Thread by @Brandi_Buchman

TODAY at 10AM ET Proud Boy Dominic Pezzola, who busted open a Capitol window and allowed some of the first rioters to stream into the Capitol on Jan. 6, who ripped a police shield away from an overwhelmed officer, who called his charges phony while on the stand, is sentenced.

Smith argues Nordean didn't go looking for members of congress or assault.
"if substantial means something, it means greater than avg, fair or middling.
Kelly: Agreed but it depends on what framework you're looking at

Smith: we'd argue the framework is other defendants who are accused, convicted of this crme.
Setting aside Nordean's leadership and planning elements, when you set those aside and look at his conduct, its not relatively more substantial than other Jan 6 defendants

Smith moves to next pt: under 2j2b3, this is the planning provision and there is an "otherwise" clause here; meaning not limited to same kind of offense... our arg is that this guideline doesnt apply
Kelly: A Fischer-esque argument?
Smith: Yes

Smith: When you look at criminal acts in the fed crimes of terrorism list, they all constitute acts of violence that are symbolic acts... the coercion/intimidation of govt lies in the destruction itself; the violence is the msg, not incidental to crime.

Smith: i dont think we've heard argument for why fence destruction evidence episode was a message.
The distinction was made between kill and intent to kill and I think there is a slight distinction here [too].
Kelly: To the extent I agree w/you, i think its an arg for a variance

Smith wants court to clarify if its using clear and convincing vs preponderance of evidence.
Kelly says he's using preponderance because thats what is the standard in this circuit, but even if it was clear/convincing, Kelly says he'd rule same way

Smith moves next to Nordean's intoxication on 1/6:
We don't see why a voluntary intoxication standard applies because, he argues, because it shouldn't it when it is a crime of specific intent and thats what Nordean's crimes are defined as

Kelly says he will address the voluntary intoxication standard but wants to hear from govt first.

As to interference with admin of justice; AUSA McCullough says its not appropriate to compare various actors on J6 and even if it were, actions of Nordean and his co-conspirators exceed that bar. He led march on Capitol; led group into Capitol; Nordean got inside...

McCullough argues that Nordean's conduct went to impacting admin of justice when Congress was stopped from its work;
McC: The purpose in violence of breaking down barriers, windows, rolling over law enforcement was to send that message (of intimidation/coercion)

Kelly: The jury did conclude he had the requisite mental state for those various conspiracies so, I don't think on very thin evidence Smith points to now, even if evidence was stronger...

Kelly cont:... I'm not sure, so long as I felt evidence was sufficient to convict on those charges, I'm not sure there's any legal room for me..... (trailed off)
McC ultimately says Kelly has it right...
Smith offers that Nordean had beers in his pockets, drank at least 6.

Kelly says proffer accepted, but in sum, its not particularly relevant since it didnt come in at trial. McC notes this for the record.

Kelly now reiterates the pts about admin of justice. In super short terms, rehashing what we've heard:
Yes, congress was participating in the administration of justice during its certification; so it applies to Nordean's sentence

Kelly turns to fact arguments from Nordean; he says no evidence showed him causing or threatening to cause injury to person or property damage; Kelly disagrees. the enhancement applies.

Nordean says no evidence showed him threatening physical injury to a person or property. But Ofcr Cooney did testify that Nordean shouted Pig and Traitor at her etc.

Smith says that testimony s not credible, but Kelly says jury found it was and he agrees.dailykos.com/stories/2023/2…

He also thinks it was proven at trial that Nordean knocked down the black metal fencing for the purpose of interfering with Congress... it was reasonably foreseeable that they would use violence too, Kelly notes. He pts to Tarrio instruction that PBs bring pepper spray.

Once Tarrio was arrested, Nordean stepped in as lead, Kelly notes. So that goes toward his foreseeable role.

For a moment, Nordean is listening to Kelly with his neck craned upward, arm stretched across the table.
He's chatty with Smth as Kelly speaks.

Nordean's got an eyebrow briefly arched, eyes cast down as Kelly says conduct of coconspirators is attributable to him. (Kelly is going thru offense characteristics)

Kelly: When I consIder all evidence at trial and linked to his coconspirators, the reality is, even if i measure against conduct of anyone else that day, enhancement would stlll apply.
(so he adds 2 more levels)

In summary, counts 1-4, we're at 27 offense level.
Now to count 5 - agg assault guideline was applied in other cases. Kelly says links to both Rehl's assault and Donohoe's actions assaulting LEOs...the facts about Rehl's assault constitutes relevant assault conduct re: to Nordean

Details showed Chuck Donohoe was these defendants coconspirator, his actions in MOSD were relative to Rehl's and, Kelly notes, Donohoe pleaded guilty to obstruction of official proceeding.
It is attributable as relevant offense conduct and constituted agg assault

Smith and Kelly go back and forth a bit over what constitutes agg assault; govt asked to enhance offense level even further under 2a2b1 saying assault involved more than minimal planning but he hasn't applied that enhancement because he doesn't think he has bass to apply

Now onto terrorism enhancement.
Kelly: Count 6 - applicable guideline 2b1.1 and base offense level is 6. Govt wants terr. adjustment under 3a1.4. As i mentioned before; looked very closely at diff. between adjustment and purported departure...

Nordean points to a 1990 3rd circuit case (US v. Kikumura) where clear and convincing evidence standard was applied; he also cites another case (US v. Al Ha-gah-ge - sorry - phonetic spelling)...but the args are convincing, and Kelly will apply the terrorism enhancement

Kelly: All the other judges that have had to apply this provision to Jan. 6 cases; in each, courts considered only whether to depart upward to guideline range; here because govt wants to apply actual enhancement to Nordean's conviction, that offense is enumerated --

Kelly says terrorism enhancement apples to count 6 and he adds 12 levels. Nordean's destruction of fence was a federal crime of terrorism; both he and jury find he destroyed fence with purpose of intimidation/coercion

Kelly says taking down that fence furthered the defendant's agreement and (as jury found) it was part of larger conspiracy.

Kelly: I dont think a representation today that Mr Nordean was intoxicated, changes any of that. i observed a lot of footage of that day, at no time, did i see any evidence in any way that Nordean was carrying himself in way that he was intoxicated.

Kelly: in any event, i'm not sure, even some belated non-evidentiary representation could overcome all of the evidence i saw and frankly all of the conclusons the jury had to reach to determine the defendant's mental state that day

Kelly sums it up: for Nordean, all offense levels considered:324-405 months guideline range, or 27 years to 33 years.

Smith has no objection.

Now AUSA McCullough will speak.
We stand by our calculation for Nordean and recommended 27 years, which was low end of that range.

McCullough wants to make a point on record about the intent to kill distinction in terrorism enhancement; govt isn't applying this or requesting it frivolously, AUSA says.

There's back and forth over a 10th circuit case - didn't catch name, but it was about blowing up an IRS office overnight; and intent to kill/terrorism enhancement applied there

McCullough says he will agree with Kelly but notes, the request we have made is because of the severity of the conduct; because of both the joining together and the choice/decision to attack on day that balance of presidential power was hanging

Nordean and Biggs were functional equivalents in terms of the nature of this crime. McCullough doesn't want Kelly to go below 17 years.

McCullough: [Nordean] is the undisputed leader on the ground on jan. 6 you heard from people like travis nugent, jeff finley, that when things broke loose, they looked to nordean. and nugent stood there and said he fell back on the chain of command.

McC: these people followed nordean on jan. 6 and what did he do? as you said, earlier this week, he had every opportunity to turn back. but he gathered the men, moved into a stack formaton, went to front of line and made a deliberate decision to rip down the fence...

McC cont: ...so they could continue their act toward the capitol. he menaced officers both outside and inside the capitol. something they continue to dispute. and he celebrated it afterwards. so with respect to nature and circumstances...

McC: ... I wont spend any more time on importance of day, conspiracy, of targeting that transfer of power but will remind you that mr. nordean is the one defendant whose words almost track the statute

M: Biggs gave himself to this country for a time. Nordean comes from a loviing family, he had every opportunity to work in a fam biz, and you will hear from those individuals today - 1 thing to keep in mind - those people were telling him: please dont do this. and he did it.

McC: Not everyone is that fortunate to have that kind of support and to deviate that far from it is remarkable. Remarkable.
Nordean has his arms across sitting on table, his eyes cast down.
McC notes how Nordean mocked officers after Jan. 6.

McCullough: after someone said there was no excuse for violence ever, Nordean replied: "nah im good"

McC: i submit to you that Jan. 6 changed the ceiling for what Nordean thought was possible.

McCullough: Nordean seduced men like Pezzola [with idea] that violence is the answer;

AUSA notes Nordean recruited men, underwent training for 3 months; directed PBs to peace monument and when the time came, he took action.
McC: we submit he is undeterred from that action

Nordean is looking toward the pews a bit as Smith is at podium arguing that but for defendants, breach wouldn't have happened.
Smith contends, "what isn't publicly understood about this case" and Kelly cuts in: "I think that's wrong, but go ahead."

Smith now arguing that Nordean's body language doesn't indicate he was rallying people when he raised hand in air. Defense witnesses said this meant "halt" not go forward. Smith acknowledges they presented ths and jury didn't accept but he calls it a "striking oddity."

Smith argues points from trial and Kelly cuts in, tells Smith he's not the jury. (in other words, move it along) But Smith wants to argue a bit more. He mentions Lèse-majesté, an intl law which he says is akin to embarrassing a country and that's closer to what happened on 1/6

Judge Kelly, pointedly, disagrees with Smith on his les majeste poinit. He notes Jan. 6 was not a mere embarrassment. A disgrace, yes, but it also happened @ a key constitutional moment. The crimes by PBs, he says, were more than just a humiliation or embarrassment of the country

Y'all my "i" key is holding on by a thread. Apologies for typos.

Judge Kelly: If we don't have a peaceful transfer of power in this country, we dont have anything.

Smith arguing.
In times of fear and hysteria, political/religious groups cry for the scalps of [opponents to their ideas], he says.
He argues, we need to be careful with treatment/prosecution of subversive activities.

Smith says groups being prosecuted here may be loathsome but they are allowed, in effect. Smith says there are people not in these groups prosecuted, treated dfferently. Smith acknowledges that govt will say those are different crimes.
Kelly shifting in seat at bench.

Smith says he appreciate court doesn't agree with this but...
Kelly cuts in: The sentences i hand down will have nothing to do with these defendants views whatsoever

Deja vu from the trial. Smith arguing with Kelly at length.

Smith says Nordean wasnt talking of 1/6 when discussing using force ⬇️
Kelly has context, it was said in lead to "the day that was the last stop of the train to make sure their preferred candidate stayed in power."

Kelly cuts in, and offers another quote from Nordean:
Kelly: [Like] 'fash the fuck out?'
Smith, without missing a beat: That's a bad quote.

Smith acknowledges he cannot defend Nordean's "fash the fuck out" comment but still wants judge to consider.
Kelly not convinced and called for a 5 minute break.

The break is already over and now we are back.

Smith begins again. And he's making a lot of statements about what he claims Nordean did or didn't do on 1/6; and a lot of this I know is not factual to what jury found trial. don't want to spread disinfo, so won't go in depth here.

Smith says, "a lot of what we're talking about is symbolic injury"
Kelly cuts in, clearly miffed: "we're not talking about symbolic injury. We're talking about tangible injury."

Smith backpedals a bit, arguing he meant it in terms of language in statute. Kelly not convinced.

Smith starts to address what Pezzola did today - after sentencing and amid exiting courtroom, he shouted "Trump won!" and fist pumped.
Smith says Pezzola "turned around and had a little fun"
He says Nordean won't do that as he argues point on disparity in sentences

Smith finally cedes his time to Nordean's family to make their statements.
Nordean's sister approaches the podium. Her voice is shaking.

She says her brother "brings light to people" and that he is good at bringing people together.
She tells judge Kelly: I wish you could have spent a day with him because if you did, you would find a good and kind man

Nordean's wife addressed the court. She says his daughter wll soon be driving and dating, life milestones important for her to have him around for.
I ask you to consider importance of his presence, she says

Ethan Nordean now addresses the court. His voice is clear, loud: We must conclude Jan. 6 was a complete and utter tragedy. How do we know this? its best to simplify this complex argument.

Nordean: All we need to show is 2 simple pts: 1) lots of ppl were seriously hurt 2) some people lost their lives.. We dont nec. need to know about all the destructon that was caused, not following commands of law enforcement or those who assaulted police officers.

Nordean: Although I agree its absolutely important to acknowledge these facts as they did happen, after seeing the video footage, no need to refute that. But at end of day... all we need is those two sep points

Nordean: There is no rally or political protest that should ever hold value over human life.
I imagne anyone who feels proud of jan 6 to imagine it was your loved one who didnt come home that day

Nordean: A lot of people went to jan 6 with good intention but passion accelerated and chaos ensued. ..even if we start out with good outcomes, the end result is how we will be judged, as it should be.

Nordean: It took quite some time for me to be humble and accept my situation, and my lawyer has done a good job, thank you nick, i know now my perspective was flawed.

Nordean: i thought of myself as merely an individual, removing blame and accountabilty for myself...[but] I had to face a sobering truth. i came to jan 6 as a leader. came to keep people out of trouble and keep people safe.

N: The truth is i did help lead a grp of men back to the cap & i can see to govts pont, i had ample opportunity to deescalate and i chose to do nothing...There's no excuse for what i did.... adding myself to already chaotic/dangerous situation in cap bldg was sorely irresponsible

Nordean: id like to apologize for my actions that day and to anyone ive directly or indirectly wronged. im sorry.
I'd lke to apologize for my lack of leadership that day.

He adds: he regrets what he did that day, but what he regrets most is not being a better leader

Judge Kelly reiterates points about the tradition of the peaceful transfer of power being broken because of Jan. 6; he notes the statements Nordean made in evidence and what jury found was he planned to bring ppl to Capitol, exercised control, did what you did w/fence...

Kelly notes how parts of that group Nordean brought to DC played key roles at various breach points along the Capitol.
Kelly notes that Nordean entered the Capitol and then made comments that he regretted nothing after the fact and when there was discussion about going further

Kelly says jury found Nordean entered into an agreement to accomplish what happened.
Call it whatever you want to call it, but in terms of seditious conspiracy, put whatever label you want on it, Kelly says, that is an extremely serious offense for all reasons I've talked about

Kelly says maybe Nordean's upbringing was better in some respects; but no criminal record, a job, people out there, people who depend on you, like a daughter -- this is tragic.

Kelly: From having you up here at the podium, you're an articulate person and someone who I think it's quite obvious has leadership capabilities and talents. Where you would be taking those abilities and pushing them in a different direction...

Kelly cont:... i wish we would lived in that alternative history. All of that to be said...all of those things are positive but they also just make this all the more tragic

Kelly: There's plenty of room to be engaged in politics as a good citizen, but violence doesn't have a part in it.

Kelly says he must consider not just a stmt in courtroom here but also all evidence of what Nordean said and did before Jan. 6 and after Jan. 6, have to put that in context

BREAKING: Proud Boy Ethan Nordean, convicted of seditious conspiracy, is sentenced to 18 YEARS.
(Same as Oath Keeper Stewart hodes)

Kelly notes its quite a bit below what govt asked for - 9 years below.
Kelly says he thinks terrorism enhancement in these cases overstate Nordean's conduct (we're back to intent to kill distinction)

"I don't think he intended to kill anyone that day," Kelly says of Ethan Nordean.
Kelly says he's not trying to excuse violence. He says there was a lot of violence on Jan. 6 but believes there is a difference between that and intending to kill people

The $1M question - how does this all play out for Tarrio next week.

As Kelly explains the sentence to Nordean, he is seated. I do not believe he is/was crying. His hands are now in his lap and he is staring down at the table

Nordean stands at the podium with Nick Smith at his side. A US Marshal stands behind them.

Nordean scratches his neck, shoulder, rests his hands on the podium and stands stiil as Kelly goes over restrictions of his sentence

Nordean turns to face his family before he leaves the courtroom.
Unlike Pezzola, no outburst.

That ends it for me today. I'll be back in court Tuesday for @emptywheel for Henry "Enrique" Tarrio's sentencing. It kicks off at 2PM ET.

emptywheel.net/2023/09/01/pro…

@emptywheel I will also have a piece out soon for emptywheel about the sentencings so I hope you'll keep an eye out for that one.

And I'm buying a mechanical keyboard with quiet keys tonight, damn it!

I can't take these sticky keys one more day. Thanks for your patience.

For clarity, it is thanks to your donations that my keyboard will be fresh! Appreciate you immensely! Been a long year and Old Bessie has about had it.