federal court rules, the government can tie defendants together if they are accused of engaging “in the same act or transaction, or in the same series of acts or transactions.” Not all defendants have to be charged with the same charges.
In the Jan. 6 cases, defendants who are not charged with assaulting police have objected to being grouped with those who are, or claim that being tried together undermines their ability to make certain defenses or come forward sooner. before a jury. Prosecutors have argued that the bar for dividing defendants is high if the government can show that there are common charges and evidence. The fact that a defendant may have a better chance of acquittal if he goes to trial alone is not enough, they say.
If any Jan. 6 defendant gets their case closed, others with pending motions are likely to bring it to the attention of their own judge, and could inspire similar efforts in other multi-defendant cases. A judge’s decision is not binding on his colleagues. But all the judges in DC handling these cases have been keeping an eye on how the new issues play out on the court.
In one of the conspiracy cases, Edward Badalian of California is pushing to separate his case from co-defendant Daniel Joseph “DJ” Rodriguez. Prosecutors allege the two men were in a Telegram group chat, along with others, called the “PATRIOTS 45 MAGA Gang” that was used to discuss going to DC to disrupt congressional certification of the election and coordinate plans to trip. The indictment accuses them of going to Capitol Hill together on Jan. 6 and later meeting in California with an unnamed third co-defendant who broached the issue of removing photos and videos of the rioting group.
But Badalian argues that the charges and the evidence against Rodríguez are so much more serious that a joint trial would be unfair. Rodriguez is charged separately with assaulting police: He is accused of throwing a flagpole at officers, deploying a fire extinguisher and electrocuting a police officer in the neck, with the indictment describing him as threatening to assassinate President Joe Biden and harm members of Congress.
“Given the seriousness of the violence and Rodríguez’s threat to assassinate the President, and its shocking effect on any reasonable person, it is very likely that the trial judge will associate Rodríguez’s acts and his degree of culpability with Mr. Badalian , and which, as a consequence, could lead a jury to conclude that Mr. Badalian is guilty,” Badalian’s attorney wrote in a March brief.
Prosecutors counter that the allegations of violence against Rodriguez are part of the larger conspiracy with which both men are accused. They argued that the overlapping evidence leans in favor of a joint trial and that Badalian also downplayed how bad the evidence against him looks: that Badalian allegedly engaged in “explosive” rhetoric leading up to January 6 and was part of the planning efforts. and post-DC meeting.
As for the assault charges against Rodriguez, a jury could compartmentalize that evidence, prosecutors said, noting that those alleged attacks were recorded on video and that the two men were not dressed alike. The judge has not yet ruled.
In another conspiracy case, Alan Hostetter, a California man representing himself, seeks to separate his case from his five co-defendants. Hostetter argues that his defense strategy will be one of “confrontation and opposition” to one of his co-defendants, Russell Taylor, a former associate Hostetter believes is a “government operative of some sort.” (Taylor has not filed an answer to Hostetter’s motion. There has been no indication in the case that Taylor was an informant; prosecutors argued unsuccessfully to keep him in pretrial custody after he was arrested.) He also claims that he does not know the rest of his co-defendants and that the government’s references to his affiliation with the anti-government Three Percent movement will prejudice his defense.
Prosecutors oppose Hostetter’s effort to spin off his case, focusing on a central allegation that the defendants were all in the same Telegram chat group and coordinated plans to travel to DC. They highlighted evidence they said proves at least some of the defendants were together on Jan. 6, including a photo they said Hostetter took of three others. Hostetter’s plan to argue that Taylor is an informant is not a reason to close his case, prosecutors wrote. The judge has not yet ruled.
Recently, in a conspiracy case against the leaders of the extremist group Proud Boys, a judge denied a motion by defendant Ethan Nordean, identified as a member of the Proud Boys “Elders” and leader of their local Washington state chapter, to separate two of his new co-defendants, Enrique Tarrio and Dominic Pezzola. Nordean has been in jail in the year since he was first charged with conspiracy and argued that delaying the case’s deadlines to accommodate Tarrio and Pezzola would go against his constitutional right to a speedy trial.
on the 12th of april organize, US District Judge Timothy Kelly wrote that, at least so far, Nordean had not shown that rescheduling the trial, which had been set for May, would violate his rights. Kelly noted that the delay was intended not only to give attorneys for Tarrio and Pezzola time to prepare, but also to ensure that the government met all of its obligations to turn over evidence. At a hearing last week, Kelly rescheduled the trial for August 8.