Thread by @McAdooGordon

Jan6 Case - Defendant is Jenny Cudd; sentencing Wed afternoon.

Govt asking for absurd 75 day sentence for 2 misdemeanors.

Defense asking to have case dismissed for Brady violations or in the alternative for a fine consistent w/Kavanaugh protestors "post & forfeit" dispositions.

As I said I would yesterday, I'm going to talk a bit about my friend, @MarinaMedvin's fantastic sentencing memo on her client's behalf.

It's long, 68 pages, but worth a perusal.

Link here: drive.google.com/file/d/1GUDgWC…

In fairness, I am linking the Govt's sentencing memo here also if you want to take a look at it. I will talk about it a bit also as I discuss Marina's memo.

It's shorter, 27 pages.

drive.google.com/file/d/16gl6b2…

Marina does a good job of bringing to the court's attention facts that favor her client or show her in a good light & that humanize her. She talks about the client being a small business owner- a florist; & her charitable & community work. She emphasizes that Cudd has NO record.

She points out that Cudd did not break into the Capitol; she went in an open door, was not discouraged by police; she spent 20 minutes tops inside, taking pictures of the art & statuary, praying, & staying within the velvet ropes as she did.

She reinforces several times that Cudd herself engaged in no violence & no property destruction, & that she discouraged others from doing damage. She points out that Cudd left the building when she was directed to do so by police.

Marina deals effectively with the social media remarks made by Cudd on the day of & shortly after the 6th, in which she described the storming to her followers, talking about what "we" did. Marina points out that she's not literally describing her own conduct, but amalgamating.

Hilariously the Govt cannot figure that out apparently, because even though its own video & photographic evidence does NOT show that Cudd did virtually any of the things she describes, they still argue that she did them & should be punished for them.

In the immediate aftermath of the event, Cudd said she had not done anything illegal & that she'd do it again & similar comments, but after that she stopped talking about it & in her statement to the probation officer she says she regrets her actions & would not repeat them.

Seems clear that w/a cooler head afterward & time to reflect & the prosecution process, she's realized that while she may have thought at the time what she did on Jan6 wasn't illegal, she learned that it was & she wouldn't have done it if she'd known. She's a law-abiding person.

The Govt cherry picks her statements & Marina blasts them for doing that & for re-arranging them & for taking them out of context. They claim Cudd hasn't shown remorse but that's clearly not true based on her statement to the probation officer.

I find the govt's argument that Cudd should be punished more because she fails to show remorse to be extremely inappropriate. We don't punish for lack of remorse; we punish for offense conduct. We may deny leniency if there's a lack of remorse, but Cudd isn't asking for leniency.

Marina's just asking for what she thinks is a fair sentence. Those are 2 different things. Prosecutors do ask for higher sentences for lack of remorse but that factor is found NOWHERE in the statute or the Guidelines. Remorse can be a mitigator; it's *lack* is not an aggravator.

The Govt focuses on Cudd's plan to come to DC. I find that whole line of argument unpersuasive entirely. Of course she planned to come to DC for the rally. That has little to do w/the criminal case. They have 0 proof she planned to do anything other than attend a lawful rally.

In her social media post, she talked about how she was glad her boyfriend had gotten her a bulletproof hoodie. The govt claims that is evidence of a plan or expectation of violence. Yes, you numbskulls, obviously of a fear that it might be perpetrated on her.

Buy anyhoo, their theme is the familiar one: It was the worst thing ever in the history of ever-history; everyone who went into the building is a cretin of unparalleled proportion; & 75 days totally makes sense for a first time offender w/no record on a non-violent misdemeanor.

Marina pulls no punches attacking their narrative. After explaining why Cudd doesn't need to be deterred further, or rehabilitated, Marina launches into an argument about avoiding sentencing disparities. If you read nothing else, read that section at the end. (Starts on p. 47)

She lays out how the co-defendant got a better plea deal, she asserts because he was a non-citizen, & says that would be in violation of the civil rights laws. (The Govt argues it's because he showed remorse/turned himself in, although they wouldn't tell Marina that before.)

She then outright accuses the govt of engaging in disparate treatment due to political views by comparing Cudd's case to the Women's March protestors during Kavanaugh's confirmation process & the arrests during that time for very similar conduct, but processed very differently.

Marina's memo is interesting because she embeds pictures and other visual items into it. It's modern & fresh, & thus persuasive. In this instance, she's embedded tweets & headlines about the Kavanaugh events to good effect.

She basically makes the argument I made in my article last summer at @RedState 👇about the extreme difference in the way the two situations were handled by DOJ, but she does so in a more focused way as is appropriate for a court pleading. redstate.com/leslie-mcadoo-…

She describes how the conduct is very similar: planning, climbing barriers, takeovers of the building, disruption of a Congressional function, hundreds of arrests. BUT, the Kavanaugh protestors got modest fines on effectively a citation procedure in DC called "post & forfeit."

She gives the specific examples of 2 Kavanaugh protestors, one who got a post&forfeit outcome even though she expressed no remorse, of course; & a second who actually resisted arrest & assaulted a by-stander & had to be bodily carried out, who got a less serious charge than Cudd.

She also compares Cudd's case to the Portland & Seattle protest situations where people who engaged in comparable conduct to Cudd are not charged at all & people who engaged in more serious conduct than Cudd had their charges disposed of more favorably.

All in all, it's a pretty damning display of disparity.

"The only difference between the nonviolent January 6 protesters and the nonviolent
Kavanaugh protestors is politics."

In a particularly egregious example, she quotes from the sentencing memo filed by the Govt in a Seattle case in which it lauds the motives of the defendant in protesting (that turned into arson), but in a Jan6 case (that didn't) it decries them.

In terms of planning (a big issue for the Govt), she says:

"The Portland, Seattle, and Kavanaugh protesters were members of groups that preplanned
their unlawful conduct. Ms. Cudd only planned to protest."

Thus, Marina asks for a modest fine, $50, which is in line with what the Kavanaugh protestors paid.

Now, I said that she also asked for a dismissal, so I'll explain that a bit. That's unusual in a sentencing memo. She's not asking for that as a sentence, but rather as a sanction on the Govt for failing to giver her exculpatory information.

This has to do with the specific charge Cudd plead to, which is the trespassing misdemeanor that criminalizes going into an area where a Secret Service protectee is or will be. In this case, it was VP Pence.

The indictment said that it was Pence and Harris, and that they were in the Capitol. For the plea, that got changed to Pence only & he was in the Capitol or its grounds. But after she plead new facts started to come out on this which has been playing out in other cases too.

Marina says in her memo that she learned about the new facts -that Pence was moved to a loading dock that wasn't actually in the Capitol evidently (it was either under the Senate piazza or a Senate office building, still unclear) -from pleadings in other Jan6 cases, not the Govt.

This is a central issue under the statute that Cudd plead to, which defines the restricted area as being a cordoned off area of a building or grounds where the VP is or will be. This has been an issue of contention in other cases too, including one that went to trial this week.

That case went to trial before Judge McFadden, who is also the judge that Cudd has for her sentencing tomorrow. He required the Govt to put on witnesses being clear about where Pence was - which they didn't want to do for security reasons - since it's an element of the offense.

But that only got fleshed out this week. Cudd plead guilty last fall. So, Marina is objecting to the fact that the Govt in Cudd's case w/held info about that issue that contradicted what they put in her statement of facts for the plea - a document drafted by the Govt.

It's a little used statute this offense & the Govt was definitely playing hide the ball about it & McFadden knows that very well from his other case, so it will be interesting to see what he says/does about that. I tend to doubt he'll dismiss or w/hold sentence as Marina asks.

But you don't get if you don't ask. And it is pretty clear they were intentionally withholding info about the issue because they did not want to have to adduce that evidence in open court, so it's a valid claim for a Brady violation, although the judge may say it isn't material.

This is because McFadden today found a Jan6 defendant guilty in a bench trial of this statute in which the Govt proved that the restricted area was the Capitol building and a large part of it's grounds & he felt that satisfied the statute.

I'm not sure I agree with him about that, but I want to read the transcripts of the testimony first before I totally make up my mind.

It's an interesting issue because the Govt has not wanted to be clear or forthright about it.

In any event, it will be fascinating tomorrow to see what McFadden makes of Marina's arguments & the gulf between her request (a fine) & the Govt's (75 days) in what amounts to what people have labeled as a "tourist" trespassing case. Sentencing is tomorrow at 4 pm.

In a late breaking development tonight, the Govt has asked for the sentencing to be postponed because it claims that Cudd has repudiated one of the elements of her plea - that she knowingly entered the Capitol w/o authority.

In the alternative, they want McFadden to deny Cudd the 2 levels off her Sentencing Guidelines calculation for pleading guilty, which would increase her offense level to 6 I believe, although that would not take her out of the 0-6 months range (where most people get probation.)

They also so there is no Brady violation. They make the materiality argument I anticipated (although they don't call it that.)

Marina filed a response to their pleading, pointing out that they are filing it the night before sentencing based on her sentencing memo even though they have had Cudd's statement that they object to for the last 10 days as it is in the probation officer's report.

(And actually she makes clear it was 2 weeks ago, because it was 10 days before they filed, which was last week.) She also points out that they debriefed Cudd AFTER they got the report & they didn't mention this once, but now they are complaining Cudd's acceptance is "tepid."

Marina asserts that Cudd is NOT repudiating the plea; she's accepted responsibility for her actions & agrees that she knew she went into the Capitol & didn't have lawful authority to do so, but that at that time she didn't know it was a CRIMINAL offense.

This is a common issue I deal with in my white-collar cases. The defendant DOESN'T have to know that their conduct violates a specific criminal statute. For a general intent crime, which this is, you only have to know what the statute says you did "knowingly."

So, Marina points out that Cudd is not saying, for example, that she went in by mistake; she's agreeing she went in knowingly. But knowing what you did & even that you weren't "allowed" can be different from knowing that it violated a criminal code provision.

White collar defendants are often frustrated with this because they usually can truthfully say that if they had known xyz was criminal, as opposed to "wrong" or "unlawful," they wouldn't have done what they did. They don't appreciate the degree of wrongfulness.

Things that are clearly illegal in the criminal sense are easier for people to grapple with; murder, rape, mayhem, burglary, arson, asault; these are plainly both wrong and criminal. Conflict of interest? Not so much, for example.

So, I think Marina has the better of the argument here, esp given that Cudd specifically said either in her social media post or in a tv interview that she went into the Capitol but didn't "break the law." If that's what she thought AT THAT TIME, then that's what she thought.

I'm also not sure as a matter of statutory construction that the defendant has to know that they don't have "lawful authority" to be in the restricted area. It's not completely clear that "knowingly" modifies BOTH the entry and the lack of authority.

Many criminal statutes are less than clear that way. There are legions of court decisions figuring this out, statute by statute. This is a point that Marina seems to concede so perhaps she's looked at the cases or just doesn't want to fight about that point.

Because her main point is that Cudd isn't disagreeing that she knew she couldn't lawfully enter; she just didn't realize it was a criminal act, as opposed to say, a civil infraction or something less than a prosecutable offense. We'll see what McFadden thinks of it.

Marina: "The government's claims and requests are ridiculous, not based in law, and suspiciously
malicious. They also amount to gamesmanship by a prosecutor."

She's blasting them for taking exception to something that they already commented on - on the record in their sentencing memo.

She's not wrong; they basically just don't like Marina's advocacy in her memo. Too bad, so sad about that, imo.

She points out that the Govt referencing the trial this week before McFadden only proves her point that they had info that they didn't give her. They only gave it to that defendant this week & she still doesn't have it. Ha!

She ends by asking for sanctions for the pleading that the Govt filed tonight. (O, they will love that.)

So, there may be some fireworks tomorrow afternoon, you guys. Stay tuned!

Correction: the plea was to 1 misdemeanor. 75 days still absurd.