The Government Missed A Key Deadline In A Jan. 6 Conspiracy Case. Then Things Got Messy.

Prosecutors acknowledge they violated a defendant’s right to a speedy trial. It’s not clear if that’ll tank their ability to press more charges against him.

WASHINGTON — When Lucas Denney was arrested on Dec. 13 in Kinney County, Texas, the charges featured some of the most serious felonies to date in any of the hundreds of cases related to the Jan. 6 insurrection. He was accused of conspiring with a codefendant as part of a self-proclaimed militant group called the “Patriot Boys.” He was also charged with obstructing Congress, assaulting police, interfering with police during a civil disorder, and illegally being in a restricted area around the Capitol with a weapon.

Just a few months later, though, a critical missed deadline by the government has put the future of its case against Denney in limbo. He appeared in court Thursday to enter a guilty plea to a single count. Prosecutors left open the possibility of trying to indict him on the rest of the charges, while the defense signaled they’d fight any such attempt on double jeopardy grounds.

Earlier this month, Denney’s lawyer had alerted the judge to the fact that prosecutors had missed the deadline to indict his client after he’d been arrested and violated a core legal protection for defendants — the right to a speedy trial. Prosecutors acknowledged the violation, blaming a miscalculation of the dates. They agreed with Denney that the case should be dismissed. But they asked the judge to dismiss it “without prejudice,” meaning they’d keep the option of recharging him in the future.

In the meantime, in an effort to keep the case going, the government secured a one-count indictment against Denney for assaulting a police officer with a pole. Denney then dramatically changed course Thursday, dropping his motion to dismiss the case and pleading guilty to the lone count in the late-filed indictment.

Denney’s plea is a gamble. Assistant US Attorney Jennifer Rozzoni said during Thursday’s hearing that the government hadn’t decided yet if they’d try to indict Denney on the rest of the original charges. There’s no plea deal that explicitly bars them from doing that. Denney’s lawyer William Shipley told US District Judge Randolph Moss that they believed there was precedent from federal appeals courts across the country to support an argument that double jeopardy — the idea that people can’t be charged twice for the same crime — barred the government from pursuing a new indictment.

Before accepting Denney’s guilty plea, Moss stressed that there was a chance the government could still try to revive the rest of the case. At first, Denney said he wasn’t aware of that. After spending several minutes with his lawyers in private, though, he told the judge he understood the situation and still wanted to go ahead with the guilty plea. The judge also had Shipley acknowledge that the US Court of Appeals for the DC Circuit — the only appeals court that’s binding on Moss and his colleagues in Washington — hadn’t weighed in on the double jeopardy issue they seemed to be hoping would stand in the way of future charges.

Judges have dinged federal prosecutors in the past for delays in moving along the hundreds of prosecutions related to Jan. 6, especially for the relatively small group of defendants ordered by judges to remain in pretrial custody. Denney’s situation was the first time that a speedy trial violation had imperiled an entire case.

Under federal law, the government has 30 days to formally charge a person once they’re arrested; those charges can come in the form of an indictment or what’s known as an information. Judges have the authority to extend that deadline. Rozzoni explained in a March 14 filing that they’d received a 10-day extension while they were transporting Denney from Texas to DC — and that there were delays in getting him before a judge — but the government mistakenly believed that the clock didn’t start running until Denney made his first appearance in the DC court.

Denney has been in jail since his arrest; the vast majority of Jan. 6 defendants have been allowed to go home after their initial court appearances, but judges have kept some defendants charged with violence, conspiracy, or weapons offenses behind bars. Moss scheduled his sentencing for June 9.

Exactly how much prison time Denney could face isn’t clear yet. The assault charge with the enhancement for having a weapon carries a maximum penalty of 20 years in prison. Prosecutors estimate Denney faces 57 to 71 months behind bars, while Shipley calculated a lower range of 41 to 51 months. Judges aren’t bound by a defendant’s estimated sentencing range, which is based on a variety of factors like criminal history and acceptance of responsibility, but they’re supposed to try to stay within those guidelines.

Some of the other felonies Denney was originally charged with — obstructing an official proceeding and conspiracy to commit that offense — carry the same top penalty of 20 years in prison. The maximum sentences for being in a restricted area with a weapon and interfering with police during a civil disorder are 10 years and five years in prison, respectively.

In recent court papers addressing the missed deadline, prosecutors signaled strong interest in pursuing the full slate of alleged crimes they’d arrested him for.

“The charges against Denney are of the utmost seriousness. Those charges arise within the context of the attack on the U.S. Capitol, on January 6, 2021, a criminal offense unparalleled in American history. It represented a grave threat to our democratic norms; indeed, it was [...] one of the only times in our history when the building was literally occupied by hostile participants. By its very nature, the attack defies comparison to other events,” Rozzoni wrote.

Asked to comment on Denney's plea and to elaborate on the double jeopardy argument they'd raise, Shipley declined to comment.

In the original charging affidavit, an FBI agent quoted messages Denney allegedly sent via Facebook as he made plans to travel to Washington for Jan. 6 discussing how his chapter of the Patriot Boys, which was affiliated with the Three Percenters movement, would be “linking up” with the Proud Boys and other militant groups. They included messages he wrote about supporting efforts to keep former president Donald Trump in office as well as responding to the threat that he believed Black Lives Matter and “antifa” posed.

At the Capitol on Jan. 6, the government alleged that he joined the mob in trying to pull away metal barricades set up around the perimeter of the building, tried to grab a canister of chemical spray from a police officer, used a long pole to swing at an officer — the offense he pleaded guilty to on Thursday — and made his way to the front of a crowd that was pushing against officers guarding an entrance in a tunnel area; he wasn’t accused of going inside the building.

The case against Denney’s codefendant Donald Hazard remains active; he’s also charged with assaulting police at the Capitol, but isn’t facing weapons-related charges. In early February, with agreement from Hazard’s lawyer, the government asked for a 60-day extension of the deadline to get an indictment from a grand jury, citing the overall size and complexity of the Jan. 6 investigation as well as the fact that they planned to discuss a potential plea deal. Prosecutors will have to indict Hazard or ask for another extension by April 5.