Thread by @Brandi_Buchman

Good morning! The pathway to Day 13 of the Proud Boys seditious conspiracy trial is lit! Proceedings start at 9 am ET. Catch up on where things stand with my report below.

https://twitter.com/Brandi_Buchman/status/1620584591437467648

Today we are expected to end around 3 pm ET today due to a scheduling issue with a juror but there could be a raft of motions that lawyers will address after jurors are excused.

The Daily Kos live blog link is up and proceedings should begin soon. Judge Kelly is not yet on the bench.
dailykos.com/stories/2023/2…

We have begun. Judge Kelly is on the bench.

We will return to cross-examination of FBI Special Agent Kate Camillieri once jurors return.
But in the last few minutes, prosecutors and defense attorneys have been going back and forth over video evidence to be admitted...

PB ringleader Henry Tarrio's lawyer, Sabino Jauregui, wants to show video that he says depicts antifa attacking civilians at night; "shooting fireworks and mortars at ppl trying to have a meal at a restaurant"...

He also wants to show jurors a clip where Tarrio discusses how the PB aren't a white supremacist org, they're largely a drinking club, frequently peaceful.

AUSA Jason McCullough says some of the videos defense wants in show what Jauregui described ("antifa" attacking civilians) but the bit about Tarrio saying PBs are a drinking club?
"Self serving hearsay," McCullough calls it

Judge Kelly says 2 clips are fair to enter in evidence)(in terms of context) but not 3.
He'll let in video of antifa attacking civilians - the other points (drinking club remark), that will be left to defense to... well, defend.

Jurors have entered. Judge Kelly tells jurors we will end at 3 today (juror scheduling issue) and he mentions that we are not going to sit on Friday (tradition thus far)

Starting out the only way I think a trial day here could start out:
Tarrio atty Sabino Jauregui to FBI Special Agent Camillieri: Are you ready to continue our war from yesterday?
[Silence]
Agent: Im ready for you to continue cross-examining me

Jauregui starts with Parler posts and begins questioning her about the prosecution's exhibits showing the Parler msgs - he's taken issue that exhibits don't show all of the features that Parler would (upvotes and "echos" (like a RT))
He starts asking about Tarrio's msgs...

Agent: there was one [by Tarrio) about revolt; but there were many comments from defendants on your client's posts
Jauregui: You decided not to show jury the comments for each post?
Agent: As I said, I would be happy to read them aloud if you provide them here

Jauregui asks if Rehl, Nordean or Biggs commented on posts on Parler by Tarrio.
Agent Cam. cannot recall off the top of her head, but recalls Pezzola commenting.

Jauregui notes the "echo" button on Parler - it's like RT - did Tarrio "echo" any comments from defendant Proud Boys on trial?
Agent: I don't recall
Zachary Rehl may have, she also thinks Biggs may have.
Jauregui: You don't know?
Agent: I'd be happy to look at data for you

Jauregui (For Tarrio): Did Tarrio upvote posts from Nordean, Rehl, Biggs, Pezzola?
Agent: I don't know, I'm not sure, agent testifies

It's safe to say you don't know whether defendants upvoted post by Tarrio?
Agent: I believe they did

Jauregui: How do you Tarrio actually posted this stuff [on Parler]?
Agent: In general tab, there was a phone number and email linked to it, and they were linked to Tarrio
You saw a phone number and thought it was linked to him?
Agent says IP addresses came back to where he lived.

Jauregui: When doing your investigation, did you use a wayback time machine? What is that? How does it work?
Agent: It takes snapshots at specific times, it doesn't copy the webpage every day of the year.

But in a screenshot, would it show you Parler buttons (like subscribe button)
Agent isn't sure; but she notes to Jauregui that FBI went to Parler multiple times to get info back from defendants accounts

Jauregui asks her if Parler has a: Mute button? Block user button?
I'm not sure.
Report user button?
Probably

Jauregui works to raise doubt re: timestamps in exhibits; and he circled back to a subject we established yesterday under cross by def atty Nick Smith: She, an FBI agent, didn't create these exhibits. A person on the prosecution did. She testifies: possible a paralegal helped.

Jauregui pulled up an exhibit - another Parler post. Its a post from Tarrio from 12/20/20 and its a picture of a large crowd of Proud Boys in black and yellow garb, but flying high above them is a pride flag.
He asks the agent if she can see it?
She can.

We had about a minute or two of technical difficulties with mic feedback but its been resolved, and Jauregui is now asking about a Tarrio post from Dec 29 where he discussed coming to DC, dressing in all black to look like antifa

Does everyone who protests at night dress in all black like a ninja? Jauregui asks.
Objection by DOJ, scope, relevance. Sustained.

Atty for Tarrio pulls up another exhibit. This is an InfoWars clip showing PBs and "antifa" in DC, clashing.
Jauregui: In this country, we have a long foundation of mutual combat?
Objection.
Jauregui: "Im trying to get some color for the jury at this pt"
Objection sustained

Jaur: Boxing is mutual combat?
Yes
MMA? Yes
Jauregui: They break balls, faces?
Agent: Sure
That's another example of mutual combat and that's when i consent to get into a fight with my friend?
Objection. overruled
Sure, that's an example of it.

Jauregui (for Tarrio): You would agree that antifa agrees to consent in mutual combat with PBs in the street?
Agent: Thats a hugely broad statement
Jaur: But when they show up in the streets with weapons, they agree to mutual combat?
Objection. Sustained.

Jauregui plays more InfoWars clip. He asks agent to highlight man wearing all black in the middle of the video. He says the person is brandishing a knife.
Do you see him make this motion with his hand? Jauregui asks.
Then he makes a sound effect I wish I could type for you

You saw him lift his hand up, bring it down very quickly, correct?
Agent: yes, he does seem to have something in his hand, but i can't tell you what it is.
Jauregui: you don't agree with me that it is a knife?
A: i cant tell what he is holding in his hand
Jaur: Ok, i tried

Now, jurors see more InfoWars footage. This is going toward defense argument that PBs didn't incite violence, but responded to it (violence from antifa, they say)
Agent notes in clip a man is getting "head beat in"
Tarrio was helping that man from being beaten?
Objection

Agent: I cannot speak to Tarrio holding the man back until the police come but he does appear to be trying to stop it

Jauregui (for Tarrio) plays another video clip from InfoWars. (there's no audio)
It shows children w/parents walking down street, appearing to be harassed.
Agent agrees they aren't Proud Boys, and it does appear they are being harassed by people all in black (antifa)

So you will agree antifa does harass families?
Objection, scope, relevance

Jauregui said earlier that just because someone is wearing black/yellow, doesn't make them PB anymore than someone wearing all black makes them antifa.
When he asks agent to confirm ppl in video being harassed are being harassed by antifa, agent reminds him of what he just said

Jauregui brings up another InfoWars video where, he says, it appears that antifa is throwing fireworks at civilians and mortars.

Then he plays Tarrio interviewing with Alex Jones on InfoWars.
Tarrio is wearing a shirt that says "stand back" and on his cap, there's a logo "The War Boys"
The video shows the fighting in DC between PBs and antifa.

In video, Tarrio says PBs spent 12 hours overnight patrolling streets against antifa; they protected people against switchblade-wielding antifa etc.
Jauregui: The day time rallies were different than night time rallies?
Agent says it would seem so

Jauregui: You testified on direct that the thin blue line represents order on one side and chaos on the other. the blue line is police? It also reps the FBI?
Agent Camilleri: police in general, so yes

Jauregui: to a lot of americans, that thin blue line was missing for a lot of ht summer?
objection. sustained
officers did not feel respected because of BLM protests?
objection sustained
they let cities descend into chaos?
objection sustained

police allowed country to descend into chaos?
objection sustained

Always say less than necessary. My client hasn't mastered this law, according to his posts correct?
There's an objection.
Kelly, unsure, says um, overruled if the witness ---
Jauregui reframes: He's open

Jauregui (for Tarrio): If my guy stopped talking and stopped posting he wouldn't be in this mess?
Agent: I wouldn't agree with that

Jauregui has agent read 'laws of power' about saying nothing, concealing identity. Tarrio didn't do that, he says.
Do you know that Tarrio was followed by doc film crew on 1/6 and were with him all the time, following everything he did?
Objection, sustained.

Jauregui asks agent about the law of power cited by Tarrio, 'assume formlessness' in comms with PBs before Jan 6.
Jauregui: That means, dont plan anything?
Agent: it means be adaptive

Jauregui says to agent, the parler post put together a narrative you want to created? you want to show how posts (among PB members) are connected?
Agent: I didn't want to show it. The posts showed that
Jauregui: in posts, eventually there's a change of feeling towards police?

Jauregui: Can you name a single Parler post from Tarrio urging people to go to the Capitol?
Agent: No
How about committing violence?
No
How about planning for 1/6?
Agent: Yes there is planning for Jan 6 - he talks about not going in PB colors

Any Parler posts showing Tarrio's knowledge of vote certification or any Parler posts from Tarrio showing a slight disrespect to police?
No
Change in attitude toward police?
Not that I recall
Any private posts of him exhibiting hostility toward police at all?
Not that I recall

Jauregui says FBI Agent was a "worthy adversary" and says, "I hope my daughters grow up to be like you."
That ends his cross.
Now we go to Roger Roots, defense counsel for Dominic Pezzola. (Pezzola is also rep'd by Steven Metcalf)

Roots: You testified that defendants had thousands of followers; Tarrio had over 100k, Pezzola had 54. None of the codefendants, not Tarrio, Nordean, Rehl, none of them followed Pezzola, correct?
Thats correct, Agent Camillieri says

Pezzola followed all of the defendants on Parler prior to Jan. 6, Agent Camilleri testifies.
He started following biggs/nordean on jan 5 but followed Tarrio in November

Following doesn't mean you agree with someone?
I don't think so.
Trump was followed by millions who didn't agree with him?
It's possible yes, agent testifies

Pezzola joined Parler on 11/6, few days after '20 election.
Lots of Americans jumping on parler then? That's because other social media platforms were actively censoring and deplatforming accounts at that time.
Objection, foundation. Overruled, if witness knows?
Agent: IDK

Roots is asking about high profile account censorship - she testifies, she knows that users will be booted from platforms if they violate terms of service
Roots: Isnt it true FBI has had a role in this censorship?
Objection. Sustained.

There's nothing unlawful about vile speech?
Agent agrees, you can say vile things, as is your right under 1A, but it can still be used against you if its relevant to a crime

Roots wants to know how many case agents working on PB case?
More than 100: No
More than 50: No
More than 5? Yes
Agent: This case is unlike any other case the FBI is conducted, so there’s multiple FBI field offices working on this, so its a little bit nebulous.

Roots: FBI investigated PBs before Jan 6?
Objection. Sustained.
Roots: whats the objection
AUSA McCullough: Relevance, scope, foundation
Judge Kelly: Its sustained as to relevance and scope, to be clear

Roots: I'm not allowed to ask any questions about FBI investigation of PBs prior to Jan 6?
Judge Kelly: not with this witness.

Roots seems to be struggling a bit to get his questions together now that he can't go down the rabbit hole he wishes to about the FBI --

Roots: When people say they want traitors to be hanged ... after a news story from Trump promoting hanging, in addition to -- what other examples did Trump use?
Agent: you're talking about firing squads?
Roots agrees...

Roots: (Defendant Zach) Rehl had commented after that story, saying, hopefully, traitors will be hanged. You agree he wasn't really calling for an organized effort to 'hang traitors'
Agent: I can only speak to what he said and he said he hoped that they were shot.

Roots: If the govt has no case, if they were concocting a case, they would use a lot of social media posts, correct?
Objection. Sustained.

Roots: i'm still confused about this book, 48 laws of power. is it the FBI's theory that this book is part of the conspiracies?
we reviewed the book because tarrio posted the 48 laws of power and then discussed those laws when talking about coming to DC incognito for 1/6

Roots: Is it the FBI's theory that this book is a major tool in the alleged conspiracies?
Agent: its my opinion that the laws posted were something that was indicative of what was going to occur on Jan 6

Roots (for Pezzola): you would agree that a plot would fail if these guys never read the book?
Agent: No

Roots: Would it be a requirement for defendants to read the book to be a part of the alleged conspiracy?
Agent says no.
Roots keeps pushing same question.
Agent asks him to rephrase.

Roots: If Tarrio was communicating this plan, this conspiracy through this book and he says, read chapters 1,, 2, 7, 25 or 38, or whatever it was, that if these other 4 guys weren't aware of the book & hadnt read the book that would, by definition, not be a very good conspiracy?

Agent: Our assertion is not that the book is proof of the conspiracy. they didn't need to read it to be a part of it.

There was a short break for the court reporter and jurors are about to return.
I will pause live-tweets for a moment and return shortly.

OK - I am back.

We are onto redirect. AUSA Jason McCullough asks Agent Kate Camillieri about why she keeps handwritten notes?
Because she wants to be as specific as possible, she testifies.

McCullough: You said in notes, there was no agreement because they couldn't settle on a plan, where did you get that from?
It was my idea.
Whose position was that, to your understanding?
The defense attys
What was your position: That there was agreement to stop certification

McCullough: Norm Pattis (for Biggs) asked you a question about HL Mencken. You had a note about him in your books.
It said, "every normal man must be tempted at times to spit on his hands, hoist the black flag and begin slitting throats"

Why did she have this note?
Agent: Because Tarrio made a post about no quarter, raising the black flag. (this was a post on parler from 11/12/2020: "Fuck Unity" post
She included the Mencken quote in her notes, because she felt that Tarrio's post referenced it

Earlier tweet deleted for clarity.

McCullough asks agent to describe how FBI received data that came back from Parler after the subpoena for the defendants content.
The data shows a particular post that a voter upvoted, showing how Rehl upvoted Tarrio "quite a few" times, she testifies.

AUSA directs her attention to a post from Nov. 15 2020 after a lengthy sidebar. The post isn't shown to jurors yet but we know Rehl upvoted it.
AUSA:Was it a cute cat? A recipe?
Objections all over the place, Pattis, Hernandez, Jauregui.

During cross, defense specifically said, for all agent knew, upvotes could have been on innocuous posts like cat pics/vids
Objection is overruled.
Now the agent reads the Tarrio message that Rehl upvoted.

Tarrio wrote in Nov on Parer: "Last week, many ppl were stabbed by BLM. This week, that wasn't going to happen. Fool me once, shame on you. Fool me twice, you get a helmet to the fucking face"
How did Rehl interact?
He upvoted it.

Now AUSA McCullough brings up a screenshot of Tarrio's Parler account on the app.
Do we see the text posted?
Proud of my boys and my country. and the next one, "don't fucking leave"
Is it identical to the gov't exhibit?
Yes, Agent Camilleri testifies

This is Tarrio's account, she says, because you can see his "Noble Lead" handle.
AUSA McCullough elicits testimony: his "don't fucking leave" post was sent on Jan. 6 at 2:46 p.m.

McCullough elicits testimony from agent about the bio on Tarrio's Parler account - these are his own words, his own descriptions, calling himself a "warlord" etc

Quick correction on this tweet in the thread --

"This is Tarrio's account, she says, because you can see his "Noble Lead" handle.
AUSA McCullough elicits testimony: his "don't fucking leave" post was sent on Jan. 6 at 2:46 p.m."

This was actually at 2:38 p.m. on 1/6.

Tarrio had 88k followers on Parler and followed just under 2k people.
Agent is now showing how Tarrio's posts "don't fucking leave" and "Proud of my boys, proud of my country" and their engagement rates on the app; the views were in the thousands.

AUSA McCullough pulls up the profile photos that were used on Parler by the defendants, namely, Zachary Rehl, Joe Biggs and Ethan Nordean.
Photo of Nordean shows him with what I believe is a Punisher-style mask, US flag behind him, biceps visible.

AUSA McCullough begins a line of redirect around 1A protected speech.
McC: Is it protected speech to say I hate barking dogs?
Objections, leading. Overruled.
Judge Kelly qualifies: The question is: is a particular stmt protected speech or not?

McCullough tries again: Is it protected speech to say, I hate my neighbor's dog because he barks and keeps me up all night.
Agent: It is
McCullough: And then the neighbor's dog goes missing...
Objection. Hernandez calls for a sidebar.

After sidebar, we moved on to another q. of protected speech. AUSA pulled up a Parler exhibit featuring pic of Dominic Pezzola below. Tarrio's response to this pic on 12/31 was "Lords of War #J6 #J20"
Is the pic protected speech? Yes.
Could it also be evidence of a crime? Yes

Jurors then see Parler exhibit where Tarrio posted a recruitment/hype video, known as the "bad company" video
And there's another sidebar. It's also lunch, so Judge Kelly says we will break for lunch now. We'll be back in about an hour, so roughly 1:30 PM ET.

After jurors leave, J. Kelly asks AUSA McCullough to tell him purpose of showing a video of Nordean from '18. Kelly says it seems attenuated, "it seems to me if witness testified to something you tried to elicit on direct, I wouldve sustained that objection.. why go into it now?

AUSA McCullough:There are 2 main prongs. This witness (Agent Camillieri) was attacked up and down on her credibility, both in respect to her notes and w/respect to the validity of the data that was being presented, her ability to recall whether someone interacted w/another user

McC. continued: And in this particular instance, this witness responded fully and accurately to Nick Smith (for Nordean). And then Smith said to her, 'you're wrong, that's not in evidence.' Your honor, she has a right to be rehabilitated after being chastised by defense counsel

McC: The question of the violence that this jury has seen? All these defendants have attempted to distance themselves from it. Tarrio said all he does is wear a vest and hat and walk around and try to keep people from committing violence.

McC: When Smith raises Q and says you didn't see any defendants engaged in violence? This witness, in this narrow section of data, has an answer and she answered it and she's entitled to fully answer that question.

McC: For those 2 reasons, this is very clearly, well within the bounds, highly probative of the evidence in the case and at this pt, the prejudice is minimum.

Judge Kelly: I think there's been a # of objections, and on # of occasions, things were elicited on cross that made redirect on the same sort of topics well within bounds even if i think around the edges, im not sure, i would have sustained this kind of questioning ...

Kelly cont.: "...on original direct. Her pointing out a connection, giving some common sense testimony about well, two posts being together, what does that tell you? you all have been playing back and forth about that.

Kelly: This is, for 403 reasons, for no other reasons, something of a different quality. I take McCullough's pt as a technical, technical, technical matter, she was challenged about whether this was in evidence (as it turned out it was, kelly notes) and ...

Kelly: ..my memory is the same as McCulloughs - the original question was not tethered to 1/6 and she answered truthfully & there was a dispute about that. At the end of the day, McCullough, this is something that's -- i mean, you know -

Kelly cont:... the question of whether she was right or wrong, things will be in evidence or they will not and the jury will be able to sort that out one way or another. IDK if its not the same thing as presenting something the jury wouldn't have any way to determine.

Kelly: Let me put it this way, there are ways witnesses' credibility or ability to recall might be challenged and there'd be no way for jury to know who was right or wrong. but here, there ultimately is, without nec. going back over something that Smith is going to tell me...

Kelly cont: "...is highly prejudicial to his client and frankly, was admitted for a purpose, even tethered to Tarrio, not Nordean.
Def atty Smith gets up for his turn and Judge Kelly jokes, pretending to speak for Smith: 'Judge we agree, we'll sit down and let's go to lunch!'

Smith (for Nordean): Her (Agent Camilleri) notes are not the same thing as the video. it cant be held against Nordean that a counsel for a different defendant challenged the data. It'd be wholly inappropriate to show a vid of Nordean engaged in violence from '18 because...

Smith cont.:"...another defendant challenged data. I clarified after this exchange, if i didn't say in connection with jan 6, that's what i mean. i clarified what i meant. i said, do you have evidence of that? i certainly didn't chastise her for her giving false information

Smith cont: To add to your pt judge, this is a video from 2018, so fairness between nov and dec 2020, this is really far attenuated and graphic
Kelly says mmhm, mmhm.
Kelly says to Smith; well, you did make a further stmt saying it wasn't in evidence

Smith: if i hadn't said in connection repetitively, that's what I've been asking about, that surrounds the context of what i'm asking so if witness interpreted me differently than i meant and i clarified, that isn't going to credibility but a lack of communication

McC says he disagrees with Smith.
McC: He said no, no you're wrong and after clarifying the question, Smith told the agent, what type of evidence she was describing. That's Smith saying she's wrong and he's right

McCullough: Your honor, this is black and white. Either someone is right or wrong - this witness has the right to be rehabilitated on this issue
Playing this through and allowing her to say, that's what i was talking about, yes its evidence.

McCullough: Its a question of, did Mr Nordean engage in violence in this video. shes answered yes. so to the extent that there is improper prejudice, Smith elicited that because there's an incident of violence in this video of his client

Judge Kelly: The question of rehabilitation is wholly within the jury's providence and ability to come to a conclusion about it. in other words, they have all the tools right now to understand whats in evidence and they will be able to understand on their own accord...

Kelly cont.: "...who was right or who was wrong and against that I have to weigh the fact that you're pointing to a piece of evidence admitted for a limited purpose and will only impress upon them, given question asked inadvertently by Smith, that use of that evidence is improper

Smith (for Nordean) interrupts McCullough. Kelly says he's always allowed Smith to speak, asks him to please stop interrupting. Smith tries to crosstalk. Kelly says, please.

McCullough tries one more time.
"I need to play the video on the basis of addressing this kind of recruitment. Its set up to the 'culture of violence,' where agent said 'no' (it wasn't culture of violence) repeatedly.

McCullough: This is a specific instance in which Tarrio posted a recruitment video that displays episodes of violence. The jury has a right to be reminded of what we're talking about here. That's the purpose of redirect

After that lengthy exchange, Judge Kelly said he'd issue a decision after lunch.
Before they finally left for lunch, Nick Smith attempted to apologize for the crosstalk, saying he was worried he wouldn't be able to get his points in

Judge Kelly gently told him, part of being a lawyer is waiting to make a point.

Now we are on lunch! Back closer to 2pm given the length of time it took for parties to end discussion over evidence after jurors left

We are back. Jurors not here yet.

Kelly: About video use/non-use: this issue of the phrase 'culture of violence'
This was a phrase elicited on cross-ex by counsel for Nordean, or witness said it while being crossed. There wasn't a request to strike it, or an objection.

Kelly continued: Then Biggs counsel made the phrase a huge foundation of his cross. Nonetheless, it does at least suggest to me, an improper purpose of the use of this evidence.

Kelly: If govt tried to elicit this kind of phrase in its initial direct exmn and there had been an objection, I probably would have sustained the objection.
As far as the redirect goes, if govt wants to redirect on appropriate uses of the evidence, that's perfectly fine but...

Kelly: I would sustain an objection to the use of that phrase. I think there are plenty of ways to get at the issue of the proper use of evidence or to kind of blunt what was the subject of a lot of this, this was ironic, unserious, all joking. That seems fair game.

Kelly: But that phrase, despite the fact it was elicited, I don't think its appropriate for govt to use that phrase.

Kelly cont.: I will not allow cross to rehabilitate agent on pt raised by McCullough w/video - I think its a pretty peripheral pt in the case and the question of whether that is in evidence or not is going to be readily ascertainable by the jury and at the end of the day...

Kelly: The q of whether something is in evidence or not is collateral and risks confusing the jury about the appropriate use of that.

Kelly: If you want to talk about the overall "kidding around" defense, and you want to play the video and ask q's about it w/ regard to Tarrio's state of mind, and knowledge, that would be an appropriate use of the video

I wrote about this "culture of violence" exchange in my recap yesterday:
dailykos.com/stories/2023/1…

Jurors are back. AUSA McCullough pulls up the Tarrio Parler exhibit from Dec. 29 where he discusses PBs coming incognito to DC for Jan. 6. Then he shows a Parler post from Nordean discussing "going to dc on 6th but you won't recognize us..."

In Biggs video talking about coming to DC, not wearing traditional black and yellow - agent says yes its protected speech, but it also shows potential coordination of a crime.

McC: You talked about whether you saw these defendants explicitly storming the Capitol on Jan 6 and said you did not see msgs like this?
Agent affirms.

Objection by Carmen Hernandez for Rehl, she asked before jurors came in that DOJ be careful not to say "the defendants" when it didn't specifically ref her client so as not to prejudice him.
Kelly sustains and McCullough reframes.

Was this photo embedded below here, proof of explicit call to violence for Jan. 6.
Agent says its not directly, but could be viewed as such because Tarrio responded to it, "Lords of War" including J6 and J20

https://twitter.com/Brandi_Buchman/status/1620836305113608192?s=20&t=FKGTekS0ZkH7_B21NIN4wA

Rehl made a post under a PB propaganda video "be careful what you wish for when you ask to release the kraken" with a series of PB, MAGA, 'release the kraken' hashtags -- was this about the election?
Agent affirms.

Jurors are now watching a PB propaganda/recruitment video that features slogans like "fuck antifa" and "we are proud boys" and "loyalty to my president" and shows what is purported to be antifa attacking civilians, fighting w/PBs. Agent testifies these videos glorify violence.

You were asked a # of questions about hyperbole? Correct.
Who is Tarrio in re: to PB?
He's the chairman
Who edited the video? You, anyone on prosecution?
No
Who posted it?
Tarrio

McCullough: Based on accompanying texts to the propaganda video -- Tarrio posted the recruitment video and then posted a message urging to maintain culture of PBs - did that seem like hyperbole?
No

Did Tarrio post anything in November or December to encourage people to come to Washington?
Yes.
Did Tarrio post anything in Jan to encourage people to come to Washington?
Yes.

Redirect is done.
Now Judge Kelly is offering limiting instruction to the jury as evidence.
In sum, the instructions: You've heard evidence about stmts made to and by defendants on Parler - if evidence supports it, you may consider stmts as evidence that, for example...

Kelly cont:. .that a conspiracy existed, a defendant entered into a conspiracy or a defendant had a certain motive, intent, or knowledge.

Kelly, in sum: The 1A protects the right to free speech where that free speech does not pose an imminent risk of violence...
This doesn't apply to speech jury personally finds offensive.

FBI Special Agent Elizabeth D'Angelo is now on the witness stand.
We are meant to end at 3 p.m. today due a scheduling issue with a juror.

There's a sidebar.
Before the sidebar, defense attorney Carmen Hernandez asked Judge Kelly if there would be cross today given the schedule issue.
Judge Kelly said we would get to what we get to in the time allotted.

FBI Special Agent D'Angelo has been with the bureau for 6 years, she works in the Philadelphia field office (go birds).
She investigates violations of federal law, participates in searches/arrests/evidence seizure

Agent D'Angelo is under direct examination by prosecutor Nadia Moore today.

D'Angelo is explaining the process of how a search warrant is obtained and executed. We heard this with Agent Camillieri earlier this week.
Moore: So if judge does find that probable cause does exist --
Objection.
Sidebar. Husher on.

Sidebar over.
once you have a lawful search warrant, what are you permitted to take?
Anything in "attachment b" items to be seized. There are procedures for securing and seizing evidence, D'Angelo testifies.

There are protocols in place to photograph evidence; search teams are put in place to find evidence. once found, its photographed in place, sometimes we have to move it if its in a non-obvious location, but that move is noted, its taken, collected, bagged and marked

D'Angelo continues... its sealed with evidence tape, transported to whatever field office is holding that evidence, logged, put in a secure space at the field office.

D'Angelo executed the search warrant on defendant Zachary Rehl.

She describes Rehl's home in Philly - the typical rowhome.
How many agents involved in search?
D'Angelo: Between 9-11 total, some were agents, some were task force officers, support staff, agents deputized to work for bureau
Typical # of agents?
D'Angelo: it depends, but typ

Moore: Before you conducted search, did you familiarize yourself w/items you were meant to seize?
D'Ang says FBI took evidence tied to Jan 6, disruption of certification, civil disorder/riots tied to 1/6, assault against officers, proud boys ephemera
Obj by Hernan., overruled.

Prosecutor Nadia Moore has FBI Special Agent D'Angelo handle physical evidence for jurors - its the
black jacket seized from Zachary Rehl's home.
D'angelo holds it up for jury to see, showing back and front.

D'Angelo now reviewing more physical evidence; this time it is a # of Proud Boys challenge coins.
Recall, jurors saw challenge coins back on 1/18 when DOJ went over items seized from Joe Biggs home; this arguably fleshes out connections among conspirators

https://twitter.com/Brandi_Buchman/status/1615764164735008773?s=20&t=7YAKOzuc6jdB-A96vIDKKQ

Jurors see the coins. One is black, yellow, says "Kazoo boogaloo, 2020" 3 ppl are on it
Objection (didn't hear for what, sorry) but it was overruled.
D'angelo continues: individuals appear to be fighting, wearing vests and helmet, and spraying liquid on what looks like a Pikachu

And now that it is a bit after 3, Judge Kelly needs to end the day. We'll pick back up with direct examination of FBI Special Agent D'Angelo on Thursday.
Jurors are excused.

Sabino Jauregui says he's been summoned to a federal court in Miami to attend a teleconference hearing at 10 a.m. on Thursday.
Kelly says that's fine, he's sure clients will be in his good hands

AUSA McCullough apologizes for standing up when he used the phone and moved toward the podium.
Judge Kelly: very well...

Moving on...

Kelly wants the parties to narrow down the scope of evidence they wish to admit.
I understand gov'ts position, it seems to me, so we aren't going doc by doc, i need to give parties space to narrow the disputes...

The evidence at dispute: social media posts from Telegram; plus limiting instructions for video evidence

There will be questions around the margins, DOJ says and adds: we've proffered a factual predicate for one of the theories lacking at that stage. I think frankly, there are some overarching issues that weren't really teed up back in Dec.

DOJ says its not a good use of time going through each one of Telegram msgs (1-200) but he wants to look through a few of the exhibits because it would give everyone a feel for how he may rule moving ahead

DOJ: These Telegram chats feature different speakers within individual exhibits, usually one of the defendants or co-conspirators.

Hernandez (for Rehl) raised pt that sometimes speakers are not alleged co-conspirators, so DOJ thinks its necessary to bring in surrounding context

DOJ doesnt think this has to be adjudicated on a case-by-case basis.
Kelly: I don't see how anyone in any... if there's a basis for the admission of a stmt by an alleged co-conspirator or defendant, we know a partic stmt will be hearsay...

Kelly: I don't see how anyone can argue that the surrounding statements also come in - conceptually that just has to be the case.
I believe we've already had evidnce at trial that conceptually, this principle has been deployed w.o controversy. I think that's right?

Kelly: The question of context -- maybe you're right, this is all the context. Or maybe a given exhibit leaves out a post, or part of the chat that they think is critical. The q. of context raises other issues that defendants just have to be....I get they are on notice here...

Kelly continues: But they have to be able to confirm that there's nothing they think that should be added because of the context.

DOJ says just having heard Judge Kelly say this for a few minutes is fruitful and puts everyone in better position for next day.
Kelly says, very good, then asks if any defendant disputes, at least conceptually principle he's laid out?

Smith: Court mentioned length of time to review this many Telegram chats, chat by chat, and we share that concern and that's how we believed admissibility stmts work... stmt by stmt basis...

DOJ offers to provide defense with a chart laying out exhibits that they've produced and in order they intend to offer them. The chart can indicate which of various theories they think are admissible, controversial or not.
That would put defense in position to...

...respond intelligently.

DOJ says it can send a chart over in the next several hours and asks for a tight turnaround by defense to get this back to them so its teed up for discussion. They want to put witness up on Monday who could speak to Telegram chats

Kelly: provide them the chart and let's talk first thing tomorrow. they'll have a chance to see the chart and we'll have an idea of how aggressively or quickly they think they can respond to it.

Kelly: This all turns on what % of these things turn on rulings I've already made and what % are of a more controversial variety and I don't think I have a sense of that right now.
Kelly: if you want a deadline for defense to respond to you about chart...

DOJ: to us or to the court, in a way that identifies what's really at issue or not
Hernandez objects, but she is not on mic, so I cannot hear her.

OK, Hernandez has her mic working.
She asks govt: to extent any of these are alleged co-conspirators and by that, none of the defendants ... would govt please ID who alleged co-conspirators are so it can enter into our determination? Other than Charles Donohoe (PB NC)

Hernandez (for Rehl): ...there appears to be a lot of other ppl in gov'ts mind... and we don't know who.
To the point of govt seeking tools of co-conspirators -- she asks for a list of people who would fit in this category or the aforementioned.

To extent the govt is arguing that something comes in because someone is a co-conspirator, they do and have to ID who that person is.
is that controversial in govt perspective?
No, DOJ says, we're not alleging anyone is a co-conspirator anyone other than who govt IDed

Kelly: I think the question for me is what is a reasonable schedule and turnaround on all this?

Judge Kelly says Saturday is too far ahead in the schedule, so he wants the defense to respond to the govt's chart by Friday at noon.
Hernandez: We have clients in jail it will be really hard to talk to him tonight or tomorrow. I find it hard to talk to my client...

And Hernandez stresses, she must be able to talk to her client before this.
I think we've all expressed difficulty in talking to our clients. Friday at noon gives us Thursday night and a.m. of Friday -- but we're in court and preparing for witnesses

Kelly responds, "I'm trying to balance here... but hte fact that you knew..."
Hernandez cuts in
Just last night at 10PM, DOJ gave us 2 "charts" with lists of exhibits w/respect to different defendants. She opened it this morning, is unsure how complex it is...

Hernandez: The point is, yes we've had these exhibits since November, but early on, I told the court, my experience with Judge Mehta -- we went through out of court stmts at end of day one by one even though there were broad scope rules, we still had to go one by one.

Judge Kelly tries to speak, Hernandez speaks over him and says, im just looking at it, ive just started to talk to Rehl about (the chats) and she says, she's not unique, every defense counsel feels this way

Hernandez says she understands the govt thinks defense should be ready, but she says, they have more attorneys working the case than they do.

Attorney Steven Metcalf for Dominic Pezzola says, allow us to get the chart tonight, go through this then we can have a better sense of the timeframe we can work this out in

McCullough: Nothing sharpens the mind like a deadline. We're going to be left unmoored, coming to you on some future date saying it turns out, we gotta plod through all 200 msgs...

McC: There's got to be a way we can clear away the legal underbrush here... we have to narrow this & need to do this soon. If we need to take Monday off because we need to do 150 one by one, then we need to all be working towards that and out of courtesy to jury...

McC: we're not bringing them in here at 9:30 a.m. unprepared.
If we don't set a deadline, we'll be spiling away into next week. He thinks the Friday noon deadline is appropriate.

Dan Hull (for defendant Biggs) wants the Friday deadline. Hull said he's worried if they dont set that one, this will force court to take Monday off and drag this out further. Proposes mid Saturday deadline.

Pattis chimes in (Biggs) the Telegram chats could take 2 weeks to go through if done individually...
and he makes this analogy:

https://twitter.com/rparloff/status/1620884612011655168?s=20&t=FKGTekS0ZkH7_B21NIN4wA

Judge Kelly says now, after another objection from Hernandez, he'll set a deadline of Fri at 6 p.m. for govt chart

Govt can file proposal on Sat at 2pm with where we stand and what process is needed to resolve, need a day blocked off etc.

Hernandez raises a "wrinkle" some of these chats feature sealed info. Kelly says that will be addressed

That does it for me today, folks. Court is adjourned and I will return tomorrow at 9 a.m. ET.
Thanks for joining me.

I have a small favor to ask. If you enjoy my work, would you consider also reading and sharing this update about the state of negotiations at Daily Kos regarding potential layoffs?

https://twitter.com/Brandi_Buchman/status/1620902105702703112?t=H2Z6_73j0b9Mr9ktuefYHw&s=19