Roger Stone Admitted to Violating 18 USC 115 Under Oath

Yesterday, Judge Amy Berman Jackson scheduled a phone scheduling hearing to take place on Tuesday, the same day when the government must submit a response to Roger Stone’s latest request for a new trial.

MINUTE ORDER as to ROGER J. STONE, JR. An on-the-record scheduling telephone conference call is set for February 18, 2020 at 11:00 AM in Courtroom 3 before Judge Amy Berman Jackson. In a separate email from the Deputy Clerk, counsel for the parties will be supplied with both the dial in telephone number and pass code to give them access to the call. SO ORDERED. Signed by Judge Amy Berman Jackson on 2/16/20.

Contrary to a lot of the chatter about the meeting, I think it’s unlikely to pertain to the withdrawal of the prosecutors who prosecuted the case. More likely, the judge has reviewed the underlying juror questionnaire for Tomeka Hart and assessed the credibility of Stone’s concern (and I’d caution that the request may have real merit, even if his lawyers pretty much bolloxed the opportunity to raise it).

But if Stone were really to get a new trial, there would seem to be another factor that ABJ might want to raise for Stone’s consideration: how the threat against her — that he admitted to, under oath — would be treated in a new trial.

When ABJ held a hearing last February 21 about whether she should revoke Stone’s bail, he repeatedly claimed that he did not intend, by posting a picture of her with crosshairs on it, as a threat. But she got him to admit, under oath, that the image could have a malicious impact, regardless of his intent.

THE COURT: Why is it consistent with how sorry you were, when you sent the apology, to continue for the next two days to speak publicly about the fact that you’re being treated unfairly in this situation as well, that it’s really this symbol, that it’s really that symbol, it’s the media going after you. How is that consistent with your telling me that you’re deeply and sincerely sorry?

THE DEFENDANT: Because that was a reference to what I believe was a media distortion of my intent. It was — I did not have a malicious intent, Your Honor.

THE COURT: Do you understand that what you did could have a malicious impact, notwithstanding your intent?

THE DEFENDANT: That’s why I abjectly apologized and I have no rationalization or excuse. I’m not seeking to justify it.

After he had made that admission, Stone admitted that he affirmatively selected the image with the crosshairs on it.

THE COURT: Okay. I’m just trying to get to the facts here. We started with somebody else did it and you didn’t see it. Then it was, “No, somebody else found it, but I posted it.” Now you’re telling me somebody else found more than one image and you chose this one, is that correct?

THE DEFENDANT: Just randomly, yes, Your Honor.

THE COURT: You closed your eyes and picked?

THE DEFENDANT: No, I just — I do ten of these a day. I’m — I’m trying to struggle with the situation.

THE COURT: Randomly does not involve the application of human intelligence. You looked at multiple pictures and you chose one, is that correct —


THE COURT: — or not correct?

THE DEFENDANT: That is correct.

Stone tried very hard to hide the names of the Proud Boys who were involved in selecting the image, by repeatedly said that up to five of them were, but he persistently named Jacob Engles as the person who had his credentials to be able to post such an image.

Q. On the day of your Instagram post, did you give anyone else your phone?

A. Yes.

Q. Who?

A. Multiple people.

Q. Name them.

A. Let’s see. At some point Jacob Engles, I believe, had it. I really don’t — I’m not certain. I’m sorry. I — my house is a — like a headquarters. I have many volunteers.

THE COURT: I thought you said you had five.

THE DEFENDANT: Five is a lot.

One way or another, Stone’s efforts to claim someone else did this (even after admitting he chose the image) amounted to a claim that it was a group effort.

In issuing her ruling tightening his gag order, ABJ made it clear she believed the image could incite others to commit violence.

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed.

She used Stone’s own sworn testimony to establish that there was, in fact, nothing ambiguous about his intent.

The defendant himself told me he had more than one to choose from. And so what he chose, particularly when paired with the sorts of incendiary comments included in the text, the comments that not only can lead to disrespect for the judiciary, but threats on the judiciary, the post had a more sinister message. As a man who, according to his own account, has made communication his forté, his raison d’être, his life’s work, Roger Stone fully understands the power of words and the power of symbols. And there’s nothing ambiguous about crosshairs.

The logic here is precisely the logic prosecutors cited, when discussing Randy Credico’s belief that Stone, himself, was not a threat to him but his thuggish friends were. But because this threat happened after Stone’s indictment, it was not charged as a threat the same way the threats against Credico were. Instead, they were treated as a 2-level enhancement that adds an additional six months under the sentencing guidelines.

Finally, pursuant to U.S.S.G. § 3C1.1, two levels are added because the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the prosecution of the instant offense of conviction.” Shortly after the case was indicted, Stone posted an image of the presiding judge with a crosshair next to her head. In a hearing to address, among other things, Stone’s ongoing pretrial release, Stone gave sworn testimony about this matter that was not credible. Stone then repeatedly violated a more specific court order by posting messages on social media about matters related to the case.

But threatening a Federal Judge is itself a crime, 18 USC §115.

threatens to assault, kidnap, or murder, a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under such section,
with intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge, or law enforcement officer on account of the performance of official duties, shall be punished as provided in subsection (b).

If I’m understanding the law correctly, a threat like the one Stone made carries a potential sentence of up to 6 years, by itself (treating the tampering with Credico as a threat resulted in a 3 year increase in sentencing range).

While the FBI would have to do some leg work to establish precisely what happened with that post — and which “volunteer” selected the image and whether all of the imagines selected included some threat — Stone has admitted to his conduct already under oath. Adding that charge would eliminate the debate about the threats against Credico, because ABJ has made it quite clear that she did consider this a threat that, at the last, posed the risk of inciting others.

Roger Stone might want to think twice before he goes the way of Mike Flynn, where every effort to delegitimize the slam dunk conviction for a crime brings the risk of further time.

57 replies
  1. Eureka says:

    I am thankful for smart judges like ABJ who know who they are dealing with, and do so under oath, accordingly.

    Should he get a new trial, and should a charge for threatening a federal judge be added, I expect the gaslighting referendum on alternate meanings of crosshairs to be nigh intolerable. In that case, I suppose he’ll also have to blame Rogow for making him apologize, and whatever else that might entail such as new counsel.

    Sidney Powell might be available by then (*crosses fingers*).

    But “then” might also be near enough the election (if not after) for a Barr-ordered “blackout.”

  2. Zinsky says:

    I hope ABJ throws the book at Stone. His 50 year history of criminality and seditious behavior (e.g. the Stone-orchestrated “Brooks Brothers” revolt over vote counting in Palm Beach county in 2000) begs for the maximum sentence available. This is a deeply criminal man and unAmerican person who needs to be sentenced to the maximum term possible as a message to others like him. Trump’s false narrative about Stone needs to be vigorously challenged by the so-called “mainstream media”.

  3. viget says:

    That’s a good point Marcy.

    My only concern is that by adding on a 115 charge, ABJ would certainly have to recuse for the new trial. Which means he might get a judge more sympathetic to his plight…

    Not a lawyer, but honestly, I think Stone’s legal strategy the whole time is to try to do something to piss off ABJ enough to get her rule in such a way that either provides grounds for a) a recusal or b) a mistrial on appeal. So far she’s hewed to the straight and narrow, but he’s clearly still fishing.

    Oh and of course delay until after the election so Trump can pardon or commute his sentence.

    It appears that Flynn is using a similar strategy, only much more obviously so. Luckily, Sullivan hasn’t taken that bait either.

    • emptywheel says:

      True. Alternately she could argue that he violated his gag and she’s finally going to jail him pending the actual sentencing or new trial.

        • emptywheel says:

          Sure, but that might not require a scheduling hearing. Which is why I raised this post in the first place. It could be she believes Stone’s challenge has merit, even if his attorneys didn’t raise concerns, and she wants to talk about what a new trial would look like and whether–having violated her gags yet again–she will finally revoke his bail.

    • bmaz says:

      It is a nice little speculative mental exercise, but it is not only a truly horrible idea, I would find it morally and professionally inappropriate, if not unethical. Defendant exercises his Constitutional right to claim error, gets a new trial, and vindictive prosecutors slam him with serious additional charges for exercising his rights? That’s a fucked up scenario and, among criminal defense lawyers, known as vindictive upping the ante.

      There is no reason in the world that bunk need be tacked on, and no reason ABJ need recuse. It would still be there as an allegeable sentencing enhancement from “relevant conduct” as it already was.

      People have gotten insane over this case, Flynn and Manafort. So many of you get wild eyed and shout “I hope the court and prosecutors throw the book at them!!” No. How about these kinds of defendants are simply prosecuted honestly and sentenced fairly, same as any other similarly situated defendant would be.

      • Peterr says:

        So you’re fine with a defendant admitting to posting a threatening image and message about the judge in his case, and doing so in violation of a gag order previously issued, and not being held to account for this?

        No, I know you’re not. But that’s how this comment reads.

        There’s nothing vindictive about an additional charge over Stone’s crosshairs post. If anything, I’m confused as to why it wasn’t immediately charged. As ABJ notes in the excerpts cited above, Stone is a communications guru who knew exactly what he was doing, and admits to doing it. To borrow a line from a defense attorney I respect, Stone should be prosecuted honestly and fairly for his crosshairs post, just as he should be prosecuted and sentenced over the crimes previously charged and for which he has been found guilty.

        • bmaz says:

          Peter, that is a load of shit. That is NOT how the reply reads. So, you are “fine” with what was done to. Aaron Scwartz in the same upping the ante regard? Because I remember mass howling about that case, yet the lynch mobs are out here. Sweet hypocrisy.

          And, for anybody that did not quite read closely enough, the sentencing enhancement would remain, and that is more than sufficient. People have gone out of their fucking minds.

          • emptywheel says:

            Remind me: Did Attorney General Holder personally intervene into Swartz’s case to protect Obama?
            This entire discussion is against a background of what Barr has done, which is not like other cases.

            • bmaz says:

              Remind me: Did you object to the upping of the ante in Aaron’s case? But here you are groovy with it. The presence or absence of Holder does NOT change a thing in that question or its equation. You are either good with upping the ante, or you are not.

              • diggo says:

                Is marcy actually “groovy” with it, or are you just assuming she is? I read her article as raising possibilities, not an “I wanna see the bloke tarred, feather and carried out of town on a rail” kind of groove. FWIW bmaz, I’m with you on this. Courts must be fair to all and deal with charges as raised, not anything else the plaintiff is presumed to have done by the public.

      • oldoilfieldhand says:

        “How about these kinds of defendants are simply prosecuted honestly and sentenced fairly, same as any other similarly situated defendant would be.”
        As much as I enjoy your comments here, ‘I’m getting tired of the pretense that justice is blind, promoted almost entirely by lawyers who not only know it to be untrue, but whose livelihood is dependent upon the falsity of such a obsequious claim.
        Where oh where, in the recesses of my mind, did the idea originate that judges routinely meet out maximum sentences (throw the book at defendants) primarily to discourage the population at large from committing similar offenses? Hundreds of references in print media and on television refer to the vaunted “Rule Of Law” that our country is dependent upon for survival? Our Democractic experiment itself, not just our country’s stability is based upon the belief that we are a country ruled by laws, not men.
        Convince me, and a few million others with 3 digit IQ’s and a memory that extends past who won the last Super Bowl or American Idol, that our country is based upon equal protection under the “law”. It’s not just the Presindebt and his cronies who receive special treatment; “these kinds of defendants”, or any others who can afford “white shoe” law firm representation are entitled to special treatment under the American Rule of Law not available to defendants whose lawyers did not attend the same prestigious law schools as the judge.

      • ernesto1581 says:

        “How about these kinds of defendants are simply prosecuted honestly and sentenced fairly,…”
        A remarkable concept; very novel, as you point out above.

        I particularly appreciate observations by ABJ like:

        “Randomly does not involve the application of human intelligence. You looked at multiple pictures and you chose one, is that correct —”

        Comments like this one, along with the follow-up concerning citizen Stone’s “life work,” give ample evidence of fairness and honesty, no?

      • BobCon says:

        Help me understand the details, if you would.

        If I read the post right, the penalty Stone is facing for the threat is six more months if it is considered as part of the current sentence?

        If he gets a new trial, he potentially faces a six year sentence for the threat, but that is the max and the recommended would be a lot less? Plus there is no guarantee of conviction, of course.

        How often do threats get made and how often are prosecutions brought? I assume threats are not unheard of, but I’m not sure how often they get past the investigation stage.

      • Mitch Neher says:

        bmaz wrote, “How about these kinds of defendants are simply prosecuted honestly and sentenced fairly, same as any other similarly situated defendant would be.”

        If by “these kinds of defendants,” bmaz means “juvenile delinquent street punks like Roger Stone (or Donald Trump),” then I agree that whatever sentence any other juvenile delinquent street punk would get is the same sentence that Roger Stone (or Trump) should get.

        And, if anything, the advanced chronological age of Stone (or Trump) relative to most other juvenile delinquent street punks should be an enhancement to the elders’ sentences relative to the younger sorts of juvenile delinquent street punks who still have many years of experienced based learning ahead of them.

        • bmaz says:

          Seriously, you think these cases have something to to with crack and juvenile delinquents?? That is bullshit.

          This is exactly why I have called out so many here for blithely joining the internet joystick of uninformed bullshittery about what they have no knowledge of.

          And, no, white collar crime is not particularly similar to “juvenile delinquent” offenses, and it takes an awfully warped perspective to insinuate it does.

          Golly, I see you are also blithely advocating for patent age discrimination in sentences. I mean, shit, you would not want protected classes under the Constitution to be discriminated against, would you?

          Or are you also advocating for that in your lynch mob mentality?

          People come on this blog and rail about the “Rule of Law”, and then pull this type of inane bogus stuff? Look in the mirror.

          • Mitch Neher says:

            Witness intimidation and threatening a federal judge are “white collar crimes”??

            They have nothing to do with “crack cocaine” nor “juvenile delinquent street punks”??

            Holding older men to a tougher standard of conduct than younger men are held to is not age discrimination nor would it make younger men a protected class.

            What sort of “lynch mob mentality “asks only for parity in sentencing for all juvenile delinquent street punks who intimidate witnesses whilst threatening federal judges no matter how chronologically old those juvenile delinquent street punks might be?

            • bmaz says:

              Yes, in this instance, they really are. YOU are the one that analogized “juvenile delinquent street punks”.

              So, are you withdrawing that now? Or just blowing bunk trying to cover?

              • Mitch Neher says:

                Would a juvenile offender get a lesser or a harsher sentence than Roger Stone for witness intimidation and threatening a federal judge?

                If the law already gives juvenile offenders lesser sentences than are meted out to adults for the same criminal offenses, then why wouldn’t Barr’s attempt to lessen the sentence imposed upon Roger Stone be strongly analogous to treating Stone as though he were a juvenile offender?

                BTW, Roger Stone is, always was, and ever will be a juvenile delinquent street punk–no matter how much older he gets.

  4. foggycoast says:

    it would seem they’re really rolling the dice. a retrial could result in conviction and sentencing after trump is out of office. in that case there would likely be no commutation, no pardon.

    • bmaz says:

      So, people should blithely accept craven Trumpy defendants fouling the entire federal criminal defense and prosecution dynamics because the lynch mob is determined to get harsher punishment?

      Seriously, what is wrong with people? You all have turned into enantiomers of the Chuck Ross frothy right.

      • ernesto1581 says:

        and would those be chiral or antichiral? it would matter rather much, I believe.

      • foggycoast says:

        bmaz, it was merely an observation and i think a pretty reasonable one. what’s hard to deny is that lawyering at this level is a game. there are rules and each side tries to use them to their advantage.

        • bmaz says:

          I think the reasonable observation is to not encourage this patent horse manure, and to sentence the guy appropriately. I do not believe in the “golly, it is Roger Stone, let’s set it off for no reason until “Trump is out of office” because it all give personal jollies. Sentence the man as and when appropriate, and that is pretty much now.

          • BillyBob says:

            I 2nd that assessment, especially in the judicial process, which is indeed being blown to pieces by Barr.

            Let the cards fall where they may and be true to one’s self.

          • Rick Ryan says:

            I am honestly not trolling here, but I don’t understand what is “patent horse manure”?

            *If* Stone’s complaint w/r/t the juror in question is meritorious, and *if* it is severe enough that a motion for a “retrial” would be granted, to do so would be a legitimate exercise of his legal rights, no? Just like any other client?

            Obviously those are big “ifs” but I believe foggycoast’s OP was predicated on both.

            (IANAL and I have no idea how meritorious his complaint is, based on the publicly available information – other than finding it odd that Stone’s lawyers didn’t strike that juror when they had the chance, if this were such a concern to them and the information were public at the time as has been reported – but Marcy at least seems to think there’s some nonzero chance it has merit, and that’s what most of us NALs are contemplating here.)

            • Rick Ryan says:

              “defendant,” not “client”, in 2nd para. Edit button is not showing up for me for some reason (not blaming mods or devs, it’s probably just not playing nice with some browser extension I’m running.

    • Terry Hall says:

      It seems to me that if the Stone trial is still ongoing after Trumpf is (hopefully) defeated in November that the prez could still issue a “blanket” pardon for Stone for any crimes he MAY have committed, like Ford conferred on Nixon.

      • Rick Ryan says:

        He could, but then Stone’s 5th amendment protections would be gone and he could be compelled to testify when Trump is no longer “unindictable.” Of course, that’s true regardless of when the sentence/pardon is issued.

        Which is why, 1) Trump is banking on never leaving office (I hold out hope that even the GOP would not support him if he were to refuse to leave office upon a loss in November, although I am less certain of that than I would like to be, especially if Sanders really does win this thing), and 2) I genuinely am not convinced that any pardons are really coming down the pipe.

        Trump seems to have no genuine attachment to anyone at all, outside of his first 3 kids and Kushner (and even then…), so if he does not stand to benefit, he has no reason to pardon any of these people. If anything, it might be to his benefit to *not* pardon anyone, to preserve 5th amendment rights for one, but also to preserve the “[former crony turned rat] is just a convicted criminal with sour grapes” argument for if and when they do try to speak out against him (whether in public or under oath; I’ll remind anyone reading this that Aaron Hernandez got off, excuse me, was found not guilty, in his second murder trial due largely to invoking that argument against the key prosecution witness). It works, at least sometimes, and might be more effective than letting them take the stand under oath and penalty of perjury without that argument in their back pocket.

  5. biff murphy says:

    but I wondered if the phone meeting has more to do with Barr’s DOJ shenanigans.
    As in no “Mr. Stone you will not be getting a new trial” and “I would like to speak with the prosecution lawyers about the change in sentencing guidelines for Mr. Stone”
    I’m sure she must be wondering what the hell is going on with Stone and Flynn
    (beside the fact he seems to have a nut for an attorney)
    as well as Barr.

  6. PeterS says:

    Forgive me, but I do not understand what principle is at play here. If the offence were more serious (attempted but failed mass jury tampering?), what would the correct approach be? Add a charge to a retrial, a completely separate trial, or use sentence enhancement? Is Stone’s actual offence insufficiently serious or is there a general legal principle.

    • Anne says:

      I’ll second that. EW’s sophisticated understanding of the legal principles leaves some of us baffled. We’d appreciate Law School 101 explanations so we can understand why bmaz gets snarky. Maybe some of you lawyers can volunteer to respond to “I don’t get it.”
      Time for another donation. This is great stuff.

  7. Izzydog says:

    Oh my God… My heart sank when I read the words:

    …”I’d caution that the request may have real merit”…

    If this goes to re-trial, it won’t matter that it was because a juror lied/mislead on the questionairre. MAGA’s will spin this as ultimate vindication for IMPOTUS, that Democrats are incapable of impartial justice, and Barr is absolutely right for personally getting involved…

    It would be one of those things where justice is being served on the individual case, but it will probably crush the impartial application of justice in every other case not flattering to IMPOTUS.

    This is a terrifying moment. We are talking about the very notion of the rule of law. Please tell me I’m being hyperbolic here and that the attorney’s ‘bollixed’ the questioning so badly that going to re-trial is a very small likelihood…please?

    When will we ultimately know?

  8. Frank Probst says:

    Background piece on Tomeka Hart:

    I agree that we can’t really know if Stone’s argument has merit without seeing her actual jury questionnaire and reviewing her answers during voir dire, but the article says that Hart is an attorney herself. I think that if I had been her, I would’ve been damn sure that that I’d done everything by the book before I revealed my identity to the public.

  9. CD54 says:

    @ bmaz at 10:35 am

    “. . . known as vindictive upping the ante.”

    Is that less/same/more egregious than jury nullification?

    Not “bear poking,” honestly curious.

  10. Molly Pitcher says:

    I fully admit to schadenfruede or what ever else you want to call it regarding the sentencing of Trump’s minions. If we can’t see the bastard himself in the stocks, I will revel at whatever is meted out to those who have supported or facilitated him. I would guess that is the impetus for a lot of other peoples reactions, too.

  11. PhoneInducedPinkEye says:

    So is making social media posts about GOP/magas being assholes sufficient cause to get Republican operatives a new trial? It looks like a new protected class is evolving /s

    We don’t know enough like ew and others said, but I’d really like to see the sentencing over and done with as I doubt Barr’s DOJ musical chairs lineup will take it seriously.

    while (dumbLegalOpinion)

  12. orionATL says:

    my understanding is that it is the case that federal judges live under protection from the u. s. marshall,’s service all their lives on the bench (and maybe beyond :) ). that is quite a burden. but given the prior history of attacks on judges by those whom the judges sentence, a necessary one. thus it would understandable that a judges association would be very upset by a decision by so high ranking a federal offficial as a u. s. attny general to cut out the section of a recommended sentence that punished a convicted felon for threatening a federal judge, especially a threat that put her in the crosshairs of a rifle sight.

  13. e.a.f. says:

    so Stone is hanging out with the Proud Boys when “some one” chose to use that picture with the cross hairs. Those proud boys are nothing to be “proud” of.

    In Canada we have chapters of these punks. Yes, they’ve made threats in Vancouver, B.C. to female bartenders after one of the proud boys was “assaulted” . turns out some one didn’t like his proud boys t-shirt. Given other articles I’ve read about the proud boy’s actions in Canada, one could reasonably conclude a picture with the cross hairs could get you if not killed, seriously injured.

  14. joelafisher says:

    What a difference 47 years makes. Maximum John Sirica had almost nobody quarreling with his choice to threaten the Watergate Burglars with extreme sentences if they didn’t start talking. These provisional sentences were decades longer than an ordinary burglar would get precisely because Sirica didn’t like the cover-up that was taking place right before his very eyes. At least Nixon had the good taste to deny any involvement; Trump and his thuggish base absolutely embrace the bad behavior of Stone, Flynn, et al. and will cheer the executive clemency when it inevitably comes.
    Question for any lawyers out there: as a trial strategy, might one leave an obviously problematic juror on a panel with the hope of raising the problems later in a new trial motion? Stone’s lawyers official answer would probably be some thing along the lines of “a peremptory challenge is precious and we needed to save it for potentially worse people later.” I wonder if there was a challenge for cause? Or any discussion along those lines? I assume that someone is looking through the record (if one exists) of the voir dire to see what happened.

  15. Vicks says:

    There are few things that would turn Trumps “followers” against him, but after scratching my head over my short, sad list I am starting to believe I can add the “king” being blackmailed by any of these two bit twits to the list.
    Surely we aren’t imagining that Trump is responding to very real pressure to do whatever it takes to cover his ass?
    All Americans should be concerned with who really holds the power in this situation.

  16. AndTheSlithyToves says:

    “All Americans should be concerned with who really holds the power in this situation.”

    Transnational Crime Syndicate
    Trump’s an Underboss, at best.
    His “Family Jewels” are in a Safe Deposit Box somewhere in Europe.

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