Texas Three Percenter leader Lucas Denney came to court on Monday prepared to plead guilty to one count of assaulting a law enforcement officer at the US Capitol on Jan. 6, 2021, but a federal judge’s decision to postpone the hearing gives the government time to go back to the grand jury to obtain a new indictment.
Denney, who was dubbed #PoleTosser by online sleuths, headed the Patriot Boys militia and posed alongside Sen. Ted Cruz (R-Texas) at a political event last year. At the time of his arrest in Texas near the Mexican border in December, Denney was charged with multiple offenses, including conspiracy to obstruct an official proceeding.
Shortly after Denney’s lawyer, William Shipley, announced that his client wanted to plead guilty to the sole charge of assaulting an officer, Assistant US Attorney Jennifer Rozzoni told Judge Randolph Moss the government wanted to dismiss the complaint and the indictment without prejudice, allowing the government re-prosecute the case.
"Mr. Denney is here and ready to admit his conduct, and plead guilty for the one charge against him," Shipley told the court.
In a response filed hours before the hearing, the government acknowledged violating the Speedy Trial Act by overshooting the deadline for obtaining an indictment by 44 days. Denney, was arrested near the Mexican border on Dec. 13, and the government acknowledged that by law he should have been indicted by Jan. 22.
Denney filed an emergency motion to dismiss and for immediate release from custody on March 5, and the government obtained an indictment on the sole count of assault two days later while a magistrate was hearing Denney’s request for release. On Monday, Rozzoni confirmed to Judge Moss that the government intends to add charges.
“That is correct,” she said. “What we did by indicting last week was we cured the issues with the Speedy Trial Act.”
In its brief filed today, the government argued that dismissal of Denney’s complaint and indictment should be without prejudice because his offense is serious, the error was unintentional, and the delay hasn’t prejudiced the defendant. Highlighting the seriousness of Denney’s alleged offenses, the government noted that the complaint against him includes charges of “conspiracy and substantive violations of assault, obstruction of law enforcement during a civil disorder, and obstruction of an official proceeding.” The brief noted that other than seditious conspiracy — faced by Oath Keepers leader Stewart Rhodes and TK other members of the far-right group — “these are the most serious offenses charged in relation to the attack on the Capitol.”
The circumstances surrounding the assault on the Capitol also underscore that “the charges against Denney are of the utmost seriousness,” the government said. Prosecutors argued that the attack “represented a grave threat to our democratic norms” and “was one of the only times in our history when the building was literally occupied by hostile participants.”
The sole count of assault on an officer that included in the indictment returned on March 7 only addresses an incident in which Denney allegedly heaved a giant pole towards a line of Capitol police officers on Jan. 6, for which he earned the nickname #PoleTosser. His lawyer said on Monday that the pole was made from PVC.
The initial complaint also includes separate charges of engaging in physical violence in a restricted building or grounds with a deadly or dangerous weapons and act of violence in the Capitol building. The government alleges that Denney joined a crowd of rioters who entered the tunnel from the Lower West Terrace and battled DC Metropolitan police officers, leading to the assault on Officer Michael Fanone.
The government alleges that as Fanone was pulled into the crowd and down the steps outside the mouth of the tunnel, Denney gestured towards others in the crowd, and then swung his arm and fist at Fanone, and grabbed the officer and pulled him further down the stairs.
Shipley, the defense attorney told Judge Moss that Denney is a four-year veteran of the US Army with combat experience, who has no criminal record and is the sole custodial parent of two teenagers. Judge Moss said on Monday that were Denney to only plead guilty to the single count of assault on law enforcement, he could face 27 to 36 months in prison.
"Your client could end up with a very lengthy sentence in a rush to prevent the government from returning a superseding indictment," Judge Moss told Shipley.
The government argued that there’s no evidence of bad faith, neglect “or something more than an isolated incident that resulted from a number of unfortunate factors” to account for its failure to obtain an indictment within the time allotted under the Speedy Trial Act. Outlining its efforts to move Denney’s case forward, the government reported that a week after his arrest, Denney’s court-appointed lawyer told them he would no longer be able to handle the case. Prosecutors reached out to the court at least three times between Dec. 21 and Dec. 30 to try to schedule initial appearances in the District of Columbia for both Denney and Hazard.
In a Dec. 30 email filed with the court, a courtroom deputy to Magistrate G. Michael Harvey told prosecutors court staff was trying to locate the defendants. Later that day, a prosecutor told the court deputy the men had been located at “the transfer facility in Grady County, Oklahoma.”
Five days later, prosecutors located Denney and Hazard at the Valverde Detention Center in Del Rio, Texas, but the courtroom deputy said he was not able to contact the facility to arrange their appearance at a hearing.
Later in January, the case was reassigned to Rozzoni so that Kearney could take an extended medical leave, according to the government. At the end of January, Denney arrived a Northern Neck Regional Jail in Virginia.
Hazard is also currently in federal custody, with a status hearing scheduled for April 5, according to court records. While Denney is represented by Shipley, a former federal prosecutor, Hazard’s lawyer is a federal public defender. At his last hearing on Feb. 3, Hazard did not oppose the government’s motion to exclude time under the Speedy Trial Act.
According to the government, Rozzoni communicated extensively with Denney’s lawyers to schedule his first appearance. While acknowledging that it took 22 days, the government maintains “there was nothing intentional or nefarious about the delay.”
Judge Moss scheduled a plea hearing for Denney for Thursday at 3:30 p.m., when he will likely face additional charges in a superseding indictment.