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A New Emphasis on Threats of Violence in the Latest January 6 Conspiracy Indictment

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As I laid out the other day, the government charged six Three Percenters from California — American Phoenix Project founder Alan Hostetter, Russell Taylor, Erik Warner, Tony Martinez, Derek Kinnison, and Ronald Mele — with conspiracy. As I described, the indictment was notable in that just one of the men, Warner, actually entered the Capitol. But it was also notable for the way it tied Donald Trump’s December 19 call for a big protest on January 6 with their own public calls for violence, including executions, as well as an explicit premeditated plan to “surround the capital” [sic].

That’s one reason I find the slight difference in the way this conspiracy got charged to be of interest.

As I’ve been tracking over time, the now-seven militia conspiracies are structured very similarly, with each including coordinated plans to get to DC, some kind of plans to kit out for war, and some coordinated effort to participate in the assault on the Capitol. These conspiracies intersect in multiple ways we know of:

  • Thomas Caldwell’s communication with multiple militia to coordinate plans
  • Kelly Meggs’ formation of an alliance between Florida militias
  • Joe Biggs’ decision to exit the Capitol after the first breach, walk around it, and breach it again with two other Proud Boys in tow just ahead of the Oath Keeper stack
  • The attendance of James Breheny (thus far only charged individually), apparently with Stewart Rhodes (thus far not charged), at a leadership meeting of “multiple patriot groups” in Quarryville, PA on January 3, which Breheny described as “the day we get our comms on point with multiple other patriot groups”

All three militias mingled in interactions they’ve had with Roger Stone, as well, but thus far Stone only shows up in the Oath Keepers’ conspiracy.

In other words, while these represent seven different conspiracies (along with around maybe 15 to 20 identified militia members not charged in a conspiracy), they’re really one networked conspiracy that had the purpose of preventing the democratic replacement of Donald Trump.

Of particular note, what is probably the most serious case of assault charged against a militia member, that charged against Proud Boy Christopher Worrell, has not been included in any conspiracy. So while individual members of these conspiracies — including Joshua James, Dominic Pezzola, and William Isaacs, have been charged for their own physical resistance to cops — the conspiracies as a whole don’t yet hold conspirators accountable for the violence of their co-conspirators. The conspiracies only allege shared responsibility for damage to the Capitol, not violence against cops.

That said, the purpose and structure of the Three Percenter conspiracy is slightly different than the other six. The other six (Oath Keeper, Proud Boy Media, Proud Boy Leadership, Proud Boy Kansas City, Proud Boy North Door, Proud Boy Front Door) are all charged under 18 U.S.C. §371, conspiracy against the US. While the timeline of each conspiracy varies and while some of the Proud Boy conspiracies also include the goal of impeding the police, all six include language alleging the conspirators,

did knowingly combine, conspire, confederate, and agree with each other and others known and unknown, to commit an offense against the United States, namely, to corruptly obstruct, influence, and impede an official proceeding, that is, the Certification of the Electoral College vote, in violation of Title 18, United States Code, Section 1512(c)(2).

The purpose of the conspiracy was to stop, delay, and hinder the Certification of the Electoral College vote.

That is, those six conspiracies are charged (at least) as a conspiracy to violate the obstruction statute.

The Three Percenter SoCal conspiracy, however, is charged under the obstruction itself, 18 U.S.C. §1512(k).

Between December 19, 2020 and January 6, 2021, within the District of Columbia and elsewhere, the defendants … together with others, did conspire to corruptly obstruct, influence, and impede an official proceeding, to wit: the Certification of the Electoral College vote.

The object is the same — to impede the vote certification. But it is charged differently.

I’m still thinking through what the difference might mean. It might mean nothing, it might reflect the preference of the prosecutors, or it may reflect a rethinking at DOJ.

Nick Smith claims there’s no evidence Ethan Nordean corruptly influenced anyone else to violate their duty

But there are two things that may factor into it. First, since the government first started structuring its conspiracies this way, some defense attorneys have started challenging the applicability of the obstruction statute to the vote certification at all. For this discussion, I’ll focus on the argument as Nick Smith laid it out in a motion to throw out the entire indictment against Ethan Nordean. Smith makes two arguments regarding the conspiracy charge.

First, Smith argues that Congress only intended the obstruction statute to apply to proceedings that involve making factual findings, and so poor Ethan Nordean had no way of knowing that trying to prevent the vote certification might be illegal.

As indicated above, § 1512(c)(2) has never been used to prosecute a defendant for the obstruction of an “official proceeding” unrelated to the administration of justice, i.e., a proceeding not charged with hearing evidence and making factual findings. Moreover, there is no notice, much less fair notice, in § 1512(c)(2) or in any statute in Chapter 73 that a person may be held federally liable for interference with a proceeding that does not resemble a legal tribunal.

Of course, that argument ignores that Ted Cruz and the other members who challenged the vote claim they were making factual findings — so Nordean’s co-conspirators may sink this legal challenge.

Smith also argues that the obstruction charge fails under the findings of US v. Poindexter, in which John Poindexter’s prosecution for lying to Congress about his role in Iran-Contra was reversed, in part, because the word “corruptly” as then defined in the obstruction statute was too vague to apply to Poindexter’s corrupt failure to do his duty. Smith argues that the language remains too vague based on his claim that the government is trying to prosecute Nordean for his “sincerely held political belief that the 2020 presidential election was not fairly decided,” which prosecutors have no business weighing.

Here, the FSI’s construction on § 1512(c)’s adverb “corruptly” fails this Circuit’s Poindexter test. First, the FSI does not allege that Nordean obstructed the January 6 joint session “to obtain an improper advantage for himself or someone else. . .” Poindexter, 951 F.2d at 386. Instead, it contends he allegedly obstructed the session in support of the sincerely held political belief that the 2020 presidential election was not fairly decided. Such an interpretation of § 1512(c) is unconstitutionally vague because it leaves to judges and prosecutors to decide which sincerely held political beliefs are to be criminalized on an ad hoc basis. Dimaya, 138 S. Ct. at 1223-24. Second, the FSI neither alleges that Nordean influenced another person to obstruct the January 6 proceeding in violation of their legal duty, nor that Nordean himself violated any legal duty by virtue of his mere presence that day.

As I noted in my post on this challenge, this might be a nifty argument for a defendant who hadn’t — as Nordean had — started calling for revolution on November 27,  well before the state votes were counted. But Nordean had already made his intent clear even before the votes were counted, so Smith’s claims that Nordean was reacting to the election outcome is fairly easily disproven. (As with this entire challenge, it might work well for other defendants, but for a long list of reasons, it is far less likely to work with Nordean.)

There’s another, far more important, aspect to this part of the argument though. Smith claims, without any discussion, that Nordean didn’t “influence” any other person to violate their legal duty. Smith wants Judge Timothy Kelly to believe that Nordean did not mean to intimidate Congress by assembling a violent mob and storming the Capitol and as a result of intimidation to fail to fulfill their duty as laid out in the Constitution, whether by refusing to certify Joe Biden as President, or by running away in terror and simply failing to complete the task.

Unlike conspiracy, obstruction has a threat of violence enhancement

As I understand it (and I invite actual lawyers to correct me on this), the other difference between charging this conspiracy under 18 USC 371 and charging it under 1512(k) is the potential sentence. While defendants can be sentenced to 20 years under their individual obstruction charges (the actual sentence is more likely to be around 40 months, or less if the defendant pleads out), 18 USC 371 has a maximum sentence of five years.

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

But 18 USC 1512(k) says that those who conspire to obstruct shall be subject to the same penalty as they’d face for the actual commission of the offense.

(k)Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

And obstruction has special penalties tied to murder, attempted murder, and the threat of physical force.

(3) The punishment for an offense under this subsection is—
(A) in the case of a killing, the punishment provided in sections 1111 and 1112;
(B) in the case of—
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against any person;
imprisonment for not more than 30 years; and
(C) in the case of the threat of use of physical force against any person, imprisonment for not more than 20 years.

Thus, anyone charged along with a co-conspirator who threatened to kill someone may be exposed to twenty or even thirty years in prison rather than just five years.

As noted, there are several things about the overt acts charged in the Three Percenter conspiracy that differentiate it from the other militia conspiracies. They were even more explicit about their intent to come armed to the Capitol than the Oath Keepers were with their QRF (and their stated excuses to be armed relied even less on what I call the Antifa foil, the claim they had to come armed to defend against people they fully planned to incite).

And Hostetter twice publicly threatened to execute people. He posted a YouTube on November 27 in which he said, “some people at the highest levels need to be made an example of with an execution or two or three.” And he gave a speech on December 12 in which he demanded, “There must be long prison terms, while execution is the just punishment for the ringleaders of the coup.”

In other words, I think by charging this conspiracy under the obstruction statute rather than the conspiracy one, the government has exposed all of Hostetter’s co-conspirators, along with Hostetter himself, to far longer sentences because he repeatedly threatened to execute people.

The Three Percenter conspiracy makes threats to intimidate Mike Pence and members of Congress an object of the conspiracy

My guess is that the government is going to argue that, of course, Nordean was trying to corruptly influence others to violate their legal duty to certify the electoral results. Every single militia includes at least one member who made explicit threats against Mike Pence or Nancy Pelosi, and the Proud Boys, especially, have no recourse by claiming they showed up to listen to Donald Trump, since instead of attending his speech, they were assembling a violent mob to march on the place where Mike Pence was going to enact his official duties.

The Proud Boys were there to intimidate Mike Pence and members of Congress in hopes they would fail to fulfill their duty as laid out in the Constitution. If these charges make it to trial, I think prosecutors will be able to make a very compelling argument that assembling a mob in anticipation of Pence’s official acts was designed to intimidate him corruptly.

But, if I’m right about the criminal penalties, with the Three Percenter conspiracy, the government is going one step further. This conspiracy is structured to hold each member of the conspiracy accountable for the threats of murder made by Hostetter, the threat posed by planning to be armed at the Capitol, as well as the violence of others in their networked conspiracy. And even for those who didn’t enter the Capitol but instead egged on violence from some rally stage or behind some bullhorn, this conspiracy seems to aspire to expose co-conspirators accountable to a twenty year sentence for their (unsuccessful) efforts to intimidate Mike Pence to renege on his duty.

Update: I should add that someone with no prior convictions who goes to trial and is found guilty would face closer to 7-9 years with a full threats of violence enhancement. It would not be the full 20 years.

Update: Thanks to harpie for helping me count to seven (I had the wrong total number originally).

The Three Key Details the Proud Boy Unindicted Co-Conspirator Likely Revealed to Prosecutors

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By March 1, the government had three pieces of evidence that form a key part of a conspiracy indictment accusing Ethan Nordean, Joe Biggs, Zachary Rehl, and Charles Donohoe of conspiring to breach the Capitol and by doing so, delaying the certification of the vote:

  • The Proud Boys used Baofeng radios set to a specific channel (which channel prosecutors knew)
  • After Enrique Tarrio’s arrest, Ethan Nordean got put in charge of the January 6 operation
  • The gang had a plan to split up to optimize the chances of success

A detention motion for Nordean submitted on that day included all three of these details. It described how the Proud Boys distributed Baofeng radios to use in the operation.

Arrangements were made to program and distribute multiple Baofeng radios5 for use by Proud Boys members to communicate during the event. Baofeng is a Chinese communications equipment manufacturer. Baofeng radios can be programmed to communicate on more than 1,000 different frequencies, making them far more difficult to monitor or overhear than common “walkie talkie” type radios. Specific radio frequencies were communicated to the Proud Boys.

5 Law enforcement recovered a Baofeng radio from Defendant’s home during the execution of a search warrant—the Baofeng radio recovered from Defendant’s home was still tuned to frequency that had been communicated to the group.

[snip]

The group led by Defendant arrived at the east side of the Capitol before noon. Several of the men in the group were holding Baofeng radios. Others had them clipped to their belts or jackets.

It described how Nordean was put in charge after Tarrio’s arrest.

Moreover, following the arrest of the Proud Boys’ Chairman on January 4, 2021, Defendant was nominated from within to have “war powers” and to take ultimate leadership of the Proud Boys’ activities on January 6, 2021.

[snip]

On January 4, 2021, Henry “Enrique” Tarrio, the self-proclaimed “Chairman” of the Proud Boys was arrested shortly after arriving in Washington, D.C., pursuant to a warrant issued by D.C. Superior Court. In communications between Proud Boys members following Tarrio’s arrest, it was acknowledged that Defendant would be among those that led the Proud Boys on the ground on January 6, 2021.

And it described a decision to split people up in an effort to increase the likelihood of actually shutting down the certification of the vote.

As noted more fully below, Defendant—dressed all in black, wearing a tactical vest—led the Proud Boys through the use of encrypted communications and military-style equipment, and he led them with the specific plans to: split up into groups, attempt to break into the Capitol building from as many different points as possible, and prevent the Joint Session of Congress from Certifying the Electoral College results.

[snip]

In order to increase the odds that their plan would succeed, Defendant and those Proud Boys following him dressed “incognito” and spread out to many different locations from which they could force entry into the Capitol. Defendant and others responsible for the January 6 Proud Boys event likely knew from experience that their typical tactic of marching in “uniform,” and in unison, would draw a concentrated law enforcement response to their location. By blending in and spreading out, Defendant and those following him on January 6 made it more likely that either a Proud Boy—or a suitably-inspired “normie”—would be able to storm the Capitol and its ground in such a way that would interrupt the Certification of the Electoral College vote

Even after prosecutors shared these damning claims, their bid to keep Nordean in jail failed. Nordean’s wife filed a declaration stating in part that Nordean obtained the radio on January 7 and, to her knowledge, he did not possess such a radio before that date.

An indictment against Nordean obtained on March 3 to comply with the Speedy Trial Act (but not released publicly until after the detention hearing) mentioned none of that.

And at the March 3 detention hearing before Beryl Howell, according to Zoe Tillman, the government withdrew the claim that Nordean had the Proud Boys split into groups as a factor for that detention hearing. In what the WaPo described as, “a remarkable stumble for prosecutors,”Judge Howell released Nordean to home detention, saying there was little evidence that Nordean played that leadership role.

Nordean “was a leader of a march to the Capitol. But once he got there it is not clear what leadership role this individual took at all for the people who went inside,” Howell said. “Evidence that he directed other defendants to break into or enter the Capitol is weak, to say the least.”

Nordean’s release marked a stumble for prosecutors, who have cast him as a key figure based on what Howell agreed were “ominous” communications before Jan. 6 that they said indicated he and other Proud Boys were planning “violent action” to overwhelm police and force entry to the Capitol. The judge’s decision sets back for now the government’s efforts to establish that there was a wider plot to that end.

[snip]

“The government has backed down from saying that he directly told them to split into groups and that they had this strategic plan,” Howell remarked.

Howell said that although Nordean’s release was a “close call,” she agreed with the defense that “there’s no allegation that the defendant caused injury to any person, or that he even personally caused damage to any particular property.”

Prosecutors claimed they had this evidence on March 1. But after failing to present it at that March 3 hearing, Nordean got released.

On March 15, the judge assigned to the case after Nordean got indicted, Timothy Kelly, issued an order delaying the arraignment scheduled for the next day. He offered no explanation.

What didn’t become clear until this week is that, on March 10, the government obtained the superseding indictment against Nordean and others. And then, on March 12, the government asked Judge Kelly to delay Nordean’s arraignment on his original indictment because of the superseding indictment. Prosecutors explained that revealing the indictment ahead of time would risk alerting Rehl and Donohoe before they could be arrested and their houses searched.

On March 10, 2021, a federal grand jury sitting in the District of Columbia returned a Superseding Indictment charging Defendant, and three co-defendants (two of whom were not previously charged), with Conspiracy, in violation of 18 U.S.C. § 371; Obstruction of an Agency Proceeding, in violation of 18 U.S.C. §§ 1512(c)(2), and 2; Obstructing Law Enforcement During a Civil Disorder, in violation of 18 U.S.C. §§ 231(a)(3), and 2; 18 U.S.C. §§ 1361, and 2; Entering and Remaining in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1); and Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2).

The Superseding Indictment is under seal, pending the arrest of newly charged defendants and the execution of search warrants. Law Enforcement anticipates executing the arrests and search warrants of the new defendants in a coordinated operation on Wednesday, March 17, 2021. Once the arrests are executed, the Superseding Indictment will be unsealed.

The evidence the superseding indictment provides to substantiate claims first made on March 1 may explain an even bigger reason why prosecutors didn’t provide their evidence for those three claims in time to keep Nordean in custody: They had an unindicted co-conspirator (presumably someone cooperating with prosecutors) who was, along with the four conspiracy defendants, on an encrypted channel created after Enrique Tarrio’s arrest on January 4 that Proud Boy leaders used to continue planning for January 6. That unindicted co-conspirator was personally involved in all three details included in that detention memo against Nordean. He helped divvy up the Proud Boys to be spread out during the January 6 operation.

39. On after Chairman’s January 4, 2021, shortly after Proud Boys Chairman’s arrest pursuant to a warrant issued by D.C. Superior Court, DONOHOE expressed concern that encrypted communications that involved Proud Boys Chairman would be compromised when law enforcement examined Proud Boys Chairmans’ phone. DONOHOE then created a new channel on the encrypted messaging application, entitled, “New MOSD,” and took steps to destroy or “nuke” the earlier channel. After its creation, the “New MOSD” channel included NORDEAN, BIGGS, REHL, DONOHOE, and a handful of additional members.

40. On January 2021, at 7:15 p.m., DONOHOE posted a message on various encrypted messaging channels, including New MOSD, which read, “Hey have been instructed and listen to me real good! There is no planning of any sorts. I need to be put into whatever new thing is created. Everything is compromised and we can be looking at Gang charges.” DONOHOE then wrote, “Stop everything immediately” and then “This comes from the top.”

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

Note: If “New MOSD” was a channel of State leaders of the Proud Boys, it would likely have included Nicholas Ochs, who heads the Hawaii chapter of the Proud Boys. Ochs was the first senior Proud Boy to be arrested, on January 7, at the airport when he arrived back in Hawaii (and therefore carrying anything he had with him at the insurrection, potentially including his cell phone and any radios he kept). Kathryn Rakoczy, who has since moved onto the team prosecuting the Oath Keepers, was the original prosecutor on Ochs’ case. But now Christopher Berridge, who is on all the other Proud Boy cases but not the Nordean and Biggs one, is prosecuting Ochs. Ochs is charged in a parallel conspiracy indictment, with the very same goal and many of the same means as the Nordean and Biggs one, but which for some reason was not identified as a related case to the other three Proud Boy ones and so was not assigned to Judge Kelly; Judge Howell is presiding over Ochs’ case. Ochs has a superb defense attorney, Edward McMahon. Many of these details, which make the curious treatment of the Ochs-DeCarlo conspiracy indictment clear, are in this post or this expanded table.

Whoever the unindicted co-conspirator is, he’s the one who set the channel of the Baofeng radios the night before the insurrection. And he’s the one who stated that Nordean was in charge.

46. At 9:03 p.m., REHL notified NORDEAN, BIGGS, DONOHOE and others that he had arrived in Washington, D.C. DONOHOE responded by requesting one of the radios that REHL had brought.

47.  At 9:09 p.m., UCC-1 broadcast a message to MOSD and Boots on the Ground channels that read: “Stand by for the shared baofeng channel and shared zello channel, no Colors, be decentralized and use good judgement until further orders” UCC-1 also wrote, Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.” UCC-1 then provided a specific radio frequency of 477.985.

It is highly likely that prosecutors learned the three details included in that detention motion — that Nordean had been put in charge, that the Proud Boys were using Baofeng radios set to frequency 477.985, and that part of the plan was to disperse the men to increase chances of success — from the unindicted co-conspirator and or devices seized from him when he was first arrested.

And it took them less than two months to learn those details of the plot.

Update: The government has moved to detain both Nordean and Biggs now. Those motions cite from the Telegram chats the Proud Boys used to organize the day before the attack, including (I’ve combined them from both motions):

On January 5, between 9:30 – 9:32am [Biggs] stated “What are the teams. I keep hearing team [sic] are picked already.” A few minutes later, [Biggs] stated “Who are we going to be with. I have guys with me in other chats saying teams are being put together.”

On January 5, at 9:32am, a member of a Proud Boys Telegram group stated “It seems like our plan has totally broken down and rufio has taken control as a singke [sic] point of contact.”

On January 5, between 5:22 – 5:25pm, [Biggs] stated “Woth [sic] [coconspirator Ethan Nordean] trying to get numbers so we can make a plan.” Defendant then stated “Just trying to get our numbers. So we can plan accordingly for tonight and go over tomorrow’s plan.”

On January 5, at 5:52pm, [Biggs] stated “We are trying to avoid getting into any shit tonight. Tomorrow’s the day” and “I’m here with [co-conspirator Nordean] and a good group[.]”

On January 5, at 9:07pm, co-conspirator Charles Donohoe asked “Hey who’s boots on ground with a plan RN [ … ] Guys are asking.” A participant in the encrypted chat stated “Supposed to be Rufio.”

Within minutes, an unindicted co-conspirator broadcast a message to those in the group chat, “Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.”

On January 5, between 9:17 and 9:20pm, [Biggs] stated “We just had a meeting woth [sic] a lot of guys. Info should be coming out” and then “I was able to rally everyone here together who came where I said” and then, “We have a plan. I’m with [co-conspirator Nordean].”

On January 5, at 9:34pm [Biggs] told co-conspirator Charles Donohoe to communicate to Proud Boys members a message stating that the group in Washington, D.C. would meet at the Washington Monument at 10am on January 6.

On the morning of January 6, Donohoe stated that he was on his way to the Washington Monument, and “I have the keys until Rufio and [co-conspirator Zachary Rehl] show up.”

Update: As I note in a footnote to this post, Nicholas Ochs can’t be the unindicted co-conspirator. That’s true for two reasons. First, because DOJ does not believe UCC-1 was at the Capitol on January 6 (though doesn’t say where he was). DOJ knows Ochs was inside the Capitol. Also, DOJ has now started treating all the Proud Boy conspiracies as the same conspiracy. So Ochs could not, then, be considered un-indicted in that conspiracy.

Pezzola

Dominic Pezzola Guesses Wrong, Gets Labeled a Terrorist for His Troubles

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As I’ve been following, the detention challenges for January 6 defendants have raised real questions about how the government and the courts will treat the event. The government and Jessica Watkins have provided additional briefing on whether her actions merit a rebuttable presumption of detention; they will revisit these issues today in a hearing before Judge Amit Mehta.

As I’ve noted, the Watkins case is close because the people with whom she conspired with did not, themselves, commit the acts of violence the government is using to argue for pre-trial detention.

Not so Dominic Pezzola, the Proud Boy who was the first to break a window to enter the Capitol. Earlier this week, he filed a motion to review bail arguing, in significant part, that the witness on whose testimony the government relied to establish intent of future violent crimes was the guy who recruited him into the Proud Boys, someone Pezzola claims bragged of macing a cop during the insurrection.

Pezzola guessed wrong about the witness, the government says. As far as the government knows, there was no tie between this witness and Pezzola prior to January 5 (which suggests this is someone Pezzola met the night before the attack).

The defendant speculates that W-1 is a “cooperating witness” with deeper ties to the Proud Boys than the defendant. The defense is incorrect. W-1 has not been charged with a crime in connection with the events of January 6, 2021, and the government is unaware of any affiliation between W-1 and the Proud Boys or any indication that W-1 knew the defendant prior to January 5, 2021.

But, having been given a chance to respond to Pezzola’s bid for release, the government has solidified the argument they’re making in other cases, in which they have less direct evidence than they have against Pezzola.

In Magistrate Robin Meriweather’s initial judgement denying Pezzola bail, she judged that no conditions of bail would eliminate the public safety risk posed by Pezzola. But she found that Pezzola had presented sufficient evidence to overcome a rebuttable presumption of detention, and specifically found that his family ties to Rochester, NY, made him less of a flight risk.

When Pezzola requested a review of Meriweather’s decision, he argued that Judge Timothy Kelly should accept Meriweather’s rulings in his favor, but revisit her judgment that he posed a threat to society.

That’s not how it works, noted prosecutor Eric Kennerson.

Although he acknowledges that this Court’s review is de novo, the defendant asks this Court not to reconsider certain findings made by the Magistrate Judge, including her finding that the presumption in favor of detention was rebutted and her decision not to address the government’s arguments regarding the defendant’s risk of flight. ECF No. 19 at 1-2. Because this Court’s review is de novo across the board, the government asks the Court to apply the statutory presumption of detention, which we submit has not been rebutted for the reasons stated below, and find by a preponderance of the evidence that the defendant is a serious risk of flight.

He used his response to a request a reconsideration of those earlier decisions relying, in part, on the indictment that was obtained on the same day he had submitted his earlier motion for detention, in which Kennerson noted that, “The government acknowledges that the defendant is not charged with these offenses at the time this memorandum is submitted,” presumably knowing that Pezzola would be charged with such crimes within hours.

Relying on the indictment, Kennerson argued that Pezzola committed two crimes — felony destruction of government property (for breaking the window of the Capitol) and robbery of US Government property (for stealing a cop’s riot shield, which he used to break the window) — that constitute crimes of violence bringing a presumption of detention, and then labeled the conduct a crime of terrorism.

Felony destruction of property, under the facts as laid out above, is a federal crime of terrorism. Title 18, U.S.C., Section 2332b(g)(5), defines “federal crime of terrorism” as an offense that “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” and is included in an enumerated list of statutes, which includes § 1361. See 18 U.S.C. §§ 2332b(g)(5)(A) & (B). The Grand Jury found probable cause in Count Seven of the Indictment to believe that the defendant intended to obstruct an official proceeding by committing, among other things, acts of civil disorder and breaking a window. The defendant has conceded that his conduct was calculated to influence or affect the conduct of government—specifically the certification of the Electoral College vote—and his actions show that he participated in doing so by intimidation and/or coercion. Moreover, because § 1361 is listed in § 2332b(g)(5)(B), there is a rebuttable presumption that no conditions or combination of conditions can assure community safety or the defendant’s appearance. See 18 U.S.C. § 3142(e)(3)(B).

Felony destruction of government property is also a crime of violence. For purposes of the bail statute, as relevant to these offenses, a crime of violence is defined as “an offense that has an element of the use, attempted use, or threatened use of physical force against the person or property of another,” if that crime is punishable by ten years or more in prison. See 18 U.S.C. § 3142(f)(1)(A) & 16. Section 1361 of Title 18 of the U.S. Code meets those requirements. It is punishable by ten years if the property damage was greater than $1,000, and its elements include the use of physical force against the property of another. See United States v. Khatallah, 316 F. Supp. 2d 207, 213 (D.D.C. 2018) (Cooper, J.) (holding that destruction of government property under a substantially similar statute, 18 U.S.C. § 1363, satisfies a substantially similar elements clause statute to qualify as a crime of violence).

Robbery of U.S. Government Property is also a crime of violence. See United States v. Alomante-Nunez, 963 F.3d 58, 67 (1st Cir. 2020), citing Stokeling v. United States 139 S. Ct. 544 (2019) (holding that common-law robbery meets the elements test of a different, but substantially similar statute, to qualify as a crime of violence). But see United States v. Bell, 158 F. Supp. 3d 906, 919 (N.D. Cal. 2016) (holding that § 2112 does not meet the elements test, although that opinion was issued prior to the Supreme Court’s decision in Stokeling).

Kennerson’s filing repeatedly tied the violence to the admitted ends of delaying the vote certification, relying among other things on a citation to Pezzola’s own filing.

The defendant concedes in his motion that smoked the victory cigar because “he considered the objective achieved, stopping the certification of the election pursuant to the instructions of the then President.” ECF No. 19 at 4.

[snip]

The defense’s admission that the defendant’s objective that day was to stop the certification of the Electoral College vote does not help his position. In essence, he took an active role at the front of a mob that displaced Congress, in an attempt to stop that body from certifying the result of a Presidential election. As Judge Lamberth recently found, “[s]uch conduct threatens the Republic itself.” See United States v. Munchel, et. al., No. 21-cr-118 (RCL), ECF No. 24 at 11. See also United States v. Meggs, No. 5:21-mj-1036-PRL (S.D. Fla.) (Lammens, M.J.), ECF No. 17, at 4 (“The [January 6] attack wasn’t just one on an entire branch of our government (including a member of the executive branch), but it was an attack on the very foundation of our democracy.”)

[snip]

The defendant’s actions show that as recently as a month and a half ago, he was willing to partake in and take advantage of violence to achieve his political ends. The Court can have no assurance that he will refrain from doing so again, despite his alleged disavowal of the Proud Boys since he has been detained.

The cases for detention against the January 6 defendants are all over the map, with more evidence of direct violence in some cases and more evidence of coordination with a terrorist group in others. As the government tries to detain members of the latter — including Watkins and her co-conspirator Thomas Caldwell — they have inched closer to using the terrorism label to describe what happened on the day.

In Pezzola’s case, they’re doing so with a defendant who actions played a singularly important role in the success of the insurrection, someone who directly engaged in violence, and someone who has already admitted that the goal was to intimidate Congress.

All these other cases will be influenced by (and in some cases, will build on) these earlier seminal cases. By asking for reconsideration of bail, Pezzola gave the government an opportunity to present the evidence they had not yet made public earlier in this prosecution.

Roger Stone Accuses Jerome Corsi of Lying When He Testified Stone’s Cover Story Was a Cover Story

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In a conflict between some of the worst people in the world, Roger Stone, Jerome Corsi, and Larry Klayman have all been in the news of late. That’s because on February 12 and 13, Klayman deposed Stone in lawsuits he and Corsi filed against Stone for defamation — basically, for tarnishing their reputation with the frothy right. I tweeted out some of the highlights of the painful deposition here. Politico edited some highlights of the video for this story. Then last night, Judge Timothy Kelly dismissed Corsi’s suit without prejudice, finding venue improper (meaning Corsi can refile it in Florida).

On top of some crazy, bitter exchanges there are some interesting details, such as that Jack Posobiec is the person who introduced Cassandra Fairbanks to Stone during the 2016 campaign, though Stone claims not to remember when that happened. There are also some curious claims (such as, at February 12 16:10 and following, that Stone has rarely deleted any comms); during Stone’s trial, an FBI agent testified they had never obtained any texts Stone sent from roughly November 2016 to November 2017, though Klayman asked Stone whether he had lost or replaced a phone that might address that, except he focused on just the last two years. There’s some debate over how to pronounce “Judas Iscariot” and “Nevada.” There’s a lot of potty mouth. There are claims Stone made — under oath, days before being sentenced for lying to Congress — that probably wouldn’t stand up to the scrutiny of a prosecutor with a grand jury.

But I wanted to examine a key issue behind the dispute. In his lawsuit, Corsi alleged that Stone defamed him by falsely accusing him of lying about writing a report that would serve as a cover story for his August 21, 2016 tweet about John Podesta.

18. At 2:27 in the InfoWars Video, Defendant Stone falsely and misleadingly publishes that, “He (Corsi) was perfectly willing to lie, to perjure himself saying that a memo that he had wrote me was written on the 30th for the purposes of cover-up…. which is further proof that Jerry lied under oath.”

19. At 2:55 in the InfoWars Video, Defendant Stone falsely and misleadingly publishes, “and then states that I knew about John Podesta’s emails being stolen in advance, the only proof of that is Jerry’s feeble alcohol affected memory – it’s a lie….”

20. At 3:35 in the InfoWars Video, Defendant Stone falsely and misleadingly publishes that “Jerry was prepared to stab a principle Trump supporter in the back, he was perfectly prepared to bear false witness against me, even though I had done nothing in my entire life other than help him.”

That is, Corsi’s lawsuit claims that Stone falsely accused him of perjuring himself when he gave damning testimony about Stone to Mueller’s prosecutors; that false accusation, Corsi argues, has damaged his reputation with the frothy right.

The dispute pertains to a report Corsi wrote — which Stone submitted (PDF 39) as part of the materials he shared with the House Intelligence Committee, and which is dated August 31, 2016, not August 30 — explaining why he and Corsi had been focused on Podesta on August 21 when Stone tweeted that it would soon be Podestas’ time in the barrel.

Here’s how Corsi explained that report in his book.

In my late evening telephone call with Stone on August 30, 2016, I suggested Stone could use me as an excuse, claiming my research on Podesta and Russia was the basis for Stone’s prediction that Podesta would soon be in the pickle barrel. I knew this was a cover-story, in effect not true, since I recalled telling Stone earlier in August that Assange had Podesta emails that he planned to drop as the “October Surprise,” calculated by Assange to deliver a knock-out blow to Hillary Clinton’s presidential aspirations.

On my birthday, August 31, 2016, I emailed to stone at 4:49 p.m. EST a nine page background memorandum on John Podesta that I had written that day at Stone’s request. I couched the Podesta background paper as a rejoinder Stone could use to counter a report CNN published August 15, 2016, entitled “Manafort named in Ukrainian probe into millions in secret cash.”30 The CNN article highlighted the FBI had begun an investigation of former Trump campaign chairman Paul Manafort for his financial dealings regarding the consulting he had conducted for former Ukraine president Victor Yanukovych.

At Roger’s request, after a telephone conversation in March 2017 that I vaguely recall from memory—I have no recording or notes from the conversation—Roger asked me to write an article how he got his information for his Twitter post on August 21, 2016. Roger and I agreed once again that the Tweet was unspecific as to why Stone believed Podesta would be in the pickle barrel. That allowed us once again to roll out the cover-story that Stone based his comment on background information I provided Stone from public source materials on Podesta’s financial dealings in Russia while Hillary was secretary of state.

[snip]

Stone used the cover-story excuse again when he testified under oath to the House Intelligence Committee on September 26, 2017. In that testimony, Stone claimed his “pickle barrel” Tweet was based on “a comprehensive, early August opposition research briefing provided to me by investigative journalist, Dr. Jerome Corsi, which I then asked him to memorialize in a memo that he sent me on August 31st, all of which was culled from public records.” To stress the point, Stone attached to his testimony a copy of my background research memorandum on Podesta.

In the deposition (at February 12 at 13:14 and following) Stone defended against those claims by affirming under oath that Corsi’s testimony to Mueller’s prosecutors and the grand jury was false.

Klayman: What statement did Dr. Corsi ever make that stabbed you in the back?

Stone: The previous one that you just stated, for example. Regarding a memo that he incorrectly said that he wrote to give me a cover story at a time that I needed no cover story because the controversy regarding John Podesta’s emails, which was never mentioned in the indictment whatsoever, would not happen until six weeks after he had written said memo. So it’s just patently false.

Klayman: But you were not indicted by the Special Counsel for a cover story. You were indicted because you testified falsely to Congress, correct?

Robert Buschel (Stone’s attorney): Let’s not get into the indictments and the whole trial thing. The answer to your question, um, you know what he was indicted for.

Klayman: I’ll ask the question a different way. There’s no aspect of your indictment that deals with a cover story by Doctor Corsi on your behalf.

Buschel: It calls for a legal opinion.

Stone: No. But he certainly said that on numerous interviews and in public. So I certainly have the right to respond to it. It’s not true.

Stone makes similar comments after 16:05.

It did get quite a bit of press. As you recall Mr. Corsi went out and did a press tour in which he claimed that he had created some memo as a cover story. I suspect that that was suggested to him because it just wasn’t true.

[snip]

He portrayed a number of falsehoods in those interviews, which is certainly reason to believe that somebody had suggested this falsehood to him, since it is chronologically impossible for him to have created a memo as a cover story because there was nothing to cover.

Ultimately, we’ve got a rat-fucker and a hoaxster, arguing about which one of them perjured themselves (Corsi in the Mueller grand jury or Stone in this sworn deposition) regarding this report.

The record, though, backs Corsi’s story. Even though prosecutors presented little evidence involving Corsi at trial (both sides subpoenaed Corsi but neither side put him on the stand), the exhibits did include several pieces that suggest something substantive did occur on August 15, the date Corsi’s alleged cover story would explain away, and the first time Stone ever mentioned Podesta in a tweet.

  • July 25, 2016 Stone email to Corsi telling him to “Get to Assange” at the embassy to “get the pending wikileaks emails”
  • July 31, 2016 Stone email to Corsi telling him to call MON (August 1) and that Malloch should see Assange
  • August 2, 2016 Corsi email to Stone explaining “word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. … Time to let more than Podesta to be exposed as in bed with enemy if they are not ready to drop HRC.”
  • August 13, 2016 Corsi text to Stone directing, “I’m now back from Italy. Give me a call when you can.”
  • August 15, 2016 Corsi text to Stone directing, “Give me a call today if you can. Despite MSM drumroll that HRC is already elected, it’s not over yet. More to come than anyone realizes.”
  • August 15, 2016 Corsi email to Stone repeating the same message he had texted, “Give me a call today if you can. Despite MSM drumroll that HRC is already elected, it’s not over yet. More to come than anyone realizes.”

In addition, there were exhibits that made it clear Corsi was aware that Stone was covering things up:

  • March 24, 2017 email from Stone to Corsi (and Gloria Borger) forwarding the letter Robert Buschel sent to HPSCI; Buschel sent this letter two days after Corsi and Stone spoke about publishing the cover story and the day after Corsi did so
  • November 30, 2017 email thread between Corsi and Stone, in which Corsi responded to Stone’s request that Corsi write about Stone’s claim that Credico was his back channel by advising, “Are you sure you want to make something out of this now? … You may be defending ourself too much–raising new questions that will fuel new inquiries. This may be a time to say less, not more.”
  • April 3, 2018 email from Stone lawyer Grant Smith to Stone and cc’ing Corsi explaining that “At Roger’s request” he was forwarding “the only 2 emails on the subject between the two of you;” the subject line was “Emails about Finding information,” attached the July 25 and July 31, 2016 emails, and were sent in the wake of a surprised Ted Malloch interview and one day before Stone insisted to Credico he was the source of everything Stone learned about the WikiLeaks disclosures

Prosecutors would also have had an email Stone sent Corsi on August 30, 2016, record of Corsi’s call in response, and Corsi’s Google searches showing that he didn’t start the research for the report until after that exchange. So contrary to later claims from Corsi, prosecutors had proof that he didn’t start the report until after Stone’s August 21, 2016 tweet. Plus, before the WikiLeaks files were released in October 2016, Corsi seemed to know what they’d contain. Corsi and Stone would use that August 2016 report twice more to try to explain away Stone’s seeming advance knowledge.

Perhaps most interesting, however, is Corsi’s Mueller testimony on November 1, 2018 (PDF 34) that a column he wrote on October 6, 2016 — seemingly anticipating that WikiLeaks would soon dump emails including details about John Podesta’s ties to Joule holdings — was an attempt to force Assange to publish the emails he had not released on October 4, 2016.

Corsi published the August 31, 2016 memo on October 6, 2016. At that time, he still held himself out as the connection to WikiLeaks. The trigger for the release of the article was the publication of an article about [Paul] Manafort and [Viktor] Yanukovych. Corsi wanted to counter it with a story about Podesta, but he really wanted to provide stimulus to Assange to release whatever he had on Podesta. Corsi was angry with Assange for not releasing emails on October 4, 2016.

This was a column that got sent to the campaign between the time it was posted and when WikiLeaks dumped the emails. Posting a story on Podesta wouldn’t really “provide stimulus to Assange to release whatever he had on Podesta” unless Corsi knew that what he had pertained to Podesta.

Two of the most shameless right wing liars are in a nasty fight that — in another world — could have real legal consequences over what the two agreed to cover up with a series of lies told over three years ago.