Thread by @Brandi_Buchman

Good morning and welcome to the 35th day of the Proud Boys seditious conspiracy trial. This restive scene, before we begin another busy trial week, is from the upper garden at George Washington's Mt. Vernon home. I will start live tweets at 9am ET for @emptywheel. Join me?!

The cherry blossoms are also blooming here at the courthouse!

Before we begin today, let's catch up on where things left off and where they stand for now.

As court left off last wk, there was much commotion about a "spill" of potentially classified info that was inadvertently disclosed to the defense.
My report:
emptywheel.net/2023/03/10/jan…

Over the last few days, the gov't has responded and has effectively argued that there was a lot of unnecessary excitement and unfounded claims of impropriety by the defense that don't amount to much once under closer inspection. For example....

Prosecutors argue: when FBI Agent Nicole Miller began her testimony about the PBs movements/activities on 1/6, the inadvertent disclosure of the Jencks material in the Spreadsheet didn't have much to do with the actual scope of her testimony & therefore...
documentcloud.org/documents/2370…

...defendant Ethan Nordean shouldn't be able to cros-examine her about its contents. Nordean said he wants to examine Miller about msgs that show an entirely different FBI agent's opinion on the govt's conspiracy evidence, msgs about whether another agent was at a mtg for a CHS..

...and messages that he says were protected under atty-client privilege (these were related to def Zachary Rehl). Nordean also wants to cross Agent Miller about a msg found in the spreadsheet where an agent discusses destroying 338 pieces of evidence (unrelated to PB case)...

But, according to prosecutors, none of these topics are within the scope of Miller's direct testimony and the govt wasn't actually obligated to provide the defense any of these Jencks materials that emerged in the spreadsheet. Nordean's atty, Nick Smith, is pushing for these qs..

...because he wants to impeach Miller's credibility. (Her testimony lasted two full days and it was some of the most impactful yet).
But these stmts in the spreadsheet, and namely, those the defense zeroed in on that Miller didn't even make herself, again, outside the scope.

Citing several bits of case law, the govt notes, for example, in US v Bin Laden at SDNY, the court found that a "statement's mere relation to the subject matter at issue in a case does not render it producible...rather only a stmt related to a witnesses' testimony..."

The disclosure of the spreadsheet does not grant the defense carte blanche to conduct a fishing expedition, in short.

Regarding the assertion by the defense that Zachary Rehl's "privileged" jailhouse atty-client comms were improperly listened in on, the govt says - no dice.
Those comms go over a system at the jail that attorneys and clients alike are told is monitored. It is not privileged.

"Any privilege associated w/communications at issue was waived because they took place over a monitored jail email system that was subject to routine monitoring, which was made known both to the inmate (who had to sign + acknowledge upon registration each time he used the system)

...and to the attorney. Any further exploration of this topic in the jury's presence, therefore, would confuse hte issues and prejudice the govt by wrongly insinuating that the govt was covertly spying on privileged communications."

So, how about the msg from another agent to Miller where they talk about destroyed evidence?
As suspected last week - it wasn't about this case at all, the govt says. The comment was related to a nearly 20-year old case.

And, govt says, as far as the q's by the defense about a comment from another agent to Agent Miller about having their named edited out from a confidential human source report, that is unrelated too.

The agent who sent that msg was referring to an email sent by the CHS who is an online researcher and not a member of the PBs. The agent who sent it recently moved into a supervisory role and was no longer overseeing that source and didn't realize he was still rec'ing emails..

Any further msgs where Agent Miller appears to express an opinion about the strength/weakness of the prosecution's case against Proud Boys are also irrelevant and inadmissible. Cross-examination isn't appropriate and further, govt wants Smith's q's about this last week struck.

Meanwhile, Zachary Rehl's attorney, Carmen Hernandez, has filed a motion seeking to dismiss the indictment against her Proud Boy client altogether due to what she says is a violation of his 6th Amendment rights. She would also like an evidentiary hearing.
documentcloud.org/documents/2370…

Hernandez says the govt's claim that Rehl waived any atty-client privilege while in jail is wrong; she says there were no warnings provided that msgs were monitored and points to a Philly correctional facility handbook as her cite.

Hernandez: "As privacy is vital to effective representation and to the development of the atty-client relationship itself, the govt is forbidden from eavesdropping or planting agents to hear or disrupt counsels of the defense."

Now -- I have learned that we will not start the court day today until 10 a.m. ET.

The exact reason we're not starting at 9AM today is not entirely clear to me ATM but it sounds like it could have something to do w/the judge needing a bit of time to review the series of motions that came in over the weekend and getting all parties ready to hit ground running...

Roger Roots, defense attorney for Proud Boy Dominic Pezzola, has asked that the indictment against his client be thrown out altogether.
documentcloud.org/documents/2370…

Roots, it would appear by the filing, stands alone on the request to dismiss the charges against Pezzola. Pezzola's other attorney, Steven Metcalf, did not sign onto the motion at all.

So, very important to establish: the first pic is cherry blossoms but the second pic, upon closer inspection and thanks to an eagle-eyed reader - those may not be cherry blossoms. They may be a magnolia variety!

https://twitter.com/Brandi_Buchman/status/1635273261532745730?s=20

Oh lord and the autocorrect got me on restive/restful - also pointed out by another eagle-eyed reader.
It's Monday and I tweeted before caffeine. I ask you to please give me a break.

Live tweets should begin shortly. And lucky for you all, I am now powered by courthouse coffee.

And away we go.
Judge Tim Kelly is on the bench.

Kelly wants to start with a few housekeeping matters and then he'll rule on scope of cross-ex issue with Agent Miller.

Kelly to Nick Smith, for Ethan Nordean: Proud Boy Eddie Block's attorney is withdrawing his motion to squash subpoena issued to Block.

Re: Hernandez motion to dismiss trial, request evidentiary hearing about possible 6th Amendment violation (higher up in thread).
AUSA Erik Kenerson wants to respond to Hernadenz's motion by tomorrow morning so they can do so completely

Kelly says Hernandez motion/request will beb something that will need to be addressed sooner rather than later but he's fine with tabling it until tomorrow and then we can talk about when Hernandez can reply.
"If we need to have an evidentiary hearing, we will."

Kelly now addresses motion from Roger Roots to dismiss trial.
Kelly asks when govt can respond and he tells Roots outright: I'm skeptical any of the relief you've requested is appropriate.

AUSA Kenerson says govt can respond to Roots motion to dismiss by tomorrow morning as well. And that is now tabled too.

Kelly, now speaking about ruling re: cross of Agent Nicole Miller.
Last Thursday, at the start of her cross, Nordean revealed he had discovered a volume of msgs sent to Agent Miller by other FBIB agents hidden with Jencks production on spreadsheet.

Kelly released jury early, we heard arguments from parties. There was confusion and speculation that followed about the msgs, but as I understand things, here's what happened: Miller rec'd a large spreadsheet from FBI HQ with chats from Lync. She filtered to display only her msgs

From there, she deleted msgs not responsive to Jencks purposes and in so doing, neither Miller nor others at FBI revealed other agents msgs; prosecutors were not aware msgs were there; at some pt, Nordean's atty found hidden rows.

Because of Agent Miller's own filtering, the newly revealed rows appeared to show gaps in conversation. Govt reviewed the spreadsheet for classification and produced a repro of govts spreadsheet les 80 ros they claim are classified; 2)

message to Miller that contextualize convo re; Nordean and 3) revised production of miller's msgs, which also contains msgs from other agents to provide context
Kelly has rec'd no additional motion for additional Jencks productions.

Now Kelly must decide if defense can cross Miller on some of these msgs; whether mill created a chs report that improperly edited material about an agent at the mtg; whether rehl's atty client comms were reviewed improperly; whether agents had discussion about A. Wolkind's role

Kelly on CHS: It's a msg Miller rec'd from another agent asking her to edit out his name from a CHS report. Miller said, "which report" showing you read it and was making effort to respond.

Nordean says this is appropriate for cross because it goes to Miller's credibility. It's not within the scope of her direct testimony, Kelly says, so he's only weighing whether this line of q is relevant.
Limited examination on this subject is appropriate, apart from whether...

Miller produced msgs or not. It's plausible she was asked to present a CHS report on this case that was incorrect or misleading and if she did, a reasonable juror could assess this.
Govt proffered an innocuous reason for this convo...

Nordean cannot just show the msgs; but his attorney can ask whether the agent was speaking about this case and work it that way. Kelly says agent has not opened herself up to impeachment on this based on questions he asked last week...

Even taking msgs at face-value, they didn't contradict Miller's response to q's from Smith last week.
Any failure to disclose msgs on this subject or what happened during this back and forth with supervisory agent, relevance depends on her explanation of the request

Next: Rehl's communications with his former attorney Jonathan Moseley.

J. Kelly says he won't let any questioning on cross about this at all. Whether or not Rehl's rights were violated here is a subject of a separate motion filed by his atty. And further, neither Nordean or Pezzola have right to challenge whether Rehl's rights were violated or not

Maybe there will be a need for an evidentiary hearing, maybe not, Kelly says. That will be determined.
Miller's discussion w/another agent about that agent reading msgs about Rehl as far as agent's credibility go --
First, no reason for Miller to produce these comms as Jencks

Kelly: They are not within scope of her testimony, any failure to turn over does not impeach her credibility for that reason.
The comms between colleague and prior counsel is only potentially relevant if MILLER engaged in some misconduct and record doesn't support that

Kelly: I havent resolved whether there was any 6A violation by Miller's colleague.
Kelly adds: Rehl and Moseley were exchanging emails on a system that warns them: conversations are monitored.
Regardless, cross-ex is not proper vehicle to litigate a 6A challenge, Kelly says

Whatever probative value it might have is substantially uplifted by danger of unfair prejudice, confusion of issues and misleading the jury.

Nordean argues he can impeach Miller on contradiction of this subject; smith asked last week if another agent had gained access and Miller said not that I can think of, no. even if nordean can impeach, again, probative value is minimal compared to risk of unfair prejudice

Kelly: "Its the province of the jury to weigh the evidence"
The judge continues: It doesn't look like Nordean plans to question Agent Miller about another agent's comment re: destroying evidence but it seems Pezzola wants to.

The govt again here, proffered an explanation: the comment related to evidence in FBi custody was from a 20-year old multi-defendant case; destruction was routine. And further, this is not Miller's stmts for Jencks so it has no bearing on her credibility at testimony

Kelly: Agent Miller didn't send the msg; msg has nothing to do with this case but its easy to imagine how a defendant might see this and use it to assert misconduct.
Then Kelly addresses Pezzola's argument more specifically:

Kelly says the suggestion by Dominic Pezzola (Via Roger Roots) that Agent nicole Miller should be Mirandized because she broke the law is speculation that has no place in this courtroom.

Nick Smith for Ethan Nordean is now reading some of the transcript from last week back to Judge Kelly then says, the deletions in spreadsheet concern matters that are not administrative on their face. "It's not admin. on face for agents to discuss content of atty-client comms."

Smith is now, in effect, orally disagreeing with all of Kelly's rulings this am. On destruction of evidence bit - even if it doesn't involve evidence in this case, it goes to credibility.

Smith continues to argue and Kelly says he has already said this morning he wouldn't hear arguments.
Smith keeps pushing.
Roger Roots says he wants Smith to be able to make his arguments on the record.
Kelly tells Roots they've had this chance via the motions & historically...

Kelly reminds the attorneys this morning, he's always provided them ample opportunity to file and put items on the record. (He 100% has done this)

Pattis wants a limited inquiry....
Kenerson: The court did set the deadline for briefing on this issue and Pattis agreed to it. The fact that he's raising it now orally -- our first response is, he should have briefed it.

AUSA Kenerson continues, with an aside: to pt there is any probative value there, it gets to agent's opinions, again, full stop, not relevant

Kenerson: The fact there may have been discussion about strength of evidence, that doesn't come even close for motive for witness to exaggerate even if it did provide some limited amount of motive, that's substantially outweighed by 403 consideration that court has articulated...

Roger Roots for Dominic Pezzola is now also pushing back on Judge Kelly's ruling. Roots wants the DOJ to say right now, here in court, what case the agent was talking to Miller about re: routine destruction of 20 year old case

Kelly shuts Roots down efficiently. He's already said: his argument is irrelevant, its speculative. there's no evidence to support his claim.

I'm having technical issues with Twitter so I'm going to step back for a moment and resolve them.

OK, let's hope things are settled - I kept trying to send out tweets as normal, in multiple post thread, and kept receiving an error.

While I stepped away; Steven Metcalf for Dominic Pezzola attempted to argue Kelly's rulings this morning re; 6th Amendment violation, saying he doesn't know how to proceed. Kelly told him in sum, hey you had a chance to file on this and some of you did, some of you didn't

Metcalf kept arguing and Judge Kelly asked if govt would provide defense with a privilege log featuring those items that were yanked out by govt from the Spreadsheet.
AUSA Ballantine will be back tomorrow and she'll provide the log then. Further...

Kenerson highlights: the msgs sent by Miller were NOT within scope of her direct testimony anyway.

Super annoying buggy Twitter feature right now - each time I try to post more than 2 tweets in a row, I receive an error and then I'm prompted to discard tweets, not save to drafts or anything actually helpful.
So please bear with me if I'm a bit slower today.

OK! And with that - the jury is coming in.

Nick Smith for Ethan Nordean is at the dais and he will now resume cross-examination of FBI Special Agent Nicole Miller.
(Before he starts, Kelly reminds: we have a hard stop at 5pm today and we won't sit on Friday)

Smith: We broke for a couple of days and my first question is, whether if in meantime, between then and now, had any conversations with prosecutors or agents in case?
Miller: No
Did agent/prosecutors share any info with you?
M: No

Miller testifies, again, she's a case agent with 6 other case agents on the Proud Boys probe.
She reviewed or crafted CHS reports?
Miller: Yes
Which? Review or craft?
Miller says both but not nec. pertaining to this case; but has reviewed CHS reports with this investigation.

Did another agent ask Miller to edit out that he was present in a CHS report?
Miller says yes, but there's more to that.

Smith doesn't let her run on; focuses her attention on the comment and now wants her to read the stmt in spreadsheet to jurors. She does.
When agent asked about editing his presence out of unrelated CHS report (he wasn't on case) she asked, which one?

Again, govt through Miller is now re-establishing this same information and it seems like we're circling the drain on this and Smith is reaching.
This agent was not involved in this investigation.
Smith asks when an agent tells Miller to edit out that he was present, is that..

a fact - does this go toward whether the person was or wasn't present.

The person was no longer responsible for handling the source, since their name was still in the email, that's why they were copied on original email. That's what "present" meant in the conversation.
Smith asks if agent was asking her to make a false entry?
Miller says no and..

again, I wonder, if the juice is worth the squeeze for Nordean here. Smith may risk confusing the jury on something that may not matter long term in their deliberations. Remember folks, we've been here for 35 days. And we still have 4 weeks to go.

Smith elicits from Miller: no the agent was not asking her to make a false statement.

Moving on.
Smith asks about Agent Miller's interview of Charles Donohoe (already pleaded guilty)
Sidebar

After sidebar is over, Agent Miller testifies she's interviewed Charles Donohoe, Kenny Lizardo and Jeremy Bertino.

Smith: Isn't it the case you gave Bertino false information?
Kenerson objects, scope.
Sidebar. Kelly says this could have been addressed on earlier sidebar.

In interviewing witness, have you given a witness false information about the nature of the government's investigation?
Not that I'm aware of, Miller says.
She asks what this is pertaining to.
And now Smith queues up a video.

There's a brief sidebar and then the video continues. Its Jeremy Bertino's FBI interview.
Miller interviewed him in March 2022.
Does she recall showing him a doc 1776 Returns?
(I couldn't hear the video here in courtroom)
She does.

As Bertino (who has already pleaded guilty to seditious conspiracy) looked at 1776 Returns doc, she informed Berinto that Tarrio created it, Smith says.
Why?

Miller: The information was recovered from Tarrio's phone which FBI just got into prior to interview with Bertino. Tarrio was sent that document from Erika Flores and then he Googles 'winter palace' and he wouldn't have known unless you opened the doc.

Miller: He gets it on 12/30 and googles 'winter palace' on 1/2 or 1/4, then there's a text to Bertino saying "winter palace" which indicated to me that Bertino knew abobut the doc and I believed Tarrio had created it or had some role in creating it and i still believe that

Miller: I think he had a role in creating the document. There were different variations of the document, each had different edits, so I think Mr. Tarrio had some involvement in that.
Smith. That's what you think. Can you tell us what the facts are?

Miller says there are texts between Tarrio and Erika where she's talking about creating something & it indicates that she is planning on working something and wants assistance with it.

The document is sent to him, Miller thinks, on 12/30 and he googles 'winter palace' shortly thereafter...
Miller continues her testimony and explains that there were multiple versions and then later, Tarrio texts Bertino using 'winter palace' in text and...

Agent Miller testifies that on Tarrio's phone, the 1776 Doc shows as having been "created, modified or accessed," further leading her to believe that Tarrio created it.
And she notes, after this metadata, she found Tarrio had contacted Nordean.
Smith drops it from here.

Smith asks now about Eddie Block, PB photographer.
To Miller: Have you seen any indication that defendants did not know that footage was being streamed online?
Not that I can think of, but only because as Eddie was filming, he would say things like 'server's down' or....

Miller cont.: "can't get a connection."
Miller concedes, she doesn't know if PB defendants were within earshot of Eddie Block when he would complain about the difficulty of streaming.

Miller was also unable to say with certainty whether PBs gave documentarian @nickquested to follow them around, but she also said, she's not heard or seen evidence suggesting they did not want Quested following them.

Now Smith plays a video for the jury from Jan. 6. The Washington Monument is pictured toward the back corner. Then, Nordean is seen, using a bullhorn. Nordean can be heard saying that "we're going to the Capitol" to "make a presence" and then back to Ellipse (Trump speech area)

Smith points out in video that Travis Nugent stands in the crowd. Nugent was standing close to Nordean.
Smith: Was Nugent consulting with Nordean?
(Defense wants to call Nugent as a witness once its their turn to make their case in chief)

Smith and Miller go back and forth for a bit over direction Nordean is pointing and whether Nugent was consulting with Nordean. Miller said the video appears to show Nugent's hands pointing in similar direction of Nordean after they speak.

The video plays. Miller is focused in on the pointing.
She says Nordean says, "we'll go to the capitol, points behind him, pause, then looks in direction of Eddie Block and then points to the direction to Monument

Smith now asks Miller about the moment PBs stopped at food trucks gathered. (All of these q's so far have to do with time period before the breach).
This is about 10 mins before they proceed to Peace Circle?
Miller: Yes
Now Block's video footage plays for jury..

Stop at food trucks was one of PBs last stops before the Capitol, Miller says.
A journalist in video (I couldn't properly ID), Smith says, asks Block if they're going back to the rally. Then journo asks, is anything going on at the Capitol? Block says, no, not really.

Smith brings up another clip. Points out Travis Nugent in footage in proximity to Biggs, Nordean and others as they are walking, capitol in the background. They are headed to food truck area, Miller says they will eventually loop behind east side of Cap and then come around again

Miller said Nugent would often point out directions.
Nugent is doing that in this clip here. (You can also see Rehl hold up what looks like a phone to his mouth as they walk)

Smith asks Miller if Travis Nugent is pointing back toward the Ellipse or the food trucks?
He plays the video back and asks Miller if she can hear what is being said. She can barely make it out. (It would seem this is part Smith wanted headphones for last week)...

Smith: Did you hear [Nugent] say, "start heading back"?
Miller says she hears that but as Smith tries to nail down the direction the group is going, he doesn't get terribly far.

Smith: Earlier we heard Nordean say, 'we're going to head to the Capitol and then to the rally,' correct?
Miller: He did, but that's not what they did.

More footage plays. Smith asks about a woman seen interacting with PBs/Nordean, Pam Hemphill (phonetic?) in video clips used by prosecutors last week during direct.
Hemphill asks: "Are we going inside the Capitol?"
Smith: She's pestering them?
Miller says she's taking video.

Now Hemphill's footage from 11:41AM on 1/6 is shown to jurors.
A man says: than, let's fucking do it.
Nordean: what?
Person: let's go check out with the Capitol
Smith suggests Hemphill's heard in video saying, take the capitol?

Smith asks if Nordean shakes his head in response to Hemphill.
(In footage, he's shaking head up and down, not side to side. And he also raises his hand slightly up, as if to halt, Smith doesn't note that, but its visible)

Gilbert Fonticoba then approaches woman who Miller/Smith believe is Hemphill in video background; Smith says if Hemphill was asked to leave at that point.

Smith asked Miller if she saw other footage where someone told Hemphill to leave and Miller couldn't recall.

Next clip: PBs walking (Eddie Block in wheelchair on the move w/them) and in clip, Nordean can be heard saying 'give us space'
This was something Nordean would tell media. He didn't address Block this way, Miller says, because he likely didn't consider him press in same way

Next clip. This is at the Capitol exterior, I believe it's east side.
Smith asks if Miller can hear what is being said. The video runs. There's Nordean, Nugent and Biggs.
Smith: Is [Nordean] saying something about a 'meet and greet'
The clip plays and Miller says, yes

Next clip from 11:26 a.m. This is govt montage.
Nordean: We have a plan and they can adjust
BBiggs: They're gonna look for the patriots
Then video ends.
Smith asks if Nordean's next stmt after montage ends was him saying if they had a plan for a photo op at any point?

Miller says she doesn't know what Nordean meant - if "plan" comment by Nordean was in regard to photo op or anything else.
Nordean did give a speech after that. He does tell police officers nearby to uphold their oath or they [PBs] will for them etc.

Smith: That's not what I'm asking, after the montage fades to black, do you remember Nordean saying they'd go to east side of capitol for a photo op?
Miller: I don't recall.

Smith plays footage a few times and Miller is having a hard time making out someone says they are going to take a "bad ass picture" and then she hears someone say it.

There's a brief sidebar and now we break for lunch.

https://twitter.com/ryanjreilly/status/1635307208224411648?t=IlvmINB0vEDyJm2KpRv_YA&s=19

And we are back!

Judge Kelly now brings up the motion Nick Smith filed re: potential witness Travis Nugent and scheduling issue Smith raised earlier - we were going to be off Friday so Judge Kelly could attend to another, unrelated matter. (Often the case on Fridays in this trial...)

After lunch, Kelly came back and said his schedule had opened up on Friday and we could potentially sit for a half day. There's a sidebar. Husher on. When we're back, Nayib Hassan (for Henry Tarrio), tells judge he and Sabino Jauregui just made plans during lunch to travel...

on Friday. There are other scheduling issues with other defense attorneys too for Friday.
Kelly tells Hassan he would prefer the court sit for a half day Friday if possible, so Hassan may need to change his plans.
But...

none of this gets firmed up as government needs to confer about the witness appearing out of order etc.
So sounds like we'll have a more clear answer on whether we're sitting on Friday later today.

The issue with Travis Nugent (a requested witness for Nordean) is that if he were to appear, he would show up on March 20. The problem is that the govt' case may not be over at this point.

Now, separate issue. Nick Smith (for Nordean) wants to introduce a transcript featuring enhanced footage

But Judge Kelly wasn't inclined to let it in.
"The problem is is that its based on an enhanced version of a tape that I have no foundation to know what was done to it."

I cant pull apart what person relied on to say a, or what person relied on to say b, Kelly continues.
Smith says words on tape are demonstrative, the transcript is an aid.
Kelly says he hears what Smith is saying but this is different than admitting.
Kelly: "I can't allow it"

Carmen Hernandez is pushing for this too, feeding notes to Smith at the dais.
Kelly has said he can't allow it at least two times.
Smith says transcript was created from a listener who listened to this video file and if witness doesn't see the same stmt on transcript...

...she can testify to that.
Kelly: Again, if this were a transcript that wasn't based on an enhanced audio.... if the govt wasn't objecting, that would be one thing, but they are.

The jury is brought in, so that ends Smith's line of argument.
We resume with cross.

Smith brings video back up from earlier from before the breach of the Capitol where, Smith says, PBs are talking about going near Capitol for a "badass picture"
Does she hear Nordean saying "we have a plan"
She does.
Does she hear a voice say "we're going to wrap around?"

Miller: I heard 'wrap around'
Smith plays the footage and tells Miller she should hear someone say "walking towards" and then "head back."
Someone is laughing making it hard for Miller to hear, she testifies. She can't heard head back, but can hear "walking towards"

Smith moves on.
Do you recall that I asked you aoubt video shots where Nordean and others were pointing west in direction of Washington Monument?
Yes
I asked whether rally was in same direction of Wash. monument.
Miller recalls, she said, that's not what ult. happened.

Miller: They went towards the food trucks & then they went back towards the Capitol.
Smith: When I was pointing out these images of individuals on march opting back toward Monument, you said that's not what they ended up doing. You meant they ended up going east, into Cap?
M: Y

I was asking you not what they were going to do, but what direction they were pointing to, Smith tells Miller.
Smith: you said you meant that they ended up inside of the Capitol?
Miller: Ultimately, yes
S: As opposed to ending up at Monument or the rally?
M: Yes

Smith: Might the decision to go to the Capitol have been made after the point in the clips?
Miller: I don't know
Sm: So you don't know when marching group made its decision to go to the Capitol
Miller waits a beat, thinks and says "yeah, correct"

You heard clips where Nordean discussed going to the Capitol to take photos. There was a video clip of Biggs saying 'we're gonna turn around and do a photo' and based on your review of evidence, that's what defendants did?
M: Took a photograph? Yes. they did

Smith (for Nordean): A series of photo ops?
Agent Miller: I mean, they took a series of photos on the east side when they were there

Now Smith plays a short clip from before the breach of the Capitol as PBs are congregating outside the building.
S: Did you hear someone say let's get some good pictures?
Miller heard someone say good pictures.
Smith highlights 3 people who have cameras on them in footage

Smith then circles Zach Rehl in clip.
The group is milling around, some have flags; you hear chanting "whose streets, our streets" and "fuck antifa."
Smith then circles Joe Biggs in clip.
He's just standing there? Smith asks.
M: He was having a conversation prior to this

In another clip, we see Rehl and Biggs standing close, Rehl appears to be talking to Biggs. Angle is from behind at first. Travis Nugent has his arm around Biggs. There are photographers in front of them snapping photos. Near to the group appears to be Ethan Nordean.

Smith elicits that Miller did see earlier in clip where Nordean had a bullhorn and told group, were going to head down to the Capitol, hang out for a bit and then head back to the room' (not clear to me if Smith meant Nordean said this on bullhorn or as an aside to other PBs)

More footage now plays.
Biggs, Charles Donohoe, Nordean and Rehl are standing around talking to one another. As iggs is talking, Biggs raises his hand and he's pointing. Smith suggests Biggs is pointing in one direction but Charles Donohoe is pointing in another direction.

Recall, Donohoe has already pleaded guilty to obstruction of an official proceeding, so it behooves the defense to dump as much blame as possible on these guys.
justice.gov/usao-dc/case-m…

The footage plays and Smith notes, Donohoe could have been pointing in a third direction, even, i.e. not just the opposite of wherever Biggs is pointing in clip.

Nugent is also seen in the clip pointing.

Do they appear to be talking about what direction they will go?
Miller: They're talking about the route they're going to go
Smith says "route" is a loaded word; Miller corrects to direction

Smith: Route assumes there is already a place they intend to go
Objection, counsel is testifying. Sustained.
Smith: Are the participants determining what route to take, does that imply they already know where heading?

Miller: If they're going to go the same way they came there, or if going a diff way.....
Smith: How do you know these figures are not deciding where to go all vs what route they can decide to a place they already know..

Smith's questioning is not very strong today, it seems Miller's testimony is getting bogged down and his points aren't being made quite as clearly in days past.

Smith is stuck on Miller's use of word route. Route, he says, means people have a destination in mind. If they're deciding where to go in first place, that's not deciding a route, it's deciding where to go.

Miller: The direction they're pointing in, is direction they came, they came up NJ ave to east side of cap, based on them pointing and extent of going same we came -- they ultimately take 1st st to the constitution.

Miller also testified earlier the Eddie Block film is broken up in different pieces; and there's also a comment, we can't go the same way they came.
They took NJ, that's not the way they take back

Smith moves on.
Next clip plays and Smith asks Agent Miller if she hears someone say "what we're actually doing is a protest" and then someone says "piss on the lawn of the Capitol."
Did Miller then hear someone say "nah?"
Miler: I heard uhhh

Smith says he heard nah.
Objection. Counsel testifying,
Sustained.
Miller says again she heard "uhhhh'

Smith to Miller: Did there come a time when the group led a prayer?
He know rolls a clip and we see Biggs walking, on a phone. Nordean and Rehl are near to him. Nordean then steps out in front of group of defendants and people marching with them and they take a knee.

A voice is heard saying "we're going inside."
Smith asks Miller if she recognizes this as Pam Hemphill?
Miller: I do
In video we see PBs and others in marching group remove caps, gather in circle and take a knee, appearing to pray

There's also a guy in this alleged prayer circle brandishing a flag that says "Liberty or Death"

Also in this group, highlighted by Smith, is a man he IDs as William Crestman. (PB of Kansas City). Miller isn't super familiar with Kansas PBs but knows of Crestman

Next clip. Marchers, PBs are at food truck area.
PBs are talking about "him" "staying close to the beast"
him = Trump, beast = prez limo
Miller: This was after Trump's first reference to marching to Capitol

Smith q: So it is your view this is the first time group is learning of Trump's movements?
Obj. Sustained.
Smith: They said he's gonna march and keep him close to the beast, that's what you heard?
M: Yes

Now, in clip shown to jurors, there's a motorcade driving by area of food trucks. Footage on clip says its 12:36 p.m.
Smith: And the group standing at the food truck is looking at this?
Miller: at least 1 person is (Rehl, its his footage) & someone says "That's fucking Trump!"

Factually - Trump was giving his speech at 12:36 p.m. on 1/6.
Smith points out, PB group didn't know the motorcade Rehl was filming wasn't for Trump,
Smith asks if that's Pence's motorcade going to pick VP up from Cap?
Objection. Overruled.
Miller doesn't know.

It's an interesting line of questioning on cross because prosecutors have already said PBs didn't care whether they heard Trump's speech or not. and were going to the Capitol to stop the cert and rile up as many people as they could on the way. So, them not knowing whether...

the motorcade is actually Trump's or actually Pence's -- I'm not sure I see how this particular line of questioning helps the defense in jury's eyes beyond suggesting PBs seem disorganized, ignorant.

Govt did a lot of heavy lifting last week to show how PBs allegedly coordinated movements on 1/6 and before that, jurors heard weeks of evidence where prosecutors showed how details about 1/6 were often siloed to certain leaders, others were kept in the dark

Smith focuses on Ryan Samsel next. Samel is seen walking toward a barricade and Smith asks if it looks like Samsel is leading ppl behind him.
Miller says Samsel then puts his arm around Biggs, speaks to Biggs-- she does not know what was said-- and then S proceeds to barricade

Jurors see footage of Samsel at barricade, talking to police. This is after Samsel had removed his jacket, appearing like he was ready to fight.
Then, Ray Epps walks up, and speaks to Samsel.
Smith asks her to ID Epps. She can't say for sure, but thinks its him

Then Smith asks Miller, how did she know it was Ray Epps, or what led her to suspect this was Epps?
Objection. Sidebar. Husher on.
(Epps is a lightning rod for conspiracy theories about 1/6)

Sidebar over.
Miller clarifies under Smith's question again, she said she wasn't sure it was Epps.
Did you view the video of Ray Epps encouraging people on night of Jan 5 to storm the Capitol on Jan 6?
I did not
Samsel is not a PB?
Not that I'm aware of

Epps is not PB?
Not that I'm aware of

Now Smith highlights two or three other people in this clip, as Epps is talking to Samsel, they have their hands on the barricade before the breach. Does Miller believe these ppl are PBs?
She doesn't have reason to believe that

There's a woman in a pink hat standing up against barricade that Miller says is also not a Proud Boy to her knowledge.
Smith highlights 3-4 other people, she doesn't know if they're Proud Boys. (Questioning goes toward dismantling prosecutions tools theory, I would presume)

Next clip. Now beyond the Peace Circle near barricade. Smith says the crowd starts moving. Biggs, Rehl, Shannon Rusch, Ethan Nordean are present. There's at least 50 people present around barricade.

When the crowd surges forward, there's Rehl, Biggs, Nordean. Rusch. In clip, Nordean raises his fist and Smith asks if this is Nordean saying 'halt.' He is heard on tape saying it, Smith notes to Miller.

Miller says yes, Nordean would raise fist during marching; Smith asked Miller next if she really believed Nordean could stop the crowd alone with the single raise of his fist?
Miller says not nec. but it would have stopped PBs and those in marching group

Smith: So Nordean gave orders so the marching group would know when to stay or go?
Miller testifies that Nordean gave the order to halt so his group "can gather together and proceed forward together as one"

Smith now shows a clip from crowd in slo-mo (I believe this is Quested's footage). There's a line of people at the fencing. (Smith is suggesting that a line of people other than PBs rocked the fence first and that Nordean was actually trying to keep mob from overrunning)

Smith plays the clip forward and backward and says it looks like Nordean is being jerked backward by motion of crowd rocking fence.
"I also know around this time his hand was on this fence," Miller says

Smith slows footage down as camera pans to ground and there's a can on the ground.
Smith's cross using this footage is almost identical to cross of an earlier witness here:

https://twitter.com/Brandi_Buchman/status/1622978424305221634?s=20

And also here:

https://twitter.com/Brandi_Buchman/status/1621238731989467138?s=20

And now we are on a brief break for the court reporter. Return in 10.

And we return.

Smith resumes and we start with footage from the initial breach at the Peace Circle barrier.
Smith asks Miller to ID if a person in photo as barricade comes down is William Crestman.
It is, she testifies.

Smith circles if a person that he has circled on screen (not Crestman that I can tell) is an informant.
Kenerson, with a tone of great irritation, objects.
Sidebar. Husher on.

After minutes-long sidebar we return and Smith says he's not going to reveal the legal name of the person he's circled. (I still cant tell with 100% certainty if its Crestman he's referring to but sure does seem that way and I'll note Roger's tweet here:

https://twitter.com/rparloff/status/1635364948737130496?s=20

OK, Smith was drawing a circle around Crestman and suggested he was a CHS.
Smith elicits from Miller: an informant would be overseen by FBI and managed by a handler.
Did this informant circled (crestman) send any of his communications to his handler post-breach?

Miller is unable to answer Smith's question because she did not review any of the comms from that CHS.

Next, Smith moves to footage from the west plaza of the Capitol and we see a man in a blue jacket with stars on it. This individual is Proud Boy Chris Quaglin of NJ, Miller says.
Miller affirms, there's an interaction between Nordean and Quaglin.

Nordean appears to be standing between Quaglin and a police officer, Miller says.
(Defense suggests that Nordean was trying to calm Quaglin and stop him from getting into altercations with police)

In next clip, there's a man shouting very aggressively at police, Miller can't ID him by name. He's wearing a black hoodie that says fuck your feelings and sunglasses. Then Miller IDs Trevor McDonald.
Recall, prosecutors say McD is part of marching group:

https://twitter.com/Brandi_Buchman/status/1633214221851787264?s=20

Miller says "I don't know" when asked by Smith if Nordean + Trevor McDonald have met before.
At west front plaza near lawn: Miller says Nordean gets behind McDonald and taps McD on the head and shoulder. Miller says Nordean was encouraging him when he throws something at cops

Smith parses it out over two moments that Miller calls "bad acts" by McDonald and the defense atty worked to elicit that Nordean did not encourage McDonald after both bad acts (throwing something, spraying chemicals at cops)

Nordean wasn't in clip where McDonald is seen spraying police with irritant?
Miller says yes, then McDonald threw a shoe or some other object and Nordean appears to celebrate it.

Smith argues there's a difference between encouraging/celebrating and Miller agrees.
Moving on. Now to Charles Donohoe.

Next clip.
Smith: Is Donohoe about to throw something?
Miller: He is.
Footage plays and Miller says Donohoe is seen throwing a water bottle at police.
Did Miller learn why Donohoe threw the water bottle?
Objection. Hearsay. Sustained.

At time Donohoe threw the water bottle, Miller says Nordean is already on the lawn with Joe Biggs.
Then Smith moves to breaches at scaffolding.
Smith elicits that Nordean was not entering scaffolding with Biggs, Rusch, Fonticoba and McDonald.

Pezzola went up stairs under scaffolding 15 minutes separate from Nordean, Smith elicits from Agent Miller.

Moving to footage from the rotunda, Smith asks Agent Miller about the POW MIA flag that was taken from Capitol. He elicits: Miller did not see footage herself of Nordean carrying the flag out of the rotunda.

Getting close to end of Smith's cross. He goes to the lower west terrace tunnel area and has Miller ID AJ Fisher (part of marching group, and group prosecutor considers tools of conspiracy)
Did Nordean know Fisher?

Miller: Fisher was in MOSD chat group....
She adds: I don't know if Nordean and Fisher know each other but they attended many of the same events.
Then Smith elicits from M: When Fisher was in tunnel, it was 3:16; Nordean left at 3:13 pm.

Smith then asks Agent Miller if she's aware that Nordean's phone was dead at this time.
Miller says it was turned off.
Smith: So, there's no way he was able to communicate with Fisher?
M: He was with Paul Rae and Rae knows Fisher and was in communication with him.

Now we have a sidebar.

The lengthy sidebar is over and Smith wants to pull up a New MOSD chat. He points to timestamp; its in UTC.
Aaron Wolkind says he'll be in DC in an hour; 4:38 pm UTC. Then he says, if there's not a plan, let's say there's not so people don't come to us with questions

Miller says the timestamp is dependent upon the person's phone, or the time it was pulled for extraction.

Norm Pattis for Joe Biggs now begins his cross of FBI Agent Nicole Miller.

Before she came to FBI, did she have training in digital forensics?
She did not.

Pattis: On this case, you testified you were on call on Jan 6 2021?
Miller: I was on standby.
P: In event something occurred?
M: Correct
P: So you knew there was possibility you could be called into work?
M: Yes

P: Because you knew there was a counting of ballots?
M wasn't told that specifically.
P: did she have a general awareness of what was happening at Capitol with congress?
M says she knew there would be several people and agrees with Pattis, there was chance things may go wrong

Prior to 1/6/21, ever heard of Proud Boys? Oath Keepers? Groypers? 1A Praetorians?
M: Not that I'm aware of.

III%ers - that was a group she had some awareness of prior to Jan. 6.

Miller is one of 6 case agents.
Was work split between her and others where some people had some responsibilities and other people had other responsibilities?
It changed as information came in. It was dependent upon what it was, who was available.

Miller: I helped with issuing subpoenas, getting additional info, like hotel records, where people may have stayed, search warrants for cell phones; she assisted in going through those phones to find evidence if there was any

When Jan 6 happened, Miller was on a command post, rec'ing info. A bunch of info came to FBI, leads and tips of who may have been on ground, engaging with law enforcement; then leads would be sourced out to ppl in office
"It was a ton of information"

You keep saying a ton? You didn't weigh the information, Pattis says. It was a lot?

It was a lot, Miller says.

At some pt you learned you'd have to testify in this case?
Miller: Yes, maybe around Oct 2022.
P: What role did she have in probing events of 1/6?
Then Pattis says let me cut to the chase - This case involved members of PBs, but also there are trials going on w/ others

Miller says she's not part of any probe for OKers, she knows there's an investigation into Groypers, but she's not part of it either. Antifa? No investigation there that she's aware of. Not part of it either.

Pattis: There were individuals on ground who associated with PBs. What does associated mean?
Miller says people who were PBs, were acquaintances with PBs

How much time has Miller spent reading texts/emails on Proud Boy case?
Cumulatively, a month's worth of reading, she estimates, but spent 3-4 months working the case

Pattis; In prep for this case, were you ever given a list of people to look at?
Miller asks him to be specific.
Pattis says like a grocery list (if his wife didn't give him a list, he'd come home with all chips and pretzels, he says)
Miller says she was given no list

Did Miller ever receive a group of names of people she should focus on?
Miller: No.
Pattis: Who is Ray Epps?
Miller says he was at the breach at Peace Circle and entered restricted area.
Sidebar. Husher on.

The sidebar was called after Kenerson objected, citing relevance.

Sidebar over.
Who gave you identity of Ray Epps?
M: An analyst working on investigation with us?
P: Is that another case agent?
M: He was an analyst, so basically a case agent
P: Are analysts distinct from case agents
Miller says they are; there was one 1 analyst on team

Pattis: Was there an investigation into Ray Epps?
I don't know, Miller says.
P: There was one (an investigation) wasn't there?
M: There was.
P: Mr. Epps has never been arrested has he?
M: I don't know.

Pattis asks Miller if she had access to written reports - she did. There were 20 terabytes of data just about PBs in this case. The FBI was drowning in this info?
M: I wouldn't say drowning. There was a lot of information.
(Good thing she didn't use 'ton'!)

Sidebar briefly. Sidebar over.
Pattis: Among reports you were given access to were reports from confidential human sources, correct?
Miller: Not correct.
P: We'll talk about that tomorrow.
And with that, Judge Kelly ends the day.

That's the end of the trial day and the jury will return tomorrow morning.
After they leave, Kelly says he's cleared the deck for Friday morning so we will sit until at least 12-12:30 p.m.

The jury is gone, but Judge Kelly wants to talk through the CHS issue.
Pattis: Our argument is worse in that there's no particular msg I can say, ah, this is smoking gun from which inference can be drawn. At time I made argument initially, I suspected there might be but...

Pattis continued: ...it appears there's not....
Bertino said he wasn't aware of explicit plan; it was implied; Bert said it didn't need to be stated.

Pattis cont.: What is a tool? A normie, an affiliate or member who didn't share implied understanding but was "activated" somehow by ldrship to act in unlawful way

Pattis: So what we're left with is the most attenuated, inchoate crime imaginable...it's a conspiracy in which tools were activated not through explicit means like a tap on the shoulder but through intuition...

Informants would've made reports if they thought there was something criminal happening, Pattis says. For the fact that they didn't, it would suggest the govt is "making this case up in a post-hoc ergo propert hoc way"
(translation = after this, therefore because of this}

Kenerson says if Pattis is making a relevance argument... part of reason follow-up q's arent allowed historically re: CHS is because privacy, security interests prevail

Keneerson: If there were CHS in the marching group, that's similar q to what was allowed in on Telegram chats.
If Agent Miller can say a person in group is a CHS, Kenerson says, she could testify to that, but can't ID specific names

Re: Agent Miller IDing people who were CHSs, members of marching group --

"You may ask her the question and she'll give the answer she gives and if it leads to nowhere with her, it does," Kelly says

Prosecution wants defense to tell them which people they plan on asking about in advance and Pattis says he's unsure that defense can do that because they only know of 2.
(Learned 1 in sealed hearing and 1 that came up today)

Carmen Hernandez for Zachary Rehl objects to everything happening around CHSs.
We don't know, when we're looking at the videos of these mobs, who these people are, Hernandez says.
Anyone knocking over a barricade, for all defense knows, she says, could be an informant

Hernandez says defense is "still in the dark" before the end of trial.
Prompting Kenerson's eyebrows to raise, Hernandez says the govt brought out info about one CHS during open testimony from Nick Quested but they haven't been able to ask about it. Kelly says this was...

addressed months ago.
Kelly ordered materials be provided by the DOJ on CHS to defense.
Hernandez says it was too meager and highly redacted.
Kelly pushes back, and says, yes, but to extent of what you rec'd you have ability to investigate further

Now about length of case and timing of witnesses -

Kenerson: We have very little control over length of cross-ex. It may very well be that we are rested by Friday or mid-morning Monday.
Smith: We ask for grace to present 1 witness (Nugent)...
Smith says it'll be 30-45 mins

Nugent, if allowed to appear out of order, would appear before the prosecution has finished its case.
This is being requested because of the witnesses' schedule. He's under subpoena.
Kelly says he'll take up the request tomorrow morning.

Kenerson says next witness for govt is Agent Peter Dubrowski and DOJ wants the court to set a deadline to deal with the Telegram msgs. Kelly says he'll address this in the morning too.
And I'll be back then! See you all then and thanks for following along.