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Government's Sentencing Memorandum
USDC, District of Columbia
USA v. Ethan Nordean, Joseph Biggs, Zachary Rehl, Enrique Tarrio, and Dominic Pezzola
Case No. 21-CR-175 (TJK)
by Matthew M. Graves, United States Attorney
8/17/23

https://s3.documentcloud.org/documents/23917711/proud-boys-memo.pdf


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v.
ETHAN NORDEAN,
JOSEPH BIGGS,
ZACHARY REHL,
ENRIQUE TARRIO, and
DOMINIC PEZZOLA,

Defendants.

Case No. 21-CR-175 (TJK)

GOVERNMENT’S SENTENCING MEMORANDUM

The United States respectfully submits this omnibus Sentencing Memorandum for defendants Enrique Tarrio, Joseph Biggs, Ethan Nordean, Zachary Rehl, and Dominic Pezzola. This Sentencing Memorandum addresses those factors that are common to all defendants, a hearing on which is set for August 29, 2023. Additional support for the government’s sentencing recommendations for each defendant are discussed in Attachment A (Tarrio), Attachment B (Nordean), Attachment C (Biggs), Attachment D (Rehl), and Attachment E (Pezzola).
The government’s Sentencing Memorandum reflects the seriousness of the defendants’ conduct and crimes, as reflected in the jury’s verdict after a four-month trial. After adopting the PSRs’ factual findings,1 Chapter Two specific offense characteristics, and Chapter Three adjustments, including the application of Section 3A1.4 to the defendants’ federal crimes of terrorism, the Court should apply the following Guidelines ranges and impose the following terms of incarceration:
1 As of the date of this filing, final presentence reports (PSRs) are not available. All references to the PSRs herein refer to the drafts that were filed on the docket at ECF 835 – 839.
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Defendant / Offense Level after application of Terrorism adjustment (§3A1.4) / Role adjustment (§ 3B1.1) / Obstruction adjustment (§ 3C1.1) / Adjusted offense level / Criminal History Category / Guidelines Range (in months) / Sentence in years (and months)

Tarrio / 32 / 4 / 2 / 38 / VI / 360 - life / 33 years (396)

Biggs / 32 / 4 / 2 / 38 / VI / 360 - life / 33 years (396)

Nordean / 32 / 4 / 36 / VI / 324 - 405 / 27 years (324)

Rehl / 32 / 3 / 2 / 37 / VI / 360 - life / 30 years (360)

Pezzola / 32 / - / - / 32 / VI / 210 - 262 / 20 years (240)


Table of Contents

I. FACTUAL BACKGROUND ........................................................................................... 5
A. Summary of Evidence ......................................................................................................... 5
B. Victims ............................................................................................................................... 7
C. Scope of the Conspiracy ................................................................................................... 14
II. CHARGES AND STATUTORY PENALTIES............................................................ 15
III. LEGAL STANDARDS ................................................................................................... 16
A. Preponderance of the evidence ......................................................................................... 16
B. Relevant conduct and definition of “offense” ................................................................... 17
IV. CHAPTER TWO – OFFENSE CONDUCT................................................................. 19
A. Counts One – Four: Obstruction of Justice (U.S.S.G. §2J1.2) ......................................... 19
1. Base Offense Level for Counts One - Four ................................................................ 20
2. “Administration of justice” specific offense characteristics (Counts One – Four) .... 22
a) Legal applicability .................................................................................................. 22
b) Section 2J1.2(b)(1)(B) (causing or threatening injury or damage) ......................... 29
c) Section 2J1.2(b)(2) (substantial interference with administration of justice) ......... 33
3. “Extensive scope, planning, or preparation” specific offense characteristic .............. 35
B. Count Five ......................................................................................................................... 39
1. Base Offense Level for Count Five ............................................................................ 39
2. “More than minimal planning” specific offense conduct ........................................... 40
C. Counts Six and Seven. ...................................................................................................... 40
D. Count Nine ........................................................................................................................ 43
E. Count Ten.......................................................................................................................... 43
V. CHAPTER THREE: ADJUSTMENTS FOR CRIMES OF TERRORISM ............. 43
A. All Offenses of Conviction Were Calculated to Influence and Affect the Conduct of Government by Intimidation and Coercion, and to Retaliate Against Government Conduct. ............................................................................................................................ 44
1. Legal Standard ............................................................................................................ 44
2. Analysis ...................................................................................................................... 45
B. The Defendants’ Convictions on Counts Six and Seven are Qualifying Offenses for the Section 3A1.4 Adjustment ................................................................................................ 52
C. An Upward Departure Pursuant to Note 4 Applies to Defendants’ Other Convictions ... 53
VI. CHAPTER THREE: OTHER ADJUSTMENTS ........................................................ 57
A. Section 3B1.1 (aggravating role) ...................................................................................... 57 Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 3 of 80
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B. Section 3C1.1 (obstruction of justice) .............................................................................. 64
C. Section 3E1.1 (no acceptance of responsibility) ............................................................... 65
VII. GROUPING ANALYSIS ............................................................................................... 67
VIII. UPWARD DEPARTURES ............................................................................................ 70
IX. SECTION 3553(A) FACTORS APPLICABLE TO ALL DEFENDANTS ............... 71
A. Nature and Circumstances of the Offense and Need for the Sentence Imposed to Reflect the Seriousness of the Offense and Promote Respect for the Law ................................... 71
B. Need for the Sentence to Afford Adequate General Deterrence....................................... 74
C. Need to Avoid Unwarranted Sentencing Disparities ........................................................ 75
X. CONCLUSION ............................................................................................................... 79

I. FACTUAL BACKGROUND

A. Summary of Evidence


Having already ravaged the streets of Washington, D.C. with violence on two prior occasions in the fall of 2020, Tarrio, Biggs, Nordean, and Rehl hand-selected “rally boys,” including Pezzola, for their return on January 6, 2021. They established a chain of command in which the directives of leadership would be followed without question. They chose the time and place for action—leading their men to a vulnerable entrance on the west front of the Capitol when most other rally-goers were focused on then-President Donald Trump’s speech almost a mile away. They arrived shortly before 1 p.m.—the appointed hour for the Certification to begin. These defendants and the men in their command saw themselves as the foot soldiers of the right—they were prepared to use, and they did use, force to stop the “traitors” from stealing the election. On May 4, 2023, twelve jurors found each defendant guilty for their calculated efforts to oppose the lawful transfer of presidential power.
The defendants and the men they recruited and led participated in every consequential breach at the Capitol on January 6. They began their assault that day at 10 a.m., when Nordean, Biggs and Rehl marched an assembled group of nearly 200 individuals away from the speeches at the Ellipse and directly to the Capitol. They arrived at the First Street gate at 12:50 p.m., and Biggs led the crowd in chants of “Whose Capitol? Our Capitol!” and “Whose house? Our house!” Within three minutes, Nordean, Biggs, Rehl, and Pezzola helped lead the charge up the first street walkway with their men throwing aside bike racks and laying waste to anything that stood in their path. As Biggs proudly declared, “we’ve gone through every barricade thus far.” When the police attempted to reform a line, Nordean and Biggs moved to the front and again led the way. They violently tore down a black metal fence and continued their assault on the Capitol. Nearly an hour Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 5 of 80
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later, at approximately 1:30 p.m., when law enforcement appeared to have successfully controlled the crowd by pushing them back, the men again pushed forward. Nordean, Biggs, and Pezzola gathered at the base of the concrete stairs that led to the doors and windows of the Capitol with many of their co-conspirators and other men they had led to the Capitol. They again surged toward the Capitol and overwhelmed officers that had been battling the crowd for nearly an hour. Rehl sprayed an officer in the face. Pezzola smashed open a window, allowing the first rioters to enter the Capitol at 2:11 p.m., and Biggs entered close behind him with some of his men.
The defendants’ leadership role was no accident. They viewed themselves as revolutionaries, and they believed fully in their cause. From the start of the riot, the defendants and their co-conspirators celebrated their achievement. Tarrio, who was monitoring the attack on the Capitol from afar as it unfolded, posted encouraging messages to his tens of thousands of social media followers, including the following messages: “Proud of my boys and my country,” and “Don’t fucking leave.” Tarrio privately claimed credit for the riot at the Capitol, telling Proud Boys senior leadership, “Make no mistake . . . we did this.” Biggs and Nordean posed with other Proud Boys on the west lawn of the Capitol for a celebratory video in which Biggs stated that “January 6 will be a day in infamy.” Rehl made social media posts calling January 6 a “historical day,” and he told his mother he was “so fucking proud” of the Proud Boys’ “raid of the capitol.” Pezzola, once inside the building, filmed a video of himself having a “victory smoke in the Capitol,” and stating, “I knew we could take this motherfucker over if we just tried hard enough… Proud of your motherfucking boy.”
The defendants’ celebratory statements continued in the days that followed. On January 7, Tarrio addressed the Ministry of Self-Defense (MOSD) members, telling them he was “proud of y’all.” Rehl likewise told the MOSD members he was “proud as fuck what we accomplished Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 6 of 80
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yesterday.” Biggs recorded a podcast-style interview in which he called January 6 a “warning shot” to the government that showed them “how weak they truly are” after being “bitch-slapped . . . on their own home turf.” Biggs explained that “January 7th was warning shot to the government – look, we started this country this way and we’ll fuckin’ save it this way.” Nordean recorded a video of himself describing an encounter with a woman at the bar; in the video he faulted the woman for not appreciating that he “was part of fucking storming the Capitol of the most powerful country in the fucking world… 1776, bitch.”
Their own words leave no doubt. The defendants understood the stakes, and they embraced their role in bringing about a “revolution.” They unleashed a force on the Capitol that was calculated to exert their political will on elected officials by force and to undo the results of a democratic election. The foot soldiers of the right aimed to keep their leader in power. They failed. They are not heroes; they are criminals.
B. Victims
“January 6th will be a day in infamy.”
– Joe Biggs, January 6, 2021, 1:27 p.m.
“To those who wreaked havoc in our Capitol today, you did not win. Violence never wins. Freedom wins . . . As we reconvene in this chamber, the world will again witness the resilience and strength of our democracy . . . The elected representatives of the people of the United States have assembled again, on the very same day, to support and defend the Constitution of the United States . . . Let’s get back to work.”
–Vice President Mike Pence, January 6, 2021, 8:06 p.m.
In his 1981 Inaugural Address, President Ronald Reagan remarked that the peaceful and orderly transfer of power called for by the Constitution is viewed by the rest of the world as “nothing less than a miracle.” These defendants and their followers attempted to subvert that two-centuries old tradition. And while freedom, democracy, and the Constitution prevailed on January 6th, it was not without cost. Alongside the enduring legacy of bravery and honor by those who Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 7 of 80
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defended our country, a harsh reality has emerged—political violence is not some foreign concept that exists only in faraway lands, it exists here too.
The actions of these defendants threatened the bedrock principles of our country—democracy and the rule of law. These defendants sought out and embraced their role as the purveyors of street violence to achieve their political objectives. They loudly and publicly declared themselves the face of the insurgency in the wake of the Presidential Election, and they encouraged others to follow them. These defendants sought out to attack and did attack our democracy, and they publicly led the way on January 6th.The defendants’ crimes also directly harmed individuals on January 6: Congress, legislators, the staffers working inside the Capitol building, and the hundreds of law enforcement officers from across the region valiantly trying to protect the building, the people, and the constitutional process.
Congress was the public face of the peaceful transfer of presidential power and, in these defendants’ eyes, they were “traitors.” Public accounts by many of these Members of Congress illustrate some of the emotional and physical toll these people suffered, and continue to suffer, at the hands of these defendants. And that is precisely what these defendants aimed to accomplish—Tarrio posted a picture of Representatives hiding in the gallery and rejoiced at the government “fearing” the people; Biggs later giddily recounted that the attack left elected representatives “shaking” and in fear.
Some Representatives were initially stranded in the gallery of the House of Representatives after the other members had been evacuated from the floor. One Representative stated, “I really thought, we’re not going to be evacuated. We’re going to die here,” and because of the slim political majority, the rioters “could at any point take any three members either hostage or kill any Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 8 of 80
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three members, and that would have prevented us from certifying the election.”2 Another Representative expressed that, “[i]t was terrifying,” because they “didn’t know if the doors could be locked. And so I was focused on planning my escape if I had to get out.” “That’s what I was concerned about,” she added, “were we going to get out? Were we going to survive? Were they going to come after us?”3 A third explained that the noise from the rioters “sounded like a battering ram trying to beat down the doors.”4 This is not an after-the-fact embellishment, Inspector Thomas Loyd testified that when he arrived at the House gallery to evacuate the Representatives, officers initially resisted opening the doors out of concern that Inspector Loyd may have “been held hostage or had a gun to [his] head.” Tr. 3628:1-24 (Loyd).
Yet another Representative noted that he hadn’t “felt that way in over 15 years, since I was a Ranger in Iraq and Afghanistan.”5 “I had this realization that we were trapped,” the Representative said, so he “started to kind of view this in a tactical way,” explaining the “need to get everyone together, need to get in a defensive position. You don’t want people spread out. You don’t want people to be able to be pulled away from a mob—you need to get in a tight group.”6 And a Representative with a law enforcement background noted that her “police career flashed
2 apnews.com/article/joe-biden-donald-trump-peter-welch-congress-a308bf2a296018e08a3ed5b27b00dbf9 (Jan. 5, 2022); apnews.com/article/jan-6-capitol-siege-lawmakers-trauma-04e29724aa6017180259385642c1b990 (Jan. 5, 2022).
3 Id.
4 lohud.com/in-depth/news/2022/01/04/january-6-capitol-protest-congress-members-recall-escape/6493506001 (Jan. 4, 2022).
5 Id.
6 apnews.com/article/joe-biden-donald-trump-peter-welch-congress-a308bf2a296018e08a3ed5b27b00dbf9 (Jan. 5, 2022); apnews.com/article/jan-6-capitol-siege-lawmakers-trauma-04e29724aa6017180259385642c1b990 (Jan. 5, 2022). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 9 of 80
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through my mind because I came from a job where I went to work every day thinking I might not make it back home.” She continued, “to be there in that moment and thinking—really in the midst of complete chaos—I reserved myself to the fact that, yeah, I could die today. But I’m just like a cop. I’m here doing the right thing, protecting and serving my nation by being here for this process, a peaceful transfer of power.”7
The threat these defendants and other rioters presented to the Members of Congress continued long after the rioters breached the building. Even when they were finally found and later evacuated, they still feared for their lives. One Representative who had served in the military explained that during the evacuation, “I remember the hallways were quiet (when we were evacuating). I was listening so carefully because I was so afraid that we would turn a corner and there would be the rioters.”8
Elected legislators were not the only individuals harmed by the defendants’ conduct. The defendants also specifically targeted and vilified law enforcement in public and private messages in the leadup to January 6. Even after January 6, Nordean continued to vilify police, posting an altered photograph of a law enforcement officer deploying mace against a rioter while referring to law enforcement as the “honorable oath breakers” and telling the public that if they “feel bad for the police, [they] are part of the problem.” Ex. 601-41.
Words on the page will never full capture the horror and heroism that defined the experience of law enforcement on January 6. Radio transmissions between officers on January 6, introduced at trial as Government Exhibits 359 to 398, provide a rare window into the conditions
7 Id.
8 Id. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 10 of 80
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that law enforcement faced that day and the professionalism with which they responded. Sworn law enforcement officers risked their lives to protect not only the Capitol building and the legislators inside, but also the constitutional process itself. Officer David Riggleman stayed in the fight because even though the officers were “greatly outnumbered,” he was committed to protecting the Members of Congress and other stakeholders in the building. Tr. 11645 (Riggleman). Despite all the chaos and terror of the day, Inspector Loyd expressed pride that the U.S. Capitol Police officers carried out their mission—“despite all the chaos that we were involved with, none of the members of Congress sustained physical injuries.” Tr. 3690:21-23 (Loyd).
The Court and the jury heard firsthand from just a fraction of the officers who faced the relentless force of the defendants that day. Officer Shae Cooney described hearing the radio call of a breach, and she testified that the terror that she heard in that transmission caused her to run to the west front. Tr. 6996:12-24 (Cooney). When she saw that rioters had advanced to the black fence, “a little panic came through” because Cooney knew they “weren’t going to have enough” officers. Id. at 6999:1-7. The panic was briefly “paralyzing,” but Cooney promptly joined her outnumbered officers on the line and got in the fight. Id. Officer Cooney came face-to-face with Ethan Nordean just after he tore down the black metal fence. Nordean and Biggs ignored her command to stop as they and others poured into the West Plaza. See, e.g., id. at 7088. Cooney explained that once the rioters were in the west plaza, they were “taking the individual poles on the fence and throwing those at us.” As Officer Cooney battled rioters in the West Plaza, she was personally hit by water bottles and hit in the head with poles and flags, including the American flag. Id. at 7074:9-16. Officer Cooney completed a twenty-hour shift and returned to the Capitol on January 7 after only two hours of sleep. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 11 of 80
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Officer Mark Ode responded to calls of a breach on the west front, and he arrived shortly after Nordean and Biggs tore down the black fence. Just like Officer Cooney, Officer Ode saw officers being assaulted, hit with punches, and having things thrown at them. Tr. 7484:19 – 25 (Ode). Officer Ode recalled the crowd calling law enforcement “traitors.” Id. at 7485:6-11. When Officer Ode attempted to assist another officer who was being assaulted, Pezzola and other rioters “violently and forcefully grabbed” his shield and pulled him to the ground. Id. at 7487:10 – 7488:22. Officer Ode was sprayed with a chemical substance, and Officer Ode fell to the ground with multiple people on top of him. Id. An individual on top of Officer Ode was using his helmet strap to choke him. Id. Officer Ode struggled to breathe, and he believed that he would not make it out of the pile alive. Id. Officer Ode left the front line to decontaminate his eyes and immediately returned to the West Plaza. Id. at 7501-02. The situation was becoming “more intense” and “more officers were intentionally being pulled out and singled out” by the rioters. Id. at 7503:6-13. Officer Ode watched one officer get pulled into the crowd by rioters, and Officer Ode saw “fear in her eyes” as she became separated from her colleagues. Id. at 7503:22-25. Officer Ode eventually responded to the Rotunda where he fought to push rioters such as Nordean out of the building. Id. at 7505-06. Officer Ode did not get home until 2 a.m. Id..
Officer Riggleman responded to the West Plaza shortly before the defendants surged forward up the concrete stairs toward the Upper West Terrace. When he arrived, Officer Riggleman encountered an “enormous crowd” that was “aggressive” and outfitted in tactical helmets and plate carriers. Tr. 11637:14-25 (Riggleman). Officer Riggleman joined officers under the scaffolding and attempted to hold them back from advancing further. Id. at 11641. The crowd surged toward officers, and Officer Riggleman was hit in the face by pepper spray from Barry Ramey, a man who marched with Nordean and Biggs from the Washington Monument. Id. at
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11641. The spray disabled Officer Riggleman’s vision and forced him to retreat to safety while guarding his service weapon. After decontaminating himself, Officer Riggleman got back in the fight even though he was still suffering from blurred vision and a burning sensation and having trouble breathing. Id. at 11644:5-9. Riggleman responded to the Crypt where an outnumbered group of officers again attempted to stop the crowd from advancing. While in the Crypt, rioters such as Gabriel Garcia (a man hand-selected by Tarrio) called the police “traitors.” Id. at 11648. The crowd again surged forward, and Riggleman was pressed against the wall by the force of the rioters, and he was unable to move. Id. at 11651.
Officer Marc Carrion was one of two officers who relentlessly fought for control over the Columbus Doors against overwhelming odds. As Biggs prepared for his second entry through the Columbus Doors, Officer Carrion and a handful of officers had their backs against the Columbus Doors and were trying to keep the mobs of rioters at bay. Officer Carrion recalled calls for help over the radio, yelling and chanting by the crowd, and he described a feeling that all five senses were overwhelmed in that moment. Tr. 14302 (Carrion). Eventually, there were only “five or six [officers] left at the door” and they were being sprayed by rioters, including by James Haffner (whom Nordean and Biggs led to the Capitol). Id. at 14308:2-7. Some of the officers were hit in the eyes, which created the “dangerous situation” for them to be fighting blind. Id. at 14309-10. Officer Carrion testified that the crowd was “hitting us with flagpoles, throwing batteries at us, throwing frozen water bottles at us, all in the hopes of getting us out of there so they could access the door.” Id. at 14308:2-7. Eventually, only Officer Carrion and one colleague, Officer Ryan Salke, remained. They fought to hold the door despite the waves of rioters that continued to push past them. Officer Carrion explained that even though he and Officer Salke had been completely overrun, they continued to work, “just trying to put our bodies in the way, if we can, to minimize
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the amount of people coming in.” Id. at 14315-316. After literally sacrificing his body to the effort, Officer Carrion completed his shift at 11 p.m., went home and washed his uniform, and returned at 7 a.m. Id. at 14320-321.
The officers’ heroism shined through in their testimony, but that heroism came at a tremendous cost. These officers, like countless others, carry with them the physical and mental scars of January 6, and the government anticipates that the Court will hear a more fulsome description of the experience of law enforcement and congressional workers during the omnibus hearing on August 29, 2023.
C. Scope of the Conspiracy
The scope of the defendants’ conspiracy is vast. The defendants organized and directed a force of nearly 200 to attack the heart of our democracy. Other leaders of the conspiracy, including Jeremy Bertino and Charles Donohoe, have pleaded guilty. Dozens of individuals who the defendants commanded or led to the Capitol await trial or have pled guilty.9
The scope of the conspiracy impacts many aspects of sentencing, including each defendant’s culpability for “relevant conduct,” U.S.S.G. § 1B1.3, the Guidelines’ specific offense characteristic for an offense that is extensive in scope, id. § 2J1.2(b)(3), the Guidelines’ adjustment
9 Other charged defendants include: Matthew Greene and William Pepe (No. 21-cr-52 (TJK)); Arthur Jackman, Paul Rae, Edward George, Kevin Tuck, Nathaniel Tuck (No. 21-cr-378 (TJK)); Christopher Kuehne, Louis Colon, Felicia Konold, Cory Konold, William Chrestman, and Ryan Ashlock (No. 21-cr-160 (TJK), Isiah Giddings (No. 22-cr-389 (TJK)), Brian Healion (No. 23-cr-230 (TJK)), Freedom Vy (No. 21-mj-689), Ronald Loehrke and James Haffner (No. 21-mj-672), Christopher Worrell and Daniel Lyons Scott (No. 21-cr-292 (RCL)), Barry Ramey (No. 22-cr-184 (DLF)), Zachary Johnson, Dion Rajewski, Alan “AJ” Fischer, Brian Boele, and James Brett (No. 22-cr-11 (RJL)), Gilbert Fonticoba (No. 21-cr-638 (TJK)), Gabriel Garcia (No. 21-cr-129 (ABJ)), Nicholas Kennedy (No.21-cr-487 (CKK)), Steven Miles and Matthew Lebrun (No. 22-cr-136 (JMC)), Jeffrey Finley (No. 21-cr-526 (TSC)), Marc Bru (No. 21-cr-352 (JEB)), Robert Gieswein (No. 21-cr-24 (TNM)); Tucker Weston (No. 23-cr-174 (RBW)). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 14 of 80
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for aggravating roles in the offense, id. § 3B1.1, the Guidelines’ adjustment for “terrorism” in relation to defendants’ qualifying offenses, id. § 3A1.4(a) and (b), the Guidelines’ recommended upward departure for “terrorism,” id. § 3A1.4, cmt. n.4, and the need to avoid unwarranted sentence disparities, 18 U.S.C. § 3553(a)(6). As explained below, the scope of the conspiracy helps illustrate why the leaders and major participants must receive significant sentences of incarceration.
II. CHARGES AND STATUTORY PENALTIES
As set forth below, Tarrio, Nordean, Biggs, and Rehl were found guilty of Counts One through Six; and Pezzola was found guilty of Counts Three through Seven, Nine, and Ten, which crimes carry the maximum statutory penalties set forth below:
• Count One, seditious conspiracy, 20 years of incarceration;
• Count Two, conspiracy to obstruct an official proceeding, 20 years of incarceration;
• Count Three, obstruction of an official proceeding, 20 years of incarceration;
• Count Four, conspiracy to use force, intimidation, or threats to prevent officers of the United States from discharging their duties, 6 years of incarceration;
• Count Five, interference with law enforcement officers during a civil disorder: 5 years of incarceration;
• Counts Six and Seven10 destruction of federal property: 10 years of incarceration;
• Count Nine, assaulting federal officers: 8 years of incarceration; and
• Count Ten, robbery of personal property of the United States: 15 years of incarceration.
10 Counts Six and Seven, destruction of federal property in violation of 18 U.S.C. § 1361, are specifically enumerated crimes of terrorism as defined in 18 U.S.C. § 2332b(g)(5) and as applied in U.S.S.G. §3A1.4. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 15 of 80
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The government respectfully requests that the Court sentence Tarrio, Nordean, Biggs, and Rehl to terms of incarceration greater than 20 years, meaning that at least some of the counts would run consecutively to one another. The Court may sentence a defendant to a total term of incarceration greater than 20 years—i.e., run the terms consecutively—if the Court determines that such a sentence is necessary to comply with the factors in 18 U.S.C. § 3553(a)(2), that, is, to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, and to protect the public from further crimes of the defendant. U.S.S.G. § 5G1.2(b), (d) (“If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, . . . the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment.”); 18 U.S.C. § 3584(b); see also United States v. Lafayette, 337 F.3d 1043, 1050 & n.11 (D.C. Cir. 2003) (explaining that a court may impose consecutive or “stack[ed]” sentences to achieve a total sentence in excess of the statutory maximum on a single count).
III. LEGAL STANDARDS
A. Preponderance of the evidence
To apply a provision of the Guidelines that the jury did not, by virtue of its guilty verdicts, necessarily already find beyond a reasonable doubt, the Court must make a finding by a preponderance of the evidence. United States v. Watts, 519 U.S. 148, 154 (1997); see also United States v. Bapack, 129 F.3d 1320, 1324 (D.C. Cir. 1997) (“[I]t is the Government’s burden to demonstrate by a fair preponderance of the evidence that an enhancement is warranted.”); U.S.S.G. § 6A1.3, cmt (“The Commission believes that use of a preponderance of the evidence standard is appropriate. . . .”). The Court may consider any relevant information, without regard to whether Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 16 of 80
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the information would be admissible at trial. 18 U.S.C. § 3661. The Court may also consider acquitted conduct, United States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008), including an acquittal of a conspiracy charge, United States v. Jones, 744 F.3d 1362, 1368 (D.C. Cir. 2014).
B. Relevant conduct and definition of “offense”
In applying the Guidelines, the Court must consider all “relevant conduct.” And especially in a conspiracy case,11 “relevant conduct” is “broadly defined.” United States v. Khatallah, 41 F.4th 608, 645 n.23 (D.C. Cir. 2022). Under Section 1B1.3(a)(1)(A), a defendant’s “relevant conduct” encompasses both the defendant’s own acts and those that the defendant aided, abetted, counseled, commanded, induced, procured, or willfully caused. And under Section 1B1.3(a)(1)(B), in a “jointly undertaken criminal activity,” such as a conspiracy, a defendant is responsible for all acts of others that were “within the scope of the jointly undertaken criminal activity, in furtherance of that criminal activity, and reasonably foreseeable in connection with that criminal activity.” Finally, a defendant’s “relevant conduct” under the Guidelines includes “all harm that resulted” from the defendant’s acts or the acts of others engaged in the jointly undertaken criminal activity. U.S.S.G. §1B1.3(a)(3).
All of these defendants were convicted of being participants in at least one conspiracy, and thus, by virtue of the jury’s verdict, they are responsible for actions of their conspirators that fall within the parameters of Section 1B1.3(a)(1)(B). It is true that “the scope of the ‘jointly undertaken
11 As Judge Mehta observed at sentencing in United States v. Elmer Stewart Rhodes, et al., No. 22-cr-15 (APM), the Supreme Court has found that “collective criminal agreement, partnership in crime presents a greater potential threat to the public than individual dealings. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality.” Rhodes Sentencing Transcript (May 25, 2023) at 111 (quoting Callanan v. United States, 364 U.S. 587 (1961)). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 17 of 80
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criminal activity’ is not necessarily the same as the scope of the entire conspiracy, and hence relevant conduct is not necessarily the same for every participant.” U.S.S.G. §1B1.3, cmt. n.3(B). But given the nature of the conspiracies here and the conspiracy convictions for these five defendants, each defendant’s “relevant conduct” supports application of each of the Guideline provisions discussed below. See United States v. Khatallah, 314 F. Supp. 3d 179, 189 (D.D.C. 2018) (broadly applying Section 1B1.3 because, in part, “‘[o]nce the conspiracy and the defendant’s knowing participation in it have been established beyond a reasonable doubt, the defendant will be vicariously liable for the substantive acts committed in furtherance of the conspiracy by his coconspirators’”) (quoting United States v. Sampol, 636 F.2d 621, 676 (D.C. Cir. 1980)).
As discussed in greater detail above, the jury found that these five defendants joined a conspiracy, the aims of which included opposing the government through the use of force, obstructing Congress’ certification of the electoral college, and/or using force, intimidation, or threat to prevent members of Congress from discharging their duties that day. Each defendant should thus be liable for his own conduct plus the conduct of all his co-conspirators on the afternoon of January 6, to include the actual or threatened property damage and injury to others caused by those who breached the Capitol. Each of these defendants joined the conspiracy prior to January 6. For example, Tarrio, Nordean, Biggs, Rehl, and other leaders of the Proud Boys organization formed the “Ministry of Self Defense” in the days following former President Trump’s announcement of an election-related rally in Washington, D.C. on January 6. These leaders intentionally recruited men who would follow their top-down leadership and who were prepared to engage in physical violence, if necessary. One of those recruits was Dominic Pezzola, who enthusiastically joined the MOSD on January 2, 2021, and committed to carrying out the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 18 of 80
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objective of the leaders. Tarrio, Nordean, Biggs, and Rehl organized the Proud Boys return to Washington, D.C., which guidance included what to wear (e.g., no colors), what to bring (e.g., protective gear and communication equipment), and what to do (e.g., fit in or fuck off). Thus, each defendant also bears responsibility for certain conduct by their co-conspirators prior to January 6.
For all of these reasons, the relevant conduct in this case is much broader than a typical January 6-related case.
IV. CHAPTER TWO – OFFENSE CONDUCT
As the Supreme Court has instructed, the Court “should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” United States v. Gall, 552 U.S. 38, 49 (2007). “As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point” for determining a defendant’s sentence. Id. Pursuant to the order of operations set forth in Section 1B1.1(a) of the Guidelines, the operation generally proceeds with a calculation for each offense of the Base Offense Level and Specific Offense Characteristics in Chapter Two, then to any Adjustments and Grouping of counts in Chapter Three, then to Criminal History in Chapter Four, and finally to the determination of the sentence under Chapter Five. These operations are presented in order herein.
A. Counts One – Four: Obstruction of Justice (U.S.S.G. §2J1.2)
The PSRs correctly determine that the appropriate Chapter Two offense guideline for Counts One, Two, Three, and Four is Section 2J1.2 (Obstruction of Justice). All five of the defendants were convicted of multiple crimes for which the Obstruction of Justice guideline applies. As explained herein, there are several Specific Offense Characteristics that apply to the defendants’ convictions. First, an eight-level increase under Section 2J1.2(b)(1)(B) applies because the offense involved property destruction or its threat “in order to obstruct the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 19 of 80
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administration of justice.” Second, a separate three-level increase under Section 2J1.2(b)(2) applies because “the offense resulted in substantial interference with the administration of justice.” Because both of these characteristics concern the “administration of justice,” they are addressed together herein. Finally, an additional two-level increase under Section 2J1.2(b)(3) applies because the offense was “extensive in scope, planning, or preparation.” As explained below, these Specific Offense Characteristics combine for a total Offense Level of 27 for Counts One – Four.
1. Base Offense Level for Counts One - Four
The applicable Chapter Two Guideline for each of Counts One – Four is Section 2J1.2 (Obstruction of Justice).
Count One (Seditious Conspiracy). Under Section 2X1.1, cmt. n.3, for a conspiracy conviction for which the substantive offense is not covered by a specific guideline, use Section 2X5.1. Under Section 2X5.1, since there is no applicable Chapter Two Guideline for an offense of sedition in the Statutory Appendix, use “the most analogous guideline.” Here, that is Section 2M1.1, “Treason.”12 Under Section 2M1.1(a)(2), if a defendant’s conduct was not “tantamount to waging war against the United States,”13 use “the offense level applicable to the most analogous offense,” which is Section 2J1.2, “Obstruction of Justice.”
12 See United States v. Rahman, 189 F.3d 88, 150-54 (2d Cir. 1999) (affirming that the most analogous offense guideline for seditious conspiracy, in violation of 18 U.S.C. § 2384, is Section 2M1.1); see also United States v. Ford, 216 Fed. App’x 652, 652-53 (9th Cir. 2007) (rejecting a habeas claim that counsel was ineffective for agreeing to stipulate to the use of Section 2M1.1); see also United States v. Elmer Stewart Rhodes III, et al., No. 22-cr-15 (APM) (May 25, 2023), Sent. Tr. at 82 (applying 2J1.2 to Rhodes’s conviction for Seditious Conspiracy).
13 As noted in Part IX.C, infra, for almost every seditious conspiracy conviction (on the “levying war” and “opposing the government by force” prongs) since the advent of the Sentencing Guidelines, the court appears to have applied the Treason Guideline and found that the defendants’ conduct was “tantamount to waging war against the United States.” See U.S.S.G. § 2M1.1(a)(1). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 20 of 80
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Count Two (Conspiracy to Obstruct an Official Proceeding). Under Section 2X1.1, the base offense for a conspiracy conviction is the guideline for the substantive offense, which is 18 U.S.C. § 1512(c)(2). The applicable Chapter Two Guideline for this offense is Section 2J1.2, “Obstruction of Justice.” U.S.S.G. Appendix A.
Count Three (Obstruction of an Official Proceeding). The applicable Chapter Two Guideline for this offense is Section 2J1.2, “Obstruction of Justice.” U.S.S.G. Appendix A.
Count Four (Conspiracy to Prevent Officers of the United States from Discharging Their Duties). Under Section 2X1.1, cmt. n.3, for a conspiracy conviction for which the substantive offense is not covered by a specific guideline, use Section 2X5.1. Under Section 2X5.1, since there is no applicable Chapter Two Guideline for an offense of preventing officers of the United States from discharging their duties in the Statutory Appendix, use “the most analogous guideline.” The “officers” of the United States who were the victims of this count were the Members of Congress and law enforcement officers. See Jury Instructions (ECF No. 767 at 25) (listing “Members of Congress” and “law enforcement officers” as the victims); see also Verdict Form (ECF No. 804) (same). Because the object of the defendants’ conspiracy—preventing Members of Congress from performing their constitutional duties at the Capitol on January 6—was designed to obstruct the administration of justice, the most analogous guideline is Section 2J1.2, “Obstruction of Justice.”14
14 The common criminal objective among the members of the conspiracy was to obstruct the certification of the electoral college proceeding. The victims of this effort—Members of Congress and the federal law enforcement who were protecting them—are indistinguishable for this purpose. Indeed, Judge Mehta applied §2J1.2 to violations of 18 U.S.C. § 372 by members of the Oath Keepers. See United States v. Elmer Stewart Rhodes, et al., No. 22-cr-15 (APM). And the First Circuit agreed that §2J1.2, rather than §2A2.4, was the most analogous guideline for a defendant convicted of violating 18 U.S.C. § 372, when the defendant’s conviction was premised on the defendant conspiring to prevent federal officers from arresting other people, and thus “obstructed the administration of justice.” United States v. Gerhard, 615 F.3d 7, 33 (1st Cir. 2010); see also Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 21 of 80
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2. “Administration of justice” specific offense characteristics (Counts One – Four)
Congress’s Joint Session on January 6 related to the “administration of justice” as used in the Sentencing Guidelines. See United States v. Jensen, No. 21-cr-6 (TJK) (Dec. 16, 2022), Sent. Tr. at 13-16 (holding that the applicable definitions and structure of 2J1.2 apply to the Official Proceeding); see also United States v. Matthew Wood, No. 21-cr-223 (APM) (Nov. 28, 2022), Sent. Tr. at 35-38 (holding that the “administration of justice” in Section 2J1.2 is synonymous with “official proceeding” as defined in 18 U.S.C. § 1515(a)(1), including a “proceeding before the Congress”). Accordingly, the Specific Offense Characteristics set forth at Section 2J1.2(b)(1)(B) (causing or threatening injury or damage) and Section 2J1.2(b)(2) (substantial interference with administration of justice) apply to Counts One – Four. Id.
a) Legal applicability
i. The Electoral College vote involved the administration of justice as defined broadly in the Guidelines.
Section 2J1.2 applies to a variety of obstruction offenses, including all offenses under 18 U.S.C. § 1512 and eleven other statutes found in Chapter 73 of Title 18. See U.S.S.G. § 2J1.2 cmt.; U.S.S.G. Appendix A. The eight-level increase under Section 2J1.2(b)(1)(B) applies if the offense involved property destruction or its threat “in order to obstruct the administration of justice.” A separate three-level increase under Section 2J1.2(b)(2) applies “if the offense resulted in substantial interference with the administration of justice.”
United States v. Rakes, 510 F.3d 1280, 1290 (10th Cir. 2007) (acknowledging that a § 372 conviction for conspiring to impede and thwart the prosecution of other people would constitute “imped[ing] the due administration of the law,” and thus would warrant application of §2J1.2 rather than §2A2.4). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 22 of 80
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Section 2J1.2’s text, purpose, and commentary all support the conclusion that conduct that obstructs Congress’s certification of the electoral vote interferes with the “administration of justice” for purposes of the guideline. Administration of justice, in its broadest sense, refers to the proper administration of law by all three branches of government. Black’s Law Dictionary defines “justice” to include “[t]he fair and proper administration of laws,” and it defines “obstruction of justice” as “[i]nterference with the orderly administration of law and justice.” Black’s Law Dictionary (11th ed. 2019); see also Ballentine’s Law Dictionary 696 (3d ed. 1969) (defining justice to include “exact conformity to some obligatory law”). When defining “contempt” to include “[c]onduct that defies the authority or dignity of a court or legislature,” Black’s Law Dictionary observes that “such conduct interferes with the administration of justice.” Black’s Law Dictionary (11th ed. 2019) (emphasis added). And courts have defined “administration of justice” to mean “the performance of acts or duties required by law,” Rosner v. United States, 10 F.2d 675, 676 (2d Cir. 1926) (quotation omitted), or “the performance of acts required by law in the discharge of duties,” United States v. Partin, 552 F.2d 621, 641 (5th Cir. 1977).
To be sure, the term “administration of justice” is most commonly used in a narrower sense to refer to “interference with the pendency of some sort of judicial proceedings.” In re Kendall, 712 F.3d 814, 828 (3d Cir. 2013); see In re McConnell, 370 U.S. 230, 234, 236 (1962) (defining the term in the contempt context as relating to “the performance of judicial duty”); United States v. Aguilar, 515 U.S. 593, 599 (1995) (stating that the “omnibus clause” of 18 U.S.C. § 1503, which criminalizes obstruction of the “due administration of justice,” requires proof of “an intent to influence judicial or grand jury proceedings”). But there are compelling reasons for concluding that “administration of justice” bears its broader (albeit less common) meaning in Section 2J1.2. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 23 of 80
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First, Section 2J1.2’s context and purpose support the broader reading of “administration of justice” in both subsections (b)(2) and (b)(1)(B). Section 2J1.2 applies to an array of obstruction statutes, including a number that do not involve the “administration of justice” in the narrow sense (i.e., relating to judicial or quasi-judicial proceedings). See U.S.S.G. § 2J1.2, cmt. (listing covered statutes); U.S.S.G. Appendix A (statutory index). Those offenses include concealing or destroying invoices or papers relating to imported merchandise, 18 U.S.C. § 551; obstructing an investigation under the Workforce Innovation and Opportunity Act, 18 U.S.C. § 665(c); obstruction of proceedings before departments, agencies, and committees, 18 U.S.C. § 1505; obstruction of enforcement of state gambling laws, 18 U.S.C. § 1511; obstruction of official proceedings, 18 U.S.C. § 1512; obstruction of a federal audit, 18 U.S.C. § 1516; destruction of documents in agency investigations, 18 U.S.C. § 1519; and interfering with the administration of the Internal Revenue Code, 26 U.S.C. § 7212. Yet under a narrow interpretation of the guideline, the enhancements under subsection (b) would not apply to those statutes. That is good reason to reject such a reading. Cf. United States v. Castleman, 572 U.S. 572 U.S. 157, 167 (2014) (rejecting a reading of 18 U.S.C. § 922(g)(9) that “would have rendered [it] inoperative in many States at the time of its enactment”).
Section 2J1.2’s background indicates that the Sentencing Commission intended the enhancements to reach the type of violent and dangerous conduct at issue in this case. The background notes that Section 2J1.2 broadly covers crimes “of varying seriousness,” including offenses that involve intercepting grand jury deliberations, interfering with an illegal gambling investigation, or obstructing “a civil or administrative proceeding,” and that the underlying conduct may “range from a mere threat to an act of extreme violence.” U.S.S.G. § 2J1.2, cmt. bkgd. Within that range, the enhancements “reflect the more serious forms of obstruction.” Id. The
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Commission thus crafted the enhancements in Section 2J1.2 to cover the most egregious conduct knowing that obstruction-of-justice offenses are not limited solely to interference with judicial proceedings.
Relatedly, limiting subsection (b)’s enhancements to obstruction of judicial proceedings would undermine the purpose of the Guidelines. “A principal purpose of the Sentencing Guidelines is to promote uniformity in sentencing imposed by different federal courts for similar criminal conduct.” Hughes v. United States, 138 S. Ct. 1765, 1774 (2018). The Guidelines therefore seek to achieve “a strong connection between the sentence imposed and the offender’s real conduct.” United States v. Booker, 543 U.S. 220, 246 (2005). The Sentencing Commission reasonably determined, for example, that “causing or threatening physical injury to a person, or property damage, in order to obstruct the administration of justice” is more serious than obstruction not involving such injury or threats and should be punished more severely. U.S.S.G. § 2J1.2(b)(1)(B). And the seriousness of the threatening or injurious conduct does not depend on whether the obstructed proceeding is judicial, legislative, or executive. There is no sound basis for assigning a significantly higher offense level to someone who violently interferes with a court proceeding than someone who violently interferes with a congressional proceeding. See United States v. Rubenacker, No. 21-cr-193 (May 26, 2022), Sent. Tr. at 69 (“There is simply no indication in guideline Section 2J1.2 that the [specific offense characteristics] containing the phrase ‘administration of justice’ were meant to apply to only some of the statutes referenced to this guideline and not to apply to all of the cases involving obstruction of proceedings taking place outside of courts or grand juries; that simply doesn’t make sense.”).
Likewise, the history and context of Section 2J1.2 support the broad application. When originally promulgated, Section 2J1.2 encompassed 18 U.S.C. § 1512, which included obstructive Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 25 of 80
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conduct directed at a witness or victim in connection with proceedings before the Congress. See United States v. Elmer Stewart Rhodes III, et al., No. 22-cr-15 (APM) (May 24, 2023), Sent. Tr. at 171-177. The Sentencing Commission then included enhancements to Section 2J1.2 to address the most serious conduct, “including obstructive conduct before an official proceeding, which [] would include a proceeding before Congress. Id. (applying the specific offense characteristics related to “administration of justice” to all members of the Oath Keepers and explaining that the Sentencing Commission intended for the original 2J1.2 Guideline to be “coextensive with the conduct that is captured in 1503 through 1513”).
Second, Section 2J1.2’s commentary provides a broad definition of “administration of justice.” It defines “[s]ubstantial interference with the administration of justice” to include “a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based on perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.” U.S.S.G. § 2J1.2, cmt. n.1 (emphasis added). This definition includes interference not only with “court” resources, but also with any “governmental” resources, a term that includes congressional resources. The Supreme Court has held that “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). Because this commentary is consistent with the plain text of the Guideline, which uses the broad term “administration of justice,” it is authoritative.
It is true that the commentary defines only the term “substantial interference with the administration of justice,” which serves as the basis for the three-level enhancement in Section 2J1.2(b)(2) and does not specifically define the term “in order to obstruct the administration of
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justice,” which serves as the basis for the eight-level enhancement in Section 2J1.2(b)(1)(B). But the relevant term “administration of justice” is identical and should be given the same interpretation in both enhancements. The operative verbs “interfere[]” and “obstruct” carry the same meaning in this context. And the adjective “substantial” in Section 2J1.2(b) does not change the meaning of “administration of justice,” especially since the commentary repeats the word, requiring “the unnecessary expenditure of substantial governmental . . . resources.” U.S.S.G. § 2J1.2, cmt. n.1 (emphasis added). Thus, the term “in order to obstruct the administration of justice” in Section 2J1.2(b)(1)(B) should be read to include obstructive conduct aimed at nonjudicial governmental activities. A different conclusion would lead to the incongruous result of giving two different meanings to the term “administration of justice” within the same guideline. See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007) (“A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning.”).
The Electoral College certification vote on January 6 falls comfortably within the meaning of “administration of justice” as used in Section 2J1.2 because it involved Congress’s performance of duties required by law. Specifically, Congress’s certification of the Electoral College vote was an official proceeding required by both the Constitution and federal statutes. See Dec. 28, 2021, Mem. Op. (ECF 263) at Part III.A.1. (“Congress’s Certification of the Electoral College Vote Was an ‘Official Proceeding.’ Under Section 1512(c)(2)”). Application of both Sections 2J1.2(b)(1)(B) and (b)(2) is therefore appropriate here. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 27 of 80
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Tue Aug 22, 2023 12:06 am

Part 2 of 3

ii. Courts, including judges on this Court in January 6 cases, have correctly held that non-judicial proceedings can involve the administration of justice.
Other courts have appropriately applied the “administration of justice” enhancements in Section 2J1.2(b)(2) to efforts to obstruct a wide range of governmental functions, not limited to judicial or grand jury proceedings. See United States v. Ali, 864 F.3d 573, 574 (7th Cir. 2017) (defendant “substantially interfered with the administration of justice” by causing government to expend resources to recover children he had kidnapped and transported internationally in violation of child custody order); United States v. Atlantic States Cast Iron Pipe Co., 627 F. Supp. 2d 180, 205-08 (D.N.J. 2009) (defendant interfered with OSHA investigations into a workplace accident); United States v. Weissman, 22 F. Supp. 2d 187, 194-98 (S.D.N.Y. 1998) (defendant withheld subpoenaed documents from a congressional subcommittee).
Moreover, fourteen judges in this District (including this Court in Pruitt and Jensen, Nos. 21-cr-6 and 21-cr-23), have applied at least one of Section 2J1.2’s “administration of justice” enhancements in cases arising from the Capitol breach on January 6: then-Chief Judge Howell (Rubenacker, No. 21-cr-193); Judge Mehta (Wood, No. 21-cr-223); Judge Contreras (Andries, No. 21-cr-93); Judge Cooper (Robertson, No. 21-cr-34); Judge Chutkan (Priola, No. 22-cr-242); Judge Moss (Miller, No. 21-cr-75); Judge Jackson (Rodriguez, No. 21-cr-246); Judge Friedrich (Reffitt, No. 21-cr-32); Judge Hogan (Tenney, No. 21-cr-640); Judge Lamberth (Fairlamb, No. 21-cr-120); Judge Friedman (Puma, No. 21-cr-454); Judge Bates (Brock, No. 21-cr-140); and Judge Kollar-Kotelly (Allen, No. 21-cr-64).15 And because this Court already held that Congress’ certification of the election qualifies as “quasi-adjudicative or quasi-judicial,” Dec. 28, 2021, Mem. Op. (ECF
15 Although some judges have handled multiple such cases, only one case is listed per judge. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 28 of 80
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263), at 12, it should give no weight to the reasoning of the two judges who, after concluding the certification proceeding was “ministerial” or was not “a proceeding that determines rights or obligations,” found Section 2J1.2’s “administration of justice” enhancements inapplicable. See Seefried, No. 21-cr-287, ECF 123 (Oct. 29, 2022) (Judge McFadden); Watson, No. 21-cr-513 (March 9, 2023), Sent. Tr. at 23-25 (Judge Walton).
The Court should find that Section 2J1.2’s “administration of justice” specific offense characteristics apply here as a matter of law.
b) Section 2J1.2(b)(1)(B) (causing or threatening injury or damage)
The PSRs correctly apply this eight-level enhancement to all of the defendants here because the defendants’ relevant conduct “involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice.” U.S.S.G. § 2J1.2(b)(1)(B). Indeed, each of the cooperating defendants who pled guilty to being a member of this conspiracy, including Jeremy Bertino and Charles Donohoe, agreed to the applicability of the Section 2J1.2(b)(1)(B) characteristic.
First, the conspirators, in being among the first wave of rioters to breach the Capitol grounds and building at 12:53 p.m., were part of a mob that caused injuries to Capitol Police officers guarding the outer perimeter at First Street. Among other things, one officer was “knocked unconscious” and a second officer “suffered an almost career-ending leg injury when the bike rack was pinned against her leg.” Tr. 3529:15-24 (Loyd). Pezzola and Rehl were among the first across the trampled barricade, with Nordean and Biggs following closely behind. Ex. 445Cx.
Second, the conspirators, including Biggs and Nordean, tore apart a black metal fence on Capitol grounds at 12:56 p.m., which allowed the first wave of rioters to continue advancing onto Capitol grounds and towards the Capitol building. See, e.g., Ex. 445-Bx, 492-G. The fence posts Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 29 of 80
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were screwed into the concrete and “it takes a pretty good amount of force” to detach the fence. Tr. 7149:2-11 (Cooney).
Third, after tearing down the fence, Biggs, Nordean, and Rehl immediately moved forward toward the line of officers. After destroying the fence, Nordean moved intentionally forward toward a line of outnumbered officers—a threatening action. Ex. 417x at 0:52; Ex. 445-Bx at 1:35. Nordean and Biggs then surged forward with Biggs waving the crowd forward. Ex. 417x at 0:52 – 1:05; Ex. 445-By. Just to their right, Rehl rushed past the trampled fence and joined Nordean and Biggs at the front of the advancing crowd. Ex. 445-By.
Fourth, Pezzola, engaged in hand-to-hand combat with law enforcement officers who were guarding the Capitol. Officer Ode described the assault by Pezzola, which was captured on photos and videos, and testified that the picture showed “two individuals grabbing my shield or my arm and forcefully attempting to take it away from me.” Tr. 7491:8-23 (Ode). Officer Ode described that individuals in the crowd “violently and forcefully grabbed [his] shield and pulled [him] down to the ground.” Id. at 7487:10 – 7488:22. Pezzola himself admitted that he grabbed Officer Ode’s shield while it was still in Officer Ode’s hand and tried to “take it from his possession.” Tr. 19375:8-19 (Pezzola); see also id. at 19376:3-19377:7 (describing grabbing and pulling the shield with intent “to take possession of it.”).16
16 Although the other defendants were acquitted of this count, the Court can and should still find by a preponderance that their “relevant conduct” includes the actions of Pezzola because the jury convicted these defendants of conspiracy. The jury’s “not guilty” verdicts on this count does not preclude such a finding. “[A defendant] was not ‘acquitted’ for conduct unless the jury necessarily determined that the facts underlying a charge or enhancement were not proved beyond a reasonable doubt.” United States v. Khatallah, 41 F.4th 608, 648 (D.C. Cir. 2022), cert. denied, No. 22-7065, 2023 WL 4163280 (U.S. June 26, 2023). It is difficult to reconcile the jury’s acquittal of four defendants for Pezzola’s assault at Count Nine, given that these same defendants were both convicted of a conspiracy to use force, intimidation, or threats to interfere with officers (Count Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 30 of 80
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Fifth, evidence at trial included violent acts carried out by the men who followed Nordean and Biggs onto Capitol grounds, including the spray assaults by Trevor McDonald (Ex. 261; Tr. 12365:1-12366:10 (Miller)) and Haffner (Tr. 12562), and the coordinated efforts to physically break through a line of officers in the lower west tunnel by A.J. Fischer (id. at 12674-75).
Sixth, Rehl assaulted a law enforcement officer with an irritant spray before quickly retreating into the crowd on the West Plaza. Ex. 2003, 2004, and 2008.
Seventh, various conspirators, including Biggs and Pezzola, overwhelmed a line of officers at the base of the concrete stairs that led to the U.S. Capitol building. Dozens of Proud Boys reunited at the base of the concrete stairs shortly before 1:44 p.m. Daniel Lyons Scott, a Proud Boy who had marched behind Nordean, Biggs, and Rehl to the Capitol (and the same man who had earlier yelled out, “let’s take the fucking Capitol”), initiated a push by shoving two officers and pushing them up the stairs. Tr. 12467:6-9 (Miller); Ex. 451x. Almost instantaneously thereafter, the crowd overwhelmed the officers and pushed up the scaffolding. Pezzola, Donohoe, and Biggs were among the surge of rioters to move up the concrete stair behind Scott. Tr. 12467:12-12470:16 (Miller); Ex. 451x and 476x.
Eighth, Pezzola continued up the stairs with a mass of other rioters. He threatened officers manning a barricade at the top of the stairs, telling them: “You better be fucking scared. Yeah, you
Four), and the jury was instructed on Pinkerton liability. Courts have long cautioned against trying to reconcile “inconsistent verdicts.” See, e.g., United States v. Dykes, 406 F.3d 717, 722 (D.C. Cir. 2005) (“We do not know what went through the jurors’ minds. . . . But even if the [verdicts were inconsistent], a ‘criminal defendant convicted by a jury on one count [cannot] attack that conviction because it was inconsistent with the jury’s verdict of acquittal on another count.’”) (quoting United States v. Powell, 469 U.S. 57, 58 (1984)). In any event, because of the guilty verdicts on multiple conspiracy counts, it is not the case that “the jury necessarily determined that the facts underlying [that] charge . . . were not proved beyond a reasonable doubt.” Khatallah, 41 F.4th at 648. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 31 of 80
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better be fucking scared. ….We ain’t fucking stopping . . . You better decide what side you’re on motherfuckers. You think Antifa’s fucking bad? Just you wait.” Ex. 429-Cx.
Ninth, Pezzola broke windows to access the Capitol building and achieve the objective of stopping the certification. See, e.g., Ex. 425. Pezzola’s admitted goal in smashing the window was for someone inside the building to hear him, and he believed that this was a way to get the government to listen to him. Tr. 19409:23 – 19410:25 (Pezzola).17
Tenth, the conspirators, including Biggs, used force to push past law enforcement officers who were guarding the doors of the Capitol in order to gain entry to the Capitol and stop the certification. Biggs made his second entry as part of a tactical line of four Proud Boys immediately after the crowd overwhelmed officers guarding the door. Ex. 433-C. Biggs’ group pushed directly past those officers, with Biggs brushing up against one. Ex. 172x. Officer Carrion described his efforts to guard the door and the assaultive conduct that he endured before Biggs rushed inside, including rioters “hitting [officers] with flagpoles, throwing batteries . . ., throwing frozen water bottles . . ., all in the hopes of getting [officers] out of there so they could access the door.” Tr. 14308:2-7 (Carrion). Officer Carrion fought against “waves and waves” of rioters by “just trying to put [his] body in the way . . . to minimize the amount of people coming in.” Id. at 14316:1-3; 14317:12-18.
17 Although the jury did not reach a verdict on Count Seven for the other defendants, the Court can and should still find by a preponderance that their “relevant conduct” includes the actions of Pezzola because the jury convicted all five defendants of conspiracy to use force, intimidation, or threats to prevent officers (i.e., law enforcement and Members of Congress) from discharging their duties. Pezzola’s own admission that he was taking the action to get the government to listen to him provides further support for the conclusion that the destruction of the window was a “harm that resulted” from the jointly undertaken criminal activity. See U.S.S.G. §1B1.3(a)(3). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 32 of 80
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c) Section 2J1.2(b)(2) (substantial interference with administration of justice)
This specific offense characteristic applies because the defendants’ relevant conduct “resulted in substantial interference with the administration of justice.” U.S.S.G. § 2J1.2(b)(2) (emphasis added). As an initial matter, it is hard to imagine a more substantial interference with the administration of justice than what took place on January 6. The defendants’ relevant conduct resulted in the incapacitation of an entire branch of the federal government and the suspension of a congressional proceeding that was required by the Constitution and federal statute to take place at a certain date, time, and location so that our country could peacefully transfer presidential power from one person to the next. Indeed, Pezzola and Biggs were among the first rioters in the building, which act forced the Senate into emergency recess. E.g., Tr. 11862:7-12 (McCumber); Ex. 910 at 5:20-5:30 (Aide: “protestors are in the building”). Biggs owed his entrance into the Capitol to Pezzola’s destruction of the window at 2:11 p.m. Ex. 425. The first rioters into the building entered through that window. Tr. 12516:4-6 (Miller).
Moreover, the Guidelines define the term “[s]ubstantial interference with the administration of justice” to include “a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based on perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.” U.S.S.G. § 2J1.2, cmt. n.1 (emphasis added). The defendants’ offenses “resulted in” substantial interference with the administration of justice because the offenses caused the unnecessary expenditure of substantial governmental resources.
That commonsense view finds support in the case law. See, e.g., Ali, 864 F.3d at 574 (numerous federal agents “worked for several days around the clock”); Atlantic States Cast Iron
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Pipe, 627 F. Supp. 2d at 205-08 (defendant interfered with OSHA investigations into a workplace accident); Weissman, 22 F. Supp. 2d at 194-98 (defendant withheld subpoenaed documents from a congressional subcommittee). The Eleventh Circuit recently cited affirmatively to another case in which it found Section 2J1.2(b)(2) applicable where, as a result of the defendant’s false grand jury testimony, the government was forced to identify and interview several other witnesses, review the defendant’s records, and reconvene the grand jury. See United States v. Pegg, 812 F. App’x 851, 860 (11th Cir. 2020) (citing United States v. Johnson, 485 F.3d 1264, 1271-72 (11th Cir. 2007)). Indeed, many appellate courts have affirmed the application of the enhancement because significant “government” resources were invested to resolve an attempt to obstruct a judicial proceeding. See, e.g., United States v. Meredith, 602 F. App’x 102, 103 (4th Cir. 2015); United States v. Tankersley, 296 F.3d 620, 623-24 (7th Cir. 2002); United States v. Harrington, 82 F.3d 83, 87 n.2 (5th Cir. 1996); United States v. Voss, 82 F.3d 1521, 1532 (10th Cir. 1996).
The events of January 6 indisputably resulted in the “unnecessary expenditure of substantial governmental . . . resources,” with the latest estimate of damages from entities responsible for the United States Capitol18 totaling more than $2.9 million. And the conspirators’ offenses contributed to that “unnecessary expenditure” of substantial governmental resources: the deployment of hundreds of law enforcement officers to defend and then clear the Capitol building and grounds of those—such as the defendants here—whose conduct caused the evacuation of hundreds of lawmakers and the suspension of the certification proceedings. The repair and clean-up costs were similarly extensive, and certainly “substantial.”
18 These entities include the Architect of the Capitol, the Office of the Chief Administrative Officer of the United States House of Representatives, the Office of the Secretary of the United States Senate, the Senate Sergeant at Arms, and the United States Capitol Police. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 34 of 80
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By the government’s count, of the sixteen judges in this District who have handled a sentencing hearing for a January 6 defendant convicted of violating 18 U.S.C. § 1512, fourteen found that the specific offense characteristic in Section 2J1.2(b)(2) applied because the defendant’s conduct “resulted in substantial interference with the administration of justice,” that being disruption to Congress’ certification of the Electoral College vote and the attendant government response to the riot.19 Moreover, all of the cooperating defendants who pled guilty to being a member of this conspiracy, including Jeremy Bertino and Charles Donohoe, agreed to the application of Section 2J1.2(b)(2) based on their “relevant conduct.”
The evidence established that the conspirators’ conduct obstructed Congress’s certification (delaying it by several hours, for example) and impeded the ability of the staff working for the Vice President (see the testimony of Secret Service Inspector Lanelle Hawa), and Congressional staff (see the testimony of Kevin McCumber), among others, to complete their work related to that certification. That delay caused the unnecessary expenditure of substantial governmental resources. Therefore, the three-level enhancement under Section 2J1.2(b)(2) applies.
3. “Extensive scope, planning, or preparation” specific offense characteristic
Section 2J1.2(b)(3) provides a two-level enhancement if the offense (A) involved the destruction of a substantial number of records; (B) involved the selection of an especially probative record to destroy; or (C) “was otherwise extensive in scope, planning, or preparation.” While all three components of subsection (C) apply here, based on the subsection’s use of the disjunctive
19 See Part IV.B.2.a.ii, supra (listing judges and cases). And even the two judges who have declined to apply the characteristic based their reasoning on the phrase “administration of justice” rather than the substantiality of the interference with the proceeding. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 35 of 80
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“or,” the Court need only find that the defendants’ relevant conduct was extensive in scope, planning, or preparation. See United States v. Petruk, 836 F.3d 974, 977 (8th Cir. 2016).
The structure of this Guideline subsection is similar to the structure of 18 U.S.C. § 1512(c); both lay out a particular means of obstruction related to a tangible object or record and then include a “catchall” (or “residual” or “omnibus” clause) that begins with the phrase “or . . . otherwise.” As the D.C. Circuit explained when interpreting 18 U.S.C. § 1512(c), the word “otherwise” should be “given its common meaning of “in a different manner.’” United States v. Fischer, 64 F.4th 329, 336-37 n.2 (D.C. Cir. 2023). In other words, Section 2J1.2(b)(3)(C) provides for a two-level enhancement if the defendant’s relevant conduct, in a manner other than destroying a substantial number of records or a particularly probative record, was extensive in scope, extensive in planning, and/or extensive in preparation.
While the phrase “otherwise extensive” is not defined in the Guidelines, “there are a number of factors relevant to the extensiveness determination, including the length and scope of the criminal activity as well as the number of persons involved.” United States v. Holland, 22 F.3d 1040, 1046 (11th Cir. 1994). And while the D.C. Circuit has not yet had occasion to rule on this enhancement, multiple courts of appeals have affirmed its application by district courts. In United States v. Pegg, 812 F. App’x 851, 860 (11th Cir. 2020) (per curiam), the Eleventh Circuit found that the defendant’s conviction for conspiracy to obstruct justice, which was done in secret from prison, directing several people through numerous coded phone calls and emails, was “extensive in scope and planning” because it was part of a “scheme [that] involved an elaborate gathering together of lies and misrepresentations.” Similarly, in Petruk, 836 F.3d at 977, the Eighth Circuit concluded that the obstructive conduct of the defendant—who, while incarcerated, solicited his girlfriend to find someone else to falsely claim on a recorded line to be the perpetrator of the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 36 of 80
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underlying crime—was extensive in planning and preparation (though not in scope). In United States v. Jensen, 248 F. App’x 849, 851 (10th Cir. 2007), the Tenth Circuit agreed that a correctional officer’s helping inmates avoid or pass urinalysis tests, which “was far from an isolated occurrence,” was “extensive in scope.” In United States v. Rodriguez, 499 Fed. App’x 904, 907-09 (11th Cir. 2012), the Eleventh Circuit agreed that an incarcerated defendant’s use of her boyfriend’s semen to frame a correctional officer, which involved the “gathering together of lies and misrepresentations,” was extensive in “scope, planning, and preparation.” Finally, in United States v. Bakhtiari, 714 F.3d 1057, 1062 (8th Cir. 2013), the Eighth Circuit agreed that a defendant-lawyer’s efforts to intimidate an opposing lawyer and his family, including doctoring photographs and creating a fake email account, were crimes that were extensive in scope, planning, and preparation.
In addition to these appellate decisions affirming application of this enhancement, judges in this district have applied the enhancement to defendants’ crimes related to the attack on the Capitol. In Scott, over the defendant’s objection, Judge Lamberth found that the enhancement applied because “the whole idea that as Proud Boys leaders they were going to communicate and wearing the technical gear, bringing the communications equipment, being prepared for pepper spray” all supported the application. No. 21-cr-292, Sent. Tr. 2-7. Likewise, Judge Friedrich applied the enhancement in two separate cases. In Reffitt, over the defendant’s objection, Judge Friedrich found that the enhancement applied both because of the defendant’s extensive efforts in “planning and preparation” and the extensive “scope” of what the defendant intended to accomplish. No. 21-cr-32, Sent. Tr. at 46-47. She found that there was “enough evidence of planning and preparation here in terms of organizing the trip, in terms of gathering together this wide range of sophisticated gear, not just firearms, but a helmet, bulletproof vest, flex cuffs, radios, Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 37 of 80
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and megaphones. There was a lot of thought and planning that went into this offense.” Id. And the defendant’s “stated intentions” were “hugely extensive in scope”: forcibly removing and then replacing legislators. Id. at 46. In Sandlin, the defendant agreed to the application of the enhancement in his plea agreement, and Judge Friedrich applied it during his sentencing. No. 21-cr-88 (Dec. 9, 2022), Sent. Tr. at 36. According to the agreed-upon statement of offense, Sandlin traveled to D.C. with two co-conspirators and multiple weapons, including two firearms. ECF 85 at ¶ 15.
Here, all of the co-conspirators who pled guilty to being a member of this conspiracy, including Jeremy Bertino and Charles Donohoe, agreed to the application of Section 2J1.2(b)(3), because their relevant conduct was extensive in scope, planning, and preparation.
These defendants’ relevant conduct shows that their offense was extensive in scope, planning, and preparation. The seditious conspiracy began at least as early as December 19, 2020. Tarrio, Nordean, Biggs, Rehl, and other leaders of the Proud Boys organization intentionally recruited men prepared to engage in physical violence, if necessary. They organized a return to Washington, D.C., which guidance included what to wear (e.g., no colors), what to bring (e.g., protective gear and communication equipment), and what to do (e.g., fit in or fuck off). They coordinated with men from across the country using encrypted messaging applications. Once on the ground, they continued to organize and direct the “boots on the ground” using a top-down command and control structure. They surveilled the Capitol and then lay in wait for approximately 30 minutes until just before the certification was to commence. They marched scores of men to the west front of the Capitol at 12:50 p.m. and within three minutes, they led the charge of those men onto the Capitol grounds. Finally, the scope of the conspiracy’s objective was itself enormous: Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 38 of 80
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to forcibly prevent an entire branch of the federal government from performing its constitutional and statutory duties.
B. Count Five
1. Base Offense Level for Count Five
All five defendants were convicted of Count Five - Interference with Law Enforcement Officers During a Civil Disorder. There is no applicable Chapter Two Guideline for this offense in the Statutory Appendix. Accordingly, under §2X5.1, the Court is to use “the most analogous guideline.” Here, that is §2A2.4, “Obstructing or Impeding Officers;” however, when the conduct “constitute[s] aggravated assault” the Guidelines direct that Section 2A2.2 be applied.
Here, the offense conduct involving interference with officers constitutes “aggravated assault.” See U.S.S.G. §2A2.2, n.1 (Aggravated assault “means a felonious assault that involved … an intent to commit another felony.”) Among other things, the offense conduct involved jointly undertaken criminal activity in furtherance of an effort to obstruct the certification of the Electoral College vote and to use force to prevent officers of the United States from discharging their duties. Obstructing and impeding officers in violation of Count Five was within the scope of the criminal activity, in furtherance of the criminal activity, and reasonably foreseeable in connection with the criminal activity. See U.S.S.G. §1B1.3, n.3. Such actions taken in furtherance of the jointly undertaken criminal activity include (1) Rehl’s assault on law enforcement with irritant spray, (2) Pezzola’s assault on Officer Ode, (3) Donohoe’s assault by throwing water bottles at a line of officers, (4) Biggs, Pezzola, Donohoe, Greene, and others’ participation in the assault by Daniel Lyons Scott and others in their push up the concrete stairs toward the Capitol, (5) Biggs and others’ push past law enforcement to re-enter the building through the Columbus Doors, and (6) the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 39 of 80
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destruction of the black metal fence by Nordean, Biggs, and others, which allowed the Proud Boys and other rioters to surge toward officers and engage in assaults.
2. “More than minimal planning” specific offense conduct
Section 2A2.2(b)(1) provides a two-level increase when the assault included “more than minimal planning,” which means “more planning than is typical for commission of the offense in simple form.” U.S.S.G. §2A2.2, cmt n.2. Here, the defendants’ interference with law enforcement was part of the means by which they carried out the conspiracies charged at Counts One, Two and Four. In particular, the defendants’ preparation to organize and prepare a group to travel across the country, leadership in directing a group of more than 100 men to the Capitol just prior to the start of the certification, and direction to the men to advance on the Capitol by following the lead of the boots on the ground were all part of this plan. Moreover, the defendants’ preparation included a hand-selected assemblage of “rally boys,” many of whom donned helmets and vests in anticipation of conflict.20 As laid bare by the defendants’ own words before and on January 6, the defendants’ preparation for conflict was not focused on Antifa—it was the preparation for conflict with law enforcement and government officials who they had declared traitors. See, e.g., Ex. 603-33 (Biggs post about “treat[ing] your think [sic] blue line like we do antifa”); Ex. 501-50 (conspirators discussing police: “#fucktheblue” … [T]hey chose their fucking side so let’s get this done.”).
C. Counts Six and Seven.
The applicable Chapter Two Guideline for Count Six is §2B1.1, “Larceny, Embezzlement, and Other Forms of Theft,” and for Count Seven is §2B1.5, “Theft of, Damage to, or Destruction
20 In applying Section 2A2.2(b)(1) to defendant Christopher Alberts over his objection, Judge Cooper noted that Alberts’s decision to bring a gas mask showed more planning than is typical of the commission of the offense in its simple form. United States v. Christopher Alberts, 21-cr-26 (CRC) (July 19, 2023). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 40 of 80
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of, cultural Heritage Resources or Paleontological Resources.” As described herein, the applicable Chapter Two Guidelines for Count Six differs from Count Seven because the government property destroyed at Count Seven (i.e., the Capitol window) is a “cultural heritage resource.” The distinction increases the base offense level by two points. No Specific Offense Characteristics apply to either Count Six or Seven.
The distinction between Counts Six and Seven is largely rendered moot due to the application of the Chapter Three adjustment for a “federal crime of terrorism,” which applies to the defendants’ convictions for destruction of federal property. The defendants’ convictions for a federal crime of terrorism result in a Guidelines calculation of at least offense level 32 and the application of criminal history Category VI. U.S.S.G. §3A1.4(a) and (b).21 Accordingly, and as explored more fully below at Part V, the application of the adjustment for a federal crime of terrorism renders the distinction moot because the offense level will increase to level 32 for both Counts Six and Seven. Nonetheless, for sake of completeness, the memorandum addresses the distinction here.
The damaged window at the Senate Wing door was part of the United States Capitol, which was designated as a National Historic Landmark in December 1960 and the National Park Service continues to recognize that designation to this day.22 The United States Capitol is thus a “historic
21 Pursuant to the Sentencing Guidelines, the application of §3A1.4 requires an increase in offense level by +12, but if the resulting offense level is less than 32, the offense level should be raised to 32. U.S.S.G. §3A1.4(a). Since the offense level for Counts Six and Seven will be less than 32 even after increasing the base offense level for those counts by +12, §3A1.4 requires that the offense level for both counts be increased to level 32. In addition to the increase in offense level, the defendant’s criminal history shall be increased to Category VI. U.S.S.G. §3A1.4(b).
22 See List of NHLs by State - National Historic Landmarks (U.S. National Park Service) (nps.gov), https://www.nps.gov/subjects/nationalhi ... -state.htm (last visited September 9, 2022) (listing the United States Capitol as a National Historic Landmark and
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property” and accordingly a cultural heritage resource, pursuant to Application Note 1(A)(i) for U.S.S.G. §2B1.5. Accordingly, the destruction of the Capitol window at Count Seven provides for a base offense level of 8, as opposed to the level 6 provided under § 2B1.1(a)(2) for the destruction of the black fence at Count Six.
Application Note 1(A)(i) of the Sentencing Guidelines refers to 54 U.S.C. § 300308, which defines a “historic property” as “any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register [of Historic Places]…” 54 U.S.C. § 300308 (emphasis added). While the United States Capitol is not included on the National Register, as it is exempt from inclusion on the National Register and other attendant regulations in 54 U.S.C. § 300101 et. seq. pursuant to 54 U.S.C. § 307104, it would otherwise be eligible for inclusion on the National Register.23
An additional two points is added for the destruction of the Capitol window under Section 2B1.5(b)(2) because the Capitol is a National Historic Landmark. The Capitol was designated as a National Historic Landmark in December 1960, and the National Park Service continues to recognize that designation to this day.24
noting its December 1960 designation date); see also 36 CFR § 65.1(c) (“The National Park Service (NPS) administers the National Historic Landmarks Program on behalf of the Secretary”).
23 Section 16(l) of 36 C.F.R. pt. 800 clarifies that “eligible for inclusion” in the National Register includes “both properties formally determined as such in accordance with regulations of the Secretary of the Interior and all other properties that meet the National Register criteria.” 36 C.F.R. § 800.16(l)(2) (emphasis added). The National Register criteria can be found at 36 CFR § 60.4 and focuses on the historical significance of the property, and the property’s associations with historical events, significant historical figures, historical styles and artistic value, and important historical information.
24 See List of NHLs by State - National Historic Landmarks (U.S. National Park Service) (nps.gov), https://www.nps.gov/subjects/nationalhi ... -state.htm (last visited Aug. 16, 2023) (listing the United States Capitol as a National Historic Landmark and Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 42 of 80
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D. Count Nine
The applicable Chapter Two Guideline for this offense is §2A2.2, “Aggravated Assault.” U.S.S.G. Appendix A. Pursuant to Application Note 1 of Section 2A2.2, “aggravated assault means a felonious assault that involved . . . an intent to commit another felony.” Here, the evidence at trial showed that Dominic Pezzola’s assault on Officer Ode was directly related to his commission of multiple other felonies, including the robbery of Officer Ode’s police riot shield in violation of 18 U.S.C. § 2112 (Count Ten). Moreover, the evidence at trial showed the Dominic Pezzola’s assault was also part of a larger endeavor that included interference with law enforcement officers during a civil disorder (18 U.S.C. § 231), conspiracy to use force, intimidation, or threats to prevent officers of the United States from discharging their duties (18 U.S.C. § 372), and obstruction of an official proceeding (18 U.S.C. § 1512(c)(2)).
No Specific Offense Characteristics apply to Count Nine.
E. Count Ten
The applicable Chapter Two Guideline for this offense is §2B3.1, “Robbery, Extortion, and Blackmail.” U.S.S.G. Appendix A. No Specific Offense Characteristics apply to Count Ten.
V. CHAPTER THREE: ADJUSTMENTS FOR CRIMES OF TERRORISM
Section 3A1.4 of the Guidelines provides for an enhanced offense level and increased criminal history category when the offense was “a felony that involved, or was intended to promote, a federal crime of terrorism” as that term is defined by 18 U.S.C. § 2332b(g)(5). That statutory definition, in turn, involves two requirements: (1) that the offense was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against
noting its December 1960 designation date); see also 36 CFR § 65.1(c) (“The National Park Service (NPS) administers the National Historic Landmarks Program on behalf of the Secretary”). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 43 of 80
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government conduct”; and (2) that the offense is one of the enumerated crimes listed in 18 U.S.C. § 2332b(g)(5)(B). Both of those criteria are met here as to each defendant; consequently, the Section 3A1.4 adjustment must apply to their convictions on Count Six (all defendants) and Count Seven (Pezzola).
Separate and apart from the Section 3A1.4 adjustment to Counts Six and Seven and other enhancement sought by the government herein, the government notes that an upward departure under §3A1.4 cmt. n.4(A) (“Note 4”), would be also warranted for all five defendants for these counts or for their other counts of conviction.
A. All Offenses of Conviction Were Calculated to Influence and Affect the Conduct of Government by Intimidation and Coercion, and to Retaliate Against Government Conduct.
1. Legal Standard
A defendant’s offense is “calculated” to influence government or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, as required by Section 3A1.4, if the offense was specifically intended to have the effect of influencing, affecting, or retaliating against government by force or the threat of force. See, e.g., United States v. Mohammed, 693 F.3d 192, 201 (D.C. Cir. 2012) (defendant’s narcoterrorism offense had requisite “calculation” where evidence showed defendant “specifically intend[ed] to use the commission from the drug sales to purchase a car to facilitate attacks against U.S. and foreign forces in Afghanistan”). While they are related, “calculation” for the Section 3A1.4 enhancement is distinct from a defendant’s particular “motive” and a defendant need not be “personally motivated by a desire to influence or affect the conduct of government,” so long as the predicate crime was “calculated to have such an effect.” Khatallah, 314 F. Supp. 3d at 199. Although “calculation may often serve motive,” the enhancement’s “calculation” requirement is satisfied if Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 44 of 80
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a defendant’s offense was “planned—for whatever reason or motive—to achieve the stated object.” United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010) (Section 3A1.4 applied to defendant motivated by “prestige and potential influence obtained by associating with” another terrorist, even if defendant did not share the specific political motivation of that terrorist). Moreover, a defendant’s intent to influence government conduct or retaliate against the government need not have been his “sole” or “primary” purpose and the “calculation” requirement may be satisfied even if a defendant’s relevant conduct sought to “accomplish other goals simultaneously.” United States v. Van Haften, 881 F.3d 543, 545 (7th Cir. 2018); see also United States v. Haipe, 769 F.3d 1189, 1193 (D.C. Cir. 2014) (defendant’s “money-raising goals obviously do not preclude a finding of intent to influence government policy,” even if raising money was defendant’s “primary purpose”).
Indeed, Section 3A1.4 is applicable regardless of the defendants’ claims that they believed that they were stopping a fraudulent election and aimed to stop communists from taking over the United States. See United States v. Christianson, 586 F.3d 532, 539 (7th Cir. 2009) (affirming application of the adjustment for defendants who professed to try to “sav[e] our earth,” because “the purpose behind defendants’ actions was to further [their] political agenda: the end to industrial society”). As the Seventh Circuit explained, “it doesn’t matter why the defendants oppose capitalism and the United States government—if they use violence and intimidation to further their views, they are terrorists.” Id. So to with these defendants.
2. Analysis
In addition to being convicted for their destruction of government property for tearing down the fence on the Capitol grounds (Count Six), an offense enumerated under 18 U.S.C. § 2332b(g)(5)(B), Tarrio, Biggs, Nordean, and Rehl were each convicted of seditious conspiracy Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 45 of 80
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(Count One), conspiracy to obstruct an official proceeding (Count Two), obstruction of an official proceeding (Count Three), conspiracy to prevent officers of the United States from discharging their duties (Count Four), and/or interference with law enforcement officers during a civil disorder (Count Five). Pezzola was convicted on Counts Three, Four, and Five, as well as on Count Seven, an enumerated offense, for smashing the Capitol building window in an effort to break into the building and intimidate the congressmen and other government officials inside. Counts One through Five are not enumerated offenses under 18 U.S.C. § 2332b(g)(5)(B). But as the relevant conduct underlying all of these convictions reflects, the defendants conspired to, attempted to, and temporarily did prevent Congress from certifying the 2020 Electoral College vote and to physically prevent Members of Congress from performing their constitutional duties inside the Capitol building, all through the planned, threatened, and actual use of force. As Nordean cogently explained, “the only thing left is force” when other avenues are foreclosed. Ex. 608-C. Force—in the form of street fighting—was a means that these defendants were well-versed in.
The jury’s guilty verdicts with respect to Count One (seditious conspiracy) are accompanied by the specific finding—beyond a reasonable doubt—that Tarrio, Nordean, Biggs, and Rehl “conspired or agreed with at least one other person with the goal of opposing by force the authority of the Government of the United States, or preventing, hindering, or delaying the execution of any law of the United States by force.” ECF 767 (Jury Instruction) at 21; ECF 804 (Verdict Form) at 1. The jury’s finding plainly establishes that the defendants’ crimes were calculated to influence or retaliate against the government by force or coercion. See United States v. Dowell, 430 F.3d 1100, 1110 (10th Cir. 2005) (holding that the jury made the factual finding that defendant had requisite intent to influence or affect the conduct of government by intimidation or coercion necessary for application of the Section 3A1.4 enhancement when the jury convicted
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defendant of attempting to interfere with IRS, having been instructed that an element of the offense was that defendant knowingly and intentionally “endeavored to obstruct or impede the due administration of the Internal Revenue laws by the use of force”).
Similarly, the jury’s guilty verdicts with respect to Counts Two and Three25 (conspiracy to obstruct and obstruction of an official proceeding) carry with them the finding that all five defendants acted on January 6 with intent to obstruct or impede the certification proceeding. See ECF 767 (Jury Instructions) at 24-25 and 30-31. Likewise, the jury’s guilty verdicts with respect to Count Five (interference with law enforcement officers during a civil disorder) carries the finding that defendants intended to obstruct, impede, or interfere with law enforcement. Id. at 32-33.
And the jury’s guilty verdicts with respect to Count Four (conspiracy to prevent officers from discharging their duties) necessarily mean the jury found that all of the defendants knowingly agreed to use of force or intimidation to stop Members of Congress or law enforcement officers from discharging their duties, thereby inducing law enforcement officers to abandon efforts to guard the building or inducing Members of Congress to flee the House and Senate floors where the certification proceeding had been underway. See ECF 767 (Jury Instructions), at 24-25 (instructing jury that defendants must have agreed “to, by force, intimidation or threat, (1) prevent a Member of Congress or federal law enforcement officer from discharging a duty as a Member
25 Pezzola was found guilty of Count Three (obstruction of an official proceeding), but not Count Two (conspiracy to obstruct an official proceeding). The jury thus found that, through his actions on January 6, Pezzola intended to obstruct the Certification of the Electoral College even if it determined that the government had not proven that Pezzola was a part of that conspiracy beyond a reasonable doubt. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 47 of 80
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of Congress, or (2) induce a Member of Congress or federal law enforcement officer to leave the place where that person’s duties are required to be performed”).
For the following reasons, the jury’s verdict reflects the ample evidence that the defendants’ offenses were “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” U.S.S.G. §3A1.4, n.1 (cross referencing 18 U.S.C. § 2332b(g)(5)).
Finally, the defendants’ convictions for the destruction of government property in Counts Six and Seven reflect the jury’s finding that defendants shared the conspiratorial objective of perpetrating a physical assault on the Capitol, overrunning the fences on the Capitol grounds and ransacking the Capitol building, all in order to intimidate, coerce, and retaliate against the government officials involved in the certification proceedings within those walls.
The government’s evidence showed that all five defendants were motivated to use force to stop the certification proceedings in order to keep former President Donald J. Trump in power. On November 16, Tarrio vowed that “[i]f Biden steals this election” the Proud Boys would not “go quietly[.]” Biggs announced that the left was “radicalizing” people by stealing the election and said it was “time for fucking War if they steal this shit.” Nordean asserted that the Democrats were “trying to steal the election” and later announced that the “spirit of 1776 had resurfaced” in the Proud Boys. Rehl tracked the election results closely and told his followers that he hoped that “firing squads” would be used “for the traitors that are trying to steal the election from the American people.” Pezzola viewed the country as one locked in a “battle between good & evil” and “freedom vs. tyranny” and vowed to “fight” to his “last breath” to avoid a communist takeover.
In the leadup to January 6, the men undertook extensive efforts to deploy a force against the Capitol. Notwithstanding the Proud Boys’ frequent use of street violence in cities across Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 48 of 80
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America, Biggs told Tarrio on December 19 that it was time to get “radical” and get “real men.” Tarrio, Biggs, and Nordean then oversaw an effort to recruit a gang of “real men”—in the form of the MOSD—to return to Washington, D.C. on January 6. In the private, encrypted chatrooms for the MOSD, the men they had selected discussed the use of force, including force against the Capitol. Their men declared that they were ready to “kick the fuck ass when [it came] time to kick ass.” And their men plainly anticipated violence in connection with the certification proceeding on January 6—one of Tarrio’s hand-selected members announced that it was “time to stack those bodies in front of Capitol Hill.”
Tarrio, Nordean, Biggs, and Rehl had in mind a specific objective for January 6. Tarrio had in his possession a nine-page strategic plan to “storm” government buildings on January 6 for the purpose of getting the government to overturn the election results. In the days before January 6, Nordean announced that he was prepared to use “force against the government” because when “government officials are breaking the law . . . you have to use force.” Biggs declared that every “law maker[] who breaks their own stupid Fucking laws should be dragged out of office and hung” and declared that the “government should fear the people.” Rehl echoed the same sentiment on January 6, noting that the storming of the Capitol was “what patriotism looks like” and asserting that the when the government “fears its people, you have freedom.”
The defendants personally deployed force against the government on January 6. Nordean and Biggs combined their conspirators and others to rip down a black metal fence, which served to unleash the mob into the West Plaza of the Capitol. Pezzola assaulted an officer and stole a riot shield. Rehl fired an aerosol spray against officers. Biggs, Pezzola and their conspirators surged with the crowd up the concrete stairs toward the Capitol. Pezzola used a stolen riot shield to break a window. And the men they led to the Capitol joined in the assaultive and destructive action. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 49 of 80
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These were not random acts—they were intentional acts done for the overarching purpose of influencing government action. After telling his followers, “don’t fucking leave,” Tarrio posted a picture of rioters in the Senate Chamber with the caption “1776.” He referred to the rioters as “revolutionaries.” Upon seeing a video of Pezzola smashing the Capitol windows, Tarrio compared the rioters to “George Washington[,] Sam Adams[,] and Franklin.” From the lawn of the Capitol while standing with Nordean, Biggs made their objective clear—“we just stormed the fucking Capitol; took the motherfucking place back.” He then declared January 6 to be a “day in infamy.” Nordean menaced an officer in the Rotunda, telling him that the “thin blue line was dead.” Pezzola recorded himself inside the Capitol stating that he “knew” they could “take this motherfucker over if we just tried hard enough.” Pezzola closed the recording with his mention of the gang, “Proud of your motherfucking boy.”
After breaching the Capitol and halting the Certification, the defendants’ statements indicate that their intent had been to coerce and intimidate the government—and that they sought to continue doing so. For instance, on the evening of January 6:
• Tarrio posted a message that read, “I don’t want what happened today to continue to happen. But it is up to our elected officials to listen...Because things can get ugly.”
• Tarrio posted a message that said that Biden had launched a “war” against “us” and that as “crazy as [January] 6th was, It shows . . . DON’T FUCKING TREAD ON US.”
• Nordean posted a message calling the Capitol police “oath breakers” and said that if you “feel bad” for them, “you are part of the problem.” Nordean claimed that “they care more about federal property . . . than serving the people.”
• Nordean recorded a video of himself describing an encounter with a woman at the bar; in the video he faulted the woman for not appreciating that “I was part of fucking storming the Capitol of the most powerful country in the fucking world… 1776, bitch.” Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 50 of 80
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• Biggs recorded a podcast where he proudly declared that the government “just found out how weak they really are.” Biggs went on to explain that January 6 was a “warning shot to the government” that the people “started the country this way” and they would “save it this way.”
• Rehl announced that January 6 was a “historical day.” He declared himself “so fucking proud” that “our raid of the capital [sic] set off a chain reaction of events throughout the country.”
These are just a sample of the numerous statements made by the defendants indicating their coercive, intimidating intent.
Finally, the defendants’ choice of target, itself—the Capitol building, where Congress was in session—further evidences their intent to intimidate and affect the government. A defendant’s specific intent to influence and retaliate against government conduct for purposes of Section 3A1.4 can often “be inferred from the defendant’s choice of target.” Abu Khatallah, 314 F. Supp. 3d at 198. Attacking a government facility that is “a physical manifestation of the U.S. government . . . suggests a desire to retaliate against or influence that government.” Id. at 199. That is why, “[u]nsurprisingly . . . , several courts have applied and upheld the terrorism enhancement for defendants who targeted government facilities.” Id. (citing cases). Clearly, attacking the seat of our government while the entire complement of legislators and the Vice President of the United States are inside performing their constitutional and statutory duties is a strong indication of intent to influence or affect the government.
In short, all of defendants’ offenses displayed a clear, shared intent to stop Congress from certifying the results of the election through the organized use of physical force and property destruction. That conduct is a quintessential example of an intent to influence and retaliate against Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 51 of 80
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government conduct through intimidation or coercion and warrants the application of the terrorism enhancement pursuant to Section 3A1.4.26
B. The Defendants’ Convictions on Counts Six and Seven are Qualifying Offenses for the Section 3A1.4 Adjustment
The second requirement for the Section 3A1.4 adjustment is that the offense was “involved, or was intended to promote,” one of the enumerated offenses listed at 18 U.S.C. § 2332b(g)(5)(B).
“[A] defendant’s offense ‘involves’ a federal crime of terrorism when his offense includes such a crime, i.e., the defendant committed, attempted, or conspired to commit a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5), or his relevant conduct includes such a crime.” United States v. Awan, 607 F.3d 306, 313–14 (2d Cir. 2010); see also United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005) (“the word ‘involved,’ as used in § 3A1.4, signifies that where a defendant’s offense or relevant conduct includes a federal crime of terrorism as defined in 18 U.S.C. § 2332b(g)(5)(B), then § 3A1.4 is triggered”); United States v. Fidse, 862 F.3d 516, 522 (5th Cir. 2017) (same); United States v. Arcila Ramirez, 16 F.4th 844, 850 (11th Cir. 2021) (same).
Count Six, on which all defendants were convicted, and Count Seven, on which Pezzola was convicted, charged felony Destruction of Government Property in violation of 18 U.S.C. § 1361. This offense is listed in 18 U.S.C. § 2332b(g)(5)(B)(i). Accordingly, because the intent requirement is satisfied as explained above, the defendants’ convictions on Counts Six and Seven qualify as “federal crimes of terrorism” and the Section 3A1.4 adjustment applies.
26 These facts also support the application of Note 4 of Section 3A1.4, which is discussed herein at Part V.C. In short, Note 4 authorizes a departure when the commission of an offense not specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B) is nonetheless “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” U.S.S.G. §3A1.4, cmt. n.4. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 52 of 80
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Re: Trump lashes out at Gov. Doug Ducey following certificat

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Part 3 of 3

C. An Upward Departure Pursuant to Note 4 Applies to Defendants’ Other Convictions
Significantly, an upward departure under Note 4 is also warranted for defendants’ convictions. The upward departure is unnecessary because the adjustment applies, but even if one applied the departure rather than the adjustment, the result would be the same: the aggravating factors described above would warrant offense levels commensurate with those reached by applying the Section 3A1.4 adjustment and the other enhancements sought by the government.
Note 4 states that even where defendants are not convicted of an offense enumerated in 18 U.S.C. § 2332b(g)(5), an upward departure is “warranted” if the defendants’ “offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Id., cmt. n.4(A). When it adopted Note 4, the Sentencing Commission explained that it is “an encouraged, structured upward departure,” the purpose of which is to provide courts with “a viable tool to account for the harm involved during the commission of these offenses on a case-by-case basis” and to “make[] it possible to impose punishment equal in severity to that which would have been imposed if the § 3A1.4 adjustment actually applied.” Sentencing Guidelines, App. C, amend. 637 (2002) (emphasis added).
The defendants’ offenses of seditious conspiracy (Count One), conspiracy to obstruct an official proceeding (Count Two), obstruction of an official proceeding (Count Three), conspiracy to prevent officers of the United States from discharging their duties (Count Four), and/or interference with law enforcement officers during a civil disorder (Count Five) are not enumerated under 18 U.S.C. § 2332b(g)(5), but—as introduced immediately above—these offenses were “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” U.S.S.G. § 3A1.4, cmt. n.4(A). As their convictions and the underlying evidence reflects, the defendants conspired to, attempted to, and temporarily did
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prevent Congress from certifying the 2020 Electoral College vote and to physically prevent Members of Congress from performing their constitutional duties inside the Capitol building, all through the planned, threatened, and actual use of force.
Application of Note 4 to these defendants’ conduct is consistent with the application of Note 4 in this district and by other courts around the country. Judge Mehta applied upward departures ranging from one to six levels under Note 4 to all eight of the Oath Keepers defendants he has sentenced to date in United States v. Rhodes, et al., No. 22-cr-15.27 Even more recently, Judge Mehta applied a one level upward departure under Note 4 to Audrey Southard-Rumsey, who was convicted of interfering with law enforcement officers during the commission of a of civil disorder, assaulting law enforcement officers, and obstructing an official proceeding in connection with her rampage through the Capitol on January 6. United States v. Southard-Rumsey, No. 21-cr-387.
Other courts have applied Note 4 and, specifically, Note 4(A)—relating to offenses that are not enumerated in 18 U.S.C. § 2332b(g)(5)(B) but are “calculated” to influence or retaliate against the government—in different contexts. In United States v. Doggart, the sentencing court imposed
27 None of the defendants in the Rhodes and Minuta cases (21-cr-28 (APM)) were convicted of a specifically enumerated crime under 18 U.S.C. § 2332b(g)(5)(B). Judge Mehta nonetheless found that the crimes committed by members of the Oath Keepers conspiracy were calculated to influence and retaliate against government conduct and applied upward departures under Note 4 to those defendants’ crimes of conviction, e.g., Seditious Conspiracy and Obstruction of an Official Proceeding. By contrast, four Oath Keepers co-conspirators in the Parker case (22-cr-28 (APM)) were convicted of felony destruction of government property, in violation of 18 U.S.C. § 1361. While those defendants have not yet been sentenced, the government has taken the position that, although the Section 3A1.4 adjustment might apply, the Parker defendants are less culpable than their Rhodes and Minuta co-conspirators. The government therefore asked the Court to use the same methodology for the Parker defendants that it used with the Rhodes and Minuta co-conspirators, and to find that the appropriate Guidelines range is the one determined after application of the Note 4 upward departure. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 54 of 80
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a Note 4(A) upward departure where the defendant was convicted of soliciting the destruction of religious property in connection with his plan to burn down buildings in a Muslim community, seeking to “set[] in motion an armed insurrection against the government of the United States that would force the government of the United States either to respond to” the defendant’s planned attacks, “or to give in and capitulate.” No. 15-cr-39-CLC-SKL (E.D. Tenn. Sep. 16, 2020), ECF 343 at 6. The Sixth Circuit affirmed, agreeing that the defendant’s offense was “calculated to influence or affect government conduct by intimidation or coercion.” United States v. Doggart, No. 20-6128, 2021 WL 5111912, at *2-4 (6th Cir. Nov. 3, 2021). There, the sentencing court upwardly departed from an otherwise applicable guidelines range that called for 51 to 63 months of imprisonment (equivalent to offense level 24 at Criminal History Category I) to a range of 324 to 405 months of imprisonment (equivalent to offense level 41 at Criminal History Category I).28 Id. After departing upward, the court sentenced the defendant to the statutory maximum for his sole offense of conviction, ten years of imprisonment. Id. at *1.
In a separate case in the District of Oregon, the sentencing court applied Note 4 when sentencing multiple co-conspirators convicted of violations under 18 U.S.C. § 372 and related offenses for their roles as part of Ammon Bundy’s 2016 armed occupation of the Malheur National Wildlife Refuge, based on their disagreement with federal land management policies. These co-conspirators, some of whom were armed, formed a convoy, entered the Malheur refuge, and then set up a perimeter blocking the entrance of personnel from the Fish and Wildlife Service and other
28 Since the Court may upwardly depart under Note 4 to impose a sentence that does not “exceed the top of the guideline range that would have resulted if the adjustment under this guideline at been applied,” cmt. n.4, the Court is not limited to an offense level increase of 12 steps as contemplated in Section 3A1.4(a), but can depart higher because Section 3A1.4(b) also calls for an increase of the defendant’s Criminal History Category to Level VI. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 55 of 80
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federal agencies. As they indicated in public statements, the occupiers aimed to “adversely possess” the federal land at the Malheur refuge and to compel the release of two other ranchers who had been convicted of arson on federal land. Although some defendants involved in the occupation claimed their actions were peaceful, certain defendants carried firearms as they patrolled the refuge, including in a fire watchtower where they stood guard, and one of the defendants was a member of the “Washington III%” militia. The court applied a Note 4 upward departure to eleven of the thirteen defendants who had pled guilty (some of whom had agreed to the application of the departure in their plea agreements), departing upward two offense levels (one defendant), three offense levels (four defendants), five offense levels (three defendants), and ten offense levels (one defendant). See United States v. Patrick, No. 16-cr-51-BR-9 (D. Or. Feb. 18, 2018), Sent. Tr. at 43-45. The court then applied four- and two-level departures to two defendants convicted at trial. Id. at 46; United States v. Thorn, No. 16-cr-51-BR (D. Or. Nov. 21, 2017), Sent. Tr. at 12.
Other sentencing courts have also upwardly departed under Note 4, although under Note 4(B), a different subsection than the government relies on here, where defendants’ convictions “involved, or were intended to promote” an enumerated offense under 18 U.S.C. § 2332b(g)(5)(B) but the “terrorist motive was to intimidate or coerce a civilian population” rather than to influence or retaliate against government conduct. See United States v. Harpham, 11-cr-42 (E.D. Wash.), applied in United States v. Harpham, 2012 WL 220276 (E.D. Wash. Jan. 25, 2012) (three offense-level Note 4(B) departure applied to defendant who placed explosive device along the Martin Luther King, Jr. Day parade targeting parade participants); United States v. Cottrell, 04-cr-279 (C.D. Cal.), aff’d, United States v. Cottrell, 312 F. App’x 979, 981 (9th Cir. 2009) (per curiam), superseded on other grounds in 333 F. App’x 213 (9th Cir. 2009) (per curiam) (after application Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 56 of 80
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of Note 4(B), defendant sentenced to 100 months of imprisonment for participating in conspiracy to commit vandalism and arson of SUVs in connection with environmental extremist organization); United States v. Jordi, 03-cr-60259 (S.D. Fla.), aff’d, United States v. Jordi, 418 F.3d 1212 (11th Cir. 2005) (after application of Note 4(B), defendant sentenced to 10 years of imprisonment in connection with conviction for planned bombing of abortion clinics meant to dissuade doctors from performing abortions); see also United States v. Holzer, 19-cr-488 (D. Colo.), ECF 101 at 1-5 (finding that Note 4(B) applied to defendant convicted of attempted arson of a synagogue, but describing 235-month sentence of imprisonment as the result of an upward “variance”).
Here, the Section 3A1.4 adjustment applies to the defendants’ convictions for the federal destruction of property. The Court could also reach the same result by departing upward pursuant to Note 4, in lieu of applying the Section 3A1.4 adjustment and other sentencing enhancements, as the government submits that the appropriate upward departure would result in the same offense levels. The Court need not consider a Note 4 adjustment, though, because the Note 4 equities are adequately addressed by the Section 3A1.4 adjustment and other sentencing enhancements.


VI. CHAPTER THREE: OTHER ADJUSTMENTS
The PSRs apply the appropriate adjustments, given the defendants’ relevant conduct.
A. Section 3B1.1 (aggravating role)
The Guidelines provide for an increase in the offense level if the defendant played an aggravated role in the offense, as an “organizer” or “leader” (four levels) or “manager” or “supervisor” (three levels) of a criminal activity that involved five or more participants. U.S.S.G. § 3B1.1(a), (b). The PSRs correctly apply the aggravating role adjustment by assigning a four level Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 57 of 80
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adjustment to Tarrio, Biggs, and Nordean as organizers/leaders and a three level adjustment to Rehl for his role as a supervisor.
The following non-exhaustive factors are instructive in determining whether to apply the adjustment and, if so, whether to add three or four levels:
[T]he exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
United States v. Olejiya, 754 F.3d 986, 990 (D.C. Cir. 2014) (quoting U.S.S.G. § 3B1.1, cmt. n.4). “No single factor is dispositive.” Id. While the court must examine the degree of “control” the defendant exercised over other criminally culpable individuals, id., this factor “alone does not determine whether the sentence can be increased” pursuant to Section 3B1.1, United States v. Kelley, 36 F.3d 1118, 1129 (D.C. Cir. 1994); see also United States v. Brodie, 524 F.3d 259, 270-71 (D.C. Cir. 2008) (noting the “several” factors that must be considered in addition to “control”).
The Circuit has further explained that it understands “control” to “connote some sort of hierarchical relationship” among the participants in the criminal enterprise. Olejiya, 754 F.3d at 990. “When confronted with a heavily stratified conspiracy, a court must superimpose the § 3B1.1 framework over the organizational chart of the conspiracy and, using the factors [in the commentary in Note 4 to the Guideline], decide where to draw the two relevant lines that determine who qualifies for a § 3B1.1 enhancement.” United States v. Graham, 162 F.3d 1180, 1185 (D.C. Cir. 1998). In this way, the three-point enhancement in Section 3B1.1(b) is a “middle-rung enhancement.” United States v. Otunyo, 63 F.4th 948, 958 (D.C. Cir. 2023).
The aggravating-role adjustment applies to a defendant who “managed” or “supervised” merely one other person, so long as the larger criminal activity that constituted the “relevant Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 58 of 80
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conduct” involved five or more participants. U.S.S.G. § 3B1.1(a), cmt. n.2. Multiple defendants can qualify as a “leader” or “organizer” of the same criminal conspiracy, subjecting them to the same four-level adjustment. Id., cmt. n. 4.
The D.C. Circuit has “found the requisite hierarchical relationship” in several cases. See, e.g., Olejiya, 754 F.3d at 991 (recruited some members and supervised others in check-cashing scheme); Brodie, 524 F.3d at 270-71 (recruited members and “coordinated the group’s efforts”); United States v. Wilson, 240 F.3d 39, 46-47 (D.C. Cir. 2001) (recruited and directed others in bank fraud scheme); United States v. Norman, 926 F.3d 804, 812 (D.C. Cir. 2019) (“recruited, managed-supervised, and took a large share of proceeds”). And when the Circuit has found the “hierarchical relationship” lacking, it is often because the defendant had a different type of relationship with his accomplice. See, e.g., United States v. Johnson, 64 F.4th 1348, 1352-53 (D.C. Cir. 2023) (finding that defendant did not have the requisite hierarchal relationship and control over his estranged wife, particularly given the spousal relationship and that she agreed to help him despite her anger with him).
Moreover, the Circuit has found that a defendant’s leadership position in a workplace, even for a defendant who did not recruit others or “initiate[]” the scheme, can support this managerial-role adjustment if the crime is related to the work. See, e.g., United States v. Bras, 483 F.3d 103, 113-14 (D.C. Cir. 2007) (defendant was manager at construction company and part of conspiracy to bribe government inspectors); United States v. Bikundi, 926 F.3d 761, 801 (D.C. Cir. 2019) (per curiam) (defendant was owner of home health care company and part of conspiracy to alter employee and patient records related to fraudulently obtaining government reimbursements).
The Circuit has also found the adjustment applicable for a defendant’s conviction for conspiring to violate 18 U.S.C. § 1512 based on his conduct, as a federal official, to solicit Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 59 of 80
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kickbacks and then conceal his activities. Kelley, 36 F.3d at 1129. The defendant “sought out both knowing and unwitting accomplices,” instructing them on what to do and how to do it. Id.
Importantly, the Circuit recently reiterated that this Chapter 3 role adjustment is determined by looking broadly at all relevant conduct rather than simply the offense of conviction. Otunyo, 63 F.4th at 958-59.; see also United States v. Olibrices, 979 F.2d 1557, 1560–61 (D.C. Cir. 1992) (holding that a sentencing judge should “take into account the contours of the entire conspiracy,” rather than merely the offense of conviction, when determining whether a Chapter Three adjustment applies to a defendant’s role in the criminal activity). In other words, a defendant should receive the adjustment even if he is not at the top of the hierarchy, so long as he played a managerial or supervisory role anywhere within the criminal activity.
Notably, to qualify for the adjustment, the defendant must have managed or led one or more participants in the scheme, rather than simply controlled the scheme itself. Bapack, 129 F.3d at 1324. However, there is no requirement that, to qualify as a “participant,” a person be “culpable in the same crime of which the supervising defendant was convicted.” Id. at 1325. And indeed, the “participant” need not have been convicted, or even charged. Id. In Bapack, the Circuit affirmed the imposition of the role-adjustment under Section 3B1.1, explaining that the adjustment does not require a finding that a defendant “supervised ‘participants’ who were unindicted co-conspirators or accessories in the crimes of which she was convicted. Rather, it is enough that the ‘participants’ she supervised were culpably involved in uncharged crimes ‘that were part of the same course of conduct or common scheme or plan as the offense of conviction.’” Id. (quoting U.S.S.G. § 1B1.3(a)(2)). Thus, the adjustment was correctly applied to a defendant who supervised nurses in creating a false document, because those nurses violated 18 U.S.C. § 1001, and even though neither the nurses nor the defendant were charged with that crime, it was part of the defendant’s “course
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of conduct or common scheme” of conspiring to defraud the government by submitting false Medicare and Medicaid claims. Id.
The evidence showed that Tarrio, Biggs, Nordean, and Rehl formed an agreement in advance of January 6 that was characterized by a degree of structure and organization that was uncharacteristic of the Proud Boys. The structure and organization centered on the MOSD. It was conceived of and created by Tarrio, who selected Nordean and Biggs as his top lieutenants. Rehl was hand-picked for a leadership role in the chain of command. Tarrio created an encrypted Telegram group chat for the leaders of the MOSD. Ex. 501-1. Those leaders in the chat group (the “MOSD Leaders” group) included Tarrio, Biggs, Nordean, and Rehl, as well as co-conspirators Charles Donohoe, Jeremy Bertino, and John Stewart.29 Id.
Tarrio implemented a set of rules, which were enforced by his deputies. First, the group would be made up exclusively of “hand selected” members who were specifically chosen by the MOSD leadership. Ex. 500-69. Second, the group was subject to strict secrecy requirements, with members forbidden from discussing it with outsiders or even with other Proud Boys. Ex. 613-P. Third, the members were required to observe the chain of command both by following direct orders without question (in one leader’s words, “turn your brains off and follow”) and by conforming at all times to the general norms and expectations set by leadership (“fit in or fuck off”). Ex. 613-E and 503-3.
These rules were introduced and implemented to the hand-selected men of the MOSD. Tarrio, Nordean, Biggs, and Rehl each selected men for the MOSD, and the men were invited into an encrypted message group for MOSD members that had been created by Tarrio. The hand-
29 The plea agreement of Charles Donohoe included a three-level adjustment for his role as manager of the conspiracy. United States v. Charles Donohoe, 21-cr-175-4 (TJK). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 61 of 80
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selected men were valued for their willingness to follow-orders and ability to dole out street-level violence. Once included in the MOSD, subordinate members of MOSD affirmed their eagerness to use violence as part of the group, sending messages to the chat about intentions to “log into minecraft,” Ex. 503-5, “beat the motherfuck” out of Antifa, Ex. 503-17, “break some legs,” id., “kick ass when… it’s time to kick ass,” Ex. 503-23, “storm everyone’s capitols,” Ex. 503-13, “let the bodies hit the floor,” Ex. 507-11, and “stack those bodies in front of Capitol hill,” Ex. 507-10. MOSD’s leaders never expressed any disapproval about such remarks, including those that specifically mentioned violence directed at the Capitol. See Tr. 8515-8517 (Dubrowski).
As January 6 approached, Tarrio was arrested for his public destruction of property on December 12.30 After Tarrio’s arrest, Nordean and Biggs assumed direct operational control over the MOSD, and they assured their subordinates that “the rally’s continuing” and that they had formed a “plan” about which they had consulted Tarrio. Ex. 510-9 and -23. In a private, encrypted message, Nordean instructed his men to meet at the Washington Monument at 10 a.m. and that “from there” the men would be “marching to the Capitol.” Ex. 551. The call to meet at 10 a.m. at the Washington Monument was also broadcast by other MOSD leaders to the MOSD members and Boots on Ground participants. Ex. 510-24 and 512-5.
The men met at the Washington Monument as instructed. Tr. 5482:11-15 (Greene). Consistent with the directives of Biggs, Tarrio, and other leadership, the assembled men were not wearing Proud Boys colors, but many wore tactical equipment such as helmets and plate carriers.
30 While the evidence was excluded under Fed. R. Evid. 403 at trial, Tarrio had bragged about the crimes and taunted law enforcement on social media—unequivocally sending a public message to his men that crimes in furtherance of the Proud Boys’ objectives were fully endorsed by the Chairman. See Tr. 4023-30, 4063-75 (Oral argument on Jan. 18, 2023, concerning the admission of Tarrio’s Parler exhibits). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 62 of 80
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Id. at 5481:20-22 (Greene); see also Ex. 1000 at 00:25-3:05. Nordean and Biggs prominently took control of the march, and Nordean and Biggs frequently addressed the men through a megaphone—telling them that in their view the police and government had failed them. E.g., Ex. 1000 at 4:10-5:33. On the march, Rehl played an integral organizational role, using his radio to ensure that the group of approximately 200 stayed together as it marched towards the Capitol. Id. at 8:15-8:30. He also communicated with co-conspirators who were not present, but who were monitoring events in Washington remotely, about how things were going on the ground. Ex. 509-29.
Nordean, Biggs, and Rehl maintained control over the group as they marched them away from the featured speakers at the Ellipse and, as planned, toward the Capitol. At 12:45 p.m., fifteen minutes before the certification of the Electoral College vote was scheduled to start, Nordean mustered the men into a column and marched them to the First Street side of the Capitol. Ex. 1000 at 19:05-19:20, Ex. 1001 at 00:50-1:15. Nordean, Biggs, and Rehl led the men away from then-President Trump’s speech, which was ongoing. Biggs, Nordean, Rehl, and their men played an integral role in the first breach of the restricted perimeter on January 6. At 12:53 p.m., approximately one minute after Biggs led a “Whose Capitol? Our Capitol!” chant, the crowd surged forward towards a police barricade manned by five officers. Ex. 1001 at 8:07. As the crowd surged forward, Nordean and Biggs attempted to organize the men to stay with and follow them. Id. at 8:18-8:37. Rehl moved to the front of the crowd while yelling, “Fuck them! Storm the Capitol!” Id. at 10:01-10:20; Tr. 12246:5-10 (Miller).
Even as the chaos unfolded, the men maintained command and control through the predetermined rule—follow the commands of leadership or as known in Proud Boys parlance, fit in or fuck off. As acknowledged by defense witness Travis Nugent, the men simply fell back on Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 63 of 80
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the chain of command and followed leadership in their assault on the Capitol. Tr. at 14643:24-14645:4 (Nugent).
The leaders’ command and control persisted throughout the siege. Nordean and Biggs led a smaller group around the grounds of the Capitol until the final push to the building, and Biggs continued to lead a smaller group of men as he twice rampaged through the Capitol. Rehl first asked, then led his group into the Capitol where they entered a private office where Rehl smoked and posed for pictures while flashing the Proud Boys hand gesture. Tr. 12635:8-23, 12639:16 – 12640:24 (Miller); Ex. 115x, 415x and 402-B. Nordean moved around the Rotunda with other Proud Boys, including a Proud Boys member who had twice entered the building with Biggs. And, watching from afar, Tarrio privately took credit for his accomplishment (e.g., “Make no mistake . . . we did this.” (500-84)) and publicly encouraged his men and the crowd to continue the attack (e.g., ““Proud of my boys and my country,” and “Don’t fucking leave.” (Ex. 600-59)).
The Court should therefore apply the PSR’s suggested adjustments to Tarrio, Nordean, Biggs, and Rehl, for an aggravating role.
B. Section 3C1.1 (obstruction of justice)
The PSRs correctly apply Section 3C1.1’s two-level enhancement for obstruction of justice to Tarrio, Biggs, and Rehl. This enhancement applies if “(1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense.” U.S.S.G. § 3C1.1. The commentary to the Guidelines includes a non-exhaustive list of some of the ways that a defendant can obstruct justice. See, e.g., U.S.S.G. § 3C1.1, cmt. n.4(B) (committing perjury); cmt. n. 4(D) (deleting evidence or instructing others to Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 64 of 80
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do so, or attempting to do so); see also United States v. Dunnigan, 507 U.S. 87, 92-95 (1993) (confirming that perjury merits the obstruction enhancement under Section 3C1.1); United States v. Mellen, 89 F. App’x 268, 270 (D.C. Cir. 2004) (affirming application of the enhancement for “advis[ing]” someone else to destroy property to avoid detection, and then destroying the evidence himself). Each of the defendants’ obstruction manifested itself in different ways, and because the facts and circumstances of each defendants’ obstructive conduct was different, the bases for the adjustments are detailed in the sentencing addendums specific to each defendant. See Attachment A (Tarrio), Attachment B (Nordean), Attachment C (Biggs), Attachment D (Rehl), and Attachment E (Pezzola).
C. Section 3E1.1 (no acceptance of responsibility)
The PSRs correctly reject the defendants’ claims to an entitlement to a reduction in offense level based on any alleged acceptance of responsibility. Notably, Pezzola offered to provide pretrial services with a letter that would detail Pezzola’s “partial” acceptance of responsibility. That letter has not materialized. In any event, any such post-facto “partial” acceptance does not make an “acceptance of responsibility” reduction available to the defendants. The Guidelines commentary makes clear that an acceptance reduction “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, cmt. n.2. It will be “rare” for a defendant who proceeds to trial to receive this adjustment. Id. That “rare” situation is when a defendant proceeds to trial to “preserve issues that do not relate to factual guilt.” Id. That is not the case here.
Regardless of any facts conceded by any defendant prior to or during trial, each defendant contested that the government proved the necessary mens rea for the defendant to commit the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 65 of 80
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conspiracy or obstruction of justice offenses. Each defendant, therefore, denied an essential factual element of guilt: his or her own intent. Indeed, in a different Capitol riot case, Judge Walton rejected this precise argument, holding that a defendant who went to trial and testified about his conduct but denied possessing the necessary mens rea to corruptly obstruct the official proceeding would “absolutely” not be entitled to a reduction for acceptance of responsibility. United States v. Thompson, 21-cr-161 (Nov. 18, 2022), Sent. Tr. at 64. Judge Walton’s conclusion echoes that of circuit courts, which routinely find that district judges do not abuse their discretion or clearly err in denying the acceptance-of-responsibility adjustment for defendants who proceed to trial in obstruction cases contesting whether they possessed the requisite corrupt intent. See, e.g.¸ United States v. Marinello, 839 F.3d 209, 226-27 (2d Cir. 2016), reversed and remanded on other grounds, 138 S. Ct. 1101 (2018); United States v. Petruk, 836 F.3d 974, 977-78 (8th Cir. 2016). A defendant who admits his physical actions but denies his intent necessarily denies his “factual guilt” under Section 3E1.1. See United States v. Jaynes, 75 F.3d 1493 (10th Cir. 1996) (affirming inapplicability of this adjustment for defendant who admitted conduct constituting forgeries but denied any intent to defraud government); United States v. Burns, 781 F.3d 688 (4th Cir. 2015) (affirming inapplicability of this adjustment for defendant who admitted to shooting into car but denied possessing intent to kill).
Moreover, the defendants who testified at trial made it abundantly clear that they have no remorse for their actions. At the conclusion of his testimony, including his lies to the jury about his assault on law enforcement, Rehl summed up his attitude about his conduct with a textbook non-apology, “[i]f you believe that I did anything wrong that day, I really do truly apologize.” The “I’m sorry you feel that way” apology communicates no remorse and accepts no responsibility. During his testimony, Pezzola played the same song with different lyrics. He laid the blame for his Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 66 of 80
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violent and assaultive conduct on the officers who were attempting to protect themselves and control Pezzola and the other rioters. He blamed COVID lockdowns; he blamed his military training; he blamed everyone but the person who was responsible for his actions.
Indeed, even in their PSR interviews, not a single defendant acknowledged their guilty conduct. None of them has “accepted responsibility” for their criminal actions.
VII. GROUPING ANALYSIS
As the PSRs correctly conclude, for each defendant, all counts of conviction should group. Under §3D1.2, “closely related counts” group. All the counts of conviction for each defendant should be placed into one group, as described more fully below.
Counts One, Two, Three, Six, and Seven. Under §3D1.2(b), the counts that “involve the same victim” and “two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan” group. Counts One (seditious conspiracy), Two (conspiracy to obstruct an official proceeding), Three (obstruction of an official proceeding) involve the same victim (Congress or the government itself) and are part of the same common criminal objective: to oppose by force the authority of the United States by preventing Congress from meeting. Counts One, Two, and Three therefore group under §3D1.2(b). Similarly, Counts Six and Seven (destruction of government property) involve the same victim (Congress or the government itself) and were connected by a common criminal objective: to oppose by force the authority of the United States by preventing Congress from meeting. Were Counts Six and Seven determined to involve a different victim (e.g., the Architect of the Capitol), Counts Six and Seven would still group because they embody conduct that is treated as a specific offense characteristic in Counts One, Two and Three (i.e., §2J1.2(b)(1)(B) (“threatening to cause physical injury to a Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 67 of 80
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person . . . in order to obstruct the administration of justice.”)) See U.S.S.G. §3D1.2(c); see also, discussion, infra.
Count Four. Under §3D1.2(c), a count that “embodies conduct that is treated as a specific offense characteristic in” another guideline groups with the guideline for that count. Count Four (conspiracy to prevent officers of the United States from discharging their duties) embodies conduct that is treated as a specific offense characteristic in §2J1.2(b)(1)(B). In Count Four, the jury found the defendants guilty of conspiring to use “force, intimidation, or threat” to prevent Members of Congress and federal law enforcement officers from discharging duties. Those same elements – force, intimidation, or threat – support application of the specific offense characteristic in §2J1.2(b)(1)(B) of “threatening to cause physical injury to a person . . . in order to obstruct the administration of justice.”
Count Five. Just as with Count Four, under §3D1.2(c), a count that “embodies conduct that is treated as a specific offense characteristic in” another guideline groups with the guideline for that count. In Count Five, the jury found all five defendants guilty of interference with law enforcement officers during a civil disorder. That conduct supports application of the specific offense characteristic in §2J1.2(b)(1)(B) of “causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice.” See discussion, supra at Part IV.A.2.
Count Nine. In Count Nine, the jury found Pezzola guilty of assault. As with Counts Four and Five, Pezzola’s assault also supports application of the specific offense characteristic in §2J1.2(b)(1)(B) of “causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice” to Counts One, Two, and Three. Accordingly, Count Nine groups with Counts One through Three under U.S.S.G. §3D1.2(c). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 68 of 80
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In the alternative, the applicable guideline for Count Nine is §2A2.2 (and not §2A2.4) because the assault involved “an intent to commit another felony.” U.S.S.G. §2A2.2 n.1. Accordingly, if evaluated from the opposite direction, Count Nine groups with Counts Three, Four, and Five because those other felonies form the basis for the adjustment in the guidelines for Count Nine, i.e., the other felonies “embod[y] conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to” Count Nine.
Count Ten. In Count Ten, the jury found Pezzola guilty of robbery. As with Counts Four, Five, and Nine, Pezzola’s robbery also supports application of the specific offense characteristic in §2J1.2(b)(1)(B) of “causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice” to Counts One, Two, and Three. Accordingly, Count Ten groups with Counts One through Three under U.S.S.G. §3D1.2(c).
In addition, under §3D1.2(b), the counts that “involve the same victim” and “two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan” group. The assault charged in Count Nine involved the same officer from whom the property was robbed, i.e., Officer Mark Ode. Counts Nine and Ten were carried out as part of the same common criminal objective. Accordingly, the Counts Nine and Ten group, and for the reasons explained herein, supra, Counts Nine and Ten group with the other counts of conviction.
Were the Court to determine that any of the specifical offense characteristics or the adjustment for obstruction of justice do not apply to a particular defendant, then not all counts of conviction would group, and the Court would need to adjust the offense level according to the analysis in Part D of Chapter 3. Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 69 of 80
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VIII. UPWARD DEPARTURES
The Court should depart upward from the Guidelines range for each of the defendants’ relevant conduct in this case for the bases explained below and in the sentencing allocution section for each defendant. Specifically, in addition to the application of an upward departure for a federal crime of terrorism under Note 4 of Section 3A1.4, other provisions in the Sentencing Guidelines provide independent bases for the Court to depart upwards from each defendant’s Guidelines range.
First, Section 5K2.7 provides that “[i]f the defendant’s conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected.” U.S.S.G. § 5K2.7. This departure “ordinarily would not be justified when the offense of conviction is . . . obstruction of justice . . . unless the circumstances are unusual.” Id.; see also § 3A1.2, cmt. n.5; § 2A2.4, cmt. n.3 (regarding additional relevant bases for applying Section 5K2.7). Here, both the circumstances and the offense are unusual: the defendants sought to disrupt a government function that is integral to our democracy and is mandated by the Constitution itself—the Certification of the votes of the Electoral College. See U.S. Const. amend. XII. Further, seditious conspiracy is an egregious offense for which defendants are rarely convicted and sentenced—and very few defendants have been sentenced since the advent of the Sentencing Guidelines. But when defendants are sentenced for a seditious conspiracy conviction, they typically receive lengthy terms of incarceration. See Part IX.C (recounting other sentences for seditious conspiracy).
Second, an upward departure is equally appropriate under Section 5K2.0(a)(3) to account for the defendants’ “intent to frighten, intimidate, and coerce” federal lawmakers in manner that is Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 70 of 80
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not otherwise accounted for in the Guidelines. United States v. Tankersley, 537 F.3d 1100, 1116 (9th Cir. 2008); see id. at 1112-14 (upholding 12-level upward departure under Section 5K2.0 after the district court concluded that Section 3A1.4 did not apply). As explained in detail at Part V, the defendants intended to and did use force to oppose the government; and they took these actions in order to influence or affect the conduct of government by intimidation or coercion. Absent an application of the adjustment for a federal crime of terrorism, the Guidelines would not otherwise accurately reflect the seriousness of the defendants’ conduct.
IX. SECTION 3553(a) FACTORS APPLICABLE TO ALL DEFENDANTS
The Court’s sentence must be guided by the factors in 18 U.S.C. § 3553(a). The following factors are applicable to all five defendants: the nature and circumstances of the offense, § 3553(a)(1); the need for the sentence to reflect the seriousness of the offense and promote respect for the law, § 3553(a)(2)(A); the need for the sentence to afford adequate general deterrence, § 3553(a)(2)(B); and the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct, § 3553(a)(6). These factors support the government’s requested sentences, through the Guidelines analysis (including an upward departure) and/or an upward variance. The remaining 3553(a) factors are discussed in the sentencing addendums specific to each defendant, see Attachment A (Tarrio), Attachment B (Nordean), Attachment C (Biggs), Attachment D (Rehl), and Attachment E (Pezzola).
A. Nature and Circumstances of the Offense and Need for the Sentence Imposed to Reflect the Seriousness of the Offense and Promote Respect for the Law
These defendants each played a role in an unprecedented conspiracy to oppose the transfer of presidential power. The attack on the U.S. Capitol on January 6 was a criminal offense unparalleled in American history. It represented a grave threat to our democratic norms; indeed, it was one of the only times in our history when the building was literally occupied by hostile Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 71 of 80
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forces—a fact that Biggs noted with pride in the days after January 6. Ex. 611B (Biggs: “The last time that happened was the 1800s, and it was by the British”).
These defendants planned for and launched an attack on the heart of our democracy. This was the “war” that they envisioned; the “revolution” that they had aimed to lead. As January 6 approached, Tarrio called for revolution, posting messages that read, “Let’s ring in this year with one word in mind. Revolt.” And “New Years Revolution.” Ex. 600-52 and -54. During a podcast on December 28, 2020, Nordean called for the use of force against law enforcement and government officials, explaining that “the only thing left is force.” Ex. 608-C. Nordean went on to explain that he didn’t “want” to use force against the government “because the repercussions are unknown” but that he was prepared to “prepare an army” that will “literally replace” the government officials in charge. Id. A few days later, on December 31, 2020, during a podcast recorded with co-conspirator Jeremy Bertino. Nordean explained that “when police officers or government officials are breaking the law . . . you have to use force.” Ex. 609-B. Per Nordean, “this [wa]s the organized militia part of our constitution,” and force is “literally the foundation of every prominent country.” Id. Biggs echoed the same sentiment, when on December 23, 2020, he told another user that he was not “gonna say things that’ll put me in jail tonight” but that “[w]e all know what needs to be done.” Ex. 603-39. Biggs was more explicit on January 2, 2021, when he posted a message that read, “Every law makers who breaks their own stupid Fucking laws should be dragged out of office and hung. The government should fear the people. Not the other way around. You work for us. You don't have ruling power over me. We only allow you to have that privilege. FAFO[.]” Ex. 603-55.
As events at the Capitol unfolded, Tarrio plainly revealed his objective. In a private message with Bertino, Tarrio declared, “this is it” and then referenced the “Winter Palace”—a plan Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 72 of 80
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that discussed storming of government buildings. Tarrio remarked to Bertino that the video of Pezzola breaking the window looked like “George Washington, Sam Adams, and Franklin.” Ex. 530-7. Biggs and Nordean posed with other Proud Boys on the west lawn of the Capitol for a celebratory video in which Biggs stated that “January 6 will be a day in infamy.” Ex. 400-LL and 500-84. Pezzola, once inside the building, filmed a video of himself having a “victory smoke in the Capitol,” and stating, “I knew we could take this motherfucker over if we just tried hard enough… Proud of your motherfucking boy.” Ex. 403-G.
In the days that immediately followed, the defendants continued to bask in the glory of their attack on democracy and attempt at a revolution. They called it precisely what it was. Biggs recorded a podcast-style interview in which he called January 6 a “warning shot” to the government that showed them “how weak they truly are” after being “bitch-slapped . . . on their own home turf.” Ex. 611-B. Biggs explained that “January 7th was warning shot to the government – look, we started this country this way and we’ll fuckin’ save it this way.” Ex. 611-D. Nordean recorded a video of himself describing an encounter with a woman at the bar; in the video he faulted the woman for not appreciating that he “was part of fucking storming the Capitol of the most powerful country in the fucking world… 1776, bitch.” Ex. 470-B and -C. Rehl made social media posts calling January 6 a “historical day,” and he told his mother he was “so fucking proud” of the Proud Boys’ “raid of the capitol.” Ex. 602-52, 545-3.
None of this was mere happenstance or accident. In the months leading up to January 6, 2021, they had brought their army of violence to Portland, Kalamazoo, and Washington, D.C. And then they brought that army of violence to the Capitol to exert their political will. In doing so, these defendants attempted to silence millions of Americans who had placed their vote for a different candidate, to ignore the variety of legal and judicial mechanisms that lawfully scrutinized the Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 73 of 80
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electoral process leading up to and on January 6, and to shatter the democratic system of governance enshrined in our laws and in our Constitution.
For years, these defendants intentionally positioned themselves at the vanguard of political violence in this country. They brought that violence to the Capitol on January 6 in an effort to change the course of American history, and the sentences imposed by this Court should reflect the seriousness of their offenses.
B. Need for the Sentence to Afford Adequate General Deterrence
A significant sentence is necessary “to afford adequate deterrence to criminal conduct” by others. 18 U.S.C. § 3553(a)(2)(B). Here, the need to deter others is especially strong because these defendants engaged in acts that were intended to influence the government through intimidation or coercion—in other words, terrorism. And they were leaders of such efforts. Because these defendants not only contributed to the attack on the Capitol but helped to organize it, their sentences will be noted by those who would foment such political violence in the future.
The attack on the Capitol on January 6 was calculated to interfere with, and did interfere with, one of the most important democratic processes we have: the peaceful transfer of power. As noted by Judge Moss during a different sentencing hearing,
[D]emocracy requires the cooperation of the governed. When a mob is prepared to attack the Capitol to prevent our elected officials from both parties from performing their constitutional and statutory duty, democracy is in trouble. The damage that [the defendant] and others caused that day goes way beyond the several-hour delay in the certification. It is a damage that will persist in this country for decades.
United States v. Hodgkins, No. 21-cr-188, Sent. Tr. at. 69-70. Indeed, the attack on the Capitol means “that it will be harder today than it was [before January 6] for the United States and our diplomats to convince other nations to pursue democracy. It means that it will be harder for all of Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 74 of 80
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us to convince our children and our grandchildren that democracy stands as the immutable foundation of this nation.” Id. at 70.
The justice system’s response to January 6 will impact whether January 6 becomes an outlier or a watershed moment. “By nearly every measure, political violence is seen as more acceptable today than it was five years ago.” Adrienne LaFrance, The New Anarchy: America faces a type of extremist violence it does not know how to stop, THE ATLANTIC, Mar. 6, 2023 (citing a 2022 UC Davis poll31 that found one in five Americans believes political violence would be “at least sometimes” justified, and one in 10 believes it would be justified if it meant the return of President Trump). Left unchecked, this impulse threatens our democracy.
The defendants in this case sought to capitalize on this undercurrent in our society to change the result of a presidential election. They called for using force, intimidation, and violence to get political leaders to stop the certification of the election. They recruited others to this mission. They organized and participated in encrypted messaging groups and meetings to further their plans. Such conduct in leading and instigating an attack like January 6 demands deterrence. It is critical that this Court impose significant sentences of incarceration on all the defendants in this case to convey to those who would mobilize such political violence in the future that their actions will have consequences.
C. Need to Avoid Unwarranted Sentencing Disparities
The crimes these defendants committed align closely with acts of terrorism for which courts have imposed lengthy sentences in other seditious conspiracy cases. And, these defendants are distinct from all other January 6 defendants, including the Oath Keepers, because of their role
31 health.ucdavis.edu/vprp/pdf/Political-Violence-Fact-Sheet%201_7-21-22.pdf Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 75 of 80
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in coordinating and instigating the attack on the Capital with their large numbers. Sentencing these defendants to significant sentences of incarceration will not run afoul of Section 3553(a)(6).
1. Defendants sentenced for seditious conspiracy in other contexts
Since the advent of the Sentencing Guidelines, there have only been a handful of cases in which defendants were sentenced for committing seditious conspiracy in violation of 18 U.S.C. § 2384. In each of these cases, courts imposed lengthy sentences, often imposing the maximum sentence of 20 years of incarceration on this count and finding the conduct was tantamount to waging war against the United States under Section 2M1.1(a)(1). For instance, in United States v. Rahman, ten defendants were found guilty of seditious conspiracy in connection with terror plots related to the 1993 World Trade Center bombing and additional plans to bomb other locations and murder the Egyptian president. Each of the ten defendants, while receiving overall sentences ranging from 25 years to life imprisonment, was sentenced under the Treason guidelines to 20 years for their conviction of 18 U.S.C. § 2384. See 189 F.3d 88 (2d Cir. 1999) (affirming these sentences).
In United States v. Battle, No. 02-cr-399 (D. Or. 2004), the court adopted the sentencing guidelines for Treason and sentenced two co-defendants to 18 years of incarceration after they pled guilty to seditious conspiracy and admitted that the purpose of their conspiracy was to travel to Afghanistan to fight alongside al Qaeda and the Taliban against American and allied forces. See No. 02-cr-399, ECF 373, 374, 537 at 2.
In United States v. Batiste, No. 06-cr-20373 (S.D. Fla. 2009), the defendant was convicted of multiple charges, to include seditious conspiracy, for providing material support to the planning of attacks on federal and civilian targets in the United States. See No. 06-cr-20373, ECF 1451 (Gov. Sent. Memo). Despite never collecting any weapons or harming any victims, the court Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 76 of 80
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adopted the sentencing guidelines for Treason and sentenced Batiste to 13-and-a-half years for his conviction under Section 2384. See No. 06-cr-20373, Sent. Tr. at 46-47, 148.
In United States v. Khan, No. 03-cr-296-2 (E.D. Va. 2004), the defendant was originally sentenced to the statutory maximum of 20 years for violating Section 2384, and life imprisonment overall. In Khan, the defendant attended a terrorist training camp after September 11, 2001, with the intent to proceed to Afghanistan and fight for the Taliban and Al-Qaeda against United States troops. See United States v. Khan, 309 F. Supp. 2d 789, 801-18 (E.D. Va. 2004), aff’d in part, remanded in part on other grounds, 461 F.3d 477 (4th Cir. 2006); see also Khan, No. 03-cr-296-2, ECF 602 (explaining procedural history, including that the incarceration term for the Section 2384 count was later decreased on resentencing after Booker and Dimaya).
In United States v. Al-Timimi, No. 04-cr-385 (E.D. Va. 2004), the defendant was convicted of violating Section 2384 among other charges for encouraging individuals to travel to Pakistan to receive military training from Lashkar-e-Taibi, a designated foreign terrorist group, in order to fight U.S. troops in Afghanistan. The defendant was sentenced to life in prison, including 10 years for violating Section 2384. ECF 132.
These other seditious conspiracy cases show that courts have imposed decades-long sentences of incarceration even for planning and preparing for violence (but not using actual violence) against the United States government. Indeed, the seditious conspiracy statute was created to address such existential threats to our system of government. See Dec. 11, 2022 Mem. Op. (ECF 586) at 4-5 (explaining that the predecessor to the seditious conspiracy statute was enacted at the outset of the Civil War; reenacted the statute in 1871 to “combat private violence by the Ku Klux Klan and like organizations,” and Congress raised the maximum penalty to twenty years after an attack on the Capitol in 1954.); see also United States v. Ali, 528 F.3d 210, 265 (4th
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Cir. 2008) (“[T]hough the district court accurately noted that [the defendant] never ‘injured any people’ and ‘no victim was injured in the United States[,]’ this should not trivialize the severity of his offenses. . . . [W]e cannot wait until there are victims of terrorist attacks to fully enforce the nation’s criminal laws against terrorism.”). Here, the defendants, in fact, acted on their seditious agreement—causing and threatening injury and harm on January 6, and damage to the country’s faith in our electoral process. To avoid unwarranted disparities with other seditious conspiracy cases, the defendants’ sentences should be lengthy.
2. Defendants sentenced in other January 6 cases
These defendants stand out among other January 6 defendants because they literally led the attack on the Capitol—contributing to four pivotal breach points in the first 80 minutes of the riot. The defendants executed these crimes as a result of the steps that they had taken in advance to bring a fighting force to the Capitol on January 6. No other group of defendants had a bigger impact on the events of January 6 than these defendants and the men in their command.
Perhaps the closest corollary to these defendants are the Oath Keeper defendants, who were recently sentenced by Judge Amit Mehta to between three and 18 years of incarceration. Those who led the Oath Keeper defendants repeatedly advocated for civil war—both before and after January 6, 2021—amassed a stockpile of weapons that they brought to the Capitol region, and ultimately directed their members to storm the Capitol, with more than a dozen of their members heeding the call. This conduct warrants sentences consistent with the kinds of sentences historically imposed when defendants are convicted of seditious conspiracy. The conduct of these defendants is more egregious than that of the Oath Keeper defendants and warrants greater sentences. By the time that Stewart Rhodes mustered his group to begin marching towards the Capitol at 1:25 pm (sending the Signal message “Pence is doing nothing. As I predicted.”), these Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 78 of 80
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defendants had already stormed the First Street gates, destroyed the black metal fence, entered the West Plaza, assaulted Officer Ode and robbed him of his shield, and regrouped on the lawn, where Nordean and Biggs took a video of themselves boasting that they had “just stormed the Capitol” and taken the “motherfucking place back.” By 2:32 pm, when Kelly Meggs directed 12 members of Stack One to begin climbing the steps on the east side of the Capitol, these defendants had already pushed through a line of officers to climb the concrete stairs under the scaffolding, Rehl had sprayed an officer in the face, Pezzola had broken open the window at the Senate Wing Door with his stolen riot shield, Biggs had entered and exited the Capitol, and Nordean had ascended to the Upper West Terrace. And unlike the Oath Keeper defendants, whose numbers were limited to a core group of roughly two dozen men and women, these defendants led nearly 200 like-minded men onto Capitol grounds, who also engaged in violent attacks on law enforcement and destruction of government property, thus enabling the defendant’s calculated attempt to forcibly stop the lawful transfer of power.
Any disparity between these defendants and others sentenced for crimes on January 6, including members of the Oath Keepers, is fully warranted based on the defendants’ conspiracy and conduct.
X. CONCLUSION
For the reasons set forth above and further supported by the memoranda filed herewith, the government recommends that the Court impose a lengthy sentence of imprisonment on each defendant. Specifically, Enrique Tarrio should serve 33 years in prison; Joseph Biggs and Zachary Rehl, 30 years; Ethan Nordean, 27 years; and Dominic Pezzola, 20 years. Additional support for these sentencing recommendations is set forth in Attachment A (Tarrio), Attachment B (Nordean), Attachment C (Biggs), Attachment D (Rehl), and Attachment E (Pezzola). Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 79 of 80
80
Respectfully Submitted,
MATTHEW M. GRAVES
United States Attorney
D.C. Bar No. 481052
By: /s/ Jason B.A. McCullough
JASON B.A. MCCULLOUGH
NY Bar No. 4544953
ERIK M. KENERSON, OH Bar No. 82960
NADIA E. MOORE, NY Bar No. 4826566
On Detail to the District of Columbia
Assistant United States Attorneys
601 D Street NW
Washington, D.C. 20530
/s/ Conor Mulroe
CONOR MULROE, NY Bar No. 5289640
Trial Attorney
U.S. Department of Justice, Criminal Division
1301 New York Ave. NW, Suite 700
Washington, D.C. 20530
(202) 330-1788
[email protected]
Case 1:21-cr-00175-TJK Document 855 Filed 08/17/23 Page 80 of 80
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Wed Aug 23, 2023 4:50 am

Trump 2020 lawyer admits misrepresenting stolen election claims: Jenna Ellis made the admissions in a Colorado disciplinary proceeding.
by Kyle Cheney
Politico
03/08/2023 11:59 PM EST
https://www.politico.com/news/2023/03/0 ... s-00086256

[x]
Jenna Ellis is the latest Trump attorney involved in the former president’s post-election efforts to face discipline. | Jacquelyn Martin/AP Photo

Jenna Ellis, an attorney for Donald Trump who helped drive his false claims about the 2020 election results, has admitted in a Colorado disciplinary proceeding that she misrepresented evidence at least 10 times during Trump’s frantic bid to subvert his defeat.

“Respondent made these misrepresentations on Twitter and on various television programs, including Fox Business, MSNBC, Fox News, and Newsmax,” Colorado’s top disciplinary judge Bryon Large wrote in a six-page opinion. “The parties agree that by making these misrepresentations, Respondent violated [a state attorney rule of conduct], which provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Large issued a public censure of Ellis for her stipulated conduct.

Ellis is the latest Trump attorney involved in the former president’s post-election efforts to face discipline. Rudy Giuliani had his license temporarily suspended and is awaiting a final ruling from a bar discipline proceeding in Washington, D.C. John Eastman is preparing for disciplinary proceedings in California. And Jeffrey Clark has temporarily delayed bar discipline proceedings against him in Washington while attempting to bring the fight into federal court.

But Ellis is the first attorney of the group to acknowledge she misrepresented the evidence of fraud. Among her admitted misrepresentations:

"Giuliani's stipulation concedes what we have always known to be true — Ruby Freeman and Shaye Moss honorably performed their civic duties in the 2020 presidential election in full compliance with the law; and the allegations of election fraud he and former-President Trump made against them have been false since day one," Gottlieb said in a statement.

-- Rudy Giuliani admits to making "false" statements about 2 former Georgia election workers, by Melissa Quinn


— Ellis claimed on Nov. 13, 2020 that Hillary Clinton didn’t concede the 2016 election.

— On Nov 20, 2020, Ellis claimed Trump’s team had evidence of a “coordinated effort in all of these states to transfer votes either from Trump to Biden, to manipulate the ballots, to count them in secret.”

— On Nov. 30, 2020, Ellis said on Fox that Trump “won in a landslide.”

— On Dec. 5, 2020, Ellis claimed the Trump team found 500,000 illegal votes had been cast in Arizona.


Both Ellis’ attorney and the disciplinary attorneys bringing the case against her agreed that there was no precedent for the case against Ellis — an effort to aid a sitting president’s bid to undermine confidence in the American election system.

Large noted that Ellis wasn’t Trump’s counsel of record in any lawsuits challenging the election. But he also noted that Ellis admitted her actions violated “her duty of candor to the public.”

“The parties agree that two aggravators apply — [Ellis] had a selfish motive and she engaged in a pattern of misconduct
— while one factor, her lack of prior discipline, mitigates her misconduct,” Large determined.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Sep 07, 2023 10:35 pm

Letter from Fani T. Willis, Fulton County District Attorney to Congressman Jim Jordan, Re His letter dated 8/24/23, attempting to Unconstitutionally Interfere with and Obstruct Prosecution of State Criminal Cases.
September 7, 2023

OFFICE OF THE FULTON COUNTY DISTRICT ATTORNEY
ATLANTA JUDICIAL CIRCUIT
136 PRYOR STREET SW, 3RD FLOOR
ATLANTA, GEORGIA 30303

TELEPHONE 404-612-4639

Fani T. Willis
District Attorney

September 7, 2023

Congressman Jim Jordan
Chairman, Committee on the Judiciary
United States House of Representatives
2138 Rayburn House Office Building
Washington, DC 20515
Via electronic mail to [email protected] and overnight delivery.

Dear Mr. Jordan:

I have received your letter dated August 24, 2023. On August 14, 2023, a Fulton County Grand Jury returned a true bill of indictment charging nineteen defendants with felony violations of Georgia law, including violation of Georgia’s Racketeering Influence Corrupt Organizations Act (“Georgia RICO”), O.C.G.A. § 16-14-1 et. seq. Beyond that recitation of the charges, your letter contains inaccurate information and misleading statements. The true bill of indictment returned on August 14, 2023, is attached as Exhibit A.

(1) Your Attempt to Interfere with and Obstruction This Office’s Prosecution of State Criminal Cases is Unconstitutional.

As you know, Chairman Jordan, the congressional power of inquiry “is not unlimited.” Watkins v. United States, 354 U.S. 178, 187 (1957). Congress is not “a law enforcement or trial agency”; that function is reserved only for “the executive and judicial departments of government.” Id. Moreover, “investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” Id. More fundamentally, “a congressional subpoena is valid only if it is ‘related to, and in furtherance of, a legitimate task of the Congress.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (quoting Watkins, 354 U.S. at 187).

Your letter offends each and every one of these settled principles. Its obvious purpose is to obstruct a Georgia criminal proceeding and to advance outrageous partisan misrepresentations. As I make clear below, there is no justification in the Constitution for Congress to interfere with a state criminal matter, as you attempt to do. Furthermore, your note calls to mind another letter recently submitted to a House select committee: “This unprecedented action serves no legitimate legislative purpose and would set a dangerous precedent for future Congresses . . . the American people deserve better.” See Letter from Rep. Jim Jordan to Chairman Bennie Thompson dated January 9, 2022.

a. Your letter offends principles of state sovereignty.

The demands in your letter—and your efforts at intruding upon the State of Georgia’s criminal authority—violate constitutional principles of federalism. Criminal prosecutions under state law are primarily the responsibility of state governments. Congress’s lawful prerogative to interfere with states’ administration of their criminal laws is extremely limited. See Charles W. Johnson, et al., House Practice: A Guide to the Rules, Precedents, and Procedures of the House at 254 (GPO 2017) (“The investigative power cannot be used ... to inquire into matters ... which are reserved to the States.”).

As the Supreme Court held in United States v. Lopez, “under our federal system, the States possess primary authority for defining and enforcing the criminal law.” 514 U.S. 549, 561 n3 (1995); see also United States v. Morrison, 529 U.S. 598, 618 (2000) (“We can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of . . . crime and vindication of its victims.”). Indeed, because the power to create and enforce state criminal law is “an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.” New York v. United States, 505 U.S. 144, 156 (1992) (emphasis added). The Supreme Court has thus recognized a “fundamental policy against federal interference with state criminal prosecutions.” Younger y. Harris, 401 U.S. 37, 44 (1971); accord Mesa v. California, 489 U.S. 121, 138 (1989); Cameron v. Johnson, 390 U.S. 61 1, 618 (1968). Pursuant to that rule, the federal government must observe a strict policy of “no interference” with state officers who are “charged with the duty of prosecuting offenders against the laws of the State and must decide when and how this is to be done.” Younger, 401 U.S. at 45; see also Rose v. Mitchell, 443 U.S. 545, 585 (1979) (“This Court repeatedly has recognized that criminal law is primarily the business of the States, and that absent the most extraordinary circumstances the federal courts should not interfere with the States’ administration of that law.”); Gary v. Ga. Diagnostic Prison, 686 F.3d 1261, 1278 (11th Cir. 2012). What is true of federal courts is doubly true of federal legislators: given state sovereignty over state criminal law, Congress has hardly any role to play in meddling with its sound administration.

In light of these principles, your attempt to invoke congressional authority to intrude upon and interfere with an active criminal case in Georgia is flagrantly at odds with the Constitution. The defendants in this case have been charged under state law with committing state crimes. There is absolutely no support for Congress purporting to second guess or somehow supervise an ongoing Georgia criminal investigation and prosecution. That violation of Georgia’s sovereignty is offensive and will not stand. See Puerto Rico v. Sanchez Valle, 579 U.S. 59, 69 (2016) (holding that states enjoy the authority to undertake criminal prosecutions by virtue of their position as “separate sovereigns”).

b. Your letter transgresses separation of powers principles.

In addition, your demand for information regarding an ongoing criminal prosecution—a core executive function—is offensive to any notion of separation of powers that recognizes the distinct roles of the executive and legislative functions of government. As the Supreme Court has explained, “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U.S. 683 (1974). Congress, in contrast, is barred by precedent from using investigations for “law enforcement purposes.” Watkins, 354 U.S. at 187; see also Kilbourn v. Thompson, 103 U.S. 168, 194 (1881) (holding that Congress may not invoke its subpoena power to “interfere with” a case “pending in a court of competent jurisdiction”). You have thus violated the basic constitutional rule that “the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.” Quinn v. United States, 349 U.S. 155, 161 (1955).

Indeed, given that two of your requests concern any documents or communications among federal officials, we must note the position taken on similar matters by the United States Justice Department. As a leading scholar writes, “Congress seems generally to have been respectful of the need to protect material contained in open [federal] criminal investigative files.” Todd David Peterson, Congressional Oversight of Open Criminal Investigations, 77 Notre Dame L. Rev. 13 73, 1410 (2002). More recently, DOJ explained that “[l]ongstanding Department policy prevents us from confirming or denying the existence of pending investigations in response to congressional requests or providing non-public information about our investigations.” Letter from Assistant Attorney General Carlos Uriarte to Chairman Jordan, dated January 20, 2023, at page 3-4. As DOJ emphasized: “The Department’s mission to independently and impartially uphold the rule of law requires us to maintain the integrity of our investigations, prosecutions, and civil actions, and to avoid even a perception that our efforts are influenced by anything but the law and the facts. So does the Department’s obligation to protect witnesses and law enforcement, avoid flight by those implicated in our investigations, and prevent additional crimes and attacks.” Id. Those points are equally true here.

Given that your inquiry implicates core federalism and separation of powers concerns, the “careful inquiry” imposed by Mazars further constricts your lawful authority. See 140 S. Ct. at 2035. Under that test, federal courts must (1) “carefully assess whether the asserted legislative purpose warrants the significant step of involving the [target of the investigation,” including by asking whether “other sources could reasonably provide Congress the information it needs,” (2) “insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective,” (3) “be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose,” and (4) “assess the burdens imposed... by a subpoena.” Id. at 2035-36. For the reasons set forth in this letter, it is clear that you cannot satisfy any of these constitutional requirements—let alone all of them—in the inquiry you describe.

c. Your letter improperly interferes with the administration of criminal justice.

There are extremely good reasons why congressional committees have historically avoided interfering with criminal trial proceedings. Sharing non-public information about pending criminal matters may violate local and state confidentiality obligations and professional ethics rules. It may also prejudice defendants, victims, or witnesses, or affect the overall integrity of proceedings. In some cases, it could produce a bizarre dual-track discovery scheme that circumvents court rules that are carefully calibrated to ensure compliance with principles of sound criminal procedure. For these reasons, objections to a criminal investigation or prosecution are properly raised—at least in the first instance—at courts with lawful jurisdiction, not through partisan legislative inquiries. The courts in the State of Georgia are fully up to the task of adjudicating the rights of all parties at issue.

Returning to first principles, federal courts have long recognized the need for a zone of noninterference around prosecutorial decision-making. Within our criminal justice system, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in [the prosecutor’s] discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Federal courts are therefore “properly hesitant” to review prosecution decisions under the United States Constitution, since “examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.” Wayte v. United States, 470 U.S. 598, 607 (1985).

Congress has even less of an appropriate basis to interfere in criminal matters. As an expert on the subject writes: “The Constitution excludes Congress from any involvement in prosecutorial decisions in individual cases even more forcefully than it excludes the judiciary [and] . . . requires federal prosecutorial independence from congressional interference in order to protect individual liberty and preserve the integrity of the criminal justice system.” Todd D. Peterson, Federal Prosecutorial Independence, 15 Duke J. Const. L. & Pub. Pol’y 217, 260-61 (2020). Of course, while it is disturbing for Congress to involve itself in federal cases, it is even more troubling for Congress to tread upon state criminal matters that are doubly beyond its constitutional authority.

Here, your letter seeks the revelation of non-public and privileged information concerning my office’s investigation and prosecution of a specific case. Your public statements and your letter itself make clear that you lack any legitimate legislative purpose for that inquiry: your job description as a legislator does not include criminal law enforcement, nor does it include supervising a specific criminal trial because you believe that doing so will promote your partisan political objectives.

This leads me to a critical point: “[E]very President takes office knowing that he will be subject to the same laws as all other citizens upon leaving office. This is a feature of our democratic republic, not a bug.” House Comm. on Ways & Means y. U.S. Dept of Treasury, 45 F.4th 324, 338 (D.C. Cir. 2022). Indeed, even Mr. Trump himself has acknowledged before the U.S. Supreme Court that “state grand juries are free to investigate a sitting President with an eye toward charging him after the completion of his term.” Trump v. Vance, 140 S. Ct. 2412, 2426-27 (2020). For the rule of law to prevail, nobody should be permitted to violate state criminal law with impunity.

d. Your letter burdens the deliberate process privilege.

Beyond the many problems that I have already identified, your letter fails to recognize the deliberate process privilege. This privilege protects information regarding a government official’s decision-making process to allow her the ability to engage in the necessary investigative and deliberative process to make informed decisions. See, e.g., Fla. House of Representatives v. United States Dep't of Commerce, 961 F.2d 941, 948 (11th Cir. 1992); In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997); Fed. Home Loan Bank of Atlanta v. Countrywide Fin. Corp., 2011 Ga. State LEXIS 324 (Fulton County State Court Civil Action 11EV011779G, Dec. 23, 2011). Your attempts at probing communications among and involving counsel in my office are wholly improper.

(2) My voluntary responses to portions of your letter are below.

While settled constitutional law clearly permits me to ignore your unjustified and illegal intrusion into an open state criminal prosecution, I will take a moment to voluntarily respond to parts of your letter.

Chairman Jordan, I tell people often “deal with reality or reality will deal with you.” It is time that you deal with some basic realities. A Special Purpose Grand Jury made up of everyday citizens investigated for 10 months and made recommendations to me. A further reality is that a grand jury of completely different Fulton County citizens found probable cause against the defendants named in the indictment for RICO violations and various other felonies. Face this reality, Chairman Jordan: the select group of defendants who you fret over in my jurisdiction are like every other defendant, entitled to no worse or better treatment than any other American citizen.

a. Your notion that different standards of justice should apply to a select group of people is offensive.

Here is another reality you must face: Those who wish to avoid (felony charges in Fulton County, Georgia — including violations of Georgia RICO law — should not commit felonies in Fulton County, Georgia.
In this jurisdiction, every person is subject to the same laws and the same process, because every person is entitled to the same dignity and is held to the same standard of responsibility. Persons’ socioeconomic status, race, gender, sexual orientation, or political prominence does not entitle them to an exemption from that basic standard.

b. Defendant Trump’s status as a political candidate cannot make him legally immune from criminal prosecution.

The basic premise of your letter is wrong. The criminal defendant about which you express concern was fully aware of the existence of the criminal investigation being conducted by the Fulton County District Attorney’s Office at the time he announced his candidacy for President. I have no doubt that many Americans are the subject of criminal investigations and prosecutions at any given moment. An announcement of a candidacy for elected office, whether President of the United States, Congress, or state or local office, is not and cannot be a bar to criminal investigation or prosecution. Any notion to the contrary is offensive to our democracy and to the fundamental principle that all people are equal before the law.

c. An explanation of the basic obligations of a prosecutor is below.

Your letter makes clear that you lack a basic understanding of the law, its practice, and the ethical obligations of attorneys generally and prosecutors specifically.

I direct your attention to O.C.G.A. § 15-18-6. Subsection (4) imposes upon me as District Attorney the duty “[t]o draw up all indictments or presentments, when requested by the grand jury, and to prosecute all indictable offenses.” Subsection (11) requires me “[t]o assist victims and witnesses of crimes through the complexities of the criminal justice system and ensure that the victims of crimes are apprised of the rights afforded them under the law;” and (12) requires that District Attorneys “perform such other duties as are or may be required by law or which necessarily appertain to their office.”

As I explain above, the defendants about whom you express concern have been indicted by a Fulton County Grand Jury. That indictment identifies victims. The State of Georgia’s Constitution and laws impose a duty upon me to protect, serve, and seek justice on their behalf. I will fulfill that duty in this case, notwithstanding your attempt to interfere.

Furthermore, I have exercised my duties as the chief law enforcement officer for Fulton County independently and based on my obligations to the citizens of Georgia under our Constitution and laws — and nothing will deter me from the just, fair, and proper enforcement of the law.

d. Your questioning of the overt and predicate acts listed in the indictment is misinformed.

Your questioning of the inclusion of overt and predicate acts by the defendants in the indictment’s racketeering count shows a total ignorance of Georgia’s racketeering statute and the basics of criminal conspiracy law. Allow me the opportunity to provide a brief tutorial on criminal conspiracy law, Chairman Jordan.

As I explained to the public when announcing the indictment, the overt and predicate acts are included because the grand jury found probable cause that those acts were committed to advance the objectives of a criminal conspiracy to overturn the result of Georgia’s 2020 Presidential Election.

For a more thorough understanding of Georgia’s RICO statute, its application and similar laws in other states, I encourage you to read “RICO State-by-State.” As a non-member of the bar, you can purchase a copy for two hundred forty-nine dollars [$249].

e. Your questioning of the length of the investigation and timing of the indictment in unfounded.

Your letter raises questions about the length of time this investigation has taken. This investigation began with my office believing that critical witnesses would cooperate.

Several witnesses did, in fact, voluntarily come forward and cooperate, and we were able to collect pertinent evidence during calendar year 2021. Many witnesses, however, were uncooperative and required subpoenas to compel their cooperation. As a result of this resistance, we requested and received authorization from the Fulton County Superior Court judges to convene a Special Purpose Grand Jury (SPGJ) to compel testimony and production of documentary evidence. You will find attached as Exhibit B my letter dated January 20, 2022, to then-Chief Judge Christopher S. Brasher requesting an SPGJ.

On January 24, 2022, the Fulton County Superior Court judges authorized a SPGJ to be empaneled on May 2, 2022, the beginning of the third term of court of that year. The order granted my request that the SPGJ be empowered to investigate “possible criminal disruptions” of Georgia’s administration of its 2020 Presidential Election. The empaneling order is attached as Exhibit C.

Rather than accept service of lawful subpoenas from the SPGJ, multiple out-of-state witnesses chose to resist compliance and forced my office to litigate in multiple state and federal courts to obtain orders compelling their appearance. For example, Senator Lindsey Graham, the Ranking Minority Member of the Senate Judiciary Committee, was a witness who refused to voluntarily comply and required my office to obtain a decision affirming his obligation to testify from the United States Supreme Court. See Exhibit D. That is but one example of the use of litigation by a witness to resist providing information to this investigation and to delay justice.

As a result of the litigation necessary to overcome this resistance, the SPGJ required eight months to complete its investigation, and was released in January 2023. It should be noted that this was four months before the expiration of their term on May 2, 2023.

If you are sincerely interested in improving federal law, I encourage you to make it incumbent upon your Congressional colleagues to Cooperate with lawful investigations without requiring intervention by the highest court in the land. That would be a productive federal initiative.

f. The Fulton County District Attorney’s Office has used federal grant funding for its intended purposes.

You have no basis for your implication that this office has inappropriately spent federal funds. This office receives federal grant funds via United States Department of Justice (USDOJ) programs and has received local and national recognition for its work with community partners on grant-funded programs.

I have attached a summary of our programs funded with federal grant dollars as Exhibit E. You will note that the grant-funded programs include our nationally recognized initiative to process long-neglected sexual assault kits and prosecute dangerous sexual offenders who are identified via DNA results. These prosecutions are handled through the Sexual Assault Kit Initiative (S.A.K.I.) grant. We also receive federal grant funds for our groundbreaking hate crimes prosecution program, our community violence interruption efforts, and our programs with at-risk children.

If you and your colleagues follow through on your threats to deny this office federal funds, please be aware that you will be deciding to allow serial rapists to go unprosecuted, hate crimes to be unaddressed, and to cancel programs for at-risk children. Such vengeful, uncalled for legislative action would impose serious harm on the citizens we serve, including the fact that it will make them less safe.

Please note the USDOJ keeps meticulous records of our grant funding and I invite you to request this information from them. You will undoubtedly be proud of the amazing work that has been done to serve victims with this funding, and you will discover that this office is in compliance with the terms of its grant funding.

To educate you on the important work that our partnership with the federal government funds, you may watch “'I felt like I got let out of prison:’ Atlanta rape victim gets justice after 22 years — WSBTV Channel 2 - Atlanta (wsbtv.com).” It is a compelling example of the work our S.A.K.I. Unit does with the federal grant funding provided by the USDOJ.

Our Community Violence Interruption program, also funded by a USDOJ grant, has been nationally recognized. The United States Attorney General singled out our program for praise at a national conference on February 16, 2023. The leader of our program was honored as a presenter on July 19, 2023, at a conference on protecting children from violence sponsored by Centers for Disease Control and Prevention.

Those are the sort of joint federal-state initiatives that you and your colleagues are threatening to “defund” because you are offended that a select group of people have been indicted.

g. Your allegations that I have used this prosecution for political benefit are unfounded.

Your letter makes allegations that I have somehow used the investigation and prosecution about which you have inquired in a political manner. Nothing could be further from the truth.

In fact, the allegations that you raise are thoroughly debunked and rated “False” by independent fact checking website PolitiFact in “PolitiFact | Did Fulton County DA Fani Willis campaign to ‘get Trump"? No, she didn’t say that.”

h. Below are Suggestions for Productive Activity by the U.S. House Judiciary Committee.

I do have some suggestions on how you can engage in productive legislative activity.

First, victim-witness advocates, who take care of vulnerable victims and witnesses in prosecutors’ offices across the United States, are grossly underpaid. Many have advanced degrees and specialized training on serving people in distress. Fulton County, Georgia, like many jurisdictions, face significant challenges in recruiting and retaining such highly trained, dedicated public servants at current pay rates. Congress should provide more funding to states and localities for victim-witness advocate pay and ensure that such funding flows to the jurisdictions that need it most.

Second, the federal government — as noted above — has admirably provided funding so that local prosecutors can investigate old rape cases via the S.A.K.I. grant. Federal grant funding has allowed us to test a portion of untested old rape kits. That testing revealed that in a batch of approximately 1,500 untested Fulton County kits dating back to the 1990s, DNA from 40 different serial rapists was found. Federal grant funding should be increased to allow the testing of ALL untested rape kits, as well as the capacity for the successful investigation and prosecution of offenders identified by that testing. That initiative would make America a much safer place.

Third, the federal government is funding a program to turn children around who find themselves in trouble with the criminal justice system. We partner with the United States Attorney’s Office in Atlanta to sponsor the Credible Messengers program, which matches at-risk youth with adults who have been in trouble and who can share their own life experiences and serve as mentors who show them a better way. You can learn more about the program by watching “Program aims to keep kids out of gangs — WSB-TV Channel 2 - Atlanta (wsbtv.com)”. This program, while valuable, has a very limited capacity and leaves too many youths in need unserved. Congress should greatly expand it.

Fourth, state crime labs across the nation are not properly funded. In fact, Georgia’s State Crime Lab is so overwhelmed its leadership informed me that it does not have the capacity to test drugs like Fentanyl or firearms used in violent crimes in a timely manner and referred us to private testers to obtain necessary evidence. Further, Georgia’s State Crime Lab does not have the adequate financial resources to properly pay their scientists, test rape kits, drugs, or other scientific evidence in a timely manner.

Congress must take action to address this crisis by providing resources to state crime labs to test evidence so that cases can be moved expeditiously.

i. The safety of persons serving in the criminal justice system should be a primary concern of yours.

As it seems you have a personal interest in the Fulton County District Attorney’s Office, you should consider directing the USDOJ to investigate the racist threats that have come to my staff and me because of this investigation. For your information, I am attaching ten examples of threats this office has received. See Exhibits F through O. I am providing these examples to give you a window into what has happened to my staff and me as I keep the promise of my oath to the United States and Georgia Constitutions and do not allow myself to be bullied and threatened by Members of Congress, local elected officials, or others who believe lady justice should not be blind and that America has different laws for different citizens.

Yours in Service,

Fani T. Willis
Fulton County District Attorney
Atlanta Judicial Circuit

Attachments

cc: The Honorable Jerrold L. Nadler, Ranking Member, via electronic mail to [email protected] and [email protected], as well as overnight delivery.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Sep 07, 2023 11:28 pm

Trump was warned that FBI could raid Mar-a-Lago months ahead of time, lawyer's notes show: Trump attorney Evan Corcoran saved his recollections in a series of voice memos.
by Katherine Faulders and Mike Levine
abc news
September 6, 2023, 1:46 PM

In May of last year, shortly after the Justice Department issued a subpoena to former President Donald Trump for all classified documents at his Mar-a-Lago estate, Trump's then-lead attorney on the matter, Evan Corcoran, warned the former president in person, at Mar-a-Lago, that not only did Trump have to fully comply with the subpoena, but that the FBI might search the estate if he didn't, according to Corcoran's audio notes following the conversation.

Only minutes later, during a pool-side chat away from Trump, Corcoran got his own warning from another Trump attorney: If you push Trump to comply with the subpoena, "he's just going to go ballistic," Corcoran recalled.


Corcoran's recollections, captured in a series of voice memos he made on his phone the next day, help illuminate Trump's alleged efforts to defy a federal grand jury subpoena, and appear to shed more light on his frame of mind when he allegedly launched what prosecutors say was a criminal conspiracy to hide classified documents from both the FBI and Corcoran, his own attorney.

Trump has pleaded not guilty to all charges against him and has denied any wrongdoing.

The recordings, which have become a key piece of evidence in special counsel Jack Smith's classified documents case against Trump, contain information that was later described in Smith's publicly released indictment and in media reports -- but many of the details in them have never been made public.

ABC News has reviewed copies of transcripts of the recordings, which appear to show the way Trump allegedly deceived his own attorney, and how classified documents, according to prosecutors, ended up at Mar-a-Lago in the first place.

Trump campaign spokesperson Steven Cheung, responding to the development, told ABC News, "The attorney-client privilege is one of the oldest and most fundamental principles in our legal system, and its primary purpose is to promote the rule of law. Whether attorneys' notes are detailed or not makes no difference -- these notes reflect the legal opinions and thoughts of the lawyer, not the client."

Cheung added that Trump "offered full cooperation with DOJ, and told the key DOJ official, in person, 'Anything you need from us, just let us know.'"

A spokesperson for the special counsel's office declined to comment to ABC News. Corcoran did not immediately return ABC News' request for comment.

'Complying with that subpoena'

When Corcoran joined Trump's legal team in April last year, the FBI had already launched a criminal investigation into Trump's handling of classified information. Nearly 200 classified documents had been found in 15 boxes that Trump reluctantly returned to the National Archives "after months of demands," as the indictment stated.

But Justice Department officials believed Trump was holding onto even more classified documents in other boxes at Mar-a-Lago and refusing to return them -- so on May 11, 2022, the Justice Department issued a federal grand jury subpoena demanding the return of any and all classified documents.

Corcoran and another Trump attorney, Jennifer Little, flew to Florida to meet with Trump. "The next step was to speak with the former president about complying with that subpoena," Corcoran recalled in a voice memo the next day.

But while sitting together in Trump's office, in front of a Norman Rockwell-style painting depicting Ronald Reagan, Gerald Ford, Bill Clinton and Trump playing poker, Trump, according to Corcoran's notes, wanted to discuss something else first: how he was being unfairly targeted.

As Corcoran later recalled in his recordings, Trump continuously wandered off to topics unrelated to the subpoena -- Hillary Clinton, "the great things" he's done for the country, and his big lead in the polls in the run-up to the 2024 Republican presidential primary race that Trump would officially join in November. But Corcoran and Little "kept returning to the boxes," according to the transcripts.

Corcoran wanted Trump to understand "we were there to discuss responding to the subpoena," Corcoran said in the memos.


The FBI 'could arrive here'

As Corcoran described it in his recordings, he explained to Trump during that meeting what the former president was facing. "We've got a grand jury subpoena and the alternative is if you don't comply with the grand jury subpoena you could be held in contempt," Corcoran recalled telling Trump.

Trump responded with a line included in the indictment against him, asking, "what happens if we just don't respond at all or don't play ball with them?"

The transcripts reviewed by ABC News reveal what Corcoran says he then told Trump. "Well, there's a prospect that they could go to a judge and get a search warrant, and that they could arrive here," Corcoran recalled warning the former president as they sat at Mar-a-Lago.

Still, as depicted in Corcoran's recordings and in the public indictment, Trump repeatedly suggested it might be better if they refused to cooperate.

The indictment says that although Corcoran -- who ABC News believes to be "Attorney 1" in the indictment -- and Little -- believed to be "Attorney 2" -- "told Trump that they needed to search for documents that would be responsive to the subpoena and provide a certification that there had been compliance with the subpoena," Trump still insisted to them, "I don't want anybody looking through my boxes," and, "Wouldn't it be better if we just told them we don't have anything here?"


And in a private, pool-side conversation during a break at Mar-a-Lago that day, according to Corcoran's recordings, Little relayed to him what she was told herself by two other Trump attorneys: that Trump would "go ballistic" over complying with the subpoena -- "that there's no way he's going to agree to anything, and that he was going to deny that there were any more boxes at all," Corcoran recalled on his recordings.

In the indictment, prosecutors allege Trump did something just like that.

The indictment describes how, before the May 23 meeting with Corcoran at Mar-a-Lago ended, Trump "confirmed" a plan for Corcoran to return to Mar-a-Lago two weeks later to search for any classified documents. And, according to the indictment, Corcoran "made it clear to Trump" that he would conduct that search in a basement storage room.

Corcoran's recordings suggest he was told by others that the only location at Mar-a-Lago that contained classified documents was the basement storage room. "I've got boxes in my basement that I really wouldn't want you to go through," Corcoran recalled Trump telling him.

And sources told ABC News that, when speaking to investigators, Corcoran explained that he checked with many people about where classified documents could be found, and everyone, including Trump, created the impression that any classified documents would be in the boxes in the storage room.


A 'shocking break-in'

Over the next two weeks, before Corcoran returned to Mar-a-Lago to search for classified documents in the storage room, Trump's two co-defendants in the documents case, Mar-a-Lago staffers Walt Nauta and Carlos De Oliveira, allegedly removed dozens of boxes from the storage room -- all "at Trump's direction" and with the goal "that many boxes were not searched and many documents responsive to the May 11 Subpoena could not be found," according to the indictment.

Corcoran ultimately found 38 classified documents in the boxes that remained in the storage room, and he handed them over to the FBI, along with a certification -- allegedly endorsed by Trump -- that the former president had now fully complied with the subpoena.

But when FBI agents searched Mar-a-Lago three months later, they found 102 more classified documents in Trump's office and elsewhere.


Despite Corcoran warning him months earlier, according to the recordings, that the FBI might show up at Mar-a-Lago if he didn't fully comply with the subpoena, Trump called the FBI move a "shocking BREAK-IN," with "no way to justify" it, in posts on his social media platform.

According to the indictment, Trump "knowingly" deceived the FBI and his own attorney, providing "just some of the documents called for by the grand jury subpoena, while claiming that he was cooperating fully."

'Should be declassified'

The transcripts of Corcoran's recordings also appear to offer new insight into how classified documents ended up in boxes at Mar-a-Lago in the first place, and whether Trump truly believed those documents had been declassified.

As Trump described it to Corcoran according to the transcripts, he had a nightly practice while still in the White House: He would bring newspaper articles, photos and notes to his bedroom so he could review them.

He would also bring classified documents, according to Corcoran.

"That's the only time I could read something, and I had to read them so I could be ready for calls or meetings the next day," Trump told Corcoran, according to Corcoran's recordings.

However, in their meeting, Trump insisted to Corcoran that he made clear to those around him that "anything that comes into the residence should be declassified," the transcript reads.

"I don't know what was done," Corcoran recalled Trump telling him. "I don't know how they were marked. But that was my position."

Those comments from Trump, as recalled by Corcoran, suggest Trump understood that -- despite subsequent public claims to the contrary -- classified documents were not declassified simply by bringing them to the residence.


As for how classified documents ended up in boxes, Trump "had a lot of boxes" in his bedroom, and when he was done reading a newspaper article or a classified document, he'd "throw them" into one of the boxes, according to Corcoran.

So when it came time for Trump to leave the White House in January 2021, many of those boxes from the bedroom ended up at Mar-a-Lago in the storage room.

Corcoran provided special counsel Smith's team with his recordings after, as previously reported by ABC News, the now-former chief judge of the federal court in Washington ordered him to do so, finding that Smith's office had made a "prima facie showing that the former president had committed criminal violations" by deliberately misleading his attorneys about his handling of classified materials, sources familiar with the matter said at the time.

As a result of that legal fight, Corcoran recused himself from continuing to represent Trump in the documents case. But when Trump was arraigned in Washington on federal charges accusing him of trying to overturn the 2020 presidential election, Corcoran attended the hearing and sat in the courtroom behind Trump.

In other developments in the classified documents case, the former attorney for the Mar-a-Lago IT worker who decided to cooperate with the government confirmed the cooperation agreement publicly in a court filing Wednesday.

ABC News previously reported that IT worker Yuscil Taveras entered into the agreement after he was sent a target letter warning him that he was likely to be charged with perjury for allegedly making false statements to investigators in grand jury testimony last March, according to sources.

Taveras is set to be a central witness for Smith in his allegations that Trump, Nauta and De Oliveira essentially attempted a cover-up as the government investigated Trump's handling of classified documents after leaving the White House.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Tue Sep 19, 2023 6:33 am

Trump Assistant [Molly Michael] FLIPS and Provides DEVASTATING EVIDENCE to Jack Smith
by Ben Meiselas
MeidasTouch
Sep 18, 2023

MeidasTouch host Ben Meiselas reports on how Donald Trump’s assistant Molly Michael delivered smoking gun evidence of obstruction at Mar-A-Lago to Special Counsel Jack Smith.



Transcript

I'm Ben Meiselas from the Meidastouch
Network this is big news folks in the
criminal prosecution of Donald Trump
relating to his theft of thousands of
government records which he hid and
concealed at Mar-A-Lago Donald Trump's
former long-time assistant Molly Michael
has been cooperating with the FBI and
with special counsel Jack Smith's team
and what we are learning that she is
saying is incredibly damning to Donald
Trump and it has made the prosecution
against Donald Trump even stronger than
it was already specifically Molly
Michael said that Donald Trump would
write notes to her and to-do lists on
classified documents Donald Trump would
take classified information and he would
write notes to her on the classified
documents themselves and sometimes on
the back of those classified documents
Donald Trump in essence used it as a
notepad Molly Michael also told the FBI
and special counsel Jack Smith's team
that she grew increasingly concerned
with Donald Trump's refusal to turn over
records to the National Archives back in
2022 and then refusing to turn him over
to the Department of Justice in response
to a subpoena she says that she
repeatedly expressed these concerns to
Donald Trump but he did not want her to
cooperate and then according to this new
reporting that's out there Donald Trump
told her to say you don't know anything
about the boxes
that comes from
exclusive reporting by ABC although ABC
says in its report that it's unclear
what Donald Trump meant by that it seems
pretty clear to me when Donald Trump
told Molly Michael you don't know
anything about the boxes seems very
clear what he meant by that but
otherwise good reporting by ABC breaking
this story here it is right here Trump
wrote to-do lists for assistant Molly
Michael on White House documents marked
classified sources say Molly Michael
told investigators about the documents
according to sources one of former
president Donald Trump's longtime
assistants Molly Michael told Federal
investigators that Trump repeatedly
wrote to-do lists for her on documents
from the White House that were marked
classified according to sources that
told this to ABC as described to ABC the
aide Molly Michael told investigators
that more than once she received
requests or tasks from Trump that were
written on the back of note cards which
she later recognized to be sensitive
classified White House materials with
visible classification markings used to
brief Trump while he was still in office
about phone calls with foreign leaders
or other International related matters
you see Molly Michael was Trump's
executive assistant at the white house
so she knew what these documents looked
like the report goes on to say the note
cards with classification markings were
at Trump's Mar-A-Lago estate when FBI
agents searched the property on August 8
2022 but the materials were not taken by
the FBI according to sources familiar
with what Michael told investigators you
see what happened was I don't know if
those documents were missed by the FBI
or if the FBI just left them there to
see how Donald Trump and his staff would
respond but under the desk or right
around the desk of Molly Michael when
she returned the day after the search
she found these documents and then she
immediately contacted the FBI and said
hey I think you missed this basically
and did the right thing
the Articles explains when Michael who
was not present for the search returned
to Mar-A-Lago the next day to clean up
her office space she found the documents
underneath a draw organizer and then she
helped transfer them to the FBI the same
day sources told ABC News so it's
unclear if the FBI left it there to test
her and to test to leave it there and
see if they would be self-reported but
she did the right thing it's unclear if
as part of her cooperation with the FBI
if she told Donald Trump or anybody else
at Mar-A-Lago that she was cooperating
or turn them over to the FBI the sources
that spoke with ABC said that Michael
also told F Federal investigators that
last year she grew increasingly
concerned with how Trump handled
recurring requests from the national
archives for the return of all
government documents being kept in boxes
at Mar-A-Lago and she felt that Trump's
claims about it at the time would be
easy to disprove according to sources by
the way this is what she's told the FBI
and Jack Smith so Jack Smith is armed
with this information and she'll be a
star witness in the case against Donald
Trump sources said that after Trump
heard the FBI wanted to interview
Michael last year Trump allegedly told
her you don't know anything about the
boxes Molly ABC claims it's unclear
exactly what he meant by that seems
pretty clear to me what he meant by that
as ABC and we here at Midas Touch
previously reported Michael is believed
to be the person identified in special
counsel Jack Smith's indictment As Trump
employee 2 described in the indictment
as someone who handled many of Trump's
White House era boxes at Mar-A-Lago and
Who provided Trump with photos of those
boxes that were included in the
indictment
Michael's statements to investigators
described by ABC describe two ABC by
sources shed further light on the
breadth of evidence that Smith has
amassed in his prosecution of Donald
Trump
what do you think Trump's response is to
this news about Molly Michael a trump
spokesperson said that ABC News was told
through what the spokesperson called
illegal leaks lacks proper context and
information that's what they're whining
about illegal leaks these people worked
with you in 2018 Molly Michael became
Trump's executive assistant in the White
House and she continued to work for him
when Trump left office but she resigned
last year in the wake of Trump's alleged
refusal to comply with the federal
request and the FBI's subsequent search
of Mar-A-Lago speaking to Federal
investigators Michael recounted how by
late 2021 as many as 90 boxes of
materials from Trump's time as president
were moved into a basement storage room
at Mar-A-Lago as pressure from the
National Archives Mountain she and Trump
aide walty nowta would bring boxes to
Trump's residence for him to view Trump
eventually agreed to turn over 15 boxes
of materials which he cherry-picked and
then Molly Michael became concerned
knowing that Trump had lied to the FBI
she knew there were scores of other
boxes in storage and As Trump continued
to claim that there were no more boxes
Michael even pointed out to him that
many people including the maintenance
workers knew otherwise because they had
all seen that there were many more boxes
than the 15 boxes by the way if you
remember Molly Michael she did testify
before the January 6 committee there's
this famous clip right here where
January 6 Committee Member Adam
kinzinger published with top Trump aides
including Molly Michael all testified
that Trump watched the violence at the
Capitol unfold on TV from the White
House and did nothing you remember this
clip of Molly Michael back then play the
clip who is the president in that
private dining room the whole time that
the attack on the capitol was going on
or did he ever go again only to your
knowledge to the Oval Office to the
White House Situation Room anywhere else
so that's my recollection he was always
in the dining room yeah dude what did
they say Mr Meadows are the president
at all during that Brief Encounter that
you were in the dining room what are you
I think everybody was watching the TV do
you know whether he was watching TV in
the dining room when uh you talked to
him on January 6th
uh it's my understanding he was watching
television
when you were in the dining room in
these discussions was the aunt was the
finalist Capital visible on the screen
on the hotel room television yes right
so folks this is big news from someone
very close to Donald Trump no longer
working for him cooperating with special
counsel Jack Smith you see the callous
disregard for our classified information
and let's be clear Molly Michael is not
a Democrat Molly Michael is not liberal
she worked for Trump
she saw what was going on she was
uncomfortable with violations of the law
these are just objective facts folks
objective facts I'm Ben Marcellus from
the Midas touch Network hat tip to ABC
for that exclusive check us out at
patreon.com Midas Touch
p-a-t-r-e-o-n.com slash Midas Touch
subscribe on our YouTube it is free have
a great day
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Tue Sep 26, 2023 10:48 pm

Judge Arthur Engoron rules Trump engaged in repeated fraud, effectively deciding central question in $250M civil trial: The civil case is scheduled to go to trial on Oct. 2.
by Aaron Katersky and Peter Charalambous
abc news
September 26, 2023, 4:37 PM

Former President Donald Trump submitted "fraudulent valuations" for assets that were then used by himself, his eldest sons and his business to obtain better loan and insurance terms, a judge in New York decided Tuesday before ordering the cancelation of the company's business certificates in New York.

The judge's determination came as he granted partial summary judgment in New York Attorney General Letitia James' multimillion-dollar civil fraud lawsuit.

Judge Arthur Engoron cites "false and misleading square footage" of Trump's Fifth Avenue apartment among other faulty valuations.

The judge immediately canceled all of the defendants' business certificates in New York, and ordered that they must recommend no more than three potential independent receivers to manage the dissolution of the canceled LLCs within 10 days.

This severely restricts Trump's ability to conduct business in New York going forward.

The judge said Trump and the other defendants have a "propensity to engage in persistent fraud," severely undercutting the defense Trump will offer when the case goes on trial next month.

Engoron wrote in his order that Trump, his adult sons, Eric and Don Jr., and the other defendants fraudulently inflated the value of properties including Mar-A-Lago, Trump's own triplex apartment, 40 Wall Street, Trump Park Avenue, multiple golf courses and an estate in upstate New York.

Eric Trump, who runs the Trump Organization's day-to-day operations, responded on X, previously known as Twitter, saying, "Today, I lost all faith in the New York legal system. Never before have I seen such hatred toward one person by a judge."

"We have run an exceptional company -- never missing a loan payment, making banks hundreds of millions of dollars, developing some of the most iconic assets in the world. Yet today, the persecution of our family continues..." he said.

Donald Trump, also on X, reposted a previous post in which he said, "THE BANKS WERE PAID BACK IN FULL, SOMETIMES EARLY, THERE WERE NO DEFAULTS, THE BANKS MADE MONEY, WERE REPRESENTED BY THE BEST LAW FIRMS, & WERE VERY 'HAPPY.' THERE WERE NO VICTIMS!"

He added, "ON THE FRONT PAGE OF THE FINANCIAL STATEMENTS THERE IS A STRONG "DISCLAIMER CLAUSE" TELLING ... ANYONE REVIEWING THE DATA, INCLUDING FINANCIAL INSTITUTIONS, TO DO THEIR OWN RESEARCH AND ANALYSIS -- IT IS A NON RELIANCE CLAUSE, AND COULD NOT BE MORE CLEAR."

In a statement to ABC News, Trump attorney Alina Habba said they intend to "immediately" appeal the decision, calling the Trump Organization "an American success story."

Trump inflated the value of his own Trump Tower residence between $114 million and $207 million, including claiming the property was triple its actual size in square feet, Engoron ruled.

"A discrepancy of this order of magnitude, by a real estate developer sizing up his own living space of decades, can only be considered fraud," Engoron said in his order.

Engoron also found that Trump inflated the value of his Mar-a-Lago club by at least 2,300%, claiming the property assessed by the county between $18 million and $27.6 million was actually worth between $426,529,614 and $612,110,496.

In total, Engoron wrote that the New York attorney general "submitted conclusive evidence" that the defendants overvalued their assets between $812 million and $2.2 billion.

Across his 35-page order, the judge described the conduct of the defendants in the case as belonging in a "fantasy world," and sharply criticized some of the "bogus arguments" made by defense.

"In defendants' world: rent regulated apartments are worth the same as unregulated apartments; restricted land is worth the same as unrestricted land; restrictions can evaporate into thin air; a disclaimer by one party casting responsibility on another party exonerates the other party's lies..." Engoron wrote, citing multiple arguments made by defense to justify the allegedly inflated valuations of Trump's assets. "That is a fantasy world, not the real world."

Engoron also appeared to use the words of former President Trump against him, citing a transcript from a deposition of Trump about the inclusion of so-called "worthless clauses," disclaimers included in financial statements which defense has argued insulate the defendants from liability.

"However, defendants' reliance on these 'worthless' disclaimers is worthless," Engoron wrote, rejecting a frequent argument cited by the defense.

Engoron similarly disagreed with the defense's argument that property values were "subjective" and therefore could not be fraudulent.

"The defenses Donald Trump attempts to articulate in his sworn deposition are wholly without basis in law or fact," Engoron wrote, saying that the documents presented to the court "clearly contain fraudulent valuations that defendants used in business."

Engoron also sanctioned Donald Trump's lawyers for peddling "bogus arguments," ordering five attorneys to pay $7,500 each. Christopher Kise, Michael Madaio, Clifford S. Robert, Michael Farina and Armen Morian were each ordered to pay within 30 days.

A lawyer for the New York attorney general's office had earlier described "staggering" misrepresentations about the value of Trump's properties and assets, arguing that Trump engaged in a prolonged "bait-and-switch" to lower his tax burden while inflating his assets to obtain favorable loan terms.

ABC News' Olivia Rubin and Lalee Ibssa contributed to this report.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Wed Sep 27, 2023 2:12 am

Part 1 of 3

Decision & Order on Motions [for summary judgment]
Supreme Court of the State of NY, NY County
People of the State of New York, by Letitia James, Attorney General of the State of New York v. Donald Trump, et al.
Case No. 452564/2022
by Judge Arthur F. Engoron, J.S.C.
9/26/23

INDEX NO. 452564/2022
NYSCEF DOC. NO. 1531
RECEIVED NYSCEF: 09/26/2023

SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY

PRESENT: HON. ARTHUR F. ENGORON
Justice

PEOPLE OF THE STATE OF NEW YORK, BY LETITIA JAMES, ATTORNEY GENERAL OF THE STATE OF NEW YORK,

Plaintiff,

-v-

DONALD J. TRUMP, DONALD TRUMP JR, ERIC TRUMP, ALLEN WEISSELBERG, JEFFREY MCCONNEY, THE DONALD J. TRUMP REVOCABLE TRUST, THE TRUMP ORGANIZATION, INC., TRUMP ORGANIZATION LLC, DJT HOLDINGS LLC, DJT HOLDINGS MANAGING MEMBER, TRUMP ENDEAVOR 12 LLC, 401 NORTH WABASH VENTURE LLC, TRUMP OLD POST OFFICE LLC, 40 WALL STREET LLC, SEVEN SPRINGS LLC, Defendants.

PART: 37

INDEX NO. 452564/2022

MOTION DATES: 08/30/2023, 08/30/2023, 09/05/2023

MOTION SEQ. NO.: 026, 027, 028

DECISION + ORDER ON MOTIONS

The following e-filed documents, listed by NYSCEF document number (Motion 026) 765, 766, 767, 768, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779, 780, 781, 782, 783, 784, 785, 786, 787, 788, 789, 790, 791, 792, 793, 794, 795, 796, 797, 798, 799, 800, 801, 802, 803, 804, 805, 806, 807, 808, 809, 810, 811, 812, 813, 814, 815, 816, 817, 818, 819, 820, 821, 822, 823, 824, 825, 826, 827, 828, 829, 830, 831, 832, 833, 874, 875, 876, 877, 878, 879, 880, 881, 882, 883, 884, 885, 886, 887, 888, 889, 890, 891, 892, 893, 894, 895, 896, 897, 898, 899, 900, 901, 902, 903, 904, 905, 906, 907, 908, 909, 910, 911, 912, 913, 914, 915, 916, 917, 918, 919, 920, 921, 922, 923, 924, 925, 926, 927, 928, 929, 930, 931, 932, 933, 934, 935, 936, 937, 938, 939, 940, 941, 942, 943, 944, 945, 946, 947, 948, 949, 950, 951, 952, 953, 954, 955, 956, 957, 958, 959, 960, 961, 962, 963, 964, 965, 966, 967, 968, 969, 970, 971, 972, 973, 974, 975, 976, 977, 978, 979, 980, 981, 982, 983, 984, 985, 986, 987, 988, 989, 990, 991, 992, 993, 994, 995, 996, 997, 998, 999, 1000, 1001, 1002, 1003, 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1018, 1019, 1020, 1021, 1022, 1023, 1024, 1025, 1026, 1027, 1028, 1062, 1063, 1064, 1065, 1066, 1067, 1068, 1069, 1070, 1071, 1072, 1073, 1074, 1075, 1076, 1077, 1078, 1079, 1080, 1081, 1082, 1083, 1084, 1085, 1086, 1087, 1088, 1089, 1090, 1091, 1092, 1093, 1094, 1095, 1096, 1097, 1098, 1099, 1100, 1101, 1102, 1103, 1104, 1105, 1106, 1107, 1108, 1109, 1110, 1111, 1112, 1113, 1114, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125, 1126, 1127, 1128, 1129, 1130, 1131, 1132, 1133, 1134, 1135, 1136, 1137, 1138, 1139, 1140, 1141, 1142, 1143, 1144, 1145, 1146, 1147, 1148. 1149. 1150, 1151, 1152, 1153, 1154, 1155, 1156, 1157, 1158, 1159, 1160, 1161, 1162, 1163, 1164, 1165, 1166, 1167, 1168, 1169, 1170, 1171, 1172, 1173, 1174, 1175, 1176, 1177, 1178, 1179, 1180, 1181, 1182, 1183, 1184, 1185, 1186, 1187, 1188, 1189, 1190. 1191, 1192, 1193, 1194, 1195, 1196, 1197, 1198, 1199, 1200, 1201, 1202, 1203, 1204, 1205, 1206, 1207, 1208, 1209, 1210, 1211, 1212, 1213, 1214, 1215, 1216, 1217, 1218, 1219, 1220, 1221, 1222, 1223, 1224, 1225, 1226, 1227, 1228, 1229, 1230, 1231, 1232, 1233, 1234, 1235, 1236, 1247, 1238, 1239, 1240, 1241, 1242, 1243, 1244, 1245, 1246, 1247, 1248, 1249, 1250, 1251, 1252, 1253, 1254, 1255, 1256, 1257, 1258, 1259, 1260, 1261, 1262, 1292, 1293, 1294, 1394, 1395, 1396, 1397, 1398, 1399, 1400, 1401, 1402, 1403,1404, 1405, 1406, 1407, 1408, 1409, 1410, 1411, 1412, 1413, 1414, 1415, 1416, 1417, 1418, 1419, 1420, 1421, 1422, 1423, 1424, 1425, 1426, 1427, 1428, 1429, 1430, 1431, 1432, 1433, 1434, 1435, 1436, 1437, 1438, 1439, 1442, 1443, 1444, 1445, 1446, 1447

were read on this motion for PARTIAL SUMMARY JUDGMENT

The following e-filed documents, listed by NYSCEF document number (Motion 027) 834, 835, 836, 837, 838, 839, 840, 841, 842, 843, 844, 845, 846, 847, 848, 849, 850, 851, 852, 853, 854, 855, 856, 857, 858, 859, 860, 861, 862, 863, 864, 865, 866, 867, 868, 869, 870, 871, 872, 873, 1029, 1030, 1031, 1032, 1033, 1034, 1035, 1036, 1037, 1038, 1039, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1051, 1052, 1053, 1054, 1055, 1056, 1057, 1058, 1059, 1060, 1061, 1277, 1278, 1279, 1280, 1281, 1282, 1283, 1284, 1285, 1286, 1287, 1288, 1289, 1290, 1291, 1295, 1296, 1297, 1298, 1299, 1300, 1301, 1302, 1303, 1304, 1305, 1306, 1307, 1308, 1309, 1310, 1311, 1312, 1313, 1314, 1315, 1316, 1317, 1318, 1319, 1320, 1321, 1322, 1323, 1324, 1325, 1326, 1327, 1328, 1329, 1330, 1331, 1332, 1333, 1334, 1335, 1336, 1337, 1338, 1339, 1340, 1341, 1374

were read on this motion for SUMMARY JUDGMENT

The following e-filed documents, listed by NYSCEF document number (Motion 028) 1263, 1264, 1265, 1276, 1448, 1449, 1450, 1451, 1452, 1453, 1454, 1455, 1456, 1457, 1458, 1459, 1460, 1461, 1462, 1463, 1464, 1465, 1466, 1467, 1468, 1469, 1470, 1471, 1472, 1473

were read on this motion for SANCTIONS

Upon the foregoing documents, it is hereby ordered that defendants' motion for summary judgment is denied, plaintiffs motion for partial summary judgment is granted in part, and plaintiff's motion for sanctions is granted in part, all as detailed herein.

This action arises out of a years-long investigation that plaintiff, the Office of the Attorney General of the State of New York ("OAG"), conducted into certain business practices that defendants engaged in from 2011 through 2021 . OAG alleges that the individual and entity defendants committed repeated and persistent fraud by preparing, certifying, and submitting to lenders and insurers false and misleading financial statements, thus violating New York Executive Law § 63(12),

Procedural Background

In 2020, OAG commenced a special proceeding seeking to enforce a series of subpoenas against various named defendants and other persons and entities. This Court presided over that proceeding and issued several orders compelling compliance with OAG's subpoenas. See People v The Trump Org., Sup Ct, NY County, Index No. 54 1685/2020. During that proceeding, OAG and the Trump Organization entered into an agreement, which, broadly speaking, tolled the statute of limitations from November 5, 2020, through May 31, 2022, NYSCEF Doc, No. 1260.

On November 3, 2022, this Court found preliminarily that defendants had a propensity to engage in persistent fraud by submitting false and misleading Statements of Financial Condition ("SFCs") on behalf of defendant Donald j, Trump ("Donald Trump"). NYSCEF Doc, No, 183, Accordingly, the Court granted a preliminary injunction against any further fraud and appointed the Han. Barbara S. Jones (ret.) as an independent monitor to oversee defendants' financial statements and significant asset transfers. NYSCEF Doc. Nos. 193 and 194.

Defendants moved to dismiss the complaint. In a Decision and Order dated January 6, 2023, this Court denied the motion. NYSCEF Doc. Nos. 453. Defendants appealed, resulting in a January 6, 2023 Order wherein the Appellate Division, First Department modified this Court's order to the extent of: (I) declaring that the " continuing wrong doctrine does not delay or extend [the statute of limitations]"; (2) finding that claims are timely against defendants subject to the tolling agreement if they accrued after July 13, 2014, and timely against defendants not subject to the tolling agreement if they accrued after February 6, 2016; and (3) dismissing the complaint as against defendant Ivanka Trump on statute of limitations grounds, finding that she was not an employee of the Trump Organization at the time at which the parties entered into the tolling agreement. People v Trump, 217 AD3d 609 (1st Dept 2023).

The Appellate Division declined to dismiss any other defendants or any causes of action.

Discovery ended on July 28, 2023, and OAG filed a note of issue shortly thereafter. NYSCEF Doc. No. 644. OAG now moves for partial summary judgment on its first cause of action, for fraud under Executive Law § 63(12). NYSCEF Doc. No. 765. Separately, plaintiff now moves, pursuant to 22 NYCRR 130-1.1, to sanction defendants for frivolous motion practice. NYSCEF Doc. No. 1263. Defendants also move for summary judgment, seeking to dismiss the complaint in its entirety. NYSCEF Doc. No. 834.

Executive Law § 63(12)

Executive Law § 63(12) provides, as here pertinent, as follows:

Whenever any person shall engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business, the attorney general may apply, in the name of the people of the state of New York, to the supreme court of the state of New York, on notice of five days, for an order enjoining the continuance of such business activity or of any fraudulent or illegal acts, directing restitution and damages and, in an appropriate case, cancelling any certificate filed under and by virtue of the provisions of section four hundred forty of the former penal law or section one hundred thirty of the general business law, and the court may award the relief applied for or so much thereof as it may deem proper. The word "fraud" or "fraudulent" as used herein shall include any device, scheme or artifice to defraud and any deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual provisions. The term "persistent fraud" or illegality" as used herein shall include continuance or carrying on of any fraudulent or illegal act or conduct. The term "repeated" as used herein shall include repetition of any separate and distinct fraudulent or illegal act, or conduct which affects more than one person.


DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON ALL CAUSES OF ACTION

Arguments Defendants Raise Again

Standing and Capacity to Sue


Defendants' arguments that OAG has neither capacity nor standing to sue under Executive Law § 63(12), and that the disclaimers of non-party accountants Mazars insulate defendants, invoke the time-loop in the film "Groundhog Day." This Court emphatically rejected these arguments in its preliminary injunction decision and in its dismissal decision, and the First Department affirmed both. Defendants' contention that a different procedural posture mandates a reconsideration, or a fortiori, a reversal, is pure sophistry1.

As this Court and others have made abundantly clear, "[it] is not disputed that the Attorney General is empowered to sue for violations of [Executive Law § 63(12)]." People v Greenberg, 21 NY3d 439, 446 (2013) (finding Executive Law § 63(12) to be broadly worded anti-fraud device); People v Ford Motor Co., 74 NY2d 495, 502 (I989) ("Executive Law § 63(12) is the procedural route by which the Attorney-General may apply to Supreme Court for an order enjoining repeated illegal or fraudulent acts" ).

Parens Patriae and Consumer Ambit

Defendants repeat the erroneous argument that the complaint must be dismissed because OAG cannot demonstrate the requirements of a parens patriae action, which is one in the public interest. "Parens patriae is a common-law standing doctrine that permits the state to commence an action to protect a public interest, like the safety, health or welfare of its citizens." People v Grasso, 11 NY3d 64, 72 at n 4 (2008). Invocation of such doctrine, or its requirements, is not necessary where, as here, the New York legislature has specifically empowered the Attorney General to bring such an action pursuant to Executive Law § 63(12). People v Credit Suisse Sec. (USA) LLC, 31 NY3d 622, 633 (2018) (" it is undisputed that Executive Law § 63(12) gives the Attorney General standing to redress liabilities recognized elsewhere in the law, expanding the scope of available remedies" ); People v Trump Entrepreneur Initiative LLC, 137 AD3d 409, 417 (1st Dept 2016) ("[E]ven apart from prevailing authority, the language of the statute itself appears to authorize a cause of action; like similar statutes that authorize causes of action, § 63(12) defines the fraudulent conduct that it prohibits, authorizes the Attorney General to commence an action or proceeding to foreclose that conduct, and specifies the relief, including equitable relief, that the Attorney General may seek").

In any event, even if compliance with the requirements of the parens patriae doctrine is necessary, which it is not, OAG has easily satisfied those requirements, as it is well-settled that " [ i]n varying contexts, courts have held that a state has a quasi-sovereign interest in protecting the integrity of the marketplace." Grasso at 69 n 4; People v Coventry First LLC, 52 AD3d 345, 346 (1st Dept 2008) ("the claim pursuant to Executive Law § 63(12) constituted proper exercises of the State's regulation of businesses within its borders in the interest of securing an honest marketplace" ); People v Amazon.com. Inc., 550 F Supp 3d 122, 130-13 1 (SD NY 202 1) ("[T]he State's statutory interest under § 63(12) encompasses the prevention of either 'fraudulent or illegal ' business activities. Misconduct that is illegal for reasons other than fraud still implicates the government's interests in guaranteeing a marketplace that adheres to standards of fairness ... " ).

Defendants' rehashed argument that OAG's complaint must be dismissed because it is not designed to protect consumers is unavailing. New York v Feldman, 210 F Supp 2d 294, 299-300 (SD NY 2002) ("[D]efendants' claim that section 63(12) is limited to consumer protection actions is simply incorrect. The New York Attorney General has repeatedly used section 63(12) to secure relief for persons who are not consumers in cases that are not consumer protection actions").

Defendants cite to the trial court decision People v Domino's Pizza. Inc., NY Slip Op 300l5(U) (Sup Ct, NY County 2021), which is not binding on this Court, as authority for the proposition that any relief sought here should come in the form of private contract litigation, not "a law enforcement action under a statute designed to address public harm." NYSCEF Doc. No. 835 at 39. However, Domino's is wholly distinguishable from the instant case. There, the Court found that "OAG did not establish that Domino's representations to franchisees ... were false, deceptive, or misleading. Accordingly, the Court concludes that OAG has not established that Domino's engaged in conduct that ' tends to deceive or creates an atmosphere conducive to fraud.'" Domino's at 262• Here, as discussed infra, OAG demonstrates that defendants repeatedly submitted fraudulent financial documents to obtain financial benefits which otherwise they would not have received.

Defendants glaringly misrepresent the requirements of an Executive Law § 63(12) cause of action. Citing to People v Northern Leasing Sys .. Inc., 70 Misc 3d 256, 267 (Sup Ct, NY County 202 1), defendants assert that OAG must show " the practice is one likely to mislead a reasonable consumer acting reasonably under the circumstances." NYSCEF Doc. No. 835 at 42. However, the word "consumer" does not appear anywhere in the referenced decision. and defendants' characterization of its holding is inaccurate3. Northern Leasing confirms that the " test for fraud under Executive Law § 63(12) is whether an act tends to deceive or creates an environment conducive to fraud." Northern Leasing at 267 (further holding " Executive Law § 63(12) expands fraud to encompass new liability, while including non-statutory fraud claims" and finding that "[a] claim under Executive Law § 63(12) is the exercise of 'the State's regulation of businesses within its borders in the interest of securing an honest marketplace" ').

Non-Party Disclaimers

Defendants, yet again, argue that OAG's complaint must be dismissed because the SFCs contain language, provided by non-party accountants Mazars, that indicate that they have not audited or reviewed the accompanying financial statements and therefore cannot express an opinion as to whether the financial statements comply with Generally Accepted Accounting Principles ("GAAP"). However, as this Court already ruled, these non-party disclaimers do not insulate defendants from liability, as they plainly state that " Donald J. Trump is responsible for the preparation and fair presentation of the financial statement in accordance with accounting principles generally accepted in the United States of America and for designing, implementing, and maintaining internal control relevant to the preparation and fair presentation of the financial statement." NYSCEF Doc. No. 183.

As this Court explained in its November 3, 2022 Decision and Order: "[t]he law is abundantly clear that" using a disclaimer as a defense to a justifiable reliance claim requires proof that: " (I) the disclaimer is made sufficiently specific to the particular type of fact misrepresented or undisclosed; and (2) the alleged misrepresentations or omissions did not concern facts peculiarly within the [defendant' s] knowledge." Basis Yield Alpha Fund (Master) v Goldman Sachs Grp .. Inc., 115 AD3d 128, 137 (151 Dept 2014) (" a [plaintiff] may not be precluded from claiming reliance on misrepresentation of facts peculiarly within the [defendant's] knowledge" ); People v Bull Inv. Gm., Inc., 46 AD2d 25, 29 (3d Dept 1974) ("It has been stated that '[t]he rule is clear that where one party to a transaction has superior knowledge, or means of knowledge not open to both parties alike, he is under a legal obligation to speak and his silence constitutes fraud"). As the SFCs did not particularize the type of fact misrepresented or undisclosed and were unquestionably based on information peculiarly within defendants' knowledge, defendants may not rely on such purported disclaimers as a defense.

In sum, the Mazars disclaimers put the onus for accuracy squarely on defendants' shoulders.

Scienter and "Participation" Requirements

Defendants erroneously claim that Fletcher v Dakota. Inc, 99 AD3d 43, 49 (1st Dept 2012), stands for the proposition that the purported "participation element [of a cause of action under Executive Law § 63(12)] is satisfied where the defendant ' directed, controlled, or ratified the decision that led to plaintiffs injury.'" However, Fletcher is not an Executive Law § 63(12) action, it was brought as a corporate tort; accordingly, is not relevant here.4 Executive Law § 63(12) is much more than a mere codification of common law fraud.

Defendants also incorrectly rely on Abrahami v UPC Const. Co., 224 AD2d 23 1, 233 (1st Dept 1996), for the proposition that "[m]erely providing copies of purportedly false financial statements is insufficient." NYSCEF Doc. No. 835 at 55. However, as Abrahami was not brought pursuant to Executive Law § 63(12), its analysis regarding " intent to deceive" is irrelevant. Unlike the situation in Abrahami. where an action is brought pursuant to Executive Law § 63(12), " good faith or lack of fraudulent intent is not in issue." People v Interstate Tractor Trailer Training. Inc., 66 Misc 2d 678, 682 (Sup Ct, NY County 1971) (holding liability under Executive Law § 63(12) does not require demonstrating an «intent to defraud" ); Trump Entrepreneur Initiative at 417 ("fraud under section 63(12) may be established without proof of scienter or reliance"); Bull Inv. Gro. at 27 (" [ i]t is well-settled that the definition of fraud under subdivision 12 of section 63 of the Executive Law is extremely broad and proof of scienter is not necessary").

Disgorgement of Profits

In flagrant disregard of prior orders of this Court and the First Department, defendants repeat the untenable notion that "disgorgement is unavailable as a matter of law" in Executive Law § 63(12) actions. NYSCEF Doc. No. 835 at 70. This is patently false, as defendants are, or certainly should be, aware that the Appellate Division, First Department made it clear in this very case that " [w]e have already held that the failure to allege losses does not require dismissal of a claim for disgorgement under Executive Law § 63(12)." Trump. 2 17 AD3d at 610.

Defendants nonetheless rely on the trial court decision in People v Direct Revenue. LLC, 19 Misc 3d I I 24(A) (Sup Ct, NY County 2008), for the proposition that Executive Law § 63(12) "do[es] no[t] authorize the general disgorgement of profits received from sources other than the public." NYSCEF Doc. No. 835 at 71-72. However, defendants' neglect to mention that Direct Revenue was superseded, and essentially overruled, in 2016 by the New York Court of Appeals in People v Greenberg, which unequivocally held that " disgorgement is an available remedy under the Martin Act and the Executive Law." People v Greenberg, 27 NY3d 490, 497 (20 16).

Also fatally flawed is defendants' reliance on People v Frink Am., Inc., 2 AD 3d 1379, 1380 (4th Dept 2003), as it relies on the outdated proposition that Executive Law § 63(12) " does not create any new causes of action" and thus, the remedy of disgorgement is unavailable. NYSCEF Doc. No. 835 at 73-74. However, in Trump Entrepreneur initiative, in which at least three of the instant defendants were parties, the First Department unambiguously declared that "the Attorney General is, in fact, authorized to bring a cause of action for fraud under Executive Law § 63(12)." Trump Entrepreneur Initiative at 418; see also People v Pharmacia Corp., 27 Mise 3d 368, 373 (Sup Ct, NY County 2010) (holding " Executive Law § 63(12) applies to fraudulent conduct actionable at common law, as well as to conduct for which liability arises solely from the statute" ).

Defendants incorrectly posit that, under People v Ernst & Young, LLP, 114 AD3d 569 (1st Dept 2014), disgorgement is available under the Martin Act but not under Executive Law § 63(12). NYSCEF Doc. No. 836 at 73. This is simply untrue. In Ernst & Young, the First Department specifically held that disgorgement was an available and potentially "crucial" remedy in an Executive Law § 63(12) action. Ernst & Young at 570.

Defendants correctly assert that "the record is devoid of any evidence of default, breach, late payment, or any complaint of harm" and argue that as none of the recipients of the subject SFCs ever lodged a complaint with OAG or otherwise claimed damages, disgorgement of profits would be inappropriate. NYSCEF Doc. No. 835 at 40.

However, that is completely irrelevant. As the Ernst & Young Court noted:

[W]here, as here, there is a claim based on fraudulent activity, disgorgement may be available as an equitable remedy, notwithstanding the absence of loss to individuals or independent claims for restitution. Disgorgement is distinct from the remedy of restitution because it focuses on the gain to the wrongdoer as opposed to the loss to the victim. Thus, disgorgement aims to deter wrongdoing by preventing the wrongdoer from retaining ill-gotten gains from fraudulent conduct. Accordingly, the remedy of disgorgement does not require a showing or allegation of direct losses to consumers or the public; the source of the ill-gotten gains is "immaterial."


Id. (disgorgement is not impermissible penalty "since the wrongdoer who is deprived of an illicit gain is ideally left in the position he would have been had there been no misconduct") (internal citations omitted); see also Amazon.com at 130 ("Executive Law § 63(12) authorizes the Attorney General to seek injunctive and other relief', and finding " the Attorney General can seek disgorgement of profits on the State's behalf" ).

Sanctionable Conduct for Frivolous Motion Practice

In response to both OAG's request for a preliminary injunction and to defendants' motions to dismiss, this Court rejected every one of the aforementioned arguments. In rejecting such arguments for the second time, this Court cautioned that "sophisticated counsel should have known better." 5 NYSCEF Doc. No. 453 at 5. However, the Court declined to impose sanctions, believing it had " made its point." Id.

Apparently, the point was not received.

One would not know from reading defendants' papers that this Court has already twice ruled against these arguments, called them frivolous, and twice been affirmed by the First Department.

"In its discretion, a court may award costs and financial sanctions against an attorney or party resulting from frivolous conduct." Kamen v Diaz-Karnen, 40 AD3d 937, 937 (2d Dept 2007). See Yan v Klein, 35 AD3d 729, 729- 30 (2d Dept 2006) ("The plaintiff, following two prior actions, has 'continued to press the same patently meritless claims, ' most of which are now barred by the doctrines of res judicata and collateral estoppel " ).

Defendants' conduct in reiterating these frivolous arguments is egregious. We are way beyond the point of "sophisticated counsel should have known better"; we are at the point of intentional and blatant disregard of controlling authority and law of the case. This Court emphatically rejected these arguments, as did the First Department. Defendants' repetition of them here is indefensible.

Pursuant to New York Administrative Code § 130-1.1, "[t]he Court, as appropriate, may make such an award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both." The provision further states that:

[quote]For purposes of this Part, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

22 NYCRR 130-1.1 (c). Defendants' inscrutable persistence in re-presenting these arguments clearly satisfies the first of these three possible criteria.

When considering imposing sanctions "[a]mong the factors [the court] is directed to consider is whether the conduct was continued when it became apparent, or should have become apparent, that the conduct was frivolous, or when such was brought to the attention of the parties or to counsel." Levy v Carol Mgmt. Corp., 260 AD2d 27, 34 (1st Dept 1999) (further finding that sanctions both " punish past conduct" and "they are goal oriented, in that they are useful in deterring future frivolous conduct").

In its January 6, 2023 Decision and Order, this Court warned defendants that their "reiteration of [these previously rejected arguments] scattered across five different motions to dismis[s] was frivolous." NYSCEF Doc. No. 453 at 3.

In a last-ditch attempt to stave off sanctions, defendants have submitted an affirmation by the Hon. Leonard B. Austin (ret.), who had a supremely distinguished judicial career, culminating in 12 years on the Appellate Division, Second Department. NYSCEF Doc. No. 1449. Justice Austin presents what is essentially a primer on the interplay between motions to dismiss and motions for summary judgment, and every point of law is valid.

However, it is wholly invalid as a reason for this Court to deny sanctions. First, legal arguments are for counsel to make, not for experts to submit. "The rule prohibiting experts from providing their legal opinions or conclusions is 'so well-established that it is often deemed a basic premise or assumption of evidence law- a kind of axiomatic principle.'" In re Initial Pub. Offering Sec. Litig., 174 F Supp 2d 61, 64 (SD NY 200 I) (citing Thomas Baker, The Impropriety of Expert Witness Testimony on the Law, 40 U Kan LRev 325, 352 (1992) (precluding " expert affidavits" on the law); accord, Note, Expert Legal Testimony, 97 Harv LRev 797, 797 (1984) ("it remains black-letter law that expert legal testimony is not permissible"). Neither defendants nor Justice Austin has sought permission to file an amicus brief. In their own submissions, defendants have expounded on the law of capacity, standing, disclaimers, motions to dismiss, motions for summary judgment, and sanctions. The heft and prestige of a legal lion adds nothing.

More importantly, the subject affirmation utterly fails to fit the specific facts of this case into the general principles it enunciates. In many situations, discovery, and a complete record, and the reversal of the burden of proof, will turn the tide, requiring that a valid complaint be dismissed because there is no evidence to support it. But standing and capacity are legal questions, not factual issues. Crucially, while defendants have, by their own account, conducted extensive discovery and have created a complete record, they fail to point to a single fact that discovery has uncovered, let alone a single fact in the record, that changes the calculus of their denied and doomed capacity and standing arguments.

Capacity and standing are not esoteric concepts. Infants, legally declared incompetents, and persons under certain legal disabilities are not allowed to sue. The New York Attorney General is none of the above. If my sibling or neighbor is harmed, I do not have standing to sue for his or her injury. Citizens may not sue to prevent governmental actions unless they may suffer some personal harm. Executive Law § 63(12) was promulgated to give the Attorney General standing to sue on behalf of the people of New York to prevent or deter the precise type of fraud here at issue. Arguments to the contrary are risible.

Defendants' arguments that the factual record developed in discovery changed the landscape under which standing should be viewed is legally preposterous. The best that defendants could muster at oral argument was to contend (incorrectly) that plaintiff cannot sue because the subject transactions were between private entities, and nobody lost money. However, that is purely an argument on the merits, not an argument on standing. Taken to its logical extreme, absolutely any time a defendant denies liability, it could move to dismiss on the ground of lack of standing.

Exacerbating defendants' obstreperous conduct is their continued reliance on bogus arguments, in papers and oral argument. In defendants' world: rent regulated apartments are worth the same as unregulated apartments; restricted land is worth the same as unrestricted land; restrictions can evaporate into thin air; a disclaimer by one party casting responsibility on another party exonerates the other party's lies; the Attorney General of the State of New York does not have capacity to sue or standing to sue (never mind all those cases where the Attorney General has sued success fully) under a statute expressly designed to provide that right; all illegal acts are untimely if they stem from one untimely act; and square footage subjective.

That is a fantasy world, not the real world.

There is also a larger context to the sanctions issue. Several defendants are no strangers to sanctions and why courts are sometimes constrained to issue them. In the investigatory special proceeding this Court found Donald Trump in contempt of Court and sanctioned him $10,000 per day for failing to comply with his discovery obligations. This Court lifted the contempt after 11 days. The First Department affirmed the contempt and the fines. People v Trump, 213 AD3d 503, 504 (1st Dept 2023) ("[T]he financial sanction to compel compliance was a proper exercise of the court's discretionary power and was not excessive or otherwise improper, under the particular circumstances" ).

In Donald J. Trump v Hillary R. Clinton, 22-1 4102-CV-DMM, ("Order on Motion for Indicative Ruling") (filed September 15, 2023) (SD FL), Judge Donald M. Middlebrooks denied what in New York legal parlance would be called " a motion to reargue, " pursuant to which Donald Trump asked Judge Middlebrooks to vacate sanctions imposed on him and his legal team totaling close to one million dollars. Judge Middlebrooks wrote, on the first page thereof, that "Movants acted in bad faith in bringing this lawsuit and that this case exemplifies Mr. Trump's history of abusing the judicial process.6" Id.

Unfortunately, sanctions are the only way to impress upon defendants' attorneys the consequences of engaging in repetitive, frivolous motion practice after this Court, affirmed by the Appellate Division, expressly warned them against doing so. Boye v Rubin & Bailin. LLP, 152 AD3d I, II 1st Dept 20 17) ("sanctions serve to deter future frivolous conduct" and their " goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics" ).

It is of no consequence whether the arguments were made at the direction of the clients or sua sponte by the attorneys; counsel are "ethically obligated to withdraw any baseless and false claims, if not upon [their] own review of the record, certainly by the time [the] Supreme Court advised [them] of this fact." Boye at 11 (upholding sanctions against attorneys because "counsel continued to ... pursue claims which were completely without merit in law or fact."); see also Nachbaur v Am. Transit Ins. Co., 300 AD2d 74, 75 (1st Dept 2002) (motion court properly sanctioned attorneys for "repetitive and meritless motions"); Leventritt v Eckstein, 206 AD2d 313, 314 (1st Dept 1994) (affirming sanctions imposed on attorney for " repeated pattern of frivolous conduct"); William Stockier & Co. v Heller, 189 AD2d 601, 603 (1st Dept 1993) (affirming sanctions against attorney upon finding "there was no factual or legal basis for defendant's original cross motion, or for the reargument motion, that both motions were ' totally frivolous' and were submitted 'just really to delay'''). Counsel should be the first line of defense against frivolous litigation.

Accordingly, this Court grants OAG's motion for sanctions, in part, to the extent of sanctioning each of defendants' attorneys who signed their names to the instant legal briefs7, in the amount of $7,500 each, to be paid to the Lawyer's Fund for Client Protection of the State of New York no later than 30 days from the date of this Order.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

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Part 2 of 3

Arguments Defendants Raise for the First Time

Summary Judgment Standard


To prevail on its motion for summary judgment on all causes of action, defendants must first "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). "Failure [of the movant] to make such showing requires denial of the motion, regard less of the sufficiency of the opposing papers." Id. If the defendants make out their prima facie showing, the burden then shifts to plaintiff to offer evidence sufficient to rebut that showing by identifying disputed issues of fact that should go before a trier of fact.

Defendants strenuously argue throughout their briefs that OAG has not met her burden sufficient to defeat defendants' motion for summary judgment. However, defendants misstate the black letter law applicable to summary judgment, citing to City Dental Servs., P.C. v New York Cent. Mut., 34 Misc 3d 127(A) (App Term 2d, 11th, 13th Jud Dists 2011) for the flatly wrong proposition that " in order to defeat summary judgment on these claims of predicate illegality, the NY AG must, with respect to each predicate illegality attached, 'establish[] each element of its cause with respect to those causes of action.", NYSCEF Doc. No. 835 at 62.

Not only does City Dental not stand for that proposition (it merely found that under the circumstances of that case, plaintiffs evidence failed to meet her burden on summary judgment), but the law is well-settled that "to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact, "not make out its own case. Zuckerman v City of New York, 49 NY2d 557, 562 (1980). While OAG must establish each and every element of its cause(s) of action in order to prevail on its own motion for summary judgment, in order to defeat defendants' motion for summary judgment (provided defendants are able to demonstrate a prima facie case) "an opposing party must 'show facts sufficient to require a trial of any issue of fact.'" Guzman v Strab Const. Com., 228 AD2d 645, 646 (2d Dept 1996) ("evidentiary facts derived from the documents submitted [in opposition to summary judgment motion] are sufficient to present a triable issue of fact").

The "Worthless Clause"

Defendants rely on what they call a "worthless clause" set forth in the SFCs under the section entitled "Basis of Presentation" that reads, as here pertinent, as follows:

Assets are stated at their estimated current values and liabilities at their estimated current amounts using various valuation methods. Such valuation methods include, but are not limited to, the use of appraisals, capitalization of anticipated earnings, recent sales and offers, and estimates of current values as determined by Mr. Trump in conjunction with his associates and, in some instances, outside professionals. Considerable judgment is necessary to interpret market data and develop the related estimates of current value. Accordingly, the estimates presented herein are not necessarily indicative of the amount that could be realized upon the disposition of the assets or payment of the related liabilities. The use of different market assumptions and/or estimation methodologies may have a material effect on the estimated current value amounts.


NYSCEF Doc. Nos. 769 at 7; 770 at 7; 771 at 7; 772 at 7; 773 at 7.

In his sworn deposition, Donald Trump spent a lot of time invoking this clause: "Well, they call it a 'disclaimer.' They call it 'worthless clause' too, because it makes the statement 'worthless.'" NYSCEF Doc. No. 859 at 67. Donald Trump goes on to say that "I have a clause in there that says, don't believe the statement, go out and do your own work. This statement is 'worthless.' It means nothing." Id. at 68. Furthermore, Donald Trump implies that he did not consider it important to review the SFCs for accuracy because of the existence of this purported " worthless clause":

OAG: Does this refresh your recollection of the process whereby you would get final review of the Statement of Financial Condition?

DJT: Yeah, I think generally. It's interesting. I would say as years went by, I got less and less and then once I became President, I would - if I saw it at all, I'd see it, you know, after it was already done.

OAG: So in the period -

DJT: Again, you know, I hate to be boring and tell you this. When you have the worthless clause on a piece of paper and the first - literally the first page you're reading about how this is a worthless statement from the standpoint of your using it as a bank or whatever - whoever may be using it, you tend not to get overly excited about it. I think it had very little impact, if any impact on the banks.

...

OAG: So am I understanding that you didn't particularly care about what was in the Statement of Financial Condition?

DJT: I didn't get involved in it very much. I felt it was a meaningless document, other than it was almost a list of my properties, with good faith effort of people trying to put some value down. It was a good faith effort.


Id. at 107-108. Defendants further submit the affidavit and deposition transcript of Robert Unell, who purports to be an expert in commercial real estate, for the proposition that because of "the worth less clause" in the SFC, "no lender relies on these for what it is." NYSCEF Doc. Nos. 103001 183- 184; 1031.

However, defendants' reliance on these "worthless" disclaimers is worthless. The clause does not use the words "worthless" or "useless" or "ignore" or "disregard" or any similar words. It does not say, "the values herein are what I think the properties will be worth in ten or more years." Indeed, the quoted language uses the word "current" no less than five times, and the word "future" zero times.

Additionally, as discussed supra, a defendant may not rely on a disclaimer for misrepresentation of facts peculiarly within the defendant's knowledge. Basis Yield Alpha Fund at 136. Here, as the valuations of the subject properties are, obviously, peculiarly within defendants' knowledge, their reliance on them is to no avail.

Furthermore, "[t]his 'special facts doctrine' applies regardless of the level of sophistication of the parties." TIAA Glob. Invs. LLC v One Astoria Square LLC, 127 AD3d 75, 87 (1st Dept 2015) (emphasis added) (holding disclaimer does not bar liability [or fraud where facts were peculiarly within disclaiming party's knowledge).

Thus, the "worthless clause" does not say what defendants say it says, does not rise to the level of an enforceable disclaimer, and cannot be used to insulate fraud as to facts peculiarly within defendants' knowledge, even vis-a-vis sophisticated recipients.

The Tolling Agreement

The First Department has declared that claims are timely against defendants subject to the tolling agreement if they accrued after July 13, 2014, and claims against defendants not subject to the tolling agreement are timely if they accrued after February 6, 2016. Trump. 217 AD3d at 611. Defendants concede that the tolling agreement binds each of the LLC-defendants and the Trump Organization. However, they argue that each of the individual defendants and the Donald J. Trump Revocable Trust (the "DJT Revocable Trust") are not bound by the agreement.

Alan Garten, the Trump Organization's Chief Legal Officer, originally entered into the tolling agreement on behalf of "the Trump Organization" on August 27, 2021; the agreement was extended one time by an amendment dated May 3, 2022. NYSCEF Doc. No. 1260. It tolls the statute of limitations for the period from November 5, 2020, through May 31, 2022. Id. at 2. The agreement contains a footnote to the entity "the Trump Organization" that reads as follows:

As noted in the December 7, 2019 subpoena issued in this investigation to the Trump Organization, the "Trump Organization" as used herein includes The Trump Organization, Inc; DJT Holdings LLC; DJT Holdings Managing Member LLC; and any predecessors, successors, present or former parents, subsidiaries, and affiliates, whether direct or indirect; and all directors, officers, partners, employees, agents, contractors, consultants, representatives, and attorneys of the foregoing, and any other Persons associated with or acting on behalf of the foregoing, or acting on behalf of any predecessors, successors, or affiliates of the foregoing.


Id. at 4 n 1.

Thus, the tolling agreement at issue here binds "all directors [and] officers" and " present or former parents" of the Trump Organization and its affiliates and subsidiaries. Id. It is undisputed that at the time the tolling agreement was executed, each individual defendant, Donald J. Trump, Donald Trump Jr., Eric Trump, Allen Weisselberg, and Jeffrey McConney, were all directors and/or officers of the Trump Organization. NYSCEF Doc. No. 1293 at, ⁋⁋ 673, 680, 696, 710, 736.

Defendants argue that the non-signatory defendants are not bound by the agreement, citing Highland Crusader Offshore Partners. L.P. v Targeted Delivery Techs. Holdings. Ltd., 184 AD3d 116, 121 (1st Dept 2020), for the "general principal that only the parties to a contract are bound by its terms." NYSCEF Doc. No. 835 at 27. However, defendants fail to quote the following sentence, which provides that "[a] non-signatory may be bound by a contract under certain limited circumstances." Highland at 122. See also Oberon Sec., LLC v Titanic Ent. Holdings LLC, 198 AD3d 602, 603 (1st Dept 2021) (non-signatory companies bound by agreement with language defining signatory to include "all subsidiaries, affiliates, [and] successors").

In People v JUUL Labs, Inc., 212 AD3d 414, 417 (1st Dept 2023), in a case involving nearly identical language in a corporate tolling agreements, the First Department recently held that nonsignatory corporate affiliates, officers, and directors were bound by the agreement. Similarly, here all the individual defendants are bound by the instant tolling agreement's terms and may be held liable for any claims that accrued after July 13, 2014.

Defendants argue that OAG is judicially estopped from asserting that the agreement binds the individual defendants based on statements OAG's counsel made during oral argument in the investigatory special proceeding. NYSCEF Doc. No. 1292 at 26. Specifically, on April 25, 2022, while seeking to hold Donald Trump in contempt for failing to comply with court orders, OAG's counsel stated: "[t]here is hard prejudice because Donald Trump is not a party to the tolling agreement, that tolling agreement only applies to the Trump Organization." NYSCEF Doc. No. 1041 at 59.

For judicial estoppel to be applicable: "First, the party against whom the estoppel is asserted must have argued an inconsistent position in a prior proceeding; and second, the prior inconsistent position must have been adopted by the court in some manner." Bates v Long Island R. Co., 997 F2d 1028, 1038 (2d Cir 1993).

Defendants are correct that the first prong is satisfied, in that the statements OAG's counsel made during oral argument are inconsistent with the position OAG is now taking. However, defendants cannot demonstrate that this Court adopted the prior position. Indeed, this Court did not need to, and did not, consider the tolling agreement when it issued its April 26, 2022 Decision and Order finding Donald Trump in contempt. See Ghatani v AGH Realty, LLC, 181 AD3d 909, 911 (2d Dept 2020) ("For the doctrine [of judicial estoppel] to apply, there must be a final determination endorsing the party's inconsistent position in the prior proceeding").

This Court has not addressed the tolling agreement until now. Accordingly, defendants cannot demonstrate that this Court adopted OAG's prior inconsistent position.

Moreover, "[t]he party asserting estoppel must show with respect to himself: '(1) lack of knowledge of the true facts; (2) reliance upon the conduct of the party estopped; and (3) a prejudicial change in his position.'" BWA Corp. v Alltrans Exp. U.S.A., Inc., 112 AD2d 850, 853 (1st Dept 1985). Here, none of the defendants claim that they changed their positions or courses of conduct in reliance upon the statement of OAG's counsel during oral argument.

Finally, while judicial estoppel may be applied to prohibit inconsistent changes in factual positions, courts have declined to extend the doctrine to changes in legal positions. Seneca Nation of Indians v New York, 26 F Supp 2d 555, 565 (WD NY 1998), affd, 178 F3d 95 (2d Cir 1999) (finding "[t]here is no legal authority" for "broadening of the doctrine" to "include seemingly inconsistent legal positions"). Who physically signed the agreement is a question of fact; whom it binds is a question of law.

Defendants' argument that the OJT Revocable Trust is not bound by the tolling agreement falls flat. In his deposition, Donald Trump affirmed under oath that the assets of the Trump Organization are held in the OJT Revocable Trust, for which he is the sole donor and beneficiary. NYSCEF Doc. No. 859 at 21. Donald Trump also affirmed that at the time the trust was formed, he was the sole trustee and remained the sole trustee until 2017, when defendants Allen Weisselberg and Donald Trump, Jr. became the sole trustees. Id. at 20-24.

As every beneficiary, donor, and trustee of the DJT Revocable Trust is a defendant bound by the tolling agreement, and as the trust is unquestionably a "parent" of the Trump Organization, so too does the tolling agreement bind the OJT Revocable Trust. See People v Leasing Expenses Co. LLC, 199 AD3d 52 1, 522 (1st Dept 2021) ("It may likewise be inferred that the trustees had knowledge of the activities of the businesses they controlled through the trust mechanism. Hence, under Executive Law § 63(12), the family trusts and trustees may likewise be held liable for the fraud',); see e.g. Kuranan v Graham, 12 Misc 3d 586, 590 (Sup Ct, NY County 2006) ("courts will not allow the owner of assets to evade creditors by placing the property in a trust while retaining a right to revoke the trust" ).

Defendants cite to New York Estates, Powers and Trust Law § 11-1.1 (b)(17) for the proposition that only a trustee may bind a trust to an agreement. However, § 11-1.1 (b)(17) does not state this; rather, it states:

(b) In the absence of contrary or limiting provisions in the court order or decree appointing a fiduciary, or in a subsequent order or decree, or in the will, deed or other instrument, every fiduciary is authorized:
...
(17) To execute and deliver agreements, assignments, bills of sale, contracts, deeds, notes, receipts and any other instrument necessary or appropriate for the administration of the estate or trust.

This provision simply says what a fiduciary is permitted to do in the absence of a contrary provision. It does nothing to advance defendants' argument that only a trustee may bind a trust, particularly since defendants fail to cite to any provision of the DJT Revocable Trust restricting who can bind it, as § 11-1.1 (b)(17) anticipates.

Moreover, Korn v Korn, 206 AD3d 529, 530 (1st Dept 2022), upon which defendants inexplicably rely, is irrelevant to the instant analysis, as that case involved an examination by the court as to whether a fiduciary had a right or duty to negotiate on behalf of an estate pursuant to § 11-1.1 (b)(13), not pursuant to § 11-1.1 (b)(17), to which defendants cite.

Finally, "the Attorney General should not be limited, in [her] duty to protect the public interest, by an ... agreement [s]he did not join." People v Coventry First LLC, 13 NY3d 108, 114 (2009) (holding Attorney General not bound by arbitration agreement when pursuing Executive Law § 63(12) claim and finding "[s]uch an arrangement between private parties cannot alter the Attorney General's statutory role or the remedies that [s]he is empowered to seek").

The tolling agreement was a mutually beneficial and common arrangement pursuant to which OAG agreed to hold off suing, and Alan Garten, on behalf of the Trump Organization, agreed to toll the statute of limitations. All defendants received the benefit of the bargain; OAG held off suing. OAG is entitled to its benefit of the bargain, the tolling of the statute of limitations, for the limited agreed-upon time, as against anyone it could have sued for the matters at issue at the time at which the agreement was executed. OAG clearly did not intend to permit defendants' principals to evade the tolling agreement based on a technicality contrary to the spirit of the agreement and controlling caselaw.

Statute of Limitations

As a general rule, statutes of limitation start running when a claim accrues, that is, when it can be sued upon. In arguing that OAG 's causes of action are untimely, defendants incorrectly assert that the statute of limitations starts running on the date the parties entered into the subject agreements, or when the loans closed. However, the First Department did not use the word "closed," it used the word "completed." Trump, 217 AD3d at 611. Obviously, the transactions were not "completed" while the defendants were still obligated to, and did, annually submit current SFCs to comply with the terms of the loan agreements.

Defendants further assert that any continuing documentation provided after the agreements were entered into, or when the loans closed, is of no consequence if the proceeds were distributed prior to July 2014. NYSCEF Doc. No. 835 at 18. This argument is unavailing. As OAG asserts. each submission of an SFC after July 13, 2014, constituted a separate fraudulent act. Indeed, each submission of a financial document to a third-party lender or insurer would "requir[e] a separate exercise of judgment and authority," triggering a new claim. Yin Shin Leung Charitable Found. v Seng, 177 AD3d 463, 464 (1st Dept 2019) (finding continuous series of wrongs each of which gave rise to its own claim).

Defendants mistakenly assert that if a loan agreement was entered into and its proceeds were dispersed prior to the applicable statute of limitations, then a claim arising out of submitting any subsequent contractually required financial documentation is also untimely, irrespective of when that documentation is submitted. Defendants would have this Court apply a bizarre, invented, inverted form of the " relation back" doctrine, pursuant to which if one aspect of fraudulent business conduct falls outside the statute of limitations, then all subsequent aspects of fraudulent conduct also fall outside the statute, no matter how inextricably intertwined.

Of course, this is contrary to controlling case law, which holds that a cause of action accrues at the time "when one misrepresents a material fact." Graubard Mollen Dannett & Horowitz v Moskovitz, 86 NY2d 11 2, 12 (1995). Moreover, even the plain language of Executive Law § 63(12) states: "[t]he term 'repeated' as used herein shall include repetition of any separate and distinct fraudulent or illegal act" (emphasis added). Clearly, the submission of each separate fraudulent SFC is a distinct fraudulent act.

OAG is not challenging the loans, the closings, or the disbursements; it is challenging defendants' submissions of financial documents containing false and misleading information. Thus, any SFC that was submitted after July 13, 2014, falls within the applicable statute of limitations. CW Capital Cobalt VR Ltd. v CW Capital Invs., LLC, 195 AD3d 12, 19-20 (1st Dept 2021) (each instance of wrongful conduct a "separate, actionable wrong" giving rise to a new claim").

Materiality

It is settled that a standalone cause of action under Executive Law § 63(12) does not require a demonstration of materiality but merely that an "act has the capacity or tendency to deceive, or creates an atmosphere conducive to fraud." People v Gen. Elec. Co., 302 AD2d 314, 314-315 (1st Dept 2003) (holding that, unlike GBL § 349, plaintiff need not prove "the challenged act or practice 'was misleading in a material way''').

Although the Domino's court found that "evidence regarding falsity, materiality, reliance and causation plainly is relevant to determining whether the Attorney General has established that the challenged conduct has the capacity or tendency to deceive, or creates an atmosphere conducive to fraud" (Domino's at 11 ), every Appellate Division and the New York Court of Appeals now hold that materiality and scienter are not requirements for liability under § 63(12).

However, as discussed infra, although materiality is required under the second through seventh causes of action, it is not required under a standalone cause of action under Executive Law § 63(12), the OAG's first cause of action.

Defendants argue that the SFCs were not materially misleading, claiming, inter alia that: (1) "[t]here is no such thing as objective value"; (2) "a substantial difference between valuation in the SOFCs and appraisal, per se, is not evidence of inflated values"; (3) there is nothing improper about using " fixed assets" valuations as opposed to using the current market valuation approach; and (4) it was proper to include "internally developed intangibles, such as the brand premium used in the valuation of President Trump's golf clubs, in personal financial statements." NYSCEF Doc No. 1292 at 20-23.

Thus, defendants essentially argue that value is inherently subjective; that because internal brand valuations are in the eye of the beholder (here, Donald Trump), they cannot be overvalued. Defendants argue that "[n]o bank or underwriter would have reasonably been materially misled by the alleged misstatements or omissions in the SOFCs and other information the Defendants made available to their counterparties because no sophisticated counterparty would have considered the SOFCs and other information provided by the Defendants alone as material to extend credit or set an interest rate, or issue an insurance policy or price a risk, without doing their own due diligence." NYSCEF Doc. No. 835 at 45.

Defendants also argue: "[ i]t follows that if the user [of the SFCs] is in possession of the correct information, then the financial statements are not materially misstated." Id. at 39. Defendants' stance is, practically speaking, that they may submit false SFCs so long as the recipients know, from their own due diligence, that the information is false.

Accepting defendants' premise would require ignoring decades of controlling authority holding that financial statements and real property valuations are to be judged objectively, not subjectively. FMC Corp. v Unmack, 92 NY2d 179, 191 (1998) ("objectively reasonable conclusion, drawn by a competent and experience appraiser, was based on credible evidence" that demonstrated "property was overvalued") (emphasis added); Assured Guar. Mun. Corp. v DLJ Mortg. Cap. Inc., 44 Mise 3d 1206(A) (Sup Ct, NY County 2014) ("Credit Suisse is reading this as a subjective standard, dependent on Assured's expectations. Credit Suisse is wrong. It is well settled that this is an objective standard").

Moreover, courts have long found that "generally, it is the 'market value' which provides the most reliable valuation for assessment purposes." Great Atl. & Pac. Tea Co. v Kiernan. 42 NY2d 236, 239 (1977); Consol. Edison Co. o[ New York v City of New York, 33 AD3d 915, 916 (2d Dept 2007) ("the standard for assessment remains market value"), affd 8 NY3d 591. Beauty may be in the eye of the beholder, but value is in the eye of the marketplace.

Further, defendants' assertion that the discrepancies between their valuations and the OAG's are immaterial is nonsense. What OAG has established, in many cases by clear, indisputable documentary evidence (as discussed infra), is not a matter of rounding errors or reasonable experts disagreeing. OAG has submitted conclusive evidence that between 2014 and 2021, defendants overvalued the assets reported in the SFCs between 17.27-38.51 %; this amounts to a discrepancy of between $812 million and $2.2 billion dollars. NYSCEF Doc. No. 766 at 70. Even in the world of high finance, this Court cannot endorse a proposition that finds a misstatement of at least $812 million dollars to be "immaterial." Defendants have failed to identify any authority for the notion that discrepancies of the magnitude demonstrated here could be considered immaterial.

The Second through Seventh Causes of Action

The Second, Third, Fourth, Fifth, Sixth, and Seventh causes of action allege violations of Executive Law § 63(12) based on underlying violations of the New York Penal Law prohibiting falsification of business records, issuance of false financial statements, and insurance fraud.

Liability under New York Penal Law § 175.05 (falsifying business records in the second degree) requires that a person "[m]akes or causes a false entry in the business records of an enterprise."

Liability under New York Penal Law § 175.45 (issuing a false financial statement) requires that a person "represents in writing that a written instrument purporting to describe a person's financial condition or ability to pay as of a prior date is accurate with respect to such person's current financial condition or ability to pay, whereas [that person] knows it is materially inaccurate in that respect."

Liability under New York Penal Law § 176.05 (insurance fraud) requires that a person submitted an application for insurance either: (1) knowing that it "contain[ed] materially false information concerning any fact material thereto"; or (2) "conceal[ed], for the purpose of misleading, information concerning any fact material thereto."

Accordingly, unlike a standalone cause of action under Executive Law § 63(12). the second through seventh causes of action require demonstrating some component of intent and materiality. People v Alamo Rent A Car. Inc., 174 Mise 2d 501, 505 (Sup Ct, NY County 1997) ("As in all other situations requiring mens rea, however, petitioners may prove, by reference to facts and circumstances surrounding the case, that respondents knew that their conduct was unlawful. Moreover, petitioners need not prove respondents acted with an 'evil motive, bad purpose or corrupt design''') (internal citations omitted).

OAG has demonstrated that there remain, at the very least, disputed issues of fact as to whether defendants violated these statutes, intentionally and materially. Thus, there are issues of fact as to causes of action two through seven that require a trial.

The Court has considered defendants' remaining arguments and finds them to be unavailing and/or non-dispositive.

Accordingly, defendants' motion for summary judgment dismissing every cause of action is denied in its entirety.

OAG'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS FIRST CAUSE OF ACTION

Summary Judgment Burden on Standalone Executive Law § 63(12) Cause of Action


OAG moves for partial summary judgment, seeking to hold defendants liable under OAG's first cause of action, for fraud under Executive Law § 63(12).

As this Court has noted ad nauseum, Executive Law § 63(12) "authorizes the Attorney General to bring a special proceeding against any person or business that engages in repeated or persistent fraudulent or illegal conduct, while broadly construing the definition of fraud so as to include acts characterized as dishonest or misleading and eliminating the necessity for proof of an intent to defraud." People v Apple Health & Sports Club, Ltd., Inc., 206 AD2d 266-267 (1st Dept 1994).

As OAG's first cause of action, the only one upon which it moves for summary judgment, alleges a standalone violation of Executive Law § 63(12), OAG need only prove: (1) the SFCs were false and misleading; and (2) the defendants repeatedly or persistently used the SFCs to transact business.

This instant action is essentially a "documents case." As detailed infra, the documents here clearly contain fraudulent valuations that defendants used in business, satisfying OAG's burden to establish liability as a matter of law against defendants. Defendants' respond that: the documents do not say what they say; that there is no such thing as " objective" value; and that, essentially, the Court should not believe its own eyes.9

The defenses Donald Trump attempts to articulate in his sworn deposition are wholly without basis in law or fact. He claims that if the values of the property have gone up in the years since the SFCs were submitted, then the numbers were not inflated at that time (i.e.; "But you take the 2014 statement, if something is much more valuable now - or, I guess, we'll have to pick a date which was a little short of now. But if something is much more valuable now, then the number that I have down here is a low number"). NYSCEF Doc. No. 1363 at 69-75). He also seems to imply that the numbers cannot be inflated because he could find a "buyer from Saudi Arabia" to pay any price he suggests.10 Id. at 30-33, 60-62, 79-80.

The Trump Tower Triplex

This Court takes judicial notice that the Trump Tower apartment in which Donald Trump resided for decades (the ''Triplex'') is 10,996 square feet. NYSCEF Doc. No. 816 at 2. Between 2012- 2016, Donald Trump submitted SFCs falsely claiming that the Triplex was 30,000 square feet, resulting in an overvaluation of between $114-207 million dollars. NYSCEF Doc. Nos. 782 at Rows 833-834, 1028, 783 at Rows 799-800, 1199, 784 at Rows 843-844, 785 at Rows 882-883, 789 at Row 913, 8 17. The misrepresentation continued even after defendants received written notification from Forbes that Donald Trump had been overestimating the square footage of the Triplex by a factor of three.11

In opposition, defendants absurdly suggest that "the calculation of square footage is a subjective process that could lead to differing results or opinions based on the method employed to conduct the calculation.12" NYSCEF Doc. No. 1293 at 20. Well yes, perhaps, if the area is rounded or oddly shaped, it is possible measurements of square footage could come to slightly differing results due to user error. Good-faith measurements could vary by as much as 10-20%, not 200%. A discrepancy of this order of magnitude, by a real estate developer sizing up his own living space of decades, can only be considered fraud.13

OAG unquestionably satisfies its two-prong burden of demonstrating the SFCs from 2012-2016 calculated the value of the Triplex based on a false and misleading square footage, and that some of the defendants repeatedly and persistently used the SFCs to transact business.

Seven Springs Estate

Defendant Seven Springs LLC owns over 200 acres of contiguous land in the towns of Bedford, New Castle and North Castle in Westchester County, New York.

In 2000, non-party the Royal Bank of Pennsylvania appraised the "as is" market value of Seven Springs to be $25 million if converted to residential development. NYSCEF Doc. No. 825. In 2006, the same bank performed a new appraisal, which showed Seven Springs had an "as is" market value of $30 million. NYSCEF Doc. No. 826.

In 2012, Seven Springs LLC received another appraisal that estimated a six-lot subdivision on the New Castle portion of the property to have a fair market value of approximately $700,000 per-lot. NYSCEF Doc. No. 829 at 203-206.

In July 2014, because the Trump Organization was considering donating a conservation easement, it retained Cushman & Wakefield to provide a "range of value" of the Seven Springs property. NYSCEF Doc. Nos. 830, 831. Cushman & Wakefield's appraiser, David McArdle, analyzed the sale of eight lots in Bedford, six lots in New Castle, and ten lots in North Castle and determined the fair market value for all 24 lots was approximately $30 million. NYSCEF Doc. No. 831, 832.

Notwithstanding receiving market values from professional appraisals in 2000, 2006, 2012, and 2014 valuing Seven Springs at or below $30 million, Donald Trump's 2011 SFC reported the value to be $261 million, and his 2012, 2013 and 2014 SFCs reported the value to be $291 million." NYSCEF Doc. Nos. 769, 770, 771, 772.

In early 2016, Cushman & Wakefield performed another appraisal of Seven Springs, which included the planned development, and determined that as of December I, 2015, the entire parcel was worth $56.6 million. NYSCEF Doc. Nos. 824 at 9; 875; 876.

Even giving defendants the benefit of the $56.6 million figure as of December 1, 2015, the value submitted on Donald Trump's 2014 SFC was inflated by over 400%. Accordingly. OAG has demonstrated liability for the false 2014 SFC for fraudulently inflating the value of Seven Springs.

Trump Park Avenue

Trump Park Avenue is a residential building included as an asset on Donald Trump's SFCs for the years 2011-2021. NYSCEF Doc. Nos. 769-779. In 2011, 12 of the unsold residential condominium units were subject to New York City's rent regulation laws. NYSCEF Doc. No. 948 at 3. By 2014, nine units remained subject to rent restrictions. NYSCEF Doc. No. 966. By 2020, six units remained subject to rent restrictions. NYSCEF Doc. No. 971.

A 2010 appraisal performed by the Oxford Group valued the 12 rent-stabilized units at $750, 000 total, or $62,500 per unit. NYSCEF Doc. No. 952. A 2020 appraisal performed by Newmark Knight Frank valued the six units that remained subject to stabilization at $22,800,090 total, or $3, 800, 315 per unit. NYSCEF Doc. No. 972.

Notwithstanding, for the years 20 14-2021, the Trump Organization submitted SFCs that valued these rent-restricted units as if they were unencumbered, inflating the value of each unit between as much 700% (in 2014) and 64% (in 2021). NYSCEF Doc. Nos. 772-779.

In an unsuccessful attempt to rebut OAG's prima facie demonstration, defendants proffer that the units are not overvalued because " the rent-stabilized units have the potential at some point in the future to be converted into unencumbered (by rent stabilization) units."15 NYSCEF Doc. No. 1292 at 57. They further concede that "[t]his is the assumption the owner made when assessing potential asset pricing or value." Id.

However, the SFCs are required to state "current" values, not "someday, maybe" values. At the time defendants provided the subject SFCs to third parties they unquestionably falsely inflated the value of the units based on a false premise that they were unrestricted.16
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