JULY 21, 2021
Paul Hodgkins holds a Trump flag and stands in the well of the U.S. Senate floor during the Jan. 6 Capitol riot. – U.S. Capitol Police via AP
A federal judge has handed down the first felony sentence in the Jan. 6 storming of the U.S. Capitol, sending a Tampa man to prison for eight months for obstructing Congress’ effort to tabulate and certify the electoral vote.
The sentence Paul Hodgkins, 38, received Monday for marching onto the Senate floor with a Trump flag during the chaotic Capitol takeover was less than half of what prosecutors recommended, but U.S. District Judge Randolph Moss also turned down the defense’s request that Hodgkins get no prison time.
As he imposed the sentence, Moss said Hodgkins sent a profound and dangerous message by raising the Trump flag by the Senate dais at the hour members of Congress were supposed to be confirming President Joe Biden’s victory
“The symbolism of that act is unmistakable,” the judge said. “In that act, he captured the threat to democracy that we all witnessed that day. … People have to know that assaulting the United States Capitol and impeding the democratic process, even if you don’t come bearing arms, will have consequences.”
Coming a little more than six months after a crowd loyal to former President Donald Trump battled with police and overran the Capitol building in a bid to head off the confirmation of Biden’s win, the sentencing represents a milestone for the sprawling criminal investigation that has already led to charges against more than 535 people.
At the sentencing hearing Monday in a federal courtroom just a few blocks from the Capitol, the prosecution bluntly labeled the attack on Congress as terrorism, while a defense attorney for Hodgkins vehemently argued it was not.
“Jan. 6 was an act of domestic terrorism,” Assistant U.S. Attorney Mona Sedky said. “He was part and parcel of an act of domestic terrorism that was going on around him.”
Hodgkins’ lawyer, Patrick Leduc, grew emotional as he insisted that it was a mistake to brand as terrorism a protest by Americans that got out of hand.
“Paul Hodgkins is not my enemy,” said Leduc, who serves a colonel in the Army Reserve. “All of this commentary about Jan. 6 being an act of domestic terrorism, I find it to be offensive, and I think it is gaslighting the country and it needs to stop….It was a protest that became a riot.”
Leduc said that if the Capitol riot amounted to domestic terrorism, civil unrest in recent months in Minneapolis and Portland should also be categorized the same way.
“If we’re going to label this protest as domestic terrorism then please consider this: Where do we draw that line?” the defense lawyer said, expressing concern about the potential impact on First Amendment rights.
But Moss jumped in to reject the suggestion that the events of Jan. 6 were simply a political protest that got rowdy.
“I don’t think that any plausible argument can be made defending what happened in the Capitol as an exercise of First Amendment rights,” the judge declared. “There were people storming through the halls of the Capitol saying, ‘Where’s Nancy?’ People were threatening the lives of members of Congress. That is more than a simple riot.”
However, Moss repeatedly expressed skepticism about the prosecution’s claims that Hodgkins should face some degree of punishment for the violence and property damage that took place on Jan. 6 even though he did not personally injure anyone or damage any property.
“That’s not Mr. Hodgkins’ case and I need to make sure that I’m sentencing Mr. Hodgkins based on the facts of his case and not the facts of anyone else’s case,” said Moss, an appointee of President Barack Obama.
After Sedky repeatedly argued that a serious sentence for Hodgkins was needed to deter a politically inspired repeat of Jan. 6, the judge said the government would be able to send that message through the many other defendants facing serious charges of violence.
“I come back in my mind to the question of this case and how this case fits into the larger puzzle,” Moss said. “There will be cases likely in which the government will have the opportunity to make that point.”
Still, the judge made clear he was not buying Leduc’s argument that letting Hodgkins off without any prison time would help bring the nation together.
“The question I have for you is really whether the sentence you are seeking, no confinement at all, will really heal the country or will encourage others out there to think they can engage in this sort of conduct in the future,” Moss said to the defense lawyer. “If we allow people to storm the U.S. Capitol when they don’t like what the U.S. Senate and U.S. House of Representatives are doing, what are we doing to preserve our democracy in our country?”
Hodgkins also addressed the judge for for about 10 minutes, expressing contrition and portraying himself as someone who tried to discourage other Jan. 6 protesters from escalating the situation.
“While I take some solace in knowing my actions did not involve any violent or reckless behavior, my involvement did contribute to the great problem that took place,” the defendant said. “The company of us who remained calmer in our protests may have emboldened others to carry out the destruction that occurred.”
Hodgkins also said that while he knew it was wrong to go into the Capitol, he expected any charges he would face would be akin to trespassing. “It was my mistaken belief that the consequences would be fairly minor. Obviously, I was very mistaken,” he said.
Hodgkins, who works as a press operator for a building products company, didn’t say much about his motivations for joining in the riot on Jan. 6. However, he did go out of his way to say he no longer believes in Trump’s claims that the election was stolen.
“I completely acknowledge and accept that Joseph R. Biden Jr. is rightfully … the president of the United States,” he declared.
Prosecutors and defense attorneys had been awaiting Hodgkins’ sentence as a benchmark for hundreds of other Capitol riot cases and as a potential aid to plea negotiations that have been handicapped by a lack of guideposts to what defendants can expect if they accept plea bargains from prosecutors.
While the Capitol cases are now spread among 20 judges who retain broad discretion in sentencing, federal law instructs them “to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”
As part of his plea deal with prosecutors, Hodgkins admitted that he entered the Capitol building without permission on Jan. 6. Wearing a Trump T-shirt and carrying a “Trump 2020” flag, Hodgkins went onto the Senate floor along with other demonstrators and stood to the side of the rostrum as others sat in the presiding officer’s chair, shouted, cheered and prayed using a bullhorn.
A video recorded by a New Yorker writer also showed Hodgkins putting on white rubber gloves as he stood near the senators’ desks in the historic chamber.
Defense lawyers have told POLITICO that prosecutors appear to be distinguishing between defendants who went into the Senate chamber and those who paraded through the nearby hallways. Prosecutors have insisted that those who went onto the Senate floor plead guilty to a felony if they wish to cut a deal, while the feds are accepting misdemeanor guilty pleas from others who did not.
Hodgkins’ lawyer seemed to concede some rationale to this distinction, while arguing it shouldn’t mean much in terms of his client’s sentence.
“For purposes of sentencing there is zero space between Mr. Hodgkins’ conduct and that of the several hundred others who entered the United States Capitol who are being sentenced for a misdemeanor offense. Mr. Hodgkins should be treated likewise,” Leduc wrote in a sentencing filing last week. “One surmises that had Mr. Hodgkins simply stopped at the Senate door, he also would be facing a misdemeanor charge rather than this felony offense.
Even Hodgkins’ defense acknowledged that his sentence would send a broader message, although his attorney differed somewhat with prosecutors about what the message would be.
“Paul is an avatar of us all, and how this Court deals with his misconduct will say much about where we are and what we will become as a nation,” Leduc said in a sentencing filing earlier last week. “Paul Hodgkins should not be cancelled.”
While Hodgkins insists he was not part of any organized group that entered the Capitol on Jan. 6, prosecutors noted that in addition to the latex gloves, he had a backpack containing protective eye goggles and rope as he made his way to the Senate floor.
Hodgkins has been free on bail since shortly after his arrest in February. Without objection from prosecutors, Moss allowed Hodgkins to remain free for now and to self-surrender at a date to be determined.
The obstruction of official proceedings offense that Hodgkins pleaded guilty to last month carried a maximum possible sentence of 20 years in prison, although defendants are typically sentenced in accordance with federal sentencing guidelines that usually call for much shorter sentences for individuals with little or no criminal record.
Some defendants are challenging use of the particular obstruction statute prosecutors deployed in Hodgkins’ case and more than 200 others stemming from the Capitol riot. That law is more typically used against defendants accused of destroying evidence or intimidating witnesses in court cases, but does extend to “a proceeding before the Congress.”
Defense lawyers say that should be interpreted to only involve official investigations by Congress, but prosecutors say the tallying of electoral votes mandated by the Constitution is the kind of formal proceeding covered by the statute.
No judge has ruled on that issue yet, but by pleading guilty, Hodgkins forfeited his ability to challenge that charge either before Moss or at an appeals court.
Prior to Monday, only two of the hundreds of defendants charged in federal court with crimes related to the Capitol riot had been sentenced, both after pleading guilty to a misdemeanor charge.
Indiana resident Anna Morgan-Lloyd was sentenced to three years probation for demonstrating in the Capitol rotunda, while Florida resident Michael Curzio was sentenced to six months imprisonment on a similar charge. Due to a past attempted murder conviction and ties to a white supremacist prison gang, he was kept in jail on the Capitol-related charges. With credit for time served, he was due to be released last week.
During the hearing Monday, Hodgkins’ lawyer said what his client did was very similar to Morgan-Lloyd, but for what direction they turned after entering the Capitol. He noted that more than 200 people were arrested for disrupting the Senate hearings that led to Brett Kavanaugh’s confirmation as a Supreme Court justice, but said those people were charged with infractions that carried fines of between $35 and $50.
“That protest was organized. It had the same exact intent as what occurred on Jan. 6 … that was to disrupt the Senate and obstruct an official proceeding,” Leduc said.
But Moss made clear he did not believe that Hodgkins simply wound up on the Senate floor through happenstance, ordinary tourism, or because he made a wrong turn.
“I’m less convicted by Mr. Hodgkins’ contention that he merely lost his bearings,” the judge said. “He had to have seen … the mayhem inside and outside the Capitol. He didn’t end up there by accident or curiosity. It was obvious as he approached the Capitol he was participating in an attack.”
Sedky also said the defense’s suggestion that Hodgkins made his foray onto the Senate floor as part of a 15-minute stroll through the Capitol was absurd.
“It is not a 15-minute walk with a crowd through the U.S. Capitol building,” the prosecutor said. “You would have been smelling the tear gas. You would have been seeing the smoke.”
Speaking to reporters after the sentencing, Leduc had praise for Moss, even though he rejected the call to spare Hodgkins jail time.
“I think the judge’s sentence was fair,” the defense attorney said.
Lawyers for many other defendants in the Capitol riot have said their clients were misled, fooled or brainwashed by Trump. Asked why Hodgkins didn’t blame the former president, Leduc said: “He understands that no one held a gun to his head. … He’s responsible for his actions, not Donald Trump.”
The defense attorney said that while he understands distinctions between different protests that have taken place at the Capitol, there is a perception in some quarters that the Trump backers who joined in the Jan. 6 riot are being treated much more harshly than other demonstrators who cause disruption in Congress.
“Let’s get to a standard and let’s stick with it,” Leduc said.
