Riot act: Feds go hard on Jan. 6 defendants but dismissed most Portland riot cases

Ms. Eutin was lucky. Her mob was attacking the federal courthouse in Portland, Oregon, in part of the chaos that engulfed cities across the country in the summer of 2020, rather than the mob that attacked the U.S. Capitol on Jan. 6, 2021.

Federal prosecutors worked out a diversion agreement with Ms. Eutin and dismissed her charges in March 2021 after she completed 30 hours of community service.

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The department documents show that not one Jan. 6 defendant has been offered a diversion agreement, in which cases are dismissed if a defendant meets terms such as performing community service.

Saturday marks three years since the assault on the Capitol. The federal justice machinery is still pursuing those who breached the building, disrupted the counting of the Electoral College votes and sparked mayhem that left one protester dead.

“Jan. 6 cases are being handled completely differently than other cases which are in many circumstances much worse,” said Brandon Straka, who pleaded guilty to disorderly conduct and received probation for cheering on the mob on Jan. 6. “It’s all in an effort to malign Donald Trump supporters and Donald Trump.”

He accused federal prosecutors of taking minor issues and “creating evidence that doesn’t exist to substantiate their narrative about how dangerous Trump and his supporters are.”

He sees a push to portray Trump supporters as domestic terrorists and the MAGA movement as dangerous.

The Justice Department didn’t respond to inquiries for this report.

The U.S. Attorney’s Office for the District of Columbia confirmed that no pretrial diversion agreements were issued in the Jan. 6 cases and said the court documents speak for themselves. Officials declined to comment further.

Several Jan. 6 defendants have raised the issue of disparate treatment between the Portland and D.C. riots while arguing that they faced selective prosecution.

The Justice Department dismissed comparisons in court filings. It said the Portland rioters acted at night when the courthouse was closed for business. The Capitol, while closed to the public, was in the middle of important business: the Electoral College vote certification to facilitate the transfer of presidential power.

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“Although both Portland and January 6 rioters attacked federal buildings, the Portland defendants primarily attacked at night, meaning that they raged against a largely vacant courthouse,” Judge Trevor N. McFadden wrote in shutting down one Jan. 6 defendant’s challenge. “In contrast, the January 6 rioters attacked the Capitol in broad daylight. And many entered it. Thousands of congressional staffers walked the Capitol’s corridors that day. So did hundreds of legislators and the Vice President, all of whom appeared for a constitutionally mandated proceeding.”

Still, Judge McFadden was struck by the leniency granted to those in the Portland mobs.

“Rarely has the Government shown so little interest in vigorously prosecuting those who attack federal officers,” he wrote. He called the repeated Portland dismissals “a troubling theme.”

Portland was a complicated situation. The local authorities could have prosecuted the cases, but the district attorney argued that many of the federal and local charges weren’t severe enough to warrant his attention. He did pursue what he felt were significant cases, but the U.S. attorney stepped in to bring charges against dozens of others.

The Washington Times reviewed 93 cases filed in the first 18 months after the start of the Portland riots. Of those, only 15 went to findings of guilt. One was dismissed because the defendant died before a resolution, one failed to appear and five were dismissed because of state prosecution. Another case was closed without a final disposition listed in the case file.

That leaves 70 cases — a full three-quarters of all the federal prosecutions stemming from Portland’s riots — dismissed without a trial or plea.

In the Jan. 6 cases, just two cases have been dismissed, five ended when the defendant died and four defendants were “on the run,” according to a database compiled over the summer by Seton Hall University. The rest were either awaiting trial, awaiting sentencing or had already been sentenced.

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One of them is Patrick McCaughey III, who was convicted of smashing an officer with a police shield. He was sentenced to more than seven years in prison.

In Portland, Gretchen Blank was accused of smashing an agent in the back with her plastic shield as she tried to help a fellow mob member escape arrest. Prosecutors offered her a diversion agreement and dropped her charge after she finished community service.

In the District, Narayana Rheiner received a 15-month sentence for interfering with police during a civil disorder. He grabbed a riot shield from an officer, causing the officer to fall down the stairs.

In Portland, Edward Carubis carried a homemade shield with a painted ACAB — for “all cops are bastards” — into the mayhem. He used a laser device to blind three officers, one of whom suffered what prosecutors called “permanent eye damage as a result.” He pleaded guilty to misdemeanor assault on the officers and was given a sentence of time served — three days. He also had to give up the laser.

“Some otherwise law-abiding citizens became caught up in the frenzy and committed acts they later came to regret. Defendant appears to be one of those people,” Assistant U.S. Attorney Gary Y. Sussman wrote in asking the judge for a light sentence.

The longest sentences issued in federal court in Portland’s riots went to Dakotah Horton, who received a two-year sentence for bashing a deputy U.S. marshal in the back with a baseball bat; Jacob Michael Gaines, who was sentenced to nearly four years for swinging a 4-pound hammer at the head of a deputy marshal; and Malik Fard Muhammad, a regular at anti-government protests who netted 10 years in prison for two counts of possessing explosives.

Authorities said Muhammad battled police night after night by flinging Molotov cocktails, smashing windows and carrying a handgun. He is also serving time for local charges stemming from the riots.

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Prosecutors asked for more than five years in prison for Seefried.

He was convicted of felony obstruction of an official proceeding, a crime created by the Sarbanes-Oxley Act. Congress enacted the legislation after the Enron accounting scandal to regulate financial record keeping and documentation.

The same charge has been filed against more than 300 Jan. 6 defendants. According to The Associated Press, at least 152 people were convicted of or pleaded guilty to obstructing an official proceeding and 108 have been sentenced.

That includes Joseph Fischer, a Jan. 6 defendant and former Pennsylvania police officer who attended the “Stop the Steal” rally near the White House but did not immediately enter the U.S. Capitol building. Instead, he and a companion left town.

He returned to the Capitol after the Electoral College vote certification in Congress was suspended and entered the building for about four minutes, according to court records. Video captured him handing handcuffs to an officer and patting him on the shoulder. Mr. Fischer was later pepper-sprayed in a crowd of protesters.

A lower-court judge dismissed the obstruction charges, ruling that prosecutors viewed the law too broadly and that it applied only to actions taken with documents or records. A divided panel of the U.S. Circuit Court of Appeals for the District of Columbia reversed that ruling and reinstated the charges, prompting an appeal to the Supreme Court.

The law applies to anyone who corruptly “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with intent to impair the object’s integrity or availability for use in an official proceeding; or otherwise obstructs, influences or impedes any official proceeding, or attempts to do so.”

William Olson, a lawyer representing a group of nonprofits that encouraged the Supreme Court to review the obstruction charge, said Fischer “did nothing other than briefly walk around the Capitol, but the prosecutors threw the book at him.”

Mr. Olson said the claim that the riot constituted an insurrection is a “myth” and no such charge had been filed on that ground.

“Based on the insurrection narrative, one would have thought that there would have been hundreds of prosecutions for the federal crime of insurrection set out in 18 U.S.C. section 2383, but there has not been even one. The prosecutors apparently did not believe they could prove the elements of the crime of insurrection, which carried a penalty of 10 years. So the lawyers looked through the federal criminal code and stumbled on an obscure provision of the Sarbanes-Oxley Accounting Reform law which addresses shredding documents and interfering with official proceedings,” he said.

Mr. Olson said the obstruction charge carries a sentence of up to 20 years and prosecutors have been using that cudgel to extract plea bargains from defendants.

Theodore Cooperstein, an appellate lawyer representing Jan. 6 defendants, said that while deferred prosecution agreements are generally up to the U.S. attorney overseeing the cases, the Justice Department in Washington appears to have had influence in recent years.

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“They made it a political priority to make an example of these Jan. 6 defendants,” he said.

Police said Michael J. Dickinson threw a coffee mug at officers and later dumped a “bucket filled with an unknown liquid” on officers on Jan. 6. He received a 20-month sentence.

In Rochester, New York, a man who authorities said refused to disperse at officers’ orders and then resisted arrest and smashed an officer in the head with a wooden shield was granted a diversion agreement after he pleaded guilty to a misdemeanor in state court.

Steven Cappuccio, a Jan. 6 defendant who prosecutors said yanked an officer’s head by ripping off his gas mask and then grabbed the officer’s baton and struck him in the face, received an 85-month sentence. Prosecutors asked for more than 10 years.

Prosecutors also sought a 10-year sentence for Federico Klein, who they said was among the first rioters to breach the entrance tunnel on the Capitol’s west front. They accused him of pushing against officers and using a riot shield as a wedge to keep doors open so more people could enter the building.

One of the longest sentences in the District went to Thomas Webster, a former New York City police officer who was sentenced to 10 years in prison for using a flagpole to batter a police officer.

Prosecutors sought 17 years.

In Minneapolis, prosecutors asked for 10 years in prison for Montez Terriel Lee, who lit a pawnshop on fire, killing Oscar Lee Stewart Jr., during the protests that followed the killing of George Floyd.

Prosecutors told the judge that Lee seemed to be acting in accordance with Martin Luther King Jr.’s vision of the “language of the unheard” when he torched the pawnshop and was caught on camera raising his fist, vowing to “f—- this place. We’re going to burn this bitch down.”

Prosecutors said Lee’s righteous anger deserved a break.

“There appear to have been many people in those days looking only to exploit the chaos and disorder in the interests of personal gain or random violence. There appear also to have been many people who felt angry, frustrated, and disenfranchised, and who were attempting, in many cases in an unacceptably reckless and dangerous manner, to give voice to those feelings. Mr. Lee appears to be squarely in this latter category,” they told the judge, who agreed with their 10-year prison sentence recommendation.