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Mar 31 58 tweets 10 min read Twitter logo Read on Twitter
It is Day 48 of the Proud Boys seditious conspiracy trial and the end to a very long and very tough week for the defendants as their witnesses have withered under cross. My live coverage begins at 9 am ET for @emptywheel. I hope you will join me.
I don't think Trump's indictment would throw this case off track--and it absolutely shouldnt--but I do think there is a good chance it could be invoked by attorneys for the Proud Boys. It's been done for a lot less.
Proud Boy ringleader Henry "Enrique" Tarrio's attorneys have historically argued that because Trump can't be indicted or held to account (too powerful as a former prez), the Proud Boys have been made into scapegoats for J6.
Now this indictment is not related to Jan 6 of course, and also no one has seen it, so, I will reserve further commentary on it. But I will say, curious to see if it impacts the trial in any way.
When we left off Thursday, most of the witnesses expected for defendant Zachary Rehl had testified including his wife, Amanda, and two Proud Boys: Jeff Finley and Anthony Guiffre.
There was one other witness expected to be called by Rehl, a former U.S. Marine, Henry McGill.
Carmen Hernandez, Rehl's defense attorney, has argued that McGill's testimony will shore up Rehl's credibility after the government's attacks on his character in this case.
Hernandez says McGill would be a fact witness too, but the focus is on the character evidence she wants to present through McGill. He will show how Rehl is peaceful and honest, she says.
He wrote a letter for Rehl also citing his "business acumen":
documentcloud.org/documents/2373…
But the government wants to preclude Henry McGill's testimony.
This is because the evidence must be pertinent to the offense, prosecutors say, and when Hernandez first proffered McGill's character support, she said he would speak of Rehl's "honesty & peacefulness."
But then...
When prosecutors told Hernandez doing this would open the door wide open to introduce evidence showing Rehl promoting or celebrating violence, Hernandez limited McGill's testimony to just "truthfulness"
(Govt motion below)
documentcloud.org/documents/2373…
Prosecutors argue this testimony from McGill shouldn't be allowed in. And again, it goes back to the relevancy issue with the charges in this case.
Character evidence re: truthfulness or honesty is admissible when the charges revolve around fraud or making false stmts...
In short, there's got to be an element of deceit present, the government argues, and that's not what's happening here.
While the defense has argud that the obstruction charge is akin to deceit because it requires defendants to act "corruptly," this still doesn't quite fit...
When the jury receives its instructions, prosecutors say the court will tell them that in order to find the defendants guilty of obstruction of justice, they must find that the defendants tried or did obstruct/impede proceedings and the defendant acted corruptly.
In the final jury instructions in the Oath Keepers I case (Rhodes), for instance, the court said:
But in the Proud Boys case, the government is not alleging that the defendants offered bribes or committed fraud. The Proud Boys acted corruptly through use of force and there isn't any "trick or scheme or artifice" required for jurors to find guilt.
"Here the defendants are alleged to have accomplished their obstruction of the official proceeding through the force of men that stormed the Capitol grounds and overwhelmed law enforcement," the motion states.
Character testimony about truthfulness, therefore, is not pertinent, the govt says.

Hernandez disagrees and filed a motion in response, linked below:
documentcloud.org/documents/2373…
Acting corruptly is tied to dishonesty, Hernandez argues, and further, acting corruptly means acting with improper purpose to engage knowingly in dishonest conduct with specific intent to "subvert, impede or obstruct"
Hernandez argues that the govt has failed to provide any evidence at trial that Rehl engaged in violence or destroyed property. And she points to rulings from the DC circuit holding that character evidence can also be introduced for credibility.
Judge Tim Kelly is now on the bench. So we should be underway very shortly.
To wrap it up with Rehl's motion in response to the govt: Hernandez says the govt has opened the door to McGill's character support of her client because the govt has already claimed that Rehl used code deceitfully to pull off the alleged conspiracy.
Judge Kelly begins and we have bad news.
We have another ill juror.
Kelly: We got this information too late to stop the jury from coming in but i didn't turn them around on theory I'd speak with you first, but given today is a half day and we're only losing 2.5 hours, I wanted to take the chance of not...
dismissing the juror and consult with you all.

All of the parties are now huddled in the courtroom at their respective tables.
AUSA Jason McCullough: We agree with your honor... given the half day, it does make sense to preserve the composition of the jury... given the length of trial, presence of all jurors at this pt is of critical importance...
Kelly said the juror may be back Monday and we don't have any reason to think the illness is anything so serious that they wont return on Monday.
The jury will be released for the day. 5 minute recess. When we return, we'll go through some of the lingering motions.
And we're back.
Kelly: Before we launch into the issues with Hernandez's witness, Ill be avail Monday to talk about jury instructions.
McCullough: We confirmed where parties are: we would propose, if you're inclined, to basically have 3/4 days. Take a full day with jury up through natural..
McC: ...stopping point in afternoon break. That would take pressure off defendants to have a full list of potential witnesses but it also allows us to have fulsome trial days.
I would also hope that not only could we do charge conf from 4-5:30 pm we may be able to clear away...
underbrush from the following day.
We're contemplating charge conference on Monday afternoon and Tuesday afternoon effectively broken up.
Kelly: OK, that's fine. The idea is concluding the trial day in the neighborhood of 3:30-4pm depending on where we are with a particular witness
McCullough: yes, idea being if we get to natural stopping pt, we move to dismiss jury at our afternoon break period
McCullough: you offered that you may circulate proposed instructions or guidance so we'd all have something to shoot at in the target zone. I think w/something on paper we'd have more precision in terms of what our arguments would be
Kelly said he'll get it to parties by Sun
Kelly: My thought is, I'll do my best to have it be a starting point and when there are issues I know we're all going to be talking about, I'll put language in brackets or even just leave it blank... so we'll do that and plan to stop Mon/Tues around 3:30-4pm or so..
Kelly: The other benefit of that, we wont have hard stops because of jury schedules. That means we could potentially go beyond 5 or 5:30.
Kelly: Now to Hernadez's outstanding witness (Henry McGill).
kELLY: Its an interesting question and i think a close call whether reputation of truthfulness or character evidence in whatever form of truthfulness would be permitted here. The govt is right in its motion in that the usual contours are when the defendant testifies..
Kelly cont: ..or the charges rely directly on truthfulness.
On the other hand, the case both parties cited indicate its a flexible rule and there are times when the nature of the evidence and nature of how it comes in can put defendants credibility at issue..
Kelly: Here there are 2 facftors that would tip scale in favor to letting witness on for that testimony.
1) The jury instruction for this offense does contemplate something akin to fraud in definition of corruptly
Kelly cont: ..i know govt will say that's not our case and you're right, but on the other hand, the evidence of the case has been shot through with evidence -- and i don't even mean post 1/6 concealment which is present in many cases in many ways -even the offense itself...
Kelly:.. it has been presented to jury in way that its been shot thru with deception. MOSD was created for 1 purpose, but really for another purpose. Defendants didn't wear colors that day and some evidence, not directly to Rehl but Tarrio, the use of misinfo and deception.
Its a close call that could go either way, Kelly adds, but "I'm open to Ms. Hernandez being able to put on character witness of that trait"
That said, Kelly tells Hernandez, if McGill testifies to Rehl's "peacefulness" the door IS open to the govt to cross McGill and bring up instances where Rehl appears to be celebrating violence.
Hernandez for Rehl now speaks.
I cannot find a case where the cross-ex did not involve conduct and by that i mean, tangible acts. I think conduct means deeds. You know, punching somebody in nose, being charged w/murder --
Kelly: Posting something on social media?
Hernandez: The conduct of posting something is the conduct, not the post, email or retweet or whatever.
If there's a case out there that the govt cites that says a msg that you send or internet posting is conduct under rules of evidence, Im happy to look at it.
Hernandez cont: But if there's no case, I'm not sure why court disagrees.
Maybe law is behind modern society because most cases don't involve people tweeting or posting. I didn't find case, I don't know if court did or govt has.
Since we have time since witness wont be on, if govt finds the case, I'd be happy to look at it
Kelly: I think both parties have laid out the terrain pretty well....
McCullough: I appreciate what you said about it being a close call but I dont think it is. The issue is whether it's a pertinent trait and I think in all case, you'll have a circumstance in which, the defendant...
will be in a mode of concealing.
McCullough says he can provide a DC circuit case where jury discusses the manner of drug dealer prior to drug dealing conduct....
McC cont: They say this person's character and demeanor is all an improper way of putting the fact that he is a family man in front of a jury... they say, how is a person supposed to act before a crime?
McC: There's always going to be issues about how someone presents to the world while engaged in conspiracy. That would put truthfulness and honesty in play for every conspiracy case. That's why I think your honor's ruling is half way wrong, but i agree with the other part of it
Kelly: On some level, you're right - people don't openly conspire, but what separates this case out is some of the things I've mentioned are not a feature of every conspiracy in terms of the way the evidence has been presented in this case.
Roger Roots for Dominic Pezzola also filed a motion to subpoena Ray Epps by publication.
They've tried to serve him 3x, Roots says and he's been unable to. Last time they attempted, Roots says Epps chained off his front gate making service impossible.
documentcloud.org/documents/2373…
Roots goes on in court this morning to suggest that he's talked to a "2 or 3 people" who said they heard Epps say "push push" on 1/6. Roots also says what Epps has said about 1/6 in media is false etc.
Kelly stops him and says he'll read the motion.
McCullough says Roots' motion was filed at 8:15 a.m. this morning, so govt hasn't had time to amply consider it.
Kelly: I've had this come up in civil cases but not criminal cases
Roots: What about getting the marshals on it, your honor?
Kelly: I have to read your motion first. Im not ruling anything out.
McC: The govt understands the exigency now that we're in the defense's case...we'll get back to you and defense by the end of the day with our ability to file a meaningful response here.
And that ends it for proceedings today.
I'll have a report out this weekend for @emptywheel about another eventful week at court, so do stay tuned for that. Thanks for joining me this week.
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More from @Brandi_Buchman

Mar 30
It is Day 47 of the Proud Boys seditious conspiracy trial. Live coverage from the courthouse starts at 9 am ET. Testimony is expected from witnesses for defendant Zachary Rehl. If things go according to plan, the jury will hear from jailbound West Va. PB prez Jeff Finley today.
I will provide minute by minute updates for @emptywheel.
I'm going to jump right in this morning with live-tweets - saving my more lengthy analysis and reportage for a story for @emptywheel in the days ahead!
Read 298 tweets
Mar 29
It is Day 46 of the Proud Boys seditious conspiracy trial. My live coverage begins at 9AM ET. Today's photo features the Natl Art Gallery, which is quite literally a few minutes away from the Prettyman courthouse by foot. I'd go there but I belong to the Prettyman media room now.
If you want to catch up, check out my unrolled thread from Day 45, here: threadreaderapp.com/thread/1640663…
I'm loathe to really give too much of a preview before we get into today's proceedings but I can at least say this: it does sound like Zachary Rehl could be back today. He waived his appearance after the prison said he appeared to have pink eye.
Read 428 tweets
Mar 28
Good morning. It is Day 45 of the Proud Boys seditious conspiracy trial. It was winter when this began and it is now spring, as you can tell from the exterior of the federal courthouse.

More witnesses for the defense today. My live coverage begins at 9 am for @emptywheel
Yesterday, Henry Tarrio's witnesses, Proud Boys Fernando Alonso and George Meza appeared for testimony. It was Meza's last day on the stand and he didn't fare any better than he did during his first appearance. Not under the laser-like focus of prosecutors conducting cross.
From the stand, Meza testified that he wasn't part of the Ministry of Self Defense after 1/3, a channel that prosecutors allege PBs used to coordinate 1/6—or, he said, he couldn't remember—but prosecutors showed him posts from well after 1/3...
Read 50 tweets
Mar 27
The Proud Boys Seditious Conspiracy Trial Thread Continues ---
Sabino Jauregui for Henry Tarrio is now conducting cross of defense witness and Proud Boy Fernando Alonso of Florida.
Jauregui tees up a video from outside of the Cap on 1/6
Jauregui: What is the crowd doing there?
Alonso: If I'm not mistaken, that's from where the first breach happened?
Jau: You tell me
Alonso: It looks like they're moving in, I'm assuming
J: Who is man lifting hand saying "whoa"
Its Nordean, Alonso affirms. "It meant stop"
Read 148 tweets
Mar 27
Hello from Washington where it is Day 44 of the Proud Boys seditious conspiracy trial. My write up on recent events, like the appearance of ringleader Henry Tarrio's first witness, is linked below. My live coverage starts today at 9 am ET for @emptywheel.
Fun fact - each filing on the Proud Boys docket in PACER receives a number - that can include motions, orders and also, lower priority notifications like minutes for the day, for example.

For the record, as of 3/24, we've hit 721 filings.
Thattsabigdocket.
When we left off last week, Tarrio's witness George Meza aka Ash Barkoziba hit the witness stand.
(FWIW: I've seen it spelled Mesa as well Meza but J6C referred to him as Meza, so we're sticking with that until I hear otherwise)
Read 177 tweets
Mar 24
Welcome to Day 43 of the Proud Boys seditious conspiracy trial. If things go according to plan, jurors could see the first witness for ringleader Henry "Enrique" Tarrio take the stand today. Live coverage starts at 9 a.m. ET. I'll be in the bldg below ⬇️ for @emptywheel
It seems like we are still on track to wrap things up in about 2 to 2.5 weeks.
There will be a bit of a delay this morning as we get things underway - I hear it may have something to do with the transporting of defendants to court.
Read 214 tweets

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