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April 16, 2021

First public plea deal struck by Capitol rioter, who agrees to cooperate and to reported guideline range of 41 to 51 months in prison

As reported in this Fox News piece, headlined "Capitol rioter takes first public plea deal, agrees to cooperate with authorities: sources," the first big plea in the Capitol riot cases has been announce by the Justice Department. Here are the basics with a few points highlighted:

An alleged member of the Oath Keepers militia group who was "among the first five or six" rioters to enter the U.S. Capitol Building on Jan. 6 is the first person to agree to take a plea deal, Fox News has learned. Jon Schaffer has also agreed to cooperate against others involved in the riot, officials said.

Speaking in court Friday morning, a federal prosecutor told U.S. District Court Judge Amit Mehta that Schaffer was "among the first five or six" rioters to enter the Capitol during the Jan. 6 siege. Schaffer is also the frontman of the band Iced Earth. The central Indiana native who was photographed with the mob that stormed the U.S. Capitol is accused of spraying police officers with a pepper-based bear spray irritant, the FBI previously said.

He was charged with several felony counts, including engaging in an act of physical violence and knowingly entering or remaining in any restricted building or grounds without lawful entry. Schaffer, 53, pleaded guilty to obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon.

He faces up to 30 years in prison if convicted, but Mehta said Friday sentencing guidelines call for 41 to 51 months in prison....

A sentencing hearing date has not yet been set.  Schaffer was released and will be allowed some travel for work.  He must stay out of Washington, D.C., other than for court-related matters and may not possess any firearms.

I have not yet been able to find a plea agreement or other public document that details how the guideline range of 41 to 51 months was determined. But I still find those numbers interesting, as well as the fact that this defendant, even after pleading guilty, is to be free pending sentencing.

This official DOJ press release, headed "Lifetime Founding Member of the Oath Keepers Pleads Guilty to Breaching Capitol on Jan. 6 to Obstruct Congressional Proceeding," provide some more context:

Jon Schaffer, 53, of Columbus, Indiana, today admitted that he breached the Capitol on January 6, 2021, wearing a tactical vest and armed with bear repellent, and pleaded guilty to unlawfully entering the U.S. Capitol to obstruct Congress’ certification of the U.S. presidential election results.

"On this 100th day since the horrific January 6 assault on the United States Capitol, Oath Keepers member Jon Schaffer has pleaded guilty to multiple felonies, including for breaching the Capitol while wearing a tactical vest and armed with bear spray, with the intent to interfere with Congress’ certification of the Electoral College results," said Acting Deputy Attorney General John P. Carlin. "The FBI has made an average of more than four arrests a day, seven days a week since January 6th. I commend the hundreds of special agents, prosecutors and support staff that have worked tirelessly for the last hundred days to bring those who committed criminal acts to justice."

"The defendant in this case admits forcing his way into the U.S. Capitol on January 6 for the express purpose of stopping or delaying congressional proceedings essential to our democratic process. These actions are disgraceful and unacceptable" said FBI Deputy Director Paul M. Abbate.  "The FBI and our partners will continue to utilize all available authorities to aggressively investigate, pursue and hold accountable those who committed acts of violence or otherwise violated the rule of law that day."...

Schaffer pleaded guilty to a criminal information charging him with obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon. Combined, he faces up to 30 years in prison if convicted. The Honorable Amit P. Mehta accepted Schaffer’s guilty plea.

A few prior related post:

UPDATE:  A helpful colleague got me a copy of the plea agreement, which can now be downloaded here:

Download PleaSchaffer

April 16, 2021 at 03:29 PM | Permalink


As you point out Doug, it is somewhat unusual for a defendant who has pleaded guilty not to be taken into custody, pending sentencing. But that is one of the benefits of being the first defendant (and an Oath Keeper's Founding Member, who can provide evidence against all of the remaining Oath Keepers defendants)to plead guilty. As most criminal defense lawyers know and explain to their clients, the first defendant in a major (usually conspiracy) case to plead guilty gets all of the benefits, including a shorter sentence (up to 3 points down for "acceptance of responsibility" and a 5k.1 Motion for having provided substantial assistance to the Government) and perhaps even more favorable prison placement, closer to home and in a lower security level facility. This defendant, for example, may be sent to a Low Security prison instead of a Medium Security prison (an FCI). Once the Government has a cooperating defendant like this one plead guilty, the remaining defendants who this defendant can give evidence against are become much more likely to also plead guilty, making the prosecutors' jobs much easier. The other defendants begin to fall (plead guilty) like dominoes and the prosecutors end up not having to actually try any cases. The Federal criminal justice system has just worked this way for decades. Given the nature of these crimes, particularly for defendants who acted violently, I see the Government seeking maximum sentences and Judges imposing them, to send a message to any others in society who would ever consider doing something like this again.

Posted by: Jim Gormley | Apr 17, 2021 7:55:44 AM

This defendant has the most comprehensive, thorough written plea agreement that I have seen. Notably, the Government agreed in writing that it would not oppose the defendant's release release from custody pending sentencing. Paragraph 16 also specifically contemplates that the Government may sponsor this defendant for acceptance into the Federal Witness Protection Program. The parties have clearly contemplated that members of the Oath Keepers or other right wing extremist groups may try to kill this defendant because of his cooperation and testimony against other defendants. Ugly stuff, but probably not wrong.

Posted by: Jim Gormley | Apr 17, 2021 8:17:00 AM

Jim Gormley, thank you for this detailed analysis. I trust the gov't is getting something valuable in return for these generous provisions. And I look forward to further updates as these cases develop more.

Posted by: hardreaders | Apr 17, 2021 9:45:22 AM

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