Defendant Diminic Pezzalo, case update is kind of incredible, and was certainly on a few judicial bingo cards...

...or it is Yahtzee...or Uno Reverse. Apparently storming the Capitol has consequences outside of a Federal Courtroom. Also in a recent Court filing, are we on the coups of a Plea Agreement? Maybe

As previously detailed, you might find rereading this article helpful and it will better contextualize the updates in his case. Which you can find here

Sidebar - incidentally I overlooked a previous docket entry - which occurred on February 1, 2021; Motion withdraw the appearance of Michael P. Scibetta (ECF/PACER) in short Scibetta was retained on or about January 25, 2021.

… basis for this withdrawal is that Mr. Pezzola is indigent and unable to afford private counsel…he cannot maintain an adequate defense in the absence of local District of Columbia counsel. A CJA FinancialAffidavit has been filed”

He filed his notice of Appearance on January 31, 2021. Which is odd given Pezzola’s attorney filed his appearance at least two days after the eleven count indictment was handed down. Yet in the Motion to withdraw, Pezzola’s (now former) attorney expressly points to the indictment and his (now former) client is “indigent”

To detain or not to detain? Definitely Detained pending trial;

To be fair the temporary detention is pretty SOP. Typically the Courts rule in favor of the Government. Largely based on the Government’s Detention Motion - in Pezzola’s case the Government filed their Motion for Detention on January 29, 2021 (found here) at the time I noted that the Prosectors came out of the gate swinging because that was the only way I could explain the “opening paragraph”

As previously noted - on February 10, 2021 Pezzola filed a Motion to “modify his release conditions” - in short he wanted to be released from Federal Custody via home confinement with limited restrictions. Accordingly the Court found his motion unavailing and subsequently issued:

ORDER OF DETENTION PENDING TRIAL (ECF/PACER) - Defendant Held Without Bond as to DOMINIC PEZZOLA. Signed by Magistrate Judge Robin M. Meriweather on 2/15/2021.

While most do not fully understand the judicial process, it is important to remember that at the core, defendant’s are afforded a presumption of innocence, until a jury of their peers finds them guilty or a Defendant takes a plea. At this stage of the criminal proceedings Magistrate Judge’s do not give the Government a “whole sale” pass. The Government is required to prove that a Defendant’s pretrial detention is warranted.

This argument is not theoretical, nor is it an argument insinuates that prosecutors have carte blanche to potentially violate a Defendant’s constitutional rights. This is actually explained our Constitution’s Eighth Amendment, which provides that "[e]xcessive bail shall not be required . . ." U.S. Const. Amend. VIII¹ and further expounded by the federal criminal rules of procedure.

Specifically vis-a-vis “release and detention determinations are governed by the Bail Reform Act of 1984. 18 U.S.C. §§ 3141-3156² (a) - which authorizes a “judicial officer” to make a determination (also see Fed Rule 5) - 18 U.S.C §3142(a) states;

"that upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall make a determination regarding bail status of the defendant, and shall enter an order designating a defendant's custodial status"

In Pre-trial Detention, the Government bears the burden. Which requires prosecutors to establish by “clear and convincing evidence” that no conditions of release will reasonably assure the safety of the community. Categories Of Pretrial Release and Detention: Title 18 U.S.C §3142³, which defines the primary four categories of release and detention;

1. released on personal recognizance or upon execution of an unsecured appearance bond (following the provisions of Section 3142(b));

2. released on a condition or combination of conditions as defined by Section 3142(c);

3. temporarily detained to permit revocation of conditional release, deportation, or exclusion under Section 3142(d); or

4. detained pursuant to the provisions of Section 3142(e).

Pezzola’s Order of Detention pending trial

As you will note, on page three of the February 15, 2021 Order, the Magistrate Judge explains the rationale to detain Pezzelo pending trial - you’ll note that the Judge considered the Government’s proffer of statements from a cooperating witness. Coupled with the other evidence

The order further explains while some factors did weigh towards releasing Pezzalo but taken as a whole; the totality of the current evidence proffered by the Government, the seriousness of the charges, the risk is too great. Thus Defendant Pezzola was remanded, pending trial

Pezzola’s (second) Modification to Release:

In an not unexpected move, on February 18, 2021 Defendant Pezzalo via Counsel filed (yet another) Motion For Modification (see ECF/PACER or you can pull a highlighted and annotated copy, found here. Keep in mind that it was a Magistrate Judge that issued the Detention Order, Defendant Pezzalo’s
de novo request before the DDC Judge is a circuitous route to essentially “appeal” the Magistrate Judge’s Order.

I would now like to draw your attention to page 3 of Defendant Pezzalo’s filing. His defense counsel’s argument is: the government has not proffered any evidence that Pezzola injured or threatened to injury anyone…there are hundreds of thousands of pictures and videos - my client is easily recognizable and yet no evidence to support the Government’s charges of “he’s violent” and therefore Pezzola should be RoR’d like his co-defendant William Pepe. Clearly I’m paraphrasing the subtext of the actual text.

And then the mask just fully slips off. I now refer you to pages 5 thru 7. In my industry we call this a pre-impeachment, which seeks to attack the credibility of the Government’s cooperating witness. This can be a pretty risky defense strategy. It is especially problematic if a defendant bases their arguments on conclusory assertions, it could put the defendant in a far worse position.

Although the defense cannot be certain it is believed the “cooperating witness” (CW) who has made these claims is actually someone who was a much more active participant in the “Proud Boys” than Pezzola, having been with the organization for a much longer time than Pezzola’s alleged association and much more active

The defendant goes a few steps further. The subtext is Pezzalo clearly “thinks” he knows who the government’s cooperating witness is. Moreover Pezzola’s position is he has zero recollection of this conversation, but it could have only occurred in a car as he and other proud boys were traveling to DC. If as the government states “the conversation” -well then Pezzola was sound asleep. And that’s why he has no recollection.

As if that panoply of conclusory statements wasn’t enough, Pezzalo then goes there. And by there, I mean the classic; the cooperating witness committed far graver crimes than I did and the cooperating witness is a ratf__ker, who’s trying to implicate everyone except for himself. Because he cut a deal with prosecutors…

Pezzola’ s Motion contains a few new and interesting fact-nuggets. For Example; “What was unknown at the time of the prior hearing is that the thumb drive at issue was given to Pezzola, probably by the Prosecution’s CW“ that is literally a textbook conclusory statement/argument. However the footnote concerning the Government’s cooperating witness “supposition” is what most commonly view as conclusory

And lastly, this is why it is of paramount importance to 1) not only read every page in a Court filing, and 2) also why you should read the footnotes. For example; literally on the very last page, that footnote

• February 21, 2021 MINUTE ORDER granting doc # 17 Motion for Protective Order as to DOMINIC PEZZOLA

• Signed by Judge Timothy J. Kelly on 02/21/2021. 02/21/2021 Doc# 20 (or via my public drive) PROTECTIVE ORDER as to DOMINIC PEZZOLA (1): See Order for details. Signed by Judge Timothy J. Kelly on 02/21/2021. 

• MINUTE ORDER: It is hereby ORDERED that the Government shall respond to Defendant DOMINIC PEZZOLA's (1) Doc #19 Motion to Modify Bond by February 25, 2021. Signed by Judge Timothy J. Kelly on 02/21/2021
  

And with that, you are caught up on Domino Pezzalo’s criminal case.

1. Eighth Amendment Annotated “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” via Congress.gov last visited on February 20, 2021 at 8PM EDT

2. § 3153. Organization and administration of pretrial services, § 3141. Release and detention authority generally and § 3142. Release or detention of a defendant pending trial

3. United States Attorneys Manual: JM 9-6.100, last visited February 22, 2021 at 12:23AM, . RELEASE AND DETENTION PENDING JUDICIAL PROCEEDINGS 18 U.S.C. 3141 et seq