Thread by @Brandi_Buchman

Hello from the Prettyman courthouse where there are a number of colorful messages chalked on the corner.

https://twitter.com/Brandi_Buchman/status/1696434474873987115

As for argument that MOSD was a purely defensive entity; Kelly acknowledges it is possible jurors could have seen it that way, but they ultimately did not because of the abundance of evidence suggesting it was offensive.

After Tarrio's arrest, Biggs and Nordean took over command. Biggs told MOSD member he and Nordean had a plan they had discussed with Tarrio. In a private msg, Nordean instructed men to meet at Wash Monument at 10 am and that from there, they'd "march to capitol"

Donohoe, Bertino and John Stewart echoed that they'd march to Capitol in MOSD member chat as well as another chat created for everyone present in DC, the "Boots on Ground" chat

There was talk of "smashing pigs to dust" in PB chats in immediate run up to 1/6.
Bertino said "fuck it let them loose"
Arresting Tarrio went too far, Bertino said.
Bertino said in trial that his conversations with PBs seemed "desperate"

On Jan. 6, Nordean, Biggs, with Rehl by their side, riled the crowd before the march, particularly as they walked before police, Kelly notes.
They adopted "back the blue" tag line and changed to "back the yellow" for their own purposes...

Kelly: On his heels, Biggs said, after what they did to Enrique, we're going to let them god damn know we're here. let's go kick some ass.
biggs said jokingly after, "metaphorically speaking" and the crowd laughed

Rehl helped coordinate the group as they marched toward the Capitol....

Biggs, Rehl, Nordean led marching group to food trucks, and then Nordean organized the group to march back to the Capitol right as the cert was set to begin.
They first breached Peace Circle where a mostly peaceful crowd was already there. Biggs started to lead chants...

Within minutes, Kelly notes, the crowd became more agitated.
Nordean and Biggs could be seen trying to organize the crowd to follow their lead. And then they plow thru the barricade. Rehl yelled "fuck them, storm the capitol" as he went through barricade...

Rehl moved to front of crowd; Biggs filmed a selfie style video as he charged up the walkway; capturing Nordean celebrating with PB hand gesture and celebrating that they had "gone through every barricade so far, fuck you!"

The next barrier was a waist-high black fence blocking off a secure fence. Biggs beckoned Nordean and the 2 combined with others, pulled the fence out of the ground. They charged forward with Rehl not far behind. Biggs waved the crowd forward.

Kelly notes how Biggs filmed a video cheering how "we just stormed the capitol!" and that Jan. 6 was a day that would live in infamy.
This was around 1:30.
Police regained some control of mob, Rehl messaged other PBs telling them where next to move.

Milkshake starts to assault, getting past police lines.
A text goes out, "we've taken the capitol" once Nordean, Rehl, Biggs got inside. (The text I think came from Rehl, but I didn't hear it and can't confirm right this second.)

While inside the bldg, Rehl texted PB, "civil war started"
This wasn't part of govts case in chief, but during cross, govt intro'd evidence that Rehl shot pepper spray at law enforement. At least thats what a reasonable jury could have inferred from evidence, Kelly says

On tools of conspiracy, its reasonable for jury to conclude that many who joined the PB on their march, ended up playing key roles in clashes against law enforcement at key moments, including at several breach points around the Cap.

While they acquitted Pezzola on seditious conspiracy and hung on another, jury may have still considered his conduct persuasive of a conspiracy, Kelly notes.

Kelly: A member of MOSD and marching group played key role in breaking the window which so many rioters streamed into.
Along similar lines...

Kelly cont: a jury might have inferred it was no coincidence that an individual who initiated the first breach of capitol grounds did so within 3 minutes of someone putting his arm around Biggs and speaking to him

Moving fast here - but Kelly continues -
He notes how Bertino testified that wherever PBs went, supporters would follow. And this was a point of pride for members.

Tarrio posted online, "proud of my boys and my country" during riot and "don't fucking leave" and then photos of cowering lawmakers, "...when govt fears the people, there is liberty"
Tarrio also called Nordean, Biggs when the men were inside the Capitol bldg.

Bertino texted Tarrio during riot: Brother you know we made this happen
Tarrio: I know
Tarrio: This is it
Bertino: 1776 motherfucker
Tarrio: the winter palace

Tarrio posted photo of himself online after the riot, "premonition" -- all of this goes toward proving intent

https://twitter.com/Brandi_Buchman/status/1650961703222276099?s=20

More on consciousness of guilt: After the 6th, Biggs called the day a "warning shot" and remarked how Founding Fathers were considered terrorists.
Tarrio said God didn't put him at Capitol for a reason. "Because we'd still be there."

Rehl said the day felt like a waste because politicians didnt get scared enough, (light paraphrase) and then Rehl said they should have brought guns.
When someone suggested there be no violence, he replied, nah i'm good

Kelly: The govt had to prove that each particpated in a conspiracy with specific intent to further its unlawful goals, that is, to impose its force in a seditious conspiracy to oppose the transfer of power.

Kelly says what he's described at length satifies this

Nordean, Biggs on the ground leadershp directing 200 or so Proud Boys to advance on Capitol, is proof of the objective, Kelly says

Kelly says, as for Rehl, Tarrio might not have consulted him directly, but Rehl recruited members, led MOSD zoom calls, and on 1/6, led PBs side by side with Nordean/Biggs to advance on Capitol

Kelly acknowledges that all that he has just recited is "far from" every bit of evidence to support the jury's verdicts and govt's case.
We're on a short break. When we return, he'll address the defense's arguments and his response to them

I've observed many of our defendants during this portion of today's hearing were leaned back in their chairs, some resting their heads on their hands.

And we're back! Judge Kelly wll turn now to the defendant's specific arguments.

Kelly says we'll turn to Nordean's arguments first. He notes that Nordean reiterates legal arguments the court resolved long ago. He argues govt didnt present evidence sufficient to convict on seditious conspiracy; congress doesnt execute laws, etc. Kelly already rejected that.

Next, Nordean reiterates arg in motion to dismiss about proper scope of seditious conspiracy charge. He argues govt evidence was insufficient to prove he hindered hinder 12A, Electoral Count Act but Kelly disagrees.

Nordean argues there was no seditious use of force that he could have agreed to in evidence. Kelly says: "the problem with this arg is that seditious conspiracy does not require use of force, it req's an agreement to use force"

Its not for me in evaluating Rule 29 to read a jury's mind and reconcile its verdict, Kelly notes, citing caselaw (didnt catch name)

Witnesses testified that Nordean took positive steps to prevent protester from attacking police; Kelly says, I agree that is a reasonable way to view the evidence from Nordean in light most favorable, but as govt responds, a reasonable jury might have...

....interpreted that action multiple ways ... they could have believed that Nordean would have the protester channel his efforts elsewhere... and it could be found that this conduct didn't cancel out his conduct elsewhere on balance w/rest of evidence

Nick Quested testified that Tarrio attempted to reach Nordean on the phone after he was released from jail on the 5th. Biggs relayed to MOSD leadership that he spoke to Tarrio that night and they discussed plans...

Then Tarrio regained access to his Telegram account and once he did, he joined MOSD leadership chat.

Kelly notes this testimony doesnt support Tarrio/Nordean args...

This is a key point Kelly makes now:
The defendants assert that given centrality of 1A and importance of political speech, govt was required to prove more than it did to warrant getting case to a jury...

Kelly continues with defenses argument beore he responds: ...at very least in conspiracy relying on 1A to prove intent, govt should be required to rely on more than protected activity as substantial evidence of intent.

Kelly: I think this is genuinely held argument made in good faith but I don't think that standard, that argument for this increased evidentiary standard has no basis in the law at the moment. They cite no cases for this proposition...

Kelly: ...that the nature of the govts evidence somehow required it to do more. I've explained in this case many times, SCOTUS has held, 1A does not prevent evidentiary use of speech to establish elements of a crime to prove motive or intent.

The 1A arguments [by defense] offer no reason to upset the jury's verdict on seditious conspiracy, Kelly says.

Kelly moving fast. Going as fast as I can...

Biggs Rehl (thru Pattis) argue that similar conduct is being charged twice with counts 2 and 3, punished twice, so double jeopardy.
This is a creative argument, but I dont think it gets them anywhere, Kelly says.

There is no risk of double jeopardy as it is defined in case law, here at all. Kelly says.

He offered a direct charge to charge comparison, but he was talking fast, so i didn't get it - gr! - but this last quote indicates where he landed.

Before the 6th, Kelly says, defendants showed they knew the proceedings would be taking place. They shared names of congressmen they expected to object; discussed why lawmakers were meeting. And a few days before the 6th, Kelly notes PB John Stewart said...

...the "main operating theater should be out in front of the Capitol building, that's where the vote is taking place and all of the objections"
Tarrio, Rehl expressly acknowledged listening to this message.

Kelly: A reasonable jury might have inferred they came to conclusion to obstruct physical count from their physical conduct, which was laser focused on the Capitol, rather than drawing thousands of supporters to watch Trump' speech from the Ellipse

Kelly says defendants claim prosecutors distorted 1512c charge; they think the statute was manipulated to fit the Jan. 6 prosecutions - but Kelly says, it goes without saying that Fisher binds me. Claim that it only applies to cases involving assaults isnt sufficient at all.

Quick context on Fisher: lawfaremedia.org/article/one-st…

K: Rehl didnt face an assault charge for pepperspraying an officer, but reasonable jury could have concluded doing so was an unlawful means of obstructing activity inside the bldg. Same reasonableness standard applies to fact that PBs knew what they were doing was wrong/illegal

Just as powerful toward showing consciousness of wrongdoing are the many msgs where PBs discussed need to delete messages; Nordean argues that he didnt know he was obtaining an unlawful benefit, citing Fischer...

Even so, Kelly says, in the lead opinion in Fischer, it stated that showing intentions of helping prefered candidate would suffice to establish a hope or expectation of benefit to one's self or benefit to another person

The Telegram msgs are probative of Nordean's intent, Kelly says.
As for credibility of cooperator's testimony, it's up to jury to make determination on this. Nordean may disagree but its up to jury to decide credibility of testimony, not him.

Kelly also notes: considering Matthew Greene's testimony at trial, a reasonable jury may have conluded that his lack of awareness of a broader conspiracy encompassing all of the defendants wasn't all that probative either way re: explicit plan in place

As for there needing to be an explicit plan, Kelly reminds the parties, plan never needed to be explicit.
Govt didnt have to prove that. Implied was a high enough standard.

Most of all the testimomy Nordean cites in his Rule 29 motion is inconsistent with the evidence presented, Kelly notes.

Kelly: As for Nordean allowing himself to be filmed thru day, a reasonable juror might have concluded that Eddie Block, who filmed the march, did in fact avoid recording conversations involving planning for the day.

At one point, Block is on tape retreating saying, "you guys are talking about stuff i don't want to hear," Kelly notes.

"In all, none of Nordean's arguments convinced me that the jury's verdict could not stand."

JUDGE KELLY on Henry Tarrio: "It does not matter that he was not at the Capitol that day, under the law. I instructed the jury on Pinkerton liability."

After rioters overwhlemed officers, Pezzola and small group made beeline for door toward inside of Cap. That reflected his intent, Kelly says.
If any question remained on his intent, Pezzola removed it by filming himself inside Cap...

...while smoking and saying "Victory smoke in the Capitol boys...fucking awesome! i knew we could take over this motherfucker if we just tried hard enough"

By the way, Judge Kelly is reading all of this from a written ruling. So eventually this should be entered into the record and you can read it in full.

Kelly notes: A rational jury could have concluded that even if Pezzola didn't conspire, he joined with group and set out to achieve objectives...

Once at Capitol, Pezzola led charge up to Capitol... met other conspirators, like Donohoe. Donohoe (who pleaded guilty) bragged about getting a riot shield. Pezzola took a picture with it. Inside, he credited this result as a collective effort "i knew if *we* tried hard enough"

None of the defendants directly challenged the fifth charge, "at least on paper," Kelly says

On count 6 jury had to find PBs wilfully destroyed property belonging to the US or attempted to do so; jury had to decide if damage exceeded 100k in value -

Kelly: As already explained, after moving from 1st barrier, defendants moved fwd on grounds with defendants announcing they had gone thru every barricade...

Kelly notes testimony from Officer Shae Cooney, who was at the metal fence when Nordean/Biggs shook it to knock it over; Kelly notes how Cooney said Nordean shouted "pig" at her and other insults as they pulled down on fence segments and allowed mob to surge fwd

Kelly explains: No doubt dismantling the fence was a group effort, but testimony and evidence showed to jury was more than sufficient proof that Nordean, Biggs led that destruction and... that it advanced the conspiracy

When he says group effort above, Kelly is referring to defense argument that they didn't push over the metal fence themselves, but were being pushed against it by those behind them.

The fence was in new condition before the 6th. After the 6th, it was a "total loss" according to the Architect of the Capitol, Kelly notes.
At trial, Arc of Cap said cost to repair each panell of fence was $585. To replace 2 panels by Nordean/Biggs would cost excess of $1k

On last count - destroying Capitol window causing damage over $1k. Pezzola doesn't dispute he smashed it in, nor could he, since video footage shows him doing exactly that, Kelly says.

Pezzola claims he only broke one panel. Another was already broken beyond repair when another rioter put a 2x4 thru it and then Pezzola detached panel from frame. Pezzola says cost estimate of damage is "outrageous."

Kelly: Even if other rioters damage to one of the panes means Pezzola is not principle offender, the evidence at least support a finding that he aided and abetted the other rioter to destroy entire window and allow access to Capitol

Kelly notes how Pezzola also said at trial, when he saw someone else break the window, he thought to himself, oh, i guess thats what we're doing
This statement also goes toward aiding and abetting, Kelly says

Pezzola is not facing Kelly at this moment that I can tell, he's looking down at ground, legs crossed, swaying in chair

Kelly says footage plainly shows Pezzola ripping Officer Ode's shield from his hands. Ode's testimony at trial also directly supported this. Govt offered video where someone asks Pezzola, "you stole a riot shield"
And he responded, "yeah"

Pezzola also testified at trial that he tried to take the shield out of Ode's hands though denies using force. At trial, he claimed he acted in self defense. In memos, he claims another person picked up the shield and handed to him. Kelly doesnt accept this given evidence...

Pezzola said he should face lesser charge of theft instead of robbery because he intended to return the shield. But Kelly says, a reasonable jury could have concluded given how long he held onto it as he moved thru Cap, Pezzola never intended to, but intended to use it to breach

Kelly: Defense witnesses did not do that much to refute key elements of the government's case and at times, strengthened it. For example, when defense called key membebrs of MOSD, govt clarified they weren't chapter leaders and thus, in little position to know ldr intent

Kelly notes how defense witnesses became "combative" during their testimony further leading jurors to believe they weren't credible.

(Imagine that - don't send your friends who think they are above it all to testify on your behalf!)

Related, repost: emptywheel.net/2023/03/26/whe…

George Meza who testified that they were there to peacefully protest, also told the jury, Jan. 6 was one of the most patriotic acts to occur --

Self-serving testimony from Rehl and Pezzola also didn't help, Kelly explains. Especially when Rehl, confronted with footage of him pepper spraying police, denied it; Pezzola called the trial corrupt, proceedings fake. Reasonable jury might not have taken that well.

Repost - How Proud Boys fell apart on the stand
emptywheel.net/2023/04/23/the…

Kelly: I do find that all of the evidence was sufficient in this case, so all Rule 29 motions are denied.

Now to requests for a retrial/new trial:
Kelly says: Trump mentioning Proud boys at debate was competent evidence in this case. It went to state of mind, and motive.

Kelly: No mid-trial publicity shows a mistrial in this case. I conducted an extensive voir dire lasting 2 weeks. I filtered out jurors who may have been unduly impacted about what they read about PBs or J6C hearings.

Kelly: Further, no defendant IDs any juror where the record at all supports evidence of bias. Not only that, at Biggs' request, I frequently admonished the jury to avoid all coverage of the case and at one pt, I gave them a reminder every night.

Defendants offer no evidence whatsoever that the jury violated this instruction, Kelly continues.

Kelly: Pezzola argues he's entitled to a new trial because "new evidence, incl 100 antifa agitators" attended Jan 6 rally. But this is nothing more than vague claims by a single person who has apparently appeared somewhere on the internet.

Kelly cont: (Pezzola) also points to antifa agitators - I wont spend a lot of time on this. Pezzola's claims about this are speculative and fantastical, and even if they were true, they wouldn't have much to do with this case.

Even if antifa members conspired to [do] acts of violence on jan 6, that doesn't speak to what defendants did in this case, Kelly says.

And that ends it here. Judge Kelly tells the Proud Boys he will see some of them tomorrow for sentencing - Tarrio and Nordean go first:
Tarrio: AUG 30 @ 10AM
Nordean: AUG 30 @ 2PM
Biggs: AUG 31 @ 10AM
Rehl: AUG 31 @ 2PM
Pezzola: SEPT 1 @ 10AM

And that does it for me as well. I'll be back tomorrow for @emptywheel.
Thanks for joining me today!