The Washington PostDemocracy Dies in Darkness

Ohio men sentenced to 45 days become first Jan. 6 misdemeanor defendants to receive new jail time

A pro-Trump mob storms the U.S. Capitol on Jan. 6.
A pro-Trump mob storms the U.S. Capitol on Jan. 6. (John Minchillo/AP)
Placeholder while article actions load

A court sentenced two Ohio men to serve 45 days in jail Wednesday after U.S. prosecutors for the first time requested incarceration at sentencing hearings for nonviolent misdemeanor offenders in the storming of the U.S. Capitol.

The punishment comes after federal judges for months have questioned whether no-prison plea deals offered by the government to low-level Jan. 6 defendants are too lenient to deter future attackers from terrorizing members of Congress.

U.S. District Judge James E. Boasberg ordered Derek Jancart and Erik Rau to self-surrender to the D.C. jail at a later date, saying all charges related to the insurrection were serious.

“You attempted with others to undermine one of our bedrock acts, which is the peaceful transfer of power following a democratic election,” Boasberg said, adding, “There are few actions as serious as the ones this group took on that day.”

Addressing Jancart first, he said: “You weren’t following the crowd. You went there to assist once you learned it was breached. . . . You don’t have a riot if eight people or 10 or 15 people are there. . . . It’s because there was such a great number of people that police were overwhelmed, and the support, incitement and encouragement people gave is important.”

Jancart, 39, an Air Force veteran, and Rau, 43, admitted in July to coming to Washington with a gas mask and two-way radios and heading to the Capitol after learning it was under assault.

Prosecutors had requested a four-month prison term for each man, citing a video Jancart posted on Facebook in which they said he can be heard laughing while Rau screams, “We have you surrounded!” at vastly outnumbered police officers engaged in hand-to-hand combat with rioters. The pair, steelworkers from Columbus, breached the building and made their way to the evacuated conference room of House Speaker Nancy Pelosi (D-Calif.), which Rau entered, they admitted in plea papers.

“There is no riot without rioters,” Assistant U.S. Attorney Leslie Goemaat argued. The men did not commit violence and would have been charged with a felony if they had, Goemaat said, adding that each “incited and celebrated the violence that was required to break through the police line.”

But Goemaat urged the court to weigh nine factors in a common approach prosecutors say judges should take in placing misdemeanor offenders on a “spectrum” of conduct in considering jail time. The factors include how the men entered the Capitol; whether they engaged in or incited violence; their reaction to violence or destruction; how long they spent inside and where they went; whether they destroyed evidence; their statements, including on social media; and their response to law enforcement.

Jancart showed little immediate remorse, posting on Facebook that rioters “wanted to let the politicians know we can get this far anytime we want,” Goemaat argued.

He was later arrested, and Rau turned himself in. Prosecutors particularly credited Rau for fully and immediately cooperating, saying he otherwise would have faced a felony charge and a six-month requested sentence, partly because he was on probation with a 178-day suspended sentence for domestic violence.

In court, both apologized.

“I do apologize for my individual actions that day. I did get caught up in the moment. I wish I could have demonstrated better behavior and stayed back,” Jancart said, adding: “I have great respect for the institutions of this country. I love this country. I feel ashamed of the actions I took.”

Rau said: “There’s no excuse for my actions. I 100 percent know better than to do what I did that day. . . . I absolutely should have had my wife and kids in mind. . . . I am just sorry I was a part of this and that you have to spend your time with me this morning.”

Both men’s attorneys requested probation, saying they did not assault police, cause destruction or carry any weapons, poles or flags. Once inside, Jancart “did not do anything beyond walk around the Capitol,” attorney Eduardo Balarezo said.

Assistant federal defender Michelle Peterson urged the judge to accept the U.S. Probation Office recommendation of probation, saying that Rau wanted nothing more than to protect his wife and three young sons from further harm and that jail time would cost Rau his night-shift steel-mill job and plunge the family into poverty.

Many judges find sentencing the most wrenching part of their jobs. But the violent attack on Congress’s certification of the results of the 2020 presidential election, resulting in five deaths, has defied historic comparison.

Judges appointed by presidents of both parties, many with years of Justice Department, national security or congressional experience, have unsparingly denounced the attack and comparisons of riot participants to “patriots,” “tourists” or “political prisoners.”

Whether such strong public statements are a matter of jawboning, rhetoric or deterrence from the bench, many judges have made clear that they are considering at least some confinement even for first offenders, even as they weigh each individual’s circumstances and have mostly imposed community service so far.

In sentencing regretful Capitol protester, federal judge rebukes Republicans

“You disgraced this country in the eyes of the world,” U.S. District Judge Reggie B. Walton told Anthony Mariotto, 53, last week. The Fort Pierce, Fla., man pleaded guilty to one count of illegal demonstrating after posting a photograph of himself in the evacuated Senate gallery on Facebook. “You are going to have to convince me not to lock you up for what you did,” Walton added. “I find it outrageous what you did.”

“What if the next time, the Democrats lose the presidency, and that person says, ‘I won,’ despite what the votes were, and Democrats rise up and tear up the Capitol? I suppose then that would be all right, based on what you did?” asked Walton, who has been appointed to D.C. and federal courts by three Republican presidents since 1981.

U.S. District Judge Thomas F. Hogan sentenced a Manassas, Va., couple to probation in July for illegal parading in the Capitol. But Hogan, a 1982 Ronald Reagan appointee who coordinated federal litigation by terrorism detainees at Guantánamo Bay, said jail time is not out of the question for some defendants.

“I think the presumption should be that these offenses were an attack on our democracy and that jail time . . . should be expected,” Hogan said.

And Tuesday, U.S. District Judge Emmet G. Sullivan warned Dawn Bancroft of suburban Philadelphia to prepare to explain her actions at sentencing after she pleaded guilty to misdemeanor trespassing at the Capitol. Bancroft sent a video via Facebook of herself saying: “We broke into the Capitol. . . . We got inside, we did our part,” adding, “We were looking for Nancy to shoot her in the friggin’ brain, but we didn’t find her.”

Good people who never got into trouble with the law “morphed into terrorists” on Jan. 6, Sullivan told Bancroft, adding, “I want you to start thinking about that.”

Not patriots, not political prisoners — U.S. judges slam Capitol riot defendants at sentencing

Bancroft said that she would give it thought and that she believed in accepting responsibility for her actions.

Nearly half of 600 people charged in the Capitol breach have been charged with misdemeanors, and about 25 percent of them — 75 as of Tuesday — have pleaded guilty. Most admitted to single petty offenses such as trespassing or illegal parading that rarely result in prison time for first offenders.

Of nine misdemeanor offenders sentenced, five received probation, and prosecutors did not seek additional time for two others held pretrial for six months, in part because of past convictions for attempted murder and evading police.

Prosecutors drew a distinction in seeking probation only for Northern California architect Valerie Ehrke, for example, who was inside the Capitol for only about a minute, made it only about 15 feet and did not engage in violence or significant social media activity. U.S. District Judge Paul L. Friedman said that lawmakers cannot have people unlawfully “entering their house — our house — the people’s house, while they are doing their jobs,” but agreed to impose 120 hours of community service after Ehrke was one of the first to submit to an FBI interview and decide to plead guilty.

Hundreds of people stormed the Capitol. Most won’t face hefty prison terms, legal experts say.

Jancart, a steelworker who told court officials he enlisted in the Air Force in April 2003 and was honorably discharged in 2007 after serving nearly six months in Afghanistan, is the first of more than 62 people who claim U.S. military service to be charged and sentenced in the riot.

Separately, prosecutors are also seeking two months of home confinement for Andrew Bennett of Columbia, Md., who recorded the fatal shooting of Ashli Babbitt as she climbed through a broken Speaker’s Lobby entrance window, and three months for former Oklahoma City Thunder season-ticket manager Danielle Doyle. Both face sentencing Thursday.

Bennett admonished others not to be destructive or fight with officers and cooperated fully with authorities, prosecutors said. Doyle climbed through a broken window, appeared to chant or yell near police and photographed others climbing scaffolding or breaching windows, prosecutors said, but did not personally espouse violence or engage in destruction.

But for their actions alongside so many others, the riot probably would have failed, prosecutors said. Attorneys for the two defendant have not yet submitted sentencing recommendations.

Also on Wednesday, a Texas man charged in the Capitol breach pleaded guilty to a felony count of making an interstate threat. Troy Smocks, 59, admitted posting a message on Parler the day after the riot that was viewed at least 54,000 times, stating: “Prepare our weapons, and then go get’em. Lets hunt these cowards down like the Traitors that each of them are. This includes RINOS, Dems, and Tech Execs. We now have the green light.”

Smocks faces a potential 16-month prison sentence in October, prosecutors said, citing a criminal history that includes impersonating federal law enforcement, bank fraud, forgery and auto theft.

Judge asks why Capitol rioters are paying just $1.5 million for attack, while U.S. taxpayers will pay more than $500 million