Kevin Seefried is seen carrying a Confederate flag inside the U.S. Capitol on Jan. 6, 2021 (via FBI court filing).
On Wednesday, Donald Trump-appointed U.S. District Judge Trevor McFadden granted a request from convicted Confederate flag-wielding Jan. 6 rioter Kevin Seefried to be released from prison pending his appeal, saying prosecutors provided no evidence to suggest he poses a threat or that “events that led to the riot are reasonably likely to recur.”
Seefried was sentenced to three years in prison last February, Law&Crime previously reported, after he was charged with obstruction of an official proceeding — a felony with a potential 20-year prison sentence — and four trespassing and disorderly conduct misdemeanors that carry a potential combined three years behind bars.
After he was convicted, Seefried appealed the verdict and sentence and then successfully moved for his release from prison pending appeal. The 11-page order issued Wednesday underlines this, noting that it was not long after he made that request that the U.S. Supreme Court agreed to take up the case of Fischer v. United States. That case directly impacted Seefried’s case as well as hundreds of other Jan. 6 rioters facing similar obstruction charges. The case will also have bearing on whether former President Donald Trump’s obstruction charge will stick.
But for Seefried, McFadden said Wednesday that it was “déjà vu all over again.”
When the Supreme Court issued its writ of certiorari in December to hear the Fischer case, the judge says that meant Seefried’s issue was “again live” and that his felony conviction could be vacated depending on how the high court rules.
But for now, McFadden says the law demands he must be released pending appeal since he satisfied two critical prongs. First, he wrote, Seefried has shown he is “not likely to flee or pose a danger to … the community if released” despite having spent some time in prison already where he grew more intimate with the “day to day reality of confinement.”
“Second, [prosecutors say] that this is an election year, involving ‘what will likely be another fiercely contested presidential election.’ So the Court ‘would be releasing defendant into the same political maelstrom that led him to commit his crimes in the first place,” the order states.
“These arguments are unavailing,” McFadden wrote.
As to his likelihood of fleeing, “the government’s first argument proves too much,” he wrote.
“Taken to its logical end, it would mean that a defendant may never be released pending appeal once he has spent time in jail and learned the ‘day to day reality of confinement in prison,’” he wrote. “No such limitation appears in the text of § 3143(b)(1). And the Court will not constructively amend the statute to eviscerate its intent.”
As for the threat of yet more violence to keep Seefried in prison pending appeal, the Trump-appointed judge did not mince words.
“To be sure, if the Government points to facts suggesting Seefried is likely to reoffend, he cannot be released. But the Government must actually point to ‘evidence’ supporting that assertion. And it has not done so here,” he wrote.
The riot at the Capitol was “unique” and “never-before-seen,” the judge said, but a similar event recurring seemed unlikely and even if it did, prosecutors failed to show how Seefried would be led into the fray once again.
Prosecutors, he bristled, took a “fact-free approach” to reviewing Seefried’s request. But the judge emphasized that the defendant’s appeal was valid and especially so since the Supreme Court thought it prudent to resolve Fischer.
McFadden stressed that the date of his release would not be decided Wednesday but it would be one year from the date he surrendered to the Bureau of Prisons.
“When a court orders a defendant released under [federal law], that release shall not take effect until ‘the expiration of the likely reduced sentence,’” the judge wrote. “So the Court must determine what that ‘likely reduced sentence’ would be. This analysis is inherently speculative — the Court is not resentencing Seefried today. Instead, it is simply looking ahead and assessing what Seefried’s probable sentence might be if he were to win on appeal.”
Seefried did not convince McFadden however, that his conduct on Jan. 6 was the same as other misdemeanor offenders. In fact, the judge called his actions, despite not assaulting someone, “at the most egregious end” since he was one of the very first rioters to breach the Capitol and carried a Confederate flag as he chased U.S. Capitol Police Officer Eugene Goodman, a Black man, up a flight of stairs. Goodman was credited with leading a crowd of rioters away from the Senate chamber entrance that day.
All parties must submit a joint status report no later than two weeks after the Supreme Court releases its opinion in Fischer, McFadden ordered.
McFadden’s ruling comes just a week after a different judge, U.S. District Judge Rudolph Contreras, took the opposite position, as Law&Crime previously reported, telling one violent rioter at sentencing that he could well envision the former president issuing another call to violence similar to Jan. 6 this year.
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