Alleged Capitol Rioters Are Trying To Shake Off Codefendants They Think Will Look Worse To A Jury

With more Jan. 6 trials looming, defendants are angling to face a jury solo.

As thousands of former president Donald Trump’s supporters breached the US Capitol on Jan. 6, Deborah Sandoval and her son Salvador Sandoval smiled as they posed for a photo outside in front of the mob. When a federal grand jury returned an indictment in March 2021, it charged them jointly; prosecutors held up the image as key evidence not only identifying the pair on the scene that day, but also showing they were there together.

The pair is now trying to create as much distance between themselves as possible. Deborah wants a judge to separate their cases, arguing it would be unfair to tie her fate to her son when he faces separate felony counts. Both are charged with illegally going inside the Capitol, misdemeanor offenses that have carried minimal prison time in other Jan. 6 cases so far. But Salvador is also accused of pushing two police officers and trying to take the shield of a third, crimes that could spell months behind bars if he’s convicted.

Deborah insists there’s little that binds them besides being family, noting they don’t live together and disputing that they traveled together to DC or coordinated their activities. Salvador is backing the effort, with his lawyer describing the split as “legally and morally just.”

“Evidence of violence, if any, on the part of Salvador, would have a cataclysmic side effect against his mother,” Salvador’s lawyer wrote in February. “Although the defendants are mother and son, for the purposes of this motion, their trials should not be shared.”

As Jan. 6 cases finally head to trial this year, the Sandovals are among a small but growing number of people angling to sever their cases from codefendants that they believe carry the baggage of more serious charges or damaging evidence of violence, or who would undermine their trial strategy. Their fear is that jurors will hold every defendant responsible for the full extent of criminal behavior laid out by prosecutors, even if they’re not charged with every offense and regardless of what the judge tells the jury they can and cannot do.

These latest fights in multidefendant cases highlight the challenges that prosecutors, defense lawyers, and judges have faced from the start in figuring out what to do with thousands of people who participated in a single event but whose guilt or innocence has to be decided on a person-by-person basis. A single case featuring a constantly growing collection of hundreds or thousands of defendants — each of whom brings their own unique set of facts and evidence to the table — is a legal and logistical impossibility.

The majority of people arrested in connection with Jan. 6 have been charged in separate cases. The number of defendants is fast approaching 800, and that figure is expected to keep going up — prosecutors have said in court that they believe more than 2,000 people went inside the Capitol, plus an as-of-yet unspecified number of people accused of assaulting police on the grounds or committing other crimes in restricted areas outside.

Prosecutors so far have opposed splitting up cases they’ve chosen to bring with two or more defendants. Some of these cases involve conspiracy charges. In others, prosecutors have pointed to shared evidence — like the photo outside the Capitol of the Sandovals, which prosecutors said they pulled from Deborah’s phone — and allegations that people traveled or moved around the Capitol together. There are also cases where a group of defendants are charged with jointly assaulting police, even if there isn’t any indication that they knew each other or planned in advance.

There are typically two issues at play when a defendant asks a judge to sever their case: Whether prosecutors were right to join defendants in the first place, and, even if they were, whether any prejudice to a defendant outweighs the government or the court’s interest in the efficiency of a joint trial. Under federal court rules, the government can join defendants if they’re accused of participating “in the same act or transaction, or in the same series of acts or transactions.” Every defendant doesn’t have to be charged with the same counts.

In Jan. 6 cases, defendants who aren’t accused of assaulting police have challenged being grouped with those who are, or contend that being tried together undermines their ability to pursue certain defenses or get before a jury sooner. Prosecutors have argued that the bar for splitting up defendants is high if the government can show that there are common allegations and evidence. The fact that a defendant might have a better chance of acquittal if they go to trial alone isn’t enough, they say.

If any Jan. 6 defendant succeeds in getting their case severed, others with pending motions are likely to bring it to their own judge’s attention, and it could inspire similar efforts in other multidefendant cases. One judge’s decision isn’t binding on their colleagues. But all of the judges in DC handling these cases have been watchful for how new issues play out across the bench.

In one of the conspiracy cases, Edward Badalian of California is pushing to separate his case from codefendant Daniel Joseph “DJ” Rodriguez. Prosecutors allege the two men were in a Telegram group chat — along with others — called “PATRIOTS 45 MAGA Gang” that was used to discuss going to DC to disrupt Congress’ certification of the election and coordinate travel plans. The indictment charges them with going to the Capitol together on Jan. 6 and meeting up back in California afterward with a third, unnamed codefendant who broached the subject of deleting photos and videos of the group from the riot.

But Badalian argues the charges and evidence against Rodriguez are so much more serious that a joint trial would be unfair. Rodriguez is separately charged with assaulting police — he’s accused of throwing a flagpole at officers, deploying a fire extinguisher, and tasing a police officer in the neck — and the indictment describes him making threats to assassinate President Joe Biden and harm members of Congress.

“Given the gravity of Rodriguez’s violence and threat to assassinate the President, and its shocking effect on any reasonable person, it is highly likely that the trier of fact will associate Rodriguez’s acts and his degree of culpability with Mr. Badalian, and that, as a consequence, could lead a jury to conclude that Mr. Badalian is guilty,” Badalian’s lawyer wrote in a March brief.

Prosecutors counter that the allegations of violence against Rodriguez are part of the overarching conspiracy that both men are charged with. They argue the overlap in evidence leans in favor of a joint trial and that Badalian downplayed just how bad the evidence against him looks, too — that Badalian allegedly engaged in “explosive” rhetoric leading up to Jan. 6 and was part of the planning efforts and post-DC meetup.

As for the assault charges against Rodriguez, a jury would be able to “compartmentalize” that evidence, prosecutors said, noting that those alleged attacks were recorded on video and the two men weren’t dressed alike. The judge has yet to rule.

In another conspiracy case, Alan Hostetter, a California man representing himself, is seeking to split his case from his five codefendants. Hostetter argues that his defense strategy will be “confrontational and oppositional” to one of his codefendants, Russell Taylor, a former associate who Hostetter believes is a “government operative of some sort.” (Taylor hasn’t filed a response to Hostetter’s motion. There’s been no indication in the case that Taylor was an informant; prosecutors unsuccessfully argued to keep him in pretrial custody after he was arrested.) He’s also claiming that he doesn’t know the rest of his codefendants and that the government’s references to their affiliation with the Three Percenters anti-government movement will prejudice his defense.

Prosecutors oppose Hostetter’s effort to spin off his case, focusing on a core allegation that the defendants were all in the same Telegram chat group and coordinated plans to travel to DC. They highlighted evidence that they said proves at least some of the defendants were together on Jan. 6, including a photo that they said Hostetter took of three others. Hostetter’s plan to argue that Taylor is an informant isn’t grounds to sever his case, prosecutors wrote. The judge has yet to rule.

Recently, in a conspiracy case against leaders of the Proud Boys extremist group, a judge denied a motion by defendant Ethan Nordean — identified as a member of the Proud Boys “Elders” and a leader of his local chapter in Washington state — to sever two of his newest codefendants, Enrique Tarrio and Dominic Pezzola. Nordean has been in jail in the year since he was first charged with conspiracy, and argued that pushing back deadlines in the case to accommodate Tarrio and Pezzola would run afoul of his constitutional right to a speedy trial.

In an April 12 order, US District Judge Timothy Kelly wrote that at least as of now, Nordean hadn’t 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 Tarrio and Pezzola’s lawyers time to prepare, but also to make sure the government fulfilled all of its obligations to turn over evidence. At a hearing last week, Kelly reset the trial for Aug. 8.

In other cases, like the one against the Sandovals, prosecutors identified a pre-Jan. 6 connection between defendants but didn’t charge them with conspiring to attack the Capitol and disrupt Congress. Joshua Doolin of Florida is arguing to sever his case from his four codefendants, who are each facing at least one felony for assaulting or interfering with police while he’s charged with misdemeanors. He argues it’s unfair to keep him with that group, and that the joint prosecution is delaying his ability to quickly get to trial.

Prosecutors described the defendants in Doolin’s case as a mix of family and friends. They argue Doolin undersold his role in the group’s activities on Jan. 6 and the weight of the evidence against him; they noted that the indictment alleges that at one point he was carrying a flagpole as he advanced toward a line of police officers, and that after he dropped it, one of his codefendants picked it up and used it in an assault. There’s enough overlap in evidence that it made sense to keep them together, prosecutors argued, and minimal risk of “jury confusion” since videos made it clear which defendants were charged with assault. The judge heard arguments this month and has yet to rule.

One of the largest joint cases involves nine defendants charged in a series of assaults on police officers in the same area in the Lower West Terrace outside the Capitol. There’s no claim by the government that the defendants knew each other before. Since January, several defendants have filed motions to sever their cases or joined their codefendants’ briefs. They argue that the “degrees of culpability” are too wide across the 53-count indictment, and cited examples of violence their codefendants are accused of that they believe is far worse than what the government says they did.

David Judd of Texas, charged with throwing a lit firecracker towards police, argued his case stood in “sharp contrast” to codefendant Christopher Quaglin, who faces “troubling allegations” of pushing an officer down, hitting them in the face and neck with a riot shield, and spraying them with a chemical. Steven Cappuccio of Texas, meanwhile, included Judd on a list of codefendants that Cappuccio contends are more serious offenders. And Federico Klein of Virginia, a former political appointee in the State Department under Trump, included Judd and Cappuccio as examples of codefendants charged with more violent acts. Prosecutors haven’t filed responses yet.

Trials are on the calendar so far in more than 50 cases, some featuring individuals and some featuring multiple defendants. Prosecutors have had a mixed outcome in the first five cases to go to trial; all involved solo defendants. In the three cases to go before a jury, the government won full guilty verdicts. In two bench trials, one judge handed down a mixed verdict and another fully acquitted the defendant.