The United States Attorney for the Western District of Virginia in Charlottesville has obtained a federal criminal complaint against four men — Benjamin Drake Daley, Michael Paul Miselis, Thomas Walter Gillen, and Cole Evan White — charging them with interstate travel to riot and conspiracy in connection with the August 2017 "Unite the Right" rally.
Who filed the what now?
The U.S. Attorney is the senior federal prosecutor in the Western District of Virginia — one of the two federal court districts in Virginia. The U.S. Attorney's office filed a federal criminal complaint against the four men. Feds file a complaint by having a federal agent submit, and swear to, an affidavit describing the evidence showing probable cause to believe the defendant committed the crime, and having a United States Magistrate Judge sign off. The complaint for one of the men is here; the affidavit in support of all four complaints against the four men is here.
What are they charged with?
For now, they're charged with two federal crimes. One is 18 U.S.C. 2101, which prohibits travelling in interstate commerce, or using interstate facilities like the internet, to incite or promote a riot. A "riot" is defined to mean an assembly of three or more people involving violence or threats of violence. They're also charged with conspiracy to commit a federal crime in violation of 18 USC 371, on the theory they agreed and conspired to travel and plan in interstate commerce to riot at Charlottesville.
Why is this a federal crime?
For the riot statute, the federal hook is travelling in interstate commerce or using interstate mechanisms like the internet or phone – that's a common hook for federal jurisdiction. The hook for the conspiracy charge is conspiring to violate the federal law — a bit of bootstrapping.
Is that it? Just those two counts?
That's all for now. They've only been charged in a complaint. They have a right to be indicted by a grand jury, which they will be within a couple of weeks unless they cut a deal. The feds may seek more charges in a grand jury indictment — the initial criminal complaint is usually fairly bare bones, since it's just a placeholder to get an arrest warrant and start the case. You usually see the prosecutor's more expansive case theory in the indictment.
How much time do they face?
The two charges each carry a maximum sentence of five years. However, as frequent readers know, that bears no relation to their likely punishment if convicted. First of all, the indictment might carry other charges. Second, they will be sentenced based on recommendations in the United States Sentencing Guidelines, which lead to results usually much lower than the statutory maxima.
What do we know about the evidence against them?
Since it's a federal complaint, it's supported by a pretty detailed affidavit detailing the investigation and what authorities found. The affiant — a Virginia State cop who is a member of a federal Joint Task Force — alleges that the four defendants were members of a Southern-California-based organization called "Rise Above Movement," or "RAM," which encourages "clean living" and "street fighting techniques." RAM members identify themselves as "alt-right" and "nationalist." The complaint alleges that Daley, Miselis, Gillen, and White [no relation of which I am aware] traveled to Charlottesville from California to attend the United The Right Rally on August 12, 2017. The complaint asserts that they have in the past engaged in "acts of violence directed towards their supposed political opponents and counter prostestors" at places like Berkeley. The complaint includes pictures of the defendants at Charlottesville, social media statements (one genius: "I hit like 5 people"), pictures of their hands taped (allegedly in preparation for fighting), and describes video footage of them assaulting people at the rally. So: it sounds as if the authorities have photos and video of them in Charlottesville, with at least some of them engaging in assaults, as well as various statements and admissions, plus prior behavior probative of intent.
Is it a strong complaint?
Well, it's as strong as it has to be. Probable cause is a very low bar. In my view, the affidavit is mediocre because it lacks thorough attribution — that is, the affiant does not explain how he knows each fact in the affidavit, but just gives a narrative statement of the investigation. But that's not uncommon, unfortunately, and feds can usually get away with it (though my supervisors at the U.S. Attorney's Office would never have put up with it, and I wouldn't have approved such an affidavit). Leaving that aside, it's enough to show probable cause — it has evidence they traveled from California to Charlottesville and committed violence at the rally, and evidence that their intent was to do so.
Does the case have First Amendment implications?
Certainly. But the First Amendment doesn't protect violence. It also doesn't protect true threats (that is, threats that a reasonable person would take as an expression of genuine intent to do harm, which the speaker intended that way) nor actual incitement (speech intended, and likely, to cause imminent lawless action). Moreover, the First Amendment doesn't prohibit using someone's speech as evidence to prove motive, pattern, or intent — like using the defendants' prior speech in an attempt to prove that they intended to go to the rally to assault people.
So what happens next?
It depends. As I write this at about 11:34 Pacific on October 2, 2018, it's not clear where these guys were arrested. If they were arrested in the Western District of Virginia, they just get brought to federal court, are arraigned, and try to get bail (we'll see if the government tries to have them detained as violent), and the court sets a future hearing date, before which the U.S. Attorney's Office will either indict them or cut deals with them.
If they've been arrested elsewhere — in California, say — they'll first appear in the nearest federal court here in California. They can waive their rights and go straight to Virginia, or they can insist on a process where the government has to prove that they're the same four guys named in the complaint and that there's probable cause for the charge (which the government usually does by indicting them, which establishes it).
Wait — why was the complaint under seal? Why are they being arrested now if it was filed on August 27?
It appears that the feds sought search warrants as well as complaints. They would have sought the complaints from a magistrate judge in Virginia, where they are being charged, and the search warrants from a magistrate judge in California, where the properties to be searched likely are, since they're from here. Arresting four dudes and searching multiple locations, especially when they're in a different district, is a logistical nightmare. If you're searching, you don't want to give them advanced notice. So it's common for the feds to get a complaint, ask the judge to keep it under seal, and unseal it only when they arrest the people and the whole operation is public.
I'll update this 'splainer if events warrant.
Copyright 2017 by the named Popehat author.
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