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August 29, 2022

Feds seeking (within-guideline) sentence of 17+ years for former NYPD Jan 6 defendant

As detailed in this Insider article, headlined "DOJ seeks the longest Capitol riot prison term yet — 17 years for 'eye-gouging' ex-NYPD officer who swung a flagpole at police," late last week federal prosecutors filed another notable sentencing memorandum for another notable Jan 6 defendant who was convicted after a trial.  Here are excerpts:

Federal prosecutors are seeking the longest sentence yet for a Capitol rioter, asking the judge to give a former NYPD officer 210 months — seventeen and a half years — in prison.

Thomas Webster was found guilty on all six charges in May, including assaulting an officer and entering restricted grounds.  His sentencing is set for September 1.

In a statement arguing for a shorter sentence, Webster's lawyer said that he had been under "an extraordinary amount of influence" from former President Donald Trump's election falsehoods on January 6, 2021.

The criminal complaint describes Webster elbowing his way through the mob to be among those leading the charge against the Capitol police barricade, shouting at one officer: "You fucking piece of shit," and "you fucking commie fuck." Webster also wielded a metal flagpole at the riot. The DOJ later released body camera footage of him repeatedly hitting the metal barrier next to the officer with it until it broke, the complaint said. The footage then shows him tackling the officer to the ground and appearing to gouge the officer's eyes.

The jury rejected Webster's argument at trial that he acted in self-defense. Webster's status as a former member of law enforcement — he had served as part of former New York Mayor Mike Bloomberg's security detail — was at odds with his conduct towards the Capitol police, his defense conceded in court documents seen by Insider.

Nonetheless, lawyer James Monroe asked the judge to consider a shorter sentence on the grounds of Webster's later remorse and the notion that former President Donald Trump misled him.  Election-fraud lies "championed by former President Donald Trump exerted an extraordinary amount of influence" over people like Webster, who had received "relentless disinformation" from Trump's supporters, Monroe said....

That 17 years and six months recommended by the DOJ stretches far beyond the longest sentence handed down to Capitol rioters so far, more than seven years given to rioter Guy Reffitt.  In that case, prosecutors sought a much longer sentence of 15 years, closer to what is being asked for Webster.

Here is a link to the Government's sentencing memo in US v. Webster.

UPDATE: I helpful commenter flagged this sentencing memorandum from the defense which makes this pitch for a much lower sentence:

Mr. Webster's Guideline range, as calculated by Probation, falls at a total offense level 37 and a criminal history category I.  At this range, the recommended sentence is 210 to 240 months.  Presumably, recognizing the disparity of imposing such a sentence, Probation has recommended a sentence of 120 months.  Mr. Webster was arrested on February 22, 2021 and remanded to Federal custody until his release on June 29, 2021, totaling 127 days of incarceration.  Upon being released by the Court on personal recognizance, Defendant has remained on a strict home confinement under the supervision of pre-trial services' High Intensity Supervision Program without incident for the last 421 days.  Regardless of the recommended range, Mr. Webster respectfully proposes a downward variance to time served together with a term of supervised release as a sufficient sentence, which is not greater than necessary, to satisfy the statutory criteria set forth in 18 U.S.C. § 3553(a).

August 29, 2022 at 10:31 AM | Permalink


ten should do fine

Posted by: anon1 | Aug 29, 2022 11:20:36 AM

Wow, defense memorandum seeks time served of 127 days. Seriously?? More helpful to not file a memo than one implying that the defendant totally fails to comprehend the gravity of his conduct.


Posted by: Jason | Aug 30, 2022 12:15:45 AM

Jason, I agree with you, but sometimes lawyers lose control over the client. In theory the lawyer controls everything except whether client pleads guilty, whether he testifies in his own defense, and whether he appeals. But here, client may have insisted that his lawyers take the position they did over heated objections of the lawyers. They either go along or moved to be relieved, which itself poses ethical quandries.

Posted by: anon1 | Aug 30, 2022 11:17:32 AM

True, anon1. I think this raises an interesting question. *I think* I think that the attorney should ordinarily defer to the bottom-line sentencing recommendation her client insists on when it is based on 3553a factors. But U am open to being convinced otherwise.

Although the right to control the sentencing recommendation is not a right specifically reserved to the criminal defendant, it isn't clearly reserved to counsel either. And it does have an element of . . . self-determination? that is lacking on more tactical questions like which witnesses to call or which legal arguments to raise. By analogy, if tne decision to insist on innocence which counsel wisely would prefer to concede guilt must be reserved to the defendant based on autonomy interests, it seems that the decision to insist on time served when four years would be a wise concession is of the same sort.

Also, to what extent should judges attribute arguments of this sort in a sentencing memorandum to the defendant vs. his attorneys? I think you are right that the defense lawyers wouldn't have come up with that recommendation themselves. If I knew that the defendant seriously believed 127 days was an appropriate sentence here, that belief would be a significant aggravator for me. It would tell me that the defendant still doesn't get that he did a really bad thing and instead thinks it was not really a big deal at all. That attitude signals the need for a heftier sentence based on the need for a sentence to protect the public from further crimes of the defendant.

Posted by: Jason | Aug 30, 2022 11:41:59 PM

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