In the Spotlight
Leaf Blogazine on April 15, 2021:
By Alicia Powe Apr. 27, 2023
From The Gateway Pundit
UPDATED on 25th September 2023: https://www.thegatewaypundit.com/2023/09/breaking-big-house-judiciary-committee-republicans-fbi-lost/
Defense attorney Nicholas Smith, representing political prisoner Ethan Nordean, eviscerated the Justice Department’s narrative surrounding the Proud Boys and the group’s alleged plans to commit sedition and violently overthrow the United States government on January 6, during closing arguments.
The government infiltrated the Proud Boys with Confidential Human Sources, undercover federal agents, and for years scoured through more than 500,000 messages obtained from the defendants’ devices, social media pages and exchanges in online chat rooms to prove its members violent, racist, insurrectionist who considered a terrorist attack on January 6. The Proud Boys Trial spanned 61 days, the longest of any J6 trial.
Week after week, conniving prosecutors failed to prove there was a pre-conspired plan to storm the Capitol, Smith admonished in his final remarks to jurors on Monday.
** You can support Ethan Nordean and his family here.
“In opening statements, the government promised you the moon on a stick and to show you some of the most serious offenses,” he said. “The government promised to show you that a confused, unarmed man with cans of beer, or sometimes wheel chairing around the mall, committed seditious against the United States.
“Sedition. After they stopped for tacos at the food trucks.”
The government contends Nordean along with four other members of the Proud Boys tried on the seditious conspiracy trial — Army veteran Zachary Rehl and Marine Corp. veteran Dominic Pezolla, the group’s national leader Enrique Tarrio, a 2018 Florida congressional candidate, and decorated Staff Sgt. Joseph Biggs — began orchestrating a 9/11-like terror attack in the weeks and months leading up to the January 6 riot.
Each of the defendants are facing a slew of federal charges in addition to seditious conspiracy, which carries a statutory maximum sentence of 20 years in prison and financial penalties.
Nordean, 34, was raided and arrested by the FBI on February 3, 2021. He maintains he was intent on attending a concert after attending the protest on January 6 and had no idea he would end up stopping agitators from assaulting police officers as other cops fired sting balls at unarmed protesters when he marched to the Capitol building.
Multiple witnesses have confirmed under oath Nordean’s plans on that fateful day, Smith explained.
“What happened at the Capitol was a disgrace,” he said. “But the government showed you footage of people fighting in tunnels, hitting police officers. But didn’t show these men directing those activities. So, what is the point? It’s guilt by association. Have we seen evidence beyond a reasonable doubt from the government that proves [the Proud Boys] masterminded 3 preplanned conspiracies? No, and it’s not close.
“Michael Graves told you he met up with Nordean — reached an agreement to go back to Airbnb around 3 to 4 pm to hear music at 7 pm. He said the Proud Boys are so disorganized they couldn’t even organize a trip to Mcdonald’s. There is no evidence he’s lying. The breach was at 2:13 pm. The plan was to go back to the Airbnb and have a music party? Doesn’t make any sense. You heard from Eddie Block, the paraplegic photographer. He said there wasn’t a plan to storm the Capitol according to what he saw that day.”
“At least eight” CHSs were embedded with various chapters of the Proud Boys leading up to January 6, yet, the FBI did nothing to prevent the allegedly pre-conspired [terror] attack, Smith noted.
“The government has stipulated the FBI had at least eight informants at January 6, two at the Capitol march or in Telegram chats like MOSD. Yet, the FBI did not use information by these informants to stop the conspiracy,” he said. “There are two possibilities: 1. People saw it and wanted this to happen. That’s preposterous. 2. Nobody considered the Proud Boys chats to be a criminal conspiracy.
“You heard from Aaron, FBI informant since 2008. At that critical moment at Peace Circle, he sent texts to an FBI handler: ‘The Proud Boys did not do it, did not conspire,’” he said. “When you keep hearing the same things over and over you can’t disregard it. Aaron told officers that the Proud Boys tried to de-escalate.’
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Jury selection in the trial spanned nearly two months. The defense fought for nearly every potential juror to be dismissed after each demonstrated a vehement anti-Trump bias, admitted they were ardent supporters of the Black Lives Matter movement and Antifa, attended the Women’s march and characterized the Proud Boys as a white supremacist when vetted
During jury selection, the defense also pled with presiding Judge Timothy Kellly to relocate the trial to a district where residents are not primarily government employees with a 92 percent voting rate for Joe Biden and Democrats to no avail.
Smith urged the jurors not to be persuaded by the government’s attempts to exploit their anti-Trump bias.
“The government plays a video of Donald Trump at a debate. Does that prove the conspiracy here? No. Whatever the former president’s crimes are, you have not seen evidence that the defendants conspired with Ethan Nordean. Listen to your common sense, it was played to manipulate you and confuse your dislike of a politician to determine whether these men were guilty of these crimes beyond a reasonable doubt,” he said. “The government’s entire case is built on innuendo and the misleading nature of conspiracy charges.”
While the government has primarily relied on footage of mayhem at rallies prior to January 6 to make its case against the defendants, the defendants are not featured in any of the footage committing acts of violence themselves.
“For perhaps a third of the trial or more, you saw clips of chaotic scenes at rallies… loud scary clips,” Smith continued. “The government made you feel like you were at a heavy metal concert near the stage. One person was even stabbed. Was it a member of Congress? Of US Capitol Police? No… It was Bertino.”
“You saw no evidence that in these rallies these men planned to come to DC the following year much less that they planned to commit crimes then,” Smith continued. “So, why did the government show you the loud sounds and scary chaotic scenes? Could be interpreted to suggest these men were generally violent, angry people and therefore, the government would have you believe, they are just the type of people capable of using the force alleged here.
“Mulroe made similar arguments: the accused [defendant] loved violent video games, so he’s the one who did the violent deed –that’s now how we think about criminal justice in this country. We punish the charged act, not the character of a person or because he hangs out with the wrong people.. That’s not who we are, and thank God for that. But you saw no evidence that Nordean committed violence at these rallies. What’s the other reason you saw evidence from these rallies in 2020? Simply put, to fill a hole in the government’s case. They filled up scenes with loud sounds and chaos. it was a chaotic distraction that wasted your time for weeks.”
The FBI found nearly over a dozen firearms in Jeremy Bertino’s possession, despite prior criminal charges that prohibited him from owning firearms. Bertino, a North Carolina-based former Proud Boy who used the pseudonym Noble Beard, was stabbed by Antifa during the November 12 Stop The Steal rally in Washington, DC.
Bertino pled guilty to seditious conspiracy and agreed to cooperate with the government to make the case against the Proud Boys. In exchange, the government agreed to reduce his charges or exonerate him entirely.
Yet, in multiple video interviews with the FBI exhibited during cross-examination, Bertino repeatedly insists “there was no plan” established, created or coordinated by the Proud Boys to do anything violent on January 6.
Bertino, a key government witness, repeatedly perjured himself during a 5-day cross-examination. In addition to lying about the guns found in his home, he insisted there was no plan on January 6 despite pleading guilty to seditious conspiracy.
It’s clear why Bertino and another government witness, Matthew Green, decided to cooperate with the government, Smith argued:
Matthew Greene and Jeremy Bertino cooperated with the government, but we don’t know to what end.
Greene wasn’t able to testify about any conspiracy or about Mr. Nordean. He didn’t know about that. How did the government get Greene here at all? They threatened him with gun charges. How do we know this? Are we speculating? No. It’s all caught on film.
And then there was Jeremy Bertino. He was just Matt Greene on a larger more ridiculous scale. They found him in illegal possession of guns. Lots of them. Did his testimony prove a conspiracy to attack the Capitol? No. Bertino said he was a leader of MOSD, a member of the conspiracy charged in this case. But here’s the strange thing, Bertino testified he was not aware of the plan. We’ll get to an agreement plan distinction for what it’s worth. Bertino said he wasn’t aware of the objective. Mulroe said conspiracy must at least have an objective. If Bertino did not even know the objective, his testimony proves nothing relevant at all.
It is ludicrous. That’s not the law. The Supreme Court says the defendant must be aware of essential elements of a plan. That’s the law. Bertino wasn’t even in DC on January 6, wasn’t at the march, and wasn’t at the food trucks. He didn’t see Nordean raising his fist to stop the Proud Boys at Peace Circle. He couldn’t say where the objective was. Just somewhere in Telegram chats. But he told the FBI it wasn’t in the Telegram chats.
…
He told the FBI he didn’t take those seriously. Why was Bertino brought in? Like Greene, it was the illegal gun charges. Who pleads to seditious conspiracy if they didn’t do it? He thought, ‘If I plead guilty to sedition, maybe my sentence will actually be lower than if I just pleaded to guns.
Bertino told you he didn’t know the plan, didn’t know objective, but still agreed to it. Moving on from Noble Beard, you did not hear any other person admitting conspiracy that didn’t exist.
Jurors began deliberation on Thursday morning. After the jury decides the verdict, attorneys are allotted 15 minutes to arrive at court.
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In interviews with The Gateway Pundit, the five defendants, who have been detained in solitary confinement in ten-by-four-foot cells at the Alexandria Detention Facility in Virginia for over a year, asked for your prayers as the jurors decide their fate and the fate of the First Amendment.
TRANSCRIPT J6 POLITICAL PRISONER ETHAN NORDEAN’S CLOSING ARGUMENT:
ATTY. NICHOLAS SMITH: It’s been a long trial but we can’t say it’s been an eventful one. Part of the reason your attentiveness was so impressive was because you were asked to watch the same clips over and over again as if it were Groundhog Day as if every stupid political chat or comment in the crowd was the smoking gun. You [the jury] have heard the white noise machine [the husher] almost as much as you’ve heard evidence.
In opening statements, the government promised you the moon on a stick and to show you some of the most serious offenses. The government promised to show you that a confused, unarmed man with cans of beer, or sometimes wheel chairing around the mall, committed seditious against the United States.
Sedition. After they stopped for tacos at the food trucks.
The government plays a video of Donald Trump at a debate. Does that prove the conspiracy here? No, whatever the former president’s crimes are, you have not seen evidence that the defendants conspired with Ethan Nordean.
Listen to your common sense, it was played to manipulate you and confuse your dislike of a politician to determine whether these men were guilty of these crimes beyond a reasonable doubt. The government’s entire case is built on innuendo and the misleading nature of conspiracy charges. For perhaps a third of the trial or more, you saw clips of chaotic scenes at rallies… loud scary clips. The government made you feel like you were at a heavy metal concert near the stage. One person was even stabbed. Was it a member of Congress? Of US Capitol Police? No… It was Bertino.
Your common sense will point you in the true direction. You saw Donald Trump’s tweet on Dec. 19.
[“Big protest in D.C. on January 6th,” Trump tweeted.”Be there, will be wild!”]
You don’t need a calendar to figure this out, the November and December 2020 rallies came before Trump’s tweet. You saw no evidence that in these rallies these men planned to come to DC the following year much less that they planned to commit crimes then.
So, why did the government show you the loud sounds and scary chaotic scenes? Could be interpreted to suggest these men were generally violent, angry people and therefore, the government would have you believe, they are just the type of people capable of using the force alleged here.
Mulroe made similar arguments: the accused [defendants] loved violent video games, so he’s the one who did the violent deed. That’s now how we think about criminal justice in this country. We punish the charged act, not the character of a person or because he hangs out with the wrong people.
With some notable exceptions, that’s not who we are, and thank God for that. But you saw no evidence that Nordean committed violence at these rallies. What’s the other reason you saw evidence from these rallies in 2020? Simply put, to fill a hole in the government’s case. They filled up scenes with loud sounds and chaos. it was a chaotic distraction that wasted your time for weeks.
But the government tells you that something about the way Bertino’s stabbing was investigated motivated these men to use force in 2021.
Nick Quested, who hung out with Proud Boys and followed them, told Congress under oath, animosity didn’t build toward police.
Nordean came to DC for the same reason thousands of others did: to protest what they actually believed was a stolen election.
The law enforcement who investigated Bertino’s stabbing have nothing to do with police at the Capitol. We did not watch 2 weeks of evidence about these rallies to discover something about Bertino. We watched it so you would hate these men.
Matthew Greene and Jeremy Bertino cooperated with the government, but we don’t know to what end. Greene told you lying to the FBI was a felony crime and then you were shown this impeachment evidence.
[Smith shares clip of Greene’s FBI interview that is inaudible in media room]
[Smith repeats back a portion of Greene’s video interview with FBI: “I’m telling you the God’s honest truth, shit got out of hand”]
Greene testified he was training to become a Christian minister.
[Smith ques up soundbites inaudible in media room]
Greene wasn’t able to testify about any conspiracy or about Mr. Nordean. He didn’t know about that. How did the government get Greene here at all? They threatened him with gun charges. How do we know this? Are we speculating? No. It’s all caught on film.
[Smith exhibits more footage of Greene’s interview with the FBI]
And then there was Jeremy Bertino. He was just Matt Greene on a larger more ridiculous scale…. They found him in illegal possession of guns. Lots of them. Did his testimony prove a conspiracy to attack the Capitol? No. Bertino said he was a leader of MOSD, a member of conspiracy charged in this case. But here’s the strange thing, Bertino testified he was not aware of the plan. We’ll get to an agreement plan distinction for what it’s worth. Bertino said he wasn’t aware of the objective. Mulroe said conspiracy must at least have an objective.
if Bertino did not even know the objective, his testimony proves nothing relevant at all.
It is ludicrous. That’s not the law. The Supreme Court says the defendant must be aware of essential elements of a plan. That’s the law. Bertino wasn’t even in DC on January 6, wasn’t at the march, and wasn’t at the food trucks. He didn’t see Nordean raising his fist to stop the Proud Boys at Peace Circle. He couldn’t say where the objective was. Just somewhere in telegram chats. But he told the FBI it wasn’t in the Telegram chats.
[Smith exhibits Bertino’s voice file from a Telegram chat in which he says, “There was a ton of things said in those chats, a ton. Did we ever take it seriously? No, because so many people said so many things over the years… Just somebody talking stupid shit that’s all”]
He told the FBI he didn’t take those seriously. Why was Bertino brought in? Like Greene, it was the illegal gun charges. Who pleads to seditious conspiracy if they didn’t do it? He thought, ‘If I plead guilty to sedition, maybe my sentence will actually be lower than if I just pleaded to guns.
Bertino told you he didn’t know the plan, didn’t know objective, but still agreed to it. Moving on from Noble Beard, you did not hear any other person admitting conspiracy that didn’t exist.
The government used John Stewart and Charles Donohoe’s messages as proof of the conspiracy, yet they didn’t testify. They weren’t dragged to court to testify to a conspiracy. You didn’t see them called as witnesses. You should infer that’s because those leaders would be even less useful to the government’s case than Greene and Bertino if you can believe it.
How about social media chats and Telegram chats? Let’s first consider that these men published their criminal plot on Parler? Does that make sense to you?
Many are in bad taste. Are they evidence of criminal conspiracy? No. Like the Trump debate video, they were shown to you to make you allergic to these men so your personal dislike would overwhelm the evidence — it’s manipulative and it’s wrong.
How about the telegram chats? before we get to them, I’m going to play some of Bertino’s comments about telegram chats.
[Smith exhibits a portion of Bertino’s FBI interview in which Bertino said MOSD was about a small group of guys who agreed they would not break the law and was not created for Jan. 6 specifically but for rallies moving forward generally after J6.]
[Everything was supposed to happen that day was a peaceful protest, Bertino is heard telling the FBI. “I thought [we were doing] the same thing they had always gone there to do … march. There was no point to going in. I never really thought past what would happen if they didn’t just protest on the mall with posters.]
SMITH: In the interview audio, Bertino tells the FBI, “I don’t remember anybody saying attack the Capitol.” He didn’t really commit seditious conspiracy.
The government searched their phones, computers … didn’t find anything about jumping barricades or storming the Capitol. The texts and Telegrams you saw are often from people you never even heard the real names of … there isn’t a single chat showing Nordean planned to use force. It doesn’t exist. What exists is random political commentary repeatedly strewn throughout Telegram chats as evidence these people had no idea what they were doing as late as January 5. You have lots of chats designed to inflame your anger and make you dislike them.
You did see people celebrating. You did see people using avatars with turtles and so on. The government wants you to find these people guilty because of what other people did and said. The government says these men failed to rebuke the speakers like the guy with turtle avatars. That’s just another way of saying they’re guilty for what other people did. The idea is monstrous. We could never use the internet. We’d have to spend every waking minute rebuking all the filth in the world. Telegram chats—there is no evidence Nordean even saw most of the chats.
Nordean’s phone was off on January 6. The government witness Kate Cain admitted that the chats themselves are inconsistent with conspiracy on January 4 to January 5 [exhibiting] commentary not knowing what plans are for next day
[Tarrio was just arrested on January 4.]
The chats are littered with indications there was no plan to do anything. “What’s the plan?” Johnny Blackbeard said he didn’t think there was a plan at all. This doesn’t make any sense if there’s an agreement. There was no testimony claiming they were using code or lingo to hide their communication.
Blackbeard says people should have done these terrible things in the capitol, he makes inflammatory comments–so you know he’s not talking in code. Rehl in this chat copies and pastes a copy of the criminal charges against Biggs saying “Look, the government is trying to make it sound like it was all planned.”
They’re stunned they’re being accused of planning the Capitol [siege]. Fear of arrest does not prove a planned conspiracy to storm Capitol. It shows these men were afraid of being arrested for trespassing. Yes, they might get in trouble, but not for conspiracy
Deleted chats? FBI expert said blanks in messages are not necessarily deleted messages. She couldn’t say for sure. You heard evidence of the Proud Boys deleting chats to avoid getting doxxed. That doesn’t prove there was a preplanned agreement.
Consider video conference sessions of the defendants. Mr. Mulroe played some, but they were selectively used.
[Smith exhibits a video recorded on 12/26/20 of the Proud Boys discussing having a ‘defense posture at all times.’
Why? are they trying to mislead each other?
[Tarrio seen exhibited in chat saying: “The rallies should not be about fighting” ]
[Tarrio message to a group chat on 12/30 exhibited. Tarrio: We’re never going to be the ones to cross a barrier.]
Why would he be misleading MOSD members?
Nordean knew the entire march was being filmed and being streamed online.
[Exhibits Nordean’s message in group chat saying: “We’re gonna go down to capitol, make a presence, then go back to the main rally.”]
No secret code here. Nordean saying what the plan was — nothing about this is hidden.
A woman approaches Nordean and asks, ‘Are we going to go inside?’ Nordean says, ‘No, we’re not. The plan was to go to the Capitol for a minute and then back to rally. It’s utterly inconsistent with a preplanned conspiracy to storm the capitol building.
There are two alternatives here 1. These men are masterminds who thought every second ahead. 2. They were just being themselves. If being selves, take them at their word. most logical, simplest explanation–utterly inconsistent with every conspiracy charge. no way to reconcile.
Travis Nugent told you Nordean was approached by a guy who identified himself as a pastor outside Capitol. The pastor said you all should jump over barriers and go in. Norden told him no. This is the third time he’s indicated that’s not the plan.
At food trucks, Travis Nugent told you the group was making spontaneous decisions, inconsistent with a preplanned attack. Some were hung over from the night before. Some wanted to proceed. Nordean was among those who wanted to go back to hotels because he was hungover.
That testimony was never contested. Nugent was called by the government before a grand jury.
[Objection.] [Sustained.]
…
Nugent also testified that when the group moved on and started crossing barriers he said, ‘I’m going to find my friends.’ Several others had proceeded ahead of Norden.
You’re shown videos of the defendants using a megaphone, but you’re told nothing about this man feet away [non-Proud Boy Paul Russell Johnson] also using a megaphone. Now talking about Ryan Samsel; There is no evidence Samsel and Biggs had the same goals.
[Smith exhibits photographs from first breach and he’s making similar argument to what he did at the start of trial – there’s another individual pulling on the fence, not Nordean. Exhibit of man circled in green is looking at two of the first men.]
[Samsel and James Tate Grant] approaching barrier. None of the defendants are looking at those rioter in the photographs shown.]
If there’s a plan to storm the Capitol, why would you do what Nordean did–raise his fist. Mulroe said he’s raising his fist to get group to regroup.
That’s not in evidence. We’re not debating whether it’s appropriate to go forward into Capitol. Of course not. He raised his hand because he [didn’t know what to do. It’s inconsistent with preplanned conspiracy.] It’s not his plan [to go forward]. The government might say, he should’ve left.
That doesn’t mean that his reaction to stop was false. Nick Quested, himself, touched the fence. He was offended. I asked, he said he wasn’t using force to commit violence, he was steadying himself.
You also saw this clip. It involves Officer Shea Cooney. She’s looking nowhere near Nordean. And there’s a figure who pulls on the fence multiple times. See all of these men whip back in time as a man with a gaiter pulls. Officer Shea Cooney is nowhere within sight lines of Nordean. Her sightline is blocked by police officers, flags, other objects.
Quested testified…[Smith steps away from his mic now…barely audible.]
[Smith steps back up to the mic.]
He said the Proud Boys’ action at the December 12 rally were “not a serious attempt at violence” and that they are generally respectful of police.
Now back to January 6.
[Smith exhibits side by side photos from the first breach, including one of Nordean holding the fence and then one where there’s a beer in his hand.]
Nordean stopped another man [Chris Quaglin] from assaulting another officer. Nordean grabbed Quaglin’ s shoulder. Is this an excuse for where he is? No. Mr. Nordean should not have been there. Is it evidence of someone planning to interfere with law enforcement? No. Of course it isn’t. Why would he stop an assault?
Nordean didn’t have to stop this man from pushing police. Would he have been pushed out of the crowd if he did? Of course not — too many protesters there. Why would someone planning to interfere with law enforcement, stop an assault?
The government suggested Lloyd, Cooney, Ode, Riggleman were interfered with. But Nordean took no action to interfere with any of them.
And there’s one other error here. The slide has 2 elements of seditious conspiracy in the conjunctive which is improper.
The joint session was suspended at 1:14 pm because of objection to certificates. Two houses split up. The Senate recessed at 2:13 pm.
The House recessed at 2:29pm. Joint session resumed at 11:08pm. After Congress resumed, they continued to debate till 3-something in morning. There’s something govt doesn’t want you to know. Nordean doesn’t enter the building untill 2:43 pm.
By the time he enters there wasn’t a House in session, there wasn’t a senate in session. The government wants you to believe he interfered with a proceeding that wasn’t in procession. You didn’t see Nordean looking for members of Congress in the Capitol or interfering with police.
There is no evidence Nordean or any of these men caused House members to hide in the gallery. nothing in evidence shows causal link between Norden’s actions and what you see on this screen. [exhibits Pence leaving building] That’s before Nordean even enters.
One thing the government’s closing didn’t mention was the “1776 Returns” document. It was extracted from Tarrio’s phone. If this is evidence, that doesn’t make much sense. The capitol building is not part of the plan. The proposal is for a sit-in. A sit-in is nonviolent–doesn’t involve force. It can’t be seditious conspiracy.
The black metal fence. $97.56 6-foot segment, some 4-feet 6-foot segment: $585.36 4-feet: $390.24 no evidence in this case how long Nordean’s segment was.
McIntyre testified he didn’t know which segment was Nordean’s. There’s no evidence Nordean’s segment was even destroyed. They don’t know whether Nordean’s segment was damaged, and they were going to replace the whole thing anyway. There is no evidence Nordean caused any damage.
The clips you were shown from January 6 were loud and chaotic to create emotional reaction. Do you remember when one prosecutor charged up and down with scary profile pictures? Or the challenge coins? The government agents raided homes. Shiny coins that get your eye, useless fools’ gold.
What happened at the Capitol was a disgrace. But the government showed you footage of people fighting in tunnels, hitting police officers. But didn’t show these men directing those activities. So, what is point? It’s guilt by association. Have we seen evidence beyond a reasonable doubt from the government that proves [the Proud Boys] masterminded 3 preplanned conspiracies? No, and it’s not close.
Michael Graves told you he met up with Nordean–reached agreement to go back to Airbnb around 3 to 4 pm to hear music at 7 pm. He said the Proud Boys are so disorganized they couldn’t even organize a trip to McDonalds. There is no evidence he’s lying. The breach was at 2:13pm. The plan was to go back to the Airbnb and have a music party? Doesn’t make any sense. You heard from Eddie block, paraplegic photographer. He said there wasn’t a plan to storm the Capitol according to what he saw that day.
He told you about the decision-making at the Washington Monument and at the food trucks was spontaneous. You heard from Travis Nugent. His testimony critical. He was with Nordean the entire day. He hasn’t been charged with anything, not trespassing –
[ objection]
[sustained]
He’s done every single action as the defendants in this case. At the food trucks, Nugent said Nordean wanted to go back. It doesnt’ make any sense to say he was planning to storm Capitol. He also said he saw Norden put body between police and rioters. it’s a state of mind inconsistent with plan to interfere with law enforcement.
You heard from Aaron, FBI informant since 2008. At that critical moment at Peace Circle, he sent texts to am FBI handler: “The Proud Boys did not do it, did not conspire. Herd mentality. When you keep hearing the same things over and over you can’t disregard it.
Aaron told officers that the Proud Boys tried to de-escalate. Jeff Finley said when Norden raised fist at Peace Circle, Finley saw it. The government has stipulated the FBI had at least 8 informants at January 6, two at the Capitol march or in telegram chats like MOSD. Yet, the FBI did not use information by these informants to stop the [alleged] conspiracy.
There are two possibilities. 1. People saw it and wanted this to happen. That’s preposterous. 2. Nobody considered the Proud Boys chats to be a criminal conspiracy.
…
What did Nordean do on January 6? He had no weapons, assaulted no one, broke nothing in the Capitol, accosted no member, went in no office, no plan or objective except to protest. The same objective as thousands of people.
Go back to the defense witnesses. Was their credibility challenged? No. The government attacked their character. The government threw muck at them. Aaron worked as informant for 15 yrs. The governmentt asks did you receive a text in 2020 when someone says let’s burn out the eyes of some [unrelated] group?
Sir, isn’t it true you moved a podium? That wasn’t a good thing to do. But does it mean his testimony was false? No. Same with Travis Nugent. His cross examination was about bad texts he sent or recorded long before January 6. if he was so suspect, why was he never charged?
[Objection.]
[Sustained.]
AUSA Jason McCullough: May we be heard please?
[ sidebar]
Smith: We also ask you take notice how the government asks certain questions of witness. Notice how the government never asks most important questions. Was there an agreement? Was there a plan. They know the answers and don’t like them.
Seditious conspiracy. [Smith revisits definition of seditious conspiracy count]
The government has not shown any agreement at all except to engage in protest and march. This hasn’t shown when an agreement was reached or by whom. The defendants must be aware of essential nature of the plan.
[objection.
[sustained.]
JUDGE KELLY: Now we are taking a “court-reporter’s break” of 10 minutes.
[ Jury leaves.]
[Judge Kelly scolds Smith for defining terms of ‘seditious conspiracy’ to jurors]
JUDGE KELLY: So much of this is consistent with how you’ve conducted yourself throughout the case. You’ve got misstatements of the law you’ve stated them and now you’ve got a graphic. when you’re done, I’m going to instruct the juror that what you’ve told them is wrong. It’s not the law of the land it’s quite misleading. Tell me why you should tell them what the law is and not me.
Smith: Mr Mulroe instructed the governmentt on law throughout constant slides. We’re not reading law that inconsistent–it’s from a Supreme Court case.
JUDGE KELLY: taken out of context. also, you’ve repeatedly commented on whose been charged and who has not. we’ve litigated this many times, but goodness gracious.
…
[Jury brought in. Seated]
SMITH: Seditious conspiracy … the government hasn’t shown any conspiracy at all. Who did it? Where? They haven’t told you what opposing authority of the government means other than to protest. The government has shown you Nordean agreed to use force against people or property.
No weapons. If they wanted to use force, why did they leave their guns home? Why are we talking about water bottles? you saw video of people fighting in a tunnel. The government cited some people’s names. They’re not defendants in this case. The government hasn’t shown Nordean knew that nothing going on with these men.
Count 9 – assault – Pezzola taking a shield from an officer. Nordean wasn’t close — wasn’t within shouting distance. No communication between Nordean and Pezzola. How were they in agreement? Mulroe argued conspiracy and non-conspiracy counts must be unanimous on each count and must be unanimous on the theory of liability, 6 of one and 6 of other–that’s not unanimous.
…
The First Amendment and Capitol protests, imagine the effect on American politics if the government is right.
Say you attend a protest in DC, protesters commit a violent act. You don’t. You observe. You don’t leave. Maybe you should leave. Government seizes your device. Every offensive political comment you made is turned into evidence, your plan to agree with the people at the mall– that’s described as a conspiracy.
This is not who we are. This is very dangerous. The issue is not whether events at the Capitol were bad or a disgrace. They obviously were. The issue is not trespassing – which is not even a charge here, not whether you like the Proud Boys. The issue is whether they committed the crimes charged: a triple preplanned conspiracy.
How many more witnesses have to tell you breaches were spontaneous? The crowd had a herd mentality? What kind of conspiracy involves breaking to go hear music?
The standard of proof is beyond a reasonable doubt. In a 1770 trial during the Boston Massacre, John Adams said, ‘It’s better for 5 guilty person should escape unpunished than one innocent person should die.’ I’m not saying the people here are guilty, but that’s how important reasonable doubt is. The government’s case is held together by paper clips and rubber bands.
You may have heard the expression, sometimes a cigar is just a cigar. Sometimes a riot is just a riot. We ask you to render verdict of not guilty.
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[hat tip @Brandi_Buchman, @RParloff]
