Owen Shroyer has filed a motion to dismiss his trespassing case claiming that FBI left out material information in the arrest warrant against Shroyer. Basically, he argues that the FBI arrest affidavit neglected to describe that Jones and his entourage were begging the cops to let them go de-escalate the crowd.
Burns, however, omits that nothing in the video shows where the restricted area was, what its boundaries were, or warns Shroyer that he was in the restricted area. Burns also omits that, over the course of the 20-minute video, Shroyer’s bodyguard talked to multiple United States Capitol police officers, including on the United States Capitol steps, and expressed that Shroyer and his colleagues wanted to follow the law and help the United States Capitol police deescalate events. Burns conveniently omits the fact that a United States Capitol police officer – identifiable by his name tag as “C. Atkinson” – directs Shroyer and his colleagues to the opposite side of the Capitol building as being where the crowd is the worst when Shroyer’s bodyguard asks where the United States Capitol police needs help the most instead of telling them to leave a restricted area or not to go in one.
Shockingly, Burns hides from the Court that, when Shroyer and his colleagues went where Officer Atkinson directed them to go, Shroyer’s bodyguard had several more conversations with United States Capitol police officers right in front of what appears to be the United States Capitol steps. In these conversations, Shroyer’s bodyguard, Shroyer, and his colleagues interact with both rank-and-file Capitol police officers forming a line to guard the Capitol steps and a Capitol police commander who placed a phone call to his superiors asking whether they could allow Shroyer and his colleagues to assist in deescalating the crowd. Burns fails to tell the Court that, in these interactions, not a single Capitol police officer asked Shroyer or his colleagues to leave or told them that they were unlawfully in a restricted area. Burns also does not tell the Court that the United States Capitol police officers pled with their superiors to allow Shroyer and his colleagues to help them deescalate the crowd.
Shroyer additionally claims that the restricted area for every participant who didn’t already have a legal restriction on being on the Capitol grounds (as Shroyer did) changed after cops moved some barricades.
But Shroyer leaves out three key details that make it clear this filing is a bunch of propaganda.
Alex Jones invited the crowd to add to the mob on the East side even before a cop said there was a problem there
First, he’s lying about what the video shows. It starts with the interaction he describes in the motion, with a timestamp of 13:00. Except then it reverts to earlier footage, time stamped beginning 12:52, where Jones already makes the decision to move to the East front, promising viewers that Trump will speak and explaining they have a permit and a stage. The cop had nothing to do with their decision to go to the East side, and (as I noted here), Jones clearly suggested he was taking his mob to a place where he had legal permission to be, where he had a stage and a permit. That wasn’t the top of the steps; it was an area away from the Capitol that he never used.
Furthermore, the interaction in question captures the cop saying that “you” (meaning the rioters) had breached the East side barricades, undercutting their claim that the cops let rioters in or that the restricted area (for people not named Shroyer, who had a pre-existing one) had changed. Another cop describes that the stairs had been breached, again emphasizing that everyone was trespassing. The video shows Jones’ handlers attempting, but failing, to get legal coverage for Jones to mount the steps. That is, it pointedly shows that the cops never did sanction Jones’ trespassing (though one female cop said if he made it there on his own he could try).
And the video doesn’t show what happened when Jones did climb the steps.
This video (h/t @gal_suburban) shows that amid a mob of people Jones already knew had illegally “breached” the steps, Jones and Shroyer both yelled into blowhorns, “1776” amid an inflamed mob.
Only after that did Jones ask people to be peaceful, then shifted to a “Fight for Trump” chant, again inflaming the crowd (as he began to walk away).
That is, once they got the top of the steps claiming they were going to de-esecalate, they did the opposite, they used the language of Revolution.
Shroyer never denies he knew that his incitement throughout this video was illegal
Shroyer’s filing admits a key detail used to arrest him: less than a year before January 6, he had entered into a deferred prosecution agreement that prohibited him from making a ruckus anywhere at the Capitol, including the grounds of the Capitol.
The DPA defines the “Capitol Buildings” as the “United States Capitol, the Senate and House Office Buildings and garages, the Capitol Power Plant, all subways and enclosed passages connecting 2 or more of such structures, and the real property underlying and enclosed by any such structure.” Id. at p. 4. It the provides a map delineating what are considered to be the U.S. Capitol Grounds. Id. at p. 5. FBI Special Agent Clarke Burns insinuates that Shroyer violated this agreement even though federal prosecutors have left that decision to D.C. prosecutors.
DC prosecutors are AUSAs.
What Shroyer doesn’t mention is that the map he references includes all the places he was during the video he says exonerates him.
the term “United States Capitol Grounds” was defined to include an area delineated in a map attached to the DPA spanning the Capitol grounds from 3rd Street NW on the west side of the Capitol building, to 2nd Street SE on the east side of the Capitol building
And that’s it. He doesn’t deny his inflammatory speech was a violation of his DPA. He doesn’t say he didn’t have special notice and special prohibition to be on the Capitol grounds riling up a mob.
Having admitted to the DPA, he just ignores the import of it.
Shroyer neglects to mention the import of Ali Alexander’s presence
The video Shroyer says he exonerates him often doesn’t show who is in the entourage (it doesn’t even show his presence), though other videos clearly show who was with Shroyer and Jones as they made a public announcement they were moving to the East side even before speaking to a cop, then moving to the East side and chanting “1776” from the midst of the mob.
But one short clip shows that Ali Alexander was there (as, again, other videos confirm he was throughout).
The significance of Alexander’s presence is that — as BuzzFeed and others have shown — he used a series of front organizations to obtain permits at various locations around the Capitol. And those getting the permits on Alexander’s behalf were clearly told that their permits — the permit Jones used to lure people to the East side, only to ignore once he got there — were limited to 50 people.
Martin, an Iraq War veteran who serves on his local city council, directed the officer to speak with Stephen Brown, a sound and lighting technician who was listed as a “spokesperson,” because Martin said he “only deals with the logistics and the hotel bookings for the event.”
Brown, according to the officer’s notes, said he was “shocked” Martin would say that “because he is in daily communication with Mr. Martin for information regarding the event. He does not understand why he would say that or not give me the information I requested.”
Obtained via Capitol Police
Brown, who did not respond to emails and phone calls requesting comment, told the officer Martin “is associated with Stop the Steal and travels with Ali Alexander.” Martin “does not seem to have an official title but he deals with the daily operations to include hotel books and car rentals.”
Alexander did not respond to a request for comment.
The officer reported advising Brown “of my concerns of not being able to regulate their numbers to 50 persons or less,” he wrote. “I explained that once information is on social media it is hard to regulate the number of participants. If his event is in fact one in the same Capitol Police will not be able to accommodate his event to the participant numbers being out of regulations and a public safety issue.”
Even the mob that Jones led to the East side exceeded what were allowed under the permit, and he (accompanied all the time by Alexander) didn’t lead them to the permitted area, which might have had the effect of drawing people away from (or at least prevented further accumulation on) the steps.
Shroyer didn’t need cops to tell him what was permissible for everyone who, unlike him, didn’t already have a prior prohibition tied to the Capitol grounds. He was steps away from Alexander the entire time in question.
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Jenny Cudd and Eliel Rosa were charged with trespassing together by complaint on January 12 and arrested on January 13. The arrest affidavit tracked how the two of them walked together through the Capitol.
At approximately 2:35 p.m., Jenny Louise Cudd and Eliel Rosa, enter the U.S. Capitol via Upper West Terrace Door.
At approximately 2:36 p.m., Jenny Louise Cudd and Eliel Rosa are observed inside the Rotunda of the U.S. Capitol from the west side doorway that leads into the Rotunda. They are observed remaining inside the Rotunda until approximately 2:39 p.m. They are further observed taking pictures of the Rotunda and the surrounding area.
At approximately 2:39 p.m., Jenny Louise Cudd and Eliel Rosa are observed walking across the Statuary Hall area of the U.S. Capitol.
At approximately 2:40 p.m., Jenny Louise Cudd and Eliel Rosa are observed walking the Statuary Hall Connector and moves off camera at approximately 2:42 p.m.
At approximately 2:43 p.m., Jenny Louise Cudd and Eliel Rosa are observed departing from a large crowd inside the U.S. Capitol in front of the Main Door of the House Chamber and walks east toward the staircase.
Jenny Louise Cudd and Eliel Rosa are subsequently observed walking past the staircase and is further observed walking past the Upper House Door, going toward the other entrance to the House Chamber
Jenny Louise Cudd and Eliel Rosa are observed at approximately 2:54 p.m. at the Upper House Door and further observed departing the U.S. Capitol.
It described how Cudd filmed a video at the Willard after she returned, boasting that she was present when, “the new revolution started at the Capitol.”
Jenny Cudd stated on the Facebook video that she was at the Willard Hotel, located on 1401 Pennsylvania Ave. NW, Washington D.C. 20004. During the course of the video she made the following comments to confirm the location and date of the video recording, “I am sitting in front of the Willard Hotel, as I always do when I am in DC protesting,” and “I was here today on January 6th when the new revolution started at the Capitol.”
It further described an interview Cudd did a few days later, boasting of her actions.
On January 8, 2021, Jenny Louise Cudd participated in an interview with a local news station in which she describes her actions on January 6, 2021, in Washington D.C., to include her admission of entering the U.S. Capitol on the same date. Specifically, Jenny Louise Cudd states during her interview she stated the following, “we walked up the steps and walked inside an open door (referring to the U.S. Capitol).” Jenny Louise Cudd further stated, “we the Patriots did storm the U.S. Capitol.” She added in reference to entering the U.S. Capitol, “Yes, I would absolutely do it again.”
As the arrest affidavit notes, the FBI also interviewed Rosa before arresting the two of them. He confirmed that the two of them had, indeed, entered the Capitol on January 6.
On January 8, 2021, Eliel Rosa was interviewed by the FBI in Midland, Texas. During the interview, Eliel Rosa admitted that he and Jenny Louise Cudd had entered the U.S. Capitol on January 6, 2021.
The arrest affidavit focused entirely on events of January 6 and thereafter. And while both Cudd and Rosa were implicated in trespassing, the most damning evidence in the affidavit came from Cudd’s own description of their activity.
On February 3, they were both indicted with their original trespassing charges, as well as obstruction of the vote count and abetting such obstruction.
In March, Cudd moved to sever her case from that of Rosa, arguing in part that by charging them together, the government was attempting, “to create the appearance of a conspiracy or plan.” Specifically, though, Cudd wanted to sever her case from Rosa’s both to prevent his voluntary statement to the FBI from being presented against her, but also to ensure she could cross-examine him to get him to verify that she had no corrupt plan to disrupt the vote count.
Ms. Cudd will seek Mr. Rosa’s exculpatory testimony to show that there was no advance plan for Ms. Cudd to walk into the Capitol, that Ms. Cudd was not aware they were breaking the law by walking around inside, that Ms. Cudd did not act “corruptly,” that Ms. Cudd did not “picket,” that Ms. Cudd was not “disorderly,” that Ms. Cudd did not have the intent to commit any of the offenses alleged, and, more generally and most importantly, to show that Ms. Cudd did not commit any of the offenses of which she is accused. Mr. Rosa’s testimony would support reasonable doubt for each count of the Indictment. Furthermore, Ms. Cudd would be able to examine Mr. Rosa on redirect, to place any government cross examination into context for the fact finder.
In the government response, they largely recited the same facts shown in the arrest affidavit, then noted that Cudd and Rosa traveled from Midland, TX, stayed at the same hotel, and traveled through the Capitol together.
Cudd and Rosa both live in Midland, Texas, and they knew each other prior to January 6, 2021. They checked into the same hotel in Washington, D.C. on January 5, 2021, and checked out on January 7. On January 6, they went to the U.S. Capitol together.
In her reply, Cudd cited from Rosa’s 302, describing that he did not travel to the riot with anyone, and added more details based on the receipts obtained in discovery to make it clear they had not traveled together.
Contrary to the government’s implication that the two traveled together or planned to be at the Capitol together, Mr. Rosa’s interview with the FBI shows they did not. This is further supported by the hotel receipts, which the government obtained and shared with the defense. The Willard Hotel receipts show that rooms for the two co-defendants were booked on different dates and for different prices. (Ms. Cudd paid $143 more for her stay. If they coordinated, she would have surely chosen to save that money and would not have used Expedia for that booking.) The two stayed on different floors and had dinner separately and at different times, according to meal receipts. These were not the only two Trump supporters staying at the Willard Hotel from January 5-7. A large number of other Trump supporters shared those booking dates at the Willard. And, while the two may have known each other from back home and shared political views, that is not a basis for joinder. The entire crowd of Trump supporters, many of whom stayed at the Willard Hotel, were present at the Capitol. They are not charged together.
After the government had provided some discovery, including the contents of two phones, the government response to a request from Cudd that it identify all the exhibits it would use in its case in chief repeated the same facts laid out in the original arrest affidavit, all focused on January 6 and thereafter. The response also said it was far too early for Cudd to demand a list of exhibits that would be used against her at trial.
Shortly after Cudd’s request to learn precisely which exhibits the government would use at trial, Eliel Rosa entered into a plea agreement with an expiration date of July 29, pleading guilty to 40 USC 5104, the lesser of the two trespassing charges used with January 6 defendants. His statement of offense narrated what he and Cudd saw and heard as they wandered through the Capitol together. Specifically, he described hearing gunshots and seeing a bunch of people banging on doors, possibly the doors to the Speaker’s Lobby.
While inside of the U.S. Capitol, Mr. Rosa heard two gunshots and saw 15 to 20 men banging on assorted doors. These men were wearing “MAGA” gear.
In addition to implicating Cudd in his own trespassing, Rosa also noted that he did not have any evidence as to Cudd’s intent when she entered the Capitol.
Mr. Rosa has reviewed the allegations in the indictment that relate to his codefendant, Jenny Cudd, and admits that the allegations are true, or that he does not have sufficient information to dispute or disprove those allegations set forth the indictment. Specifically, this includes that Mr. Rosa does not have information as to Ms. Cudd’s motive and intent when she entered the U.S. Capitol on January 6, 2021 or whether Ms. Cudd had the intent to corruptly obstruct, influence, or impede an official proceeding before Congress – to wit: Congress’s Electoral College Certification on that date.
This might be seen as exculpatory for Cudd, precisely the kind of testimony she hoped to elicit from Rosa at any trial. But it also protected Rosa from any implication in whatever intent Cudd did have when she went to the Capitol.
The government’s sentencing memo for Rosa provided more details about the friendship between Rosa and Cudd, which Rosa described to be a recent friendship.
In an interview with the FBI, Mr. Rosa explained his relationship to his co-defendant Jenny Cudd. Mr. Rosa and Ms. Cudd are new friends, who met at an event in November 2020. Mr. Rosa explained that he and his co-defendant Jenny Cudd held similar beliefs. Although the two were not travel companions, they both discussed their plans to travel to Washington, D.C. and stayed in the same hotel in separate rooms.
It also describes how both returned to the Willard after Trump’s speech, and only then did Rosa decide to go to the Capitol (this detail was used against him at his sentencing).
In the afternoon on January 6, 2021, after listening to President Trump’s speech, Mr. Rosa returned to his hotel, however, he decided he would follow others heading toward the Capitol after learning that Vice President Pence was not going to take action. Mr. Rosa met with his friend Ms. Cudd at the hotel and together they marched toward the United States Capitol where he knew the Congressional certification was taking place.
Rosa’s own sentencing memo explains that the gunshot referred to in his statement of offense was probably the fatal shot of Ashli Babbitt, thereby seemingly confirming that he witnessed a bunch of people in MAGA hats banging on a door before Babbitt was shot.
When he got to the Capitol he walked in through an open door and followed the flow of people going through the rotunda and towards the East gate. He heard what he believes to have been the shot that killed Ms. Babitt. After being asked to stand against the wall for a short period of time while officers dealt with that situation, he (and others) were asked to leave out the East door, and he complied immediately.
Rosa’s sentencing memo also makes clear that he posted nothing positive about the riot after he attended it; a photo he posted to Facebook stating, “And we fight,” was posted at 5:22AM that morning.
On Tuesday, Judge McFadden sentenced Rosa to a year of probation, less than the month of home confinement the government requested (I thought I heard McFadden impose more community service than the government had asked for, 100 hours instead of 60, but no reference to community service appears in the docket).
Hours later, the notice that Cudd would plead guilty posted to the docket. Her plea offer was dated September 27, with a deadline of acceptance of October 11, a day earlier (and indeed, the signatures on the plea agreement are dated October 11). Because Cudd pled guilty to the more serious trespassing misdemeanor than Rosa, it meant that language permitting the government to ask for a terrorism enhancement was included as boilerplate in her plea agreement and given Marina Medvin’s complaints at the plea colloquy, nothing Medvin tried to do managed to get it removed.
Cudd’s statement of offense included a detail that may not appear anywhere else. Not only did she admit under oath she knew the vote was going to be certified (something Rosa also attested to), but she admitted under oath that at the the Stop the Steal rallies on January 5, she heard people calling for revolution and then stated that she was “all for it.”
On January 5, 2021, Ms. Cudd stated the following in a video on social media: “a lot of . . . the speakers this evening were calling for a revolution. Now I don’t know what y’all think about a revolution, but I’m all for it. . . . Nobody actually wants war, nobody wants bloodshed, but the government works for us and unfortunately it appears that they have forgotten that, quite a lot. So, if a revolution is what it takes then so be it. Um, I don’t know if that is going to kick off tomorrow or not, we shall see what the powers that be choose to do with their powers and we shall see what it is that happens in Congress tomorrow at our United States Capitol. So, um either way I think that either our side or the other side is going to start a revolution.”
It’s not clear whether Rosa knew of this video or saw it before he stated that he had no evidence about her intent on the day of the riot.
Cudd’s statement of offense admits that she was in the vicinity of the Babbitt shooting (without specifying it as such), but doesn’t describe (as Rosa’s did) being held up while police dealt with the aftermath.
The government produced to the defense evidence that showed that Ms. Cudd and Mr. Rosa continued walking through the Statuary Hall area of the U.S. Capitol, until 2:43 p.m., when they moved toward the House Chamber and connecting hallways; the defense does not dispute this evidence.
Thus, while Cudd’s statement of offense notes that she did not, herself, enter Pelosi’s office, the statement she recorded after the riot stating that, “we did break down the Nancy Pelosi’s office door,” would have taken place after those with Ashli Babbit had done more than $1,000 of damage to the doors to the Speaker’s lobby, something charged against at least three of those present, and something that could carry a terrorist enhancement for those who did the damage.
We did break down the Nancy Pelosi’s office door and somebody stole her gavel and took a picture sitting in the chair flipping off the camera. . . . they had to evacuate it before we charged the Capitol. . . . Fuck yes, I am proud of my actions, I fucking charged the Capitol today with patriots today. Hell yes I am proud of my actions.” Despite Ms. Cudd’s statement, there is no evidence that Ms. Cudd entered Nancy Pelosi’s office and no evidence that Ms. Cudd stole any property from the Capitol.
The next day, January 8, Cudd explained why she used the collective “we” in her statement from the day of the riot, seemingly trying to distance herself from some of the violence yet still describing that “the patriots [collectively] stormed the Capitol” and asserting she would do the same again, even after she was (at least per Rosa’s statement of offense) present in the vicinity of the Babbitt killing.
So if you watch the entire video [referring to her January 6 social media video] and you watch any of my videos you know that the way that I speak is that I always say we. So I say we the patriots, we . . . whatever. I always say we so those things did happen by other people but I was not a part of that. But in reference to it that umm we the patriots stormed the Capitol and some people went into different offices and different things like that . . . . I would do it again in a heartbeat because I did not break any laws.
The new language in Cudd’s statement of offense — describing the speakers calling for revolution — will help DOJ make a case (one they’ve already started to lay out) about the premeditation reflected in those who gave speeches on January 5.
But it also shows that she responded to calls for revolution the day before the riot by endorsing the idea, and then after the riot, she returned to the Willard and bragged she had been present when the revolution was started, ““I was here today on January 6th when the new revolution started at the Capitol.”
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Marina Medvin is the sweet spot of January 6 lawyers. She’s a legit lawyer, doing particularly good work trying to challenge the asymmetrical access defendants get to security video of the attack. She clearly serves the interests of her clients rather than grifting or focusing more on scoring political points, as some other January 6 defense attorneys appear to do. But she’s also a right wing activist in her own right.
As such, she spends a great deal of time calling people she doesn’t like “terrorists.”
She uses debunked claims about (foreign) terrorists to try to sow fear about immigration.
She spends a great deal of time demanding that the 9/11 attackers be called terrorists.
She calls the evacuation of Afghans who helped the US fight terrorism the importation of terrorists.
She labels Joe Biden’s effort to craft a positive outcome out of Donald Trump’s capitulation to the Taliban as negotiating with terrorists.
She holds protestors accountable for those they affiliate with who call for violence.
She even complains when those held as — and those guarding — terrorists get treated humanely.
Yesterday, with the benefit of Medvin’s able counsel, her client Jenny Louise Cudd pled guilty under a plea agreement that permits the government to ask for a terrorism enhancement under U.S.S.G. § 3A1.4 at sentencing.
To be sure, I agree with Medvin’s assessment yesterday that it is unlikely the government will actually push for this enhancement with Cudd (and I think it even more unlikely that Judge Trevor McFadden would side with such a government request). This appears to be a standard part of any January 6 plea agreement involving sentencing calculations but no cooperation agreement; one thing cooperators are getting — especially those in militia conspiracy cases — is an assurance they won’t been deemed terrorists at sentencing.
Still, Cudd won’t be sentenced until March, and the government may have a far more complete story to tell about the attempted revolution that Cudd applauded by then, a story that will likely incorporate some of the facts to which Cudd admitted under oath yesterday. You never know what DOJ will do or Judge McFadden might find plausible by then.
I raise the terrorism enhancement language in Cudd’s plea agreement not because I think she’ll be treated as one come sentencing (thus far, I think Scott Fairlamb is at greatest risk of that, because his statement of offense admitted both to using violence and to his intent to intimidate those certifying the vote). Rather, I raise it to show that even a right wing activist like Medvin agrees with my reading of the language in these plea agreements. The government is reserving the right to treat these defendants, even someone who pled down to a trespassing misdemeanor like Cudd, as terrorists at sentencing. To be clear: Medvin doesn’t think this will work legally nor does she think her client is implicated in the violence of those with whom she chose to affiliate on January 6, but that is what she described the language effectively means in Cudd’s plea hearing.
Such terrorism enhancements are how domestic terrorists get labeled as terrorists. Because domestic terrorist groups like the Proud Boys or Oath Keepers aren’t labeled as (foreign) terrorist groups by the State Department, affiliation with or abetment of those groups is not per se illegal (as it might be under material support statutes for foreign terrorist organizations). It’s not until sentencing, then, that the government can argue and a judge might agree that the specific crime a person committed involved acts dangerous to human life, and (in the case of January 6) an attempt to intimidate or coerce the policy of government. If the judge does agree, a terrorist enhancement could expose the defendant to a much longer sentence as a result, a guidelines range of 121 to 151 months for someone with no criminal history.
This is a detail that has gone almost entirely unreported elsewhere: that DOJ is building in an ability to treat these defendants as terrorists when it comes to sentencing, sentencing that may be five months in the future.
Mind you, since this would be domestic terrorism, the government could not just wildly label someone as a terrorist for attending a protest at which others present espouse violence, as Medvin has done of Muslims. They’d have to lay out a specific intent on the part of the defendant to threaten force to coerce some political outcome. But if they do so with these January 6 defendants, then they may be legally branded as terrorists for their actions on January 6.
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Judge Royce Lamberth, a 78-year old Reagan appointee with a libertarian streak, just held the Warden and the Director for the DC Jail in civil contempt for not providing the medical records of Christopher Worrell in timely fashion as he ordered. He further found that DC Jail had abridged the civil rights of Worrell and referred the jail to Merrick Garland for investigation for general civil rights violations.
Worrell’s medical issues — both pre-existing non-Hodgkins lymphoma and a hand he broke while in jail — have been pending for some time. For a time (back when John Pierce was his lawyer), Worrell was himself delaying treatment by refusing to go to medical appointments. The government had been regularly submitting Worrell’s medical records to the docket. Last week, Judge Lamberth ordered the jail to include the doctor’s notes from a hand specialist who reviewed Worrell’s hand injury ASAP.
According to their claims today, they recognized these notes weren’t in the electronic file on Tuesday morning, and scanned them in before Lamberth ordered a show cause hearing (they did not, however, offer to share metadata proving that point). Lamberth didn’t buy that — and was already steaming about DC Jail’s decision to limit how many video conference rooms are available (which has made it almost impossible to schedule last minute hearings).
In judging that DOC had violated Worrell’s civil rights, Lamberth raised the possibility that he was treated this way because he’s a Jan 6 defendant. I’m not sure there’s any evidence to support that.
It’s still too early to understand what will happen as a result of this, both to Worrell’s case, and to the January 6 investigation generally. There’s not much evidence that this treatment is because these guys are Jan 6 defendants. But neither is there any evidence that the jail has done what it has needed to do to respond to the increased demands created by the January 6 investigation.
Hopefully, at the very least, this will serve as a wakeup call that the DC Jail needs to do better.
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In a bond hearing yesterday, January 6er Brandon Fellows explained that he was on a mountain where he went to pray when the FBI came looking for him, but then his bus (in which he lived at the time) got stuck in a ditch. True or not, the claim is an apt metaphor for Fellows, who seems to be little more than a big-Trump narcissist stuck in a little-Trump life.
Fellows kept repeating a number of phrases to blame others for his woes in the hearing. “Not to throw anyone under a bus,” he’d say as he introduced some new claim about someone — all women as far as I could tell — who did him wrong. “It’s unfair,” he said over and over, as he offered some implausible excuse for why he was unable to meet release conditions that hundreds of other January 6 defendants, to say nothing of those prosecuted at disparate rates, could manage. He has made, “constant improvement,” in compliance with his release conditions he claimed, describing that by the time bail was revoked he was breaking fewer requirements at a lesser rate. He responds better to “positive reinforcement.”
Part way into the hearing, he even introduced that observation by citing what Fellows vaguely remembered was an article on Canada’s positive policing approach, and said he thought the US should adopt that approach. “I respond a lot more positively to positive reinforcement.”
He surely didn’t know it, but he was effectively adopting the goals of the Defund the Police movement, which he had seemed to attack in a partisan screed with which he launched his statements and returned to during his close. “January 6 has been a gaslighting tool by the opposition,” he said of an Administration supported by both the Electoral College and Popular Majority, though the claim seemed to arise from a belief there are two tribes in the US locked in combat. “I’m not like the Taliban and neither are other January 6ers.” He almost immediately moved on to ask to be treated like people sent to Gitmo since, he claimed, Joe Biden had freed all of them.
Along the way, though, Fellows admitted to virtually all the allegations that got his bail revoked. “Yeah, I did question [the pretrial service officers] rudely, are your hormones okay, disrespectfully,” he admitted. Yeah, he did call the mother of his pretrial services officer rather than the probation office.
Yes, he did indeed contact the wife of a judge presiding over a New York State case. He explained he was told there was a “loophole,” such that if a defendant had contact with a judge’s family, the judge had to recuse, resulting in a new judge taking the case. Fellows not only admitted doing that in New York, but he admitted he had proposed doing the same with Judge McFadden, only to have his then defense attorney, Cara Halverson, tell him that would get him arrested. “You did not find a loophole, Brandon,” Fellows relayed what had been a privileged discussion,”I promise you, if you do this with Judge McFadden, you will be arrested.”
Sure enough, when McFadden announced his decision denying Fellows’ motion, the Trump appointee observed that it sounded like Fellows had obstructed justice in New York and had considered doing so in DC to disqualify him, McFadden.
After admitting to trying to game the process to pick his own judges, Fellows made a bigger mistake. He claimed, first, that he had a Tik Tok video proving — and later claimed there must be CCTV video not yet turned over to him showing — that a police officer had told him it was okay to enter the Capitol, so long as he “stopped at the statues.” In doing so, Fellows predictably opened himself to cross-examination about his actions on January 6.
On cross-examination, Mona Furst started and ended by getting him to accede that he had, in fact, committed the violations that had gotten his bail revoked, though most times, Fellows claimed that, “you’re missing lots of context” (citing things like his attempt to test the judge loophole and his inoperational phone), claiming that Furst was “lying by omission” every time she didn’t include his excuses for his own actions. After getting him to concede to virtually all the allegations that had gotten his bail revoked, Furst then turned to his claims he made about his arrest and the riot itself. The lawyer whose advice he claimed he followed when he wrapped his phone in tinfoil and put it on a candy rack next to the Kit Kats, was someone whose name he didn’t remember, who claimed to be a Constitutional lawyer and who had a radio show, his conversations with whom were filmed by a French film crew. Furst asked about his claimed jailhouse interactions with Zach Alam (the guy who broke the window through which Ashli Babbitt jumped) and whether Fellows was, in fact, claiming that Alam was Antifa. Furst got the name of Tighe Berry on the record, so she could compare Fellows’ claims about Berry’s serial Code Pink protests with the actual record.
Then Furst drilled down on Fellows’ claim that a cop told him he could enter the Capitol, so long as he didn’t go past the statues. After getting Fellows to describe precisely where he remembered that conversation happened, she then asked who told Fellows it was okay to climb into the Capitol through a broken window. Fellows responded by saying a longer camera angle would prove he was worried about going in. “What officer told you it was okay to climb in a broken window,” Furst persisted in response.
Furst closed her cross-examination by getting Fellows to, again, concede that the reason his bail had been revoked was that he missed a mental health appointment.
It was even worse than all that. Check out my live tweet for details of how Fellows attempted to call his former defense attorney, Halverson, to attest to his wishes to provide more of the excuses that he had in this hearing. Fellows made up some conspiracy theory about the CIPA filing he is getting, claiming that a National Security Advisor (really, an AUSA) was secretly charging him; McFadden assured Fellows that he had not gotten additional secret charges. Fellows admitted he cried when he got his GPS bracelet put on. He explained, “I smile because I don’t like to show my weaknesses.”
Predictably, Fellows even admitted that he thought it was a stupid decision to go pro se, but he felt at the time it would offer a way to get out of jail.
I did not want to go pro se. I feel like it was a stupid decision. I felt like I had to get out. A lot of ill treatment in jail [from people] who are not Jan 6ers. I would like opportunity to show the court, positive reinforcement, that I can follow the rules.
It was a stupid decision.
McFadden confirmed Furst’s contention that he had given Fellows this hearing even though he was not legally entitled to it, but that he had been permitted to do what, on afterthought, he had wanted to do earlier, testify. McFadden predictably denied Fellows’ motion to reconsider the bail determination, and established a record to note that he has detained defendants — naming Timothy Hale-Cusanelli — who (like Fellows) did not engage in violence on January 6. He described having given Fellows three chances to avoid jailing, which (McFadden claimed) he had never done before. Most importantly, McFadden mocked Fellows’ expressed preference for “positive reinforcement” and judged that Fellows had shown “contempt” to the criminal justice system and the court.
I understand it would have been nicer to get positive reinforcement. This is not community college. You’re facing serious felonies.
[snip]
You engaged in pattern that shows contempt to criminal justice system, to the court. I have no confidence you would follow my orders.
McFadden went on to opine that, in fact Fellows probably had obstructed justice in New York and considered doing so in this case.
The performance of Brandon Fellows yesterday exhibited every single one of Donald Trump’s worst traits. Consistently, he has tried to con his way both into and out of problems. When his own actions were described to be illegal or improper, he claimed it was fake news, and attacked others for failing to present his preferred “context.” And ultimately, he believed that if he could just tell his story himself, he’d be able to con his audience that he was just unfairly accused.
While McFadden has recognized how the January 6 attack has delegitimized democracy, he has also expressed a good deal of skepticism about the equity of the treatment of defendants as compared to other rioters. As he noted, he gave Fellows three chances to fuck up.
But McFadden also takes the authority of the court very, very seriously. And Brandon Fellows just made a mockery of it. This was an instance where McFadden saw, in his courtroom, how much bullshit is flying about January 6 and the aftermath.
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One thing I informally track in January 6 guilty pleas is education level. At the beginning of most change of plea hearings, as part of an effort to substantiate competence to plead guilty, most judges ask, “How far did you go in school?” I first started to take note when Oath Keeper Graydon Young replied that he has a graduate degree. He’s a dramatic outlier. Since then, my very informal tracking of this detail has shown that very very few of the January 6 defendants who’ve pled guilty so far have a four year degree (others who do include but are not limited to Cleveland Meredith Jr, Jenna Ryan, and Andrew Ericson, the latter of whom finished a CompSci degree since the riot).
I track this demographic not out of intellectual snobbery. I know of some absolutely brilliant people who didn’t finish school (a close family member has been very successful without finishing college, and a good number of the smartest students in the 600 student high school class of which I was valedictorian dropped out short of graduation).
Rather, it’s that based on this unscientific observation, the January 6 defendants who’ve pled guilty are, demographically, dramatically less likely to have a four-year degree than the US population, closer to 10% (perhaps 8 of the 96 people who’ve pled guilty) than the 36% that one might expect of the population more broadly. To be sure, this is not scientific. At least two DC judges don’t ask this question, and my count reflects only those hearings where I was personally listening or another journalist who has become aware of my focus on it has noted it. Plus, there may be reasons why people with less education plead guilty earlier, such as that more of them make up those charged with misdemeanor trespassing. But even Brandon Straka, one of the leaders of the larger Trump movement, described that he went through 12th grade and then got a vocational degree at his change of plea.
January 6 defendants seem disproportionately white and rural, but they also appear to be less educated than the country as a whole, even those who’ve had a good deal of financial success.
Shaner doesn’t really address the government’s request for a three month jail term.
Griffith pled guilty to one count of 40 U.S.C. § 5104(e)(2)(G): Parading, Demonstrating, or Picketing in the Capitol Building. As explained below, a custodial sentence is appropriate in this case because Griffith committed his January 6th crime in a manner that trivialized the severity of the chaotic and dangerous attack, and his later self-promotion and commentary about his participation in the riot demonstrates continued pride in his actions. Griffith had many opportunities to remove himself from the disorder of January 6th but was all too happy to continue his participation. Following his arrest, his casual attitude toward these criminal proceedings demonstrated a lack of respect for this Court—worrying only that he did not want to appear too “cocky” that it was all going to go well for him. By minimizing the seriousness of his conduct, Griffith fails to recognize the harm he caused to his country, the law enforcement officers who were trying to defend it, and others who were working at the Capitol to carry out a Constitutionally mandated process for the peaceful transfer of power
Instead, Shaner focused on what the January 6 riot was, describing it as a coup attempt fomented by people who deliberately manipulated people online.
What occurred on January 6, 2021 was not a naturally developed political protest. It was, I believe, a coup attempt–fomented intentionally by right wing actors who used data mining and psychological manipulation. Vulnerable individuals were identified and persuaded through the internet that it was their patriotic duty to come to Washington to support Trump. In Washington, they were emboldened and ushered down the avenue to “Stop the Steal” and to storm the Capitol.
It is fitting and appropriate to arrest those who participated in the attempted coup. The difficult question is what is the appropriate sanction for a pawn who personally did no physical damage nor assaulted law enforcement– but nonetheless participated in the riot. As Fiona Hill recently stated the “main threats” to democracy come from right-wing actors who are deliberately undermining faith in the “integrity of the election system” and “calling for violence against fellow Americans.” Among the thousands who came to Washington in January and have since been arrested– few among the arrested are the people described by Ambassador Hill. Of the several individuals I have been appointed to represent—none are informed, intentional political actors. Four of the individuals I represent are very young—were heavily reliant on the internet—were uniformed and misinformed. Two individuals suffer from diagnosed mental diseases. The balance of individuals I have come to know and to respect are vulnerable, politically unsophisticated individuals, who are truly confounded by what is happening in our country. Good people with no criminal history—our neighbors– who were fed cynical and dangerous misinformation which destroyed their faith in the integrity of the election system. People who wrongly believed they could save America.
I think Shaner’s description of the event is sound. But I’m not sure she, or anyone, knows the answer to her question: What we do about pawns mobilized for a coup attempt, particularly in the absence of any accountability (yet) for the more powerful coup plotters.
Shaner argues that probation is appropriate for Griffith for two reasons. First, to avoid making a martyr of him.
We should not make pariahs or martyrs of these men and women.
But also to provide a period in which more education can occur.
To save our Union we must be wise. We must be compassionate. We must listen. We must provide the opportunity for the approximately 550 charged misdemeanants to receive more education, and to encourage each of them to study history and to gain civic literacy. Only knowledge—truth based on facts– can foster change. At this critical moment of civil discord and domestic contention –if it is still possible to create a more perfect Union –it must be through education. We cannot force people to learn. But during Probation, we can provide the impetus and the opportunity of continuing education.
This is an argument not about Jack Griffith (and because she’s pitching this to Chief Judge Beryl Howell, who asked with this defendant why DOJ hadn’t charged him more aggressively, it’s unlikely to work). It’s an argument about what the path forward needs to be.
Few people besides Shaner think probation can accomplish what she envisions here (though a three year term of probation will keep defendants supervised and prohibited from owning guns through the next Presidential election). Indeed, the two judges imposing most disparate sentences for trespassers so far, Tanya Chutkan (who has sentenced two trespassers, including Anna Morgan-Lloyd’s buddy, Dona Bissey, to jail terms in the last week), and Trevor McFadden (who has sentenced defendants to far shorter terms of probation than the government asked for, though with extra on top) have come out against probation for these defendants. Chutkan believes Probation is simply too overtaxed to deal with the influx of all these trespassers. McFadden seems to believe what he sees as a debt to society can better be paid through a fine (he imposed the only fine thus far on Danielle Doyle) or community service (which he imposed on Eliel Rosa); McFadden also believes that January 6 defendants are being treated more harshly than other rioters.
Meanwhile, in the case of Robert Reeder, who was first charged with trespassing then, at the last minute, discovered to have assaulted a cop and downplayed that to the FBI, got sentenced to just three months in jail by Thomas Hogan, rather than the six months prosecutors requested rather than charging him with that assault.
I don’t know the answer to Shaner’s question. And I badly wish that Prettyman Courthouse were fully open so I could assume that judges were hashing this out over lunch in their judge’s lunchroom. I know that there are a significant portion of defendants who really were just engaged in the kind of civil disobedience I don’t want criminalized. Though I also know that as DOJ has pushed to move through the misdemeanors and accepted downward pleas from those charged more seriously for a variety of reasons, it has fostered seeming inequities among the growing group of trespassers being sentenced.
Whether or not Shaner is right about Griffith, she’s right about what happened: Coup plotters used conspiracy theories to mobilize thousands, as if in a cult, to storm the Capitol. We need deprogramming as much as we need jail time. And our criminal justice system is probably ill-suited to provide either.
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I want to see thousands of normies burn that city to ash today — Telegram text from person described as UCC-1, January 6, 2021
According to NYT’s Alan Feuer, the person who participated in the Proud Boy leadership Telegram chat planning for January 6 who was described as “Unindicted Co-Conspirator 1” (UCC-1) in the Proud Boy Leaders indictment is Aaron Whallon-Wolkind, the Vice President of the Philadelphia Chapter of the Proud Boys.
As described in the indictment, in Telegram chats obtained from Nordean’s phone, UCC-1 made a comment on January 4 reflecting an existing plan. And he played a key role in setting up the radio communications that would be used on the day of the riot.
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.”1
42. On January 5, 2021, at 1:23 p.m., a new encrypted messaging channel entitled “Boots on the Ground” was created for communications by Proud Boys members in Washington, DC. In total, over sixty users participated in the Boots on the Ground channel, including D.C. NORDEAN, BIGGS, REHL, DONOHOE, and UCC-1. Shortly after the channel’s creation, BIGGS posted a message to the channel that read: “We are trying to avoid getting into any shit tonight. Tomorrow’s the day” and then “I’m here with rufio and a good group[.]”
[snip]
47. UCC-1 the At 9:09 p.m., broadcast a message to New MOSD and Boots 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.
UCC-1 also warned the others not to write their criminal plans in Telegram texts.
Specifically, the person identified in the Superseding Indictment as Unindicted Co-Conspirator (“UCC-1”) advised that participants “[s]houldn’t be typing plans to commit felonies into your phone.” UCC-1 later directed that, “if you’re talkin[g] about playing Minecraft2 you just make sure you don’t use your phone at all or even have it anywhere around you.”
2 Minecraft is a video game. Based on information provided by the FBI, the government understands that it is common for persons discussing criminal activity online to refer to such activity as occurring “in Minecraft” to conceal the true nature of the activity.
The full context of UCC-1’s comment about burning DC to ash includes a comment reflecting his belief that “the state is the enemy of the people” and a response from Person 2 describing that “normiecons” have no adrenaline control, a recognition that shows up elsewhere that the Proud Boys could and did inflame non-Proud Boy members.
DONOHOE: Are you here?
…
UCC-1: No I started a new job, don’t want to fuck it up yet
DONOHOE: Well fuck man
UCC-1: There will be plenty more I’m sure lol
UCC-1: I want to see thousands of normies burn that city to ash today
Person-2: Would be epic
UCC-1: The state is the enemy of the people
Person-2: We are the people
UCC-1: Fuck yea
Person-3: God let it happen . . . I will settle with seeing them smash some pigs to dust
Person-2: Fuck these commie traitors
Person-3 It’s going to happen. These normiecons have no adrenaline control . . . They are like a pack of wild dogs
DONOHOE: I’m leaving with a crew of about 15 at 0830 to hoof it to the monument no colors
Person-2 Fuck it let them loose
Person-3 I agree . . . They went too far when the [sic] arrested Henry as a scare tactic
A detention memo for Ethan Nordean revealed that UCC-1 was monitoring livestreams and using other methods to track the riot (I’ve written about how useful former Army Captain Gabriel Garcia’s live streams would have been for that purpose; given Whallon-Wolkind’s role in setting the channel for the Baofengs, it’s likely he tracked that too).
When the Defendant, his co-Defendants, and the Proud Boys under the Defendant’s command did, in fact, storm the Capitol grounds, messages on Telegram immediately reflected the event. PERSON-2 announced, “Storming the capital building right now!!” and then “Get there.” UCC-1 immediately followed by posting the message, “Storming the capital building right now!!” four consecutive times.6 These messages reflect that the men involved in the planning understood that the plan included storming the Capitol grounds. This shared understanding of the plan is further reflected in co-Defendant Biggs’ real-time descriptions that “we’ve just taken the Capitol” and “we just stormed the fucking Capitol.”
6 UCC-1 and PERSON-2 are not believed to have been present on the Capitol grounds, but rather indicated that they were monitoring events remotely using livestreams and other methods.
The centrality of UCC-1 in the indictment against the Proud Boy leaders — along with Aram Rostom’s reporting on Whallon-Wolkind’s past efforts to share information on Antifa with the FBI — fed conspiracies about the FBI seeding the entire January 6 riot.
In January 2019, a member of the Philadelphia chapter of the Proud Boys who called himself “Aaron PB” was on a Telegram chat with fellow members to gather information about Antifa, according to leaked chat screenshots whose authenticity was confirmed by a source familiar with the Proud Boys and by a lawyer for Aaron PB. Aaron PB said in a chat that he was gathering “info we want to send our FBI contact.”
A source close to the federal investigation told Reuters that “Aaron PB” is a Philadelphia Proud Boy leader named Aaron Whallon-Wolkind.
Whallon-Wolkind did not respond to phone calls or questions sent via text. Reached by a Reuters reporter, he hung up.
Patrick Trainor, a New Jersey lawyer for Whallon-Wolkind in an unrelated lawsuit, said Whallon-Wolkind and other Philadelphia Proud Boys had talked about inconsequential matters with the FBI over the years. Those contacts did not amount to anything substantive, Trainor said. Trainor represents other Proud Boys as well.
“They’ve all been approached at different times at different rallies in the city of Philadelphia,” he said. “Plainclothes FBI guys wanted to talk to them. You know: ‘We heard this happened. This happened so let’s talk about it.’”
Trainor acknowledged Whallon-Wolkind made the comments about “our FBI contact” on the Telegram chat, but believes they were not meant to be taken seriously. “I think he was just breaking balls,” Trainor said. “I think there was no contact with the FBI.”
In a May Motion for a Bill of Particulars, Ethan Nordean’s attorneys professed to need the identity of UCC-1 because key allegations in the conspiracy were attributed to him.
The government uses the statements of a person identified as “UCC-1” in the FSI to detain Nordean and to establish a conspiracy. The government has not produced evidence identifying this individual.
[snip]
The FSI cites a “UCC-1” who allegedly makes various conspiratorial remarks. FSI, ¶¶ 41, 42, 47. The government has not produced evidence identifying this individual.
But by July 15 (not long before Enrique Tarrio called Zach Rehl’s wife to sound out whether Rehl was flipping), when Judge Tim Kelly asked whether Nordean lawyer Nick Smith still wanted that identity, Smith instead emphasized a greater need for evidence linking Dominic Pezzola to his client. Smith did complain that the Proud Boys were left speculating on the identity of the person, ridiculously suggesting that his client didn’t know the identities of the around six other people with whom he was in a leadership Telegram channel. Smith then noted that there was public information (Rostom’s reporting) that UCC-1 had been a government informant. Prosecutor Luke Jones then confirmed that UCC-1 was not a CHS — that is, a paid informant of the sort that FBI might use to entrap others.
Nevertheless, in July, it appeared that prosecutors had a cooperating witness who could attest to an advance plan to storm the Capitol.
On Friday, according to a filing purporting to argue that Zach Rehl should be released on bail, FBI agents raided Whallon-Wolkind’s home.
Rehl’s attorney, Jonathon Moseley, claimed that because (he said), “Aaron Whallon-Wollkind did not join the events in the District of Columbia on January 6, 2021, whether the peaceful demonstrations or the violent attacks by a very, very few against U.S. Capitol Police … the Government has no basis for investigating or charging Whallon-Wollkind other than his connection to Zachary Rehl” [all three forms of emphasis Moseley’s], which in turn Moseley claimed was proof that the government still did not have any evidence against Rehl.
It’s a colossally stupid argument, almost as stupid as Moseley’s last two filings, in which he admitted that the Proud Boys “‘circle[d]’ (in a rectangle) the region around the Capitol to monitor the risk from counter-demonstrators,” an encirclement plan that had been publicly tied to obstructing the vote count in advance, and then argued that because Ali Alexander, a brown person who took credit for organizing the Stop the Steal rallies, had not been arrested yet, his [white] client should not have been either.
In the guise of arguing that a warrant that Judge Kelly likely knew about — if not authorized — in advance did not substantiate probable cause, Moseley laid out anything a co-conspirator might want to know about the raid of one of another co-conspirator, including the date of the search, the items listed in the warrant, the crimes under investigation, the items seized, and Whallon-Wolkind’s [wise] refusal to answer questions without an attorney present.
Before dawn on the morning of Friday, October 8, 2021, approximately 20 law enforcement agents heavily armed and wearing riot police gear, raided the home rented by Aaron Whallon-Wollkind near the Pennsylvania border. Aaron was awakened to threats, commands, and intimidation from an extremely loud loud-speaker (far more powerful than a hand-held bullhorn) ordering him to come out of his rural house with his hands up. He walked out of the door to find his girlfriend already handcuffed outdoors without any pants being guarded by the riot-gear wearing FBI agents.
On his lawn he found an armored personnel carrier which he understands to be a “Bear Cat.” The tank-like armored personnel carrier and other vehicles had torn up his lawn. There was also a roughly 15 foot long battering ram mounted on a vehicle. They were apparently all agents of the Federal Bureau of Investigation or at least led by the FBI with supporting officers.
[snip]
In the pre-dawn of Friday, October 8, 2021, Whallon-Wollkind was also handcuffed and held outside while the agents ransacked his house along with his half-naked girlfriend. After some of the roughly 20 agents had searched his house inside, some of the agents brought Whallon-Wollkind back inside where they had moved a single chair in the middle of a room like an interrogation scene from a war movie. They sat him down and began to interrogate him. He told them that he refused to say anything without the advice of an attorney.
The FBI took all of his computer and computer devices and phones, including an old broken phone.
However, Whallon-Wollkind was not arrested or charged.
[snip]
They had staked out his house and taken photographs. The only thing they did not already have is evidence of Zachary Rehl planning, organizing, or leading a poorly-defined “Stop the Steal protest” which Ari [sic] Alexander takes credit for being the National Organizer of. Counsel has reviewed the search warrant and documents given to Whallon-Wollkind yesterday morning, which was sent by text message from his girlfriend.
Counsel understands that when freely given to Wollkind and his girlfriend, the documents lost their sealed character. The paperwork was freely provided to Wollkind and his girlfriend at their house, with no instructions that any restrictions applied to them. There is nothing in the search warrant that orders anything with regard to the person whose property is being searched. We are not talking about the underlying affidavit, which was not provided and remains under seal. But the deprivation of Zachary Rehl’s liberty, being incarcerated for months of his life he will never get back, for things he did not do, outweighs any interest of the Government in continuing to perpetuate a baseless conspiracy theory against Zachary Rehl.
The search warrant is authorized to be executed by October 14, 2021, corresponding to the motions schedule for the next hearing of this Court.
The search warrant was issued on either October 1, 2021, or October 4, 2021 (the text message version is blurry).
[snip]
The SUBJECT OFFENSES are the same criminal charges for which Zachary Rehl was indicted in the First Superseding Indictment. The items to be searched and seized include:
a. Clothing items associating AARON WOLKIND with the Proud Boys organization, as described in the affidavit in support of the search warrant application.
* * *
d. Records and information relating to the identification of persons who either (i) collaborated, conspired or assisted (knowingly or unknowingly) the commission of the SUBJECT OFFENSES; or (ii) communicated about matters relating to the SUBJECT OFFENSES, including records that help reveal their whereabouts.
* * *
f. Records and information … any efforts to or questions about the legitimacy of the 2020 Presidential election, the certification process of the 2020 Presidential Election, or otherwise influence the policy or composition of the United States government by intimidation or coercion.
* * *
h. Records and information relating to the state of mind of the subjects and/or co-conspirators, e.g. intent, absence of mistake….
Moseley makes much of the fact that the FBI had correctly identified in which judicial district Whallon-Wolkind’s house is located, which he says is in a rural area close to the PA border, as well as that the FBI had a serial number and type for Whallon-Wolkind’s smart phone.
Indeed, while counsel is not revealing the judicial district where the search warrant was issued, where Wollkind resides, and where the search warrant was executed, the FBI would have to already know everything imaginable about Wollkind in order to apply to the correct judicial district, which is not what one would expect, and to include (thankfully, to avoid misunderstandings and mistakes) three photographs of Wollkind’s rented house. Thus, the FBI did not need to learn about Wollkind. They wanted to scrounge around for evidence against Rehl that they still do not have. The FBI already knew the precise type and serial number of the smart phone used by Wollkind.
It’s as if this attorney has never seen a probable cause warrant affidavit before, which describe both these things to establish probable cause for the warrant.
Moseley’s conspiracy theory is that the FBI obtained this warrant between the time Rehl first renewed his bid for pretrial release and days before the time there’ll be a status hearing exclusively to obtain evidence to use to prove what the DC Circuit Court has already said is adequate basis to detain Rehl’s co-conspirators.
Perhaps the most interesting detail in this filing, however, is a stray sentence that seems to indicate that Whallon-Wolkind may have traveled to DC in January after the riot.
Aaron Whallon-Wollkind never travelled to the District of Columbia until after the protests were over.
Whatever else Moseley argues, this filing comes after months in which his client’s alleged co-conspirators have suggested that Whallon-Wolkind either was cued by the FBI to incite the entire riot with really incriminating statements (which Jones effectively denied) or had only avoided charges for those far more damning statements because he was cooperating. That is, for months, other Proud Boys have argued that Whallon-Wolkind’s statements were badly incriminating. Now Moseley wants the judge who has been hearing that for months (Moseley repeatedly states that this investigation has been going on ten months rather than nine) to believe there’s nothing incriminating about Whallon-Wolkind’s actions leading up to and during the riot.
If Whallon-Wolkind had been cooperating before — presumably under a proffer agreement that would have prohibited the government from using his statements against him so long as they were honest — it appears that cooperation has ceased. Or perhaps the government has gotten more useful cooperators who’ve implicated Whallon-Wolkind more deeply in the planning for that day.
Whatever the reason, the FBI has recently shifted its focus to the guy who expressed his desire on the morning of the insurrection that there would be an insurrection.
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As I sometimes do, I’d like to look at some curious developments in a series of January 6 cases.
Adam Honeycutt’s trips to DC
If you read just his arrest affidavit, former bail bondsman Adam Honeycutt is a guy who made the grave mistake of posting a picture of himself holding a broken furniture leg to Facebook during the January 6 riot.
Honeycutt was arrested on misdemeanor trespass charges on February 11, but since then his DC case has been continued, with no indictment, until — with the most recent continuation at a status hearing on Tuesday — January 4, almost a year after the riot.
If you look more closely, however, things get more confusing. As several earlier requests for continuances reveal, Honeycutt made the still graver mistake of having guns and non-legal marijuana in his home when the FBI came to arrest him on his January 6 charges, and then chatting about it as he was being driven to the FBI office.
During the transport, HONEYCUTT made a number of unsolicited statements to TFO Rohermel and SA Grover related to his use of marihuana. HONEYCUTT stated that all of the drugs and guns in the house belonged to him, that he knew it looked bad ot have guns layout out in the open in his residence, that he had a large quantity of ammunition of various calibers in the residence, some of which was for firearms he did not currently possess. HONEYCUTT also stated that it was lucky that agents had executed the warrants that day, because his marihuana supply was almost gone, and if the agents had executed the warrants the following day he would have had more because Fridays are his day for resupplying marihuana. HONEYCUTT stated that there were only a few “roaches” left in the garage, referring to burned marihuana cigarette butts. HONEYCUTT stated that he had been smoking marihuana since he was twelve years old and smokes daily. HONEYCUTT expressed to the agents that he was upset he was out of marihuana and there would not be any for him when he got home.
Honeycutt was as a result also charged under a bullshit draconian war on drugs law that carries a ten year maximum sentence, meaning what otherwise might have been a simple trespassing plea turned into (thus far) 8 months of detention on the Florida Federal charge. Honeycutt pled guilty to that charge in June, but is still awaiting sentencing, which is scheduled for next week.
Mr. Honeycutt has been in custody continuously since February 24, 2021 and has had the additional hardship of prolonged transports from McClenny to Washington, DC in during the pandemic. While in transit, Mr. Honeycutt was assaulted by another inmate while using the phone at the Grady County Jail in Oklahoma. The inmate struck him on the back of the head causing Mr. Honeycutt to hit his head on the ground and suffer dizziness and a black eye. While he suspected he may have had a concussion, this has never been confirmed medically. Also, while detained at the Baker County Jail, Mr. Honeycutt tested positive for Covid-19 and was placed on restrictive quarantine for 14 days while he recovered.
None of that shows up in his docket, though it may simply reflect a remarkably quick transfer after his initial arrest (and Honeycutt would not be the only January 6 defendant who got in a beat up at the Oklahoma transfer jail).
I don’t condone any of this, least of all the war on drugs treatment of marijuana possession. But it’s the kind of stuff that prosecutors use to coerce cooperation elsewhere. And while it’s not at all clear what went on with Honeycutt, his case will still be pending next year on the anniversary of the riot.
Lonnie Coffman’s Alabama Molotovs
Something similar may be going on with Lonnie Coffman’s Molotov cocktails.
Coffman, you’ll recall, is the guy who was dropped off blocks away from the Capitol on January 6, trying to pick up his GMC pick-up full of Molotov cocktails.
After addressing the explosive devices found in the vicinity of the National Republican Club and the Democratic National Committee Headquarters, the Bomb Squad responded to the location of the Red GMC Sierra Pickup truck. One black handgun was recovered from the right front passenger seat of the vehicle. After locating the black handgun, officers proceeded to search the rest of the pickup truck, including the bed of the truck, which was secured under a fabric top. During the search of the cab of the truck, officers recovered, among other things, one M4 Carbine assault rifle along with rifle magazines loaded with ammunition.
In addition, officers recovered the following items in the bed of the pickup truck in close proximity to one another: (i) eleven mason jars containing an unknown liquid with a golf tee in the top of each jar, (ii) cloth rags, and (iii) lighters. Upon finding these materials, bomb technicians observed that the items appeared to be consistent with components for an explosive or incendiary device known as a “Molotov Cocktail.” Based on this discovery, additional personnel were called to the scene, including the United States Capitol Police Hazardous Materials Team. A preliminary test by the United States Capitol Police Hazardous Material Team determined that the liquid in the mason jars was an igniting substance and that it had a spectrograph profile consistent with gasoline.
[snip]
At approximately 6:30 p.m., a blue sedan with a female driver and a male front passenger, approached law enforcement officers in the 400 block of First Street, Southeast. Officers made contact with the vehicle, and the male passenger stated that he was trying to get to his vehicle that was parked in the 300 block of First Street, Southeast, which is the location that the Red GMC Sierra 1500 pickup truck had been located and searched. When the officers asked the man to provide a description of the vehicle, the male passenger stated that it was a red pickup truck. The officers then asked what the male passenger’s name was, and he stated that his name was “Lonnie.”
Coffman also has been detained (more justifiably than Honeycutt) since he was arrested. For much of that time, he has been working on a plea agreement, and on September 1, his lawyer reported they were close to one. On September 8, AUSA Michael Friedman said they would be ready for a plea by September 29.
But one day before that happened, the plea hearing was inexplicably vacated until October 26.
Unnoticed until yesterday, it turns out that on September 27 (that is, the day before his plea hearing was vacated), Coffman was charged in Alabama for possessing those Molotov cocktails the week before he drove them to DC. With Coffman’s consent, that case got transferred to DC in an entirely different docket than his January 6 one.
As with Honeycutt, it’s entirely unclear how his Alabama Federal charges are intersecting with his DC ones. Perhaps Coffman got cold feet on his plea last month, so DOJ added the Alabama charges to convince him to plead. But its another reminder that not every part of the January 6 investigation will be visible in the DC docket.
Brandon Straka gets to walk away
Meanwhile, a case that never left the DC docket, that of Brandon Straka, is just as curious.
Straka was first arrested on January 25 on civil disorder, as well as trespass, charges. Since that time, AUSA April Russo has gotten a series of continuances (February, May, August), each one citing efforts to resolve the matter, which is usually code for a plea agreement. A week after the last continuance, DOJ made a plea offer that had to be accepted by September 14. The day after the plea agreement would have expired, Straka was ultimately charged with the less serious of the two trespass charges, and after a tweak, that’s what he pled guilty to on Wednesday.
Straka’s Statement of Offense includes (and Russo made a point of entering it into the record) the incitement of attacks on cops that originally got him charged for civil disorder.
While in the restricted area, knowing he was not authorized to be there, Straka observed the crowd yelling and U.S. Capitol Police trying to prevent people from going into the U.S. Capitol and to manage the unruly crowd. Amongst other things, he engaged in disruptive conduct by participating, along with others, in yelling “go, go, go” to encourage others to enter the U.S. Capitol while the U.S. Capitol Police were making their best efforts to prevent people from doing so. Straka also observed others yelling to take a U.S. Capitol Police Officer’s shield. He recorded a video of what was happening, and in the video, he chimed in with the crowd, saying “take it, take it.” He did this between 2:30 and 2:45 p.m. on January 6 while outside the entrance to the U.S. Capitol in the restricted area on the Capitol Grounds. Straka left the U.S. Capitol Grounds at approximately 3:00 p.m.
But the Statement of Offense doesn’t include any description of his speech from January 5, where he spoke about “revolution.”
My review of STRAKA’s Twitter account on January 11, also found a video he had posted of himself speaking at a “Stop the Steal” rally held at Freedom Plaza in Washington, D.C. on January 5, 2021. As of January 13, STRAKA had removed this video from his Twitter account, but a video of the entire event had been posted to YouTube. The video showed that STRAKA was introduced by name and brought onto stage. STRAKA spoke for about five minutes during which time he repeatedly referred to the attendees as “Patriots” and referenced the “revolution” multiple times. STRAKA told the attendees to “fight back” and ended by saying, “We are sending a message to the Democrats, we are not going away, you’ve got a problem!”
Nor does his Statement of Offense include this language from Straka’s arrest affidavit describing a video in which he admitted that, “The plan was always to go to the Capitol.”
About one minute into the video, STRAKA stated, “I literally just got home…minutes ago from Washington, D.C.” Later in the video, STRAKA stated, “Yesterday, a lot of us got up very, very early. We went to this event in which Donald Trump spoke. The plan was always to go to the Capitol. We were going to march from that event…to the Capitol, and there was going to be another rally. I was one of the speakers slated to speak at the Capitol.” STRAKA later stated that, while riding the metro to the Capitol, he received alerts on his phone stating that Vice President Pence was “not going to object to certifying Joe Biden.” STRAKA stated that he learned on his walk from the metro to the Capitol that people had “breached” the Capitol and that “patriots had entered the Capitol.” STRAKA said that he thought to himself, “Wow, so they’re going to basically storm and try to get into the chamber so that they can demand that we get the investigation that we want.”
Not only was Straka permitted to a plea that may help him avoid all jail time, but DOJ assented to letting him rush the sentencing so he could be done by Christmas, coincidentally on the same day all the status reports for Oath Keeper cooperators are next due.
Baked Alaska — someone as wired into the organizers of this riot as Straka — claimed early on that prosecutors were threatening to charge him with obstruction if he didn’t cooperate.
This plea looks like it could be the flip (heh) side of such an offer, someone who worked his way out of an existing felony charge and any further exposure on obstruction. That said, his plea includes the standard boilerplate language about minimal cooperation (basically, requiring the defendant share the contents of his phone).
If this does reflect cooperation, then it suggests a number of other people exposed to felony prosecution may similarly be cooperating under the guise of misdemeanor plea agreements.
Ryan Samsel’s aborted cooperation
For about the first four months after Ryan Samsel kicked off the entire riot on January 6 by allegedly knocking over a cop, it looked like he might be considering a cooperation agreement. The same prosecutor who filed continuances in Straka’s case, April Russo, was filing continuances in his case (March, May), also citing efforts to resolve the case.
But on March 21, Samsel was brutally assaulted in jail; his attorney claimed at the time that a guard did it, though that has never been officially confirmed. Samsel’s assault set off a feeding frenzy as one after another attorney — first Martin Tankleff, then John Pierce (whose clients include a significant bunch who could incriminate Joe Biggs), and now Stanley Woodward and former Trump vote fraudster Juli Haller — tried to capitalize off a client who might have basis for a big lawsuit against DOJ (Elisabeth Pasqualini did very competent work as Samsel’s first attorney before all this started). The events that transpired after that assault seems to have ended up changing prosecutors’ approach with his case, and in June, DOJ added another prosecutor, Danielle Rosborough, and in August, DOJ finally indicted Samsel on two counts of civil disorder, two counts of assault, obstruction, and trespassing. (Russo remains the sole prosecutor on the case against the woman who was (and may still be) Samsel’s girlfriend on the day of the riot, Raechel Genco.)
All that’s important background to a big scoop from NYT’s Alan Feuer, describing that, when Samsel was originally arrested, he told the FBI that he kicked off that assault after a threat from Joe Biggs.
For months, however, according to three people familiar with the matter, the government has known Mr. Samsel’s account of the exchange: He has told investigators that Mr. Biggs encouraged him to push at the barricades and that when he hesitated, the Proud Boys leader flashed a gun, questioned his manhood and repeated his demand to move upfront and challenge the police.
Mr. Samsel’s version of events was provided to the government in late January, when he was interviewed by the F.B.I., without a lawyer present, shortly after his arrest in Pennsylvania, according to the people familiar with the matter. He has since been charged with several crimes, including assaulting an officer and obstructing Congress’s efforts to certify the election results.
[snip]
[I]f Mr. Samsel’s account is true, it could serve to bolster arguments that some Proud Boys leaders intentionally incited ordinary people in the crowd — or what they refer to as “normies” — to commit violence during the attack. The government has offered other evidence, drawn from the group’s internal messaging chats, that two Proud Boys leaders from Philadelphia were excited by the prospect of “riling up the normies” on Jan. 6.
As Feuer notes, Biggs’ lawyer Daniel Hull categorically denies this claim. As he also notes, there has been no hint of a weapons charge against Biggs. So it’s quite possible that this allegation was entirely made up out of thin air–or exaggerated in a bid for lenient treatment for Samsel’s own central role in the riot.
But there’s also no sign that DOJ is charging Samsel with lying about these claims.
That is, from the public filings, we can’t discern whether Samsel’s allegation is true or not.
That said, if it’s true, it might explain both the apparent attempt to woo Samsel’s cooperation, but also the urgency surrounding efforts to make sure he doesn’t do so.
The government has flamboyantly obtained cooperation from five different Oath Keepers. But precisely what the government is doing in a slew of other cases remains obscure.
Update: There were three people involved in the assault on the first barricade: Samsel, Paul Johnson, and Stephen Chase Randolph. The latter two are charged together, though Johnson is moving to sever his case from Randolph’s. Here’s the government opposition. Never addressed in it are why Samsel is not only not charged with them, but is before an entirely different judge, who just happens to be the Proud Boy judge.
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Haugen is the former Facebook insider who leaked corporate documents to the Wall Street Journal several months ago, culminating in reports published a couple weeks ago. Sadly, the work is paywalled.
These are the key points WSJ reported on based on the documents:
– Facebook internal documents outline an exempt elite who can operate without prohibitions.
– Facebook’s Instagram platform knowingly relies on toxicity dangerous to teen girls.
– Facebook’s 2018 tweaks to algorithms heightened polarization between users.
– Facebook’s response to known use by organized crime from trafficking to drugs is grossly ineffectual.
– Facebook’s own algorithms undermined Zuckerberg’s efforts to encourage COVID-19 vaccinations.
All this in addition to its complicity inciting genocide of more than 25,000 Rohingya minority members in Myanmar means that Facebook is beyond toxic. It’s deadly.
I’ll update this post with additional content. Share your comments related to Facebook, social media, and today’s hearing in this thread.
~ ~ ~
On a personal note: I don’t use Facebook for many of the reasons outlined in Haugen’s disclosures and the reasons that the Federal Trade Commission issued a consent decree against Facebook back in 2011 (which Facebook violated, resulting in a $5 billion fine in 2020).
I already had strong doubts about Facebook because my oldest child was bullied by a classmate on the first day they opened a Facebook account. They had begged me to let them open an account and in spite of all my precautionary measures and coaching, they were still tormented immediately and out of view of the other student’s parents.
That was more than 14 years ago. Think of what 14 years of this kind of behavior alone will do to our children and young adults, let alone what troll farms masquerading as children on line will do to them.
And now we know Facebook has known about this toxicity targeting young women and girls, and that it has continued to develop a platform aimed at monetizing children and teens’ use of social media.
Kill it now.
~ ~ ~
UPDATE-1 — 12:30 PM 05-OCT-2021 —
I missed the earliest part of the hearing, am now going back through earlier portions.
Sen. Cynthia Lummis (R-WY) at 9:27 am expresses reluctance to break up companies or deem social media platforms to be utilities, calling it heavy handed.
Uh, not heavy enough. Yesterday’s outage proved Facebook is a communications system when WhatsApp went down with Facebook and Instagram.
Sen. Dan Sullivan (R-AK) is prodding about regulatory oversight. Haugen says Facebook’s closed system traps the company and prevents them from changing their operations – a closed loop which it can’t break – and government intervention through oversight would break that loop for them.
Nation-state surveillance comes up next; Facebook could see other countries surveilling users. Haugen says the U.S. has a right to protect Americans from this kind of exposure.
UPDATE-2 — 12:36 PM 05-OCT-2021 —
Live hearing again. Sen. Rick Scott (R-FL) says he sent a letter to Facebook about related concerns well before this hearing. He asks Haugen about age restrictions for users; she feels the restriction should be changed to 16-18 years of age because of teens’ weaker impulse controls and concerns about addictive behaviors.
How to screen for age is tricky, IMO. Kids have gotten around this and parents have been just plain neglectful.
UPDATE-3 — 12:47 PM 05-OCT-2021 —
Sen. Richard Blumenthal (calls Facebook a “black box,” designed as such by Mark Zuckerberg, referencing legal obligations under Section 230.
Haugen adjusts the point he’s making by noting Facebook had said it could lie to the courts because it had immunity under Section 230.
Well that explains why Zuckerberg believes he can lie to Congress as well, as he has in at least one hearing, and why a representative for Facebook lied just this week to Congress in spite of Facebook documents liberated by Haugen proving otherwise.
Haugen says she doesn’t like seeing people blaming parents. Sorry, too bad — as a parent I know the ultimate authority over internet use at home with parent-funded devices is the parent, and I know far too many parents are just plain lazy when not willfully uniformed about social media use. More parents should have been up in their representatives’ faces all along about social media’s impact on their children.
UPDATE-4 — 12:55 PM 05-OCT-2021 —
Haugen is responding to questions from Sen. Todd Young (R-IN). She says Facebook knows how vulnerable people are who’ve had big life changes like divorce or death of a friend/loved one, how they can lose touch with surrounding community in real life because they are framing their perspective on thousands of distortive posts on Facebook.
She also doesn’t believe in breaking up Facebook.
Too fucking bad. The outage yesterday proved Facebook needs to be broken up.
Sen. Marsha Blackburn (R-TN) has been given a copy of a tweet by a Facebook employee, Andy Stone, who rebuts Haugen’s credibility based on her work experience. Blackburn invites Mr. Stone and Facebook to be sworn in and testify instead.
You know there will be more concerted attacks on Haugen’s credibility. Sure hope there’s nothing on her in Facebook’s data.
UPDATE-5 — 1:06 PM 05-OCT-2021 —
Sen. Amy Klobuchar (D-MN) asks about Facebook studying children under 13 about eating disorder and whether the company is pushing eating disorder-related content children that age. Haugen implies they are getting ground this by encouraging inauthentic accounts.
Klobuchar asks about banning outside researchers; Haugen says the blocking is an indication that federal oversight is necessary when Facebook goes so far out of its way to block them.
Sen. Ed Markey (D-MA) says he sent a letter to Facebook ten years ago asking if the company was going to collect data on child users on its platform, and now Congress is back revisiting the issue. He plugs further regulation including controls on AI.
Haugen earlier in this hearing said AI was a known problem referring to bias.
Sounds like Facebook must have used this as a jumping point for its existing prohibition on accounts for those under age 13.
Haugen responds to Markey saying removing Likes/Comments/Reshares which encourage more engagement aren’t enough to protect children. They’re still exposed to dangerous “extreme and polarizing” content.
Markey asks if Haugen thinks any visible measures of content popularity should be removed on content for children – she’s not quite as forceful on this as his question about removing targeted ads aimed at children to which she’s firmly agreed.
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David Judd is accused of, among other things, throwing a lit firecracker at cops as part of the Tunnel fight on January 6.
He is charged as part of the McCaughey omnibus superseding indictment covering the sustained assault that lasted from 1:08 PM through 4:19 PM with the following charges:
With Tristan Stevens, attempting to impede an officer from 2:56 to 2:58 PM (Count 16)
With assault for throwing the firecracker at 3:06 (Count 22)
With Tristan Stevens, assault involving physical contact from 4:15 to 4:19 PM (Count 33)
Obstruction, with all his co-defendants (Count 34)
Civil disorder, with all his co-defendants (Count 35)
Disorderly conduct with a dangerous weapon on grounds where the Vice President was present (Count 38)
Engaging in physical violence on grounds where the Vice President was present (Count 46)
Disorder conduct in a Capitol Building, with all his co-defendants (Count 52)
Act of physical violence in a Capitol Grounds or Building with all his co-defendants (Count 53)
The government attempted to get Judd held pre-trial. But his attorney Elizabeth Mullin succeeded in getting him released to home detention.
He recently filed the second bid by a January 6 defendant to compel discovery to prove that he is being selectively prosecuted as compared with people arrested in conjunction with Portland riots.
Most of the January 6 defendants were vocal supporters of then-President Donald Trump, a Republican, and were protesting Congress’s certification of Democrat Joseph Biden Jr. as the winner of the November presidential election. Many individuals – though not Mr. Judd – then breached the Capitol building with the intent of interrupting Congress’s certification of the election results. Mr. Judd and the rest of the January 6 defendants are being prosecuted by a Democratic administration.
Based on the charging decisions and outcomes sought by the government in Mr. Judd’s case, Mr. Judd believes he has a colorable claim of selective prosecution when contrasted with the government’s charging and prosecutorial decision-making in violent riots in Portland, Oregon in 2020 as well as at least one D.C. riot case in 2020.
In it, he repeatedly claimed he never entered the Capitol (even though he clearly entered the Tunnel).
Eventually a substantial number – though not Mr. Judd – breached and entered the Capitol building.
[snip]
Mr. Judd never entered the Capitol building, he did not bring any weapons to the Capitol,
And he acknowledges that there is abundant video evidence against him, unlike many of those charged in Portland (which is how DOJ distinguished the last attempt to claim selective prosecution failed — there is simply far more evidence against January 6 defendants).
Of course, much of the evidence against Mr. Judd will be video evidence.
Nevertheless, Trevor McFadden — who in a recent sentencing hearing for Danielle Doyle, claimed that DOJ was treating January 6 defendants differently than last summer’s prosecutors, only to be publicly debunked by the AP — showed great interest in Judd’s claim in a status hearing yesterday, going so far as to explain what Judd needed to do in his reply motion (the government has not yet submitted a response) to succeed.
I’ve barely started examining the table Judd submitted with his motion, which lists slightly more than half — 39 of the 74 — people he says were charged in an attack on the Portland Federal Courthouse; I assume (and hope) prosecutors are doing a far more thorough job, because it’s important for McFadden to understand many public claims about these other riots are false.
Certain problems with Judd’s claims — on top of the evidentiary differences and the fact that rioters were not attempting to stop an event over which the Vice President was present and presiding — are quite clear.
For example, the case that Judd says is most similar, in which Ty Fox is being prosecuted for throwing a firecracker, Fox is being detained pre-trial and prosecuted by the state of Oregon with his federal charges continued pending that case.
On September 23, 2021, I spoke with AUSA Thomas Ratcliffe concerning Mr. Fox. Mr. Ratcliffe is unopposed to a 90-day continuance of this matter. After our call, Mr. Ratcliffe provided me with a copy of a letter outlining a potential resolution of Mr. Fox’s federal case based on the Government’s Petite Policy for successive prosecution.
I met with Mr. Fox on September 24, 2021, at MCDC -Portland, where he is being held on state charges. During our meeting, Mr. Fox authorized the Federal Public Defender to transfer his file to me. His file, and the discovery, should be forthcoming. I will need time to review and analyze the evidence and offense.
A number of the others appear to have been dismissed for evidentiary reasons (that is, precisely the reason why — DOJ argued — that it is easier to prosecute Jan 6 defendants, because there is far better evidence, which Judd as much as concedes by noting the video evidence against him in his filing).
But even more telling, Judd included the other most similar case to his own, in which Isaiah Maza Jr. allegedly took a firecracker during a mob attack on a Federal building and threw it into a the doorway of the courthouse, which injured an officer (who may not have been visible to Maza). Maza was charged with assault as well as damaging a federal building, a crime of terrorism. By including Maza in this table, Judd is arguing that Maza was treated differently than he is being because a Democratic Administration is giving him favorable treatment.
It is true that the charges against Maza were dismissed. But they were dismissed — as Judd himself admits — because Maza died.
What Judd doesn’t admit is that Maza was murdered.
Nineteen-year-old Isaiah Jason Maza Jr. was on a pass from his inpatient alcohol treatment at the Oregon Recovery Center when he was fatally stabbed near his mother’s home Sunday in Northeast Portland.
Maza had been released in September pending trial on federal charges for allegedly tossing an explosive through a broken window of the federal courthouse downtown in July and injuring a deputy U.S. marshal.
His mother, his defense lawyer and even prosecutors said Maza had been doing everything right while on release.
He had a job at Macy’s, was taking his treatment seriously, had applied to Portland State University to continue his education and was fighting to get visitation rights with his young daughter, whose name he had tattooed on his neck.
His mother Renee Maza said she was making dinner Sunday night when her son and his girlfriend wanted to walk to a nearby corner store to buy Takis chips.
“I don’t ever let my kids walk at night here,” Renee Maza said Monday. “It’s a bad area. I usually drive them. But I was cooking and I said to him, ‘There are a lot of thugs out there. You know how I feel about walking.’ He said to me, ‘Mama, I’ll be safe. We are just getting chips. I love you.’’’
Isaiah Maza didn’t get far. He was stabbed around 5:30 p.m. near Northeast 120th Avenue and Couch Street outside an apartment complex next to his mother’s home, according to the teen’s girlfriend and mother.
This is Judd’s argument: that he’s not being treated fairly because he wasn’t doubly charged in violation of federal practice and because he wasn’t murdered before standing trial.
Again, I’ve barely scratched the surface of the cases that Judd claims are similar. But thus far, his argument amounts to claiming that he’s being treated unfairly because another guy got murdered.
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