Trifecta Proud Boys and SUPERSEDING INDICTMENT & 3rd Defendant added

To help you understand the various case updates… let’s briefly walk you through the events leading up to the May 25, 2021 Arraignment and Status Conference because this refresher will assist in putting the various May motions into a much broader context…

• February 12, 2021; DOMINIC PEZZOLA Spaz and William Pepe Proud Boys now indicted and detained pending trial which detailed the indictment and various disclosures.

• February 22, 2021; Defendant Pezzola’s efforts to be released on bond, pending trial. What was intriguing about the flurry of filings —its two fold; 1) the first disclosure of a cooperating witness (CW), and 2) Pezzola’s attempts to preemptively impeach the credibility of the CW.

• March 1, 2021; Dominic Pezzola case update regarding modification to his release - hearing set for the afternoon of March 1st and the Government’s Opposition and Defendant Pezzola’s Feb 28th Reply to the Oppo - the video allows you to see exactly what the Prosecutors are arguing and it’s bad for the Defendant

• March 17, 2021: Dominic Pezzola - DETAINED pending Trial -Order just uploaded to his docket and boy it’s it one well written Memorandum- the Court took a part Pezzola’s arguments brick by brick

• March 27, 2021: Charles Donohoe - Criminal Case Update - On March 26, 2021 the Government filed MEMORANDUM OF LAW IN SUPPORT OF PRE-TRIAL DETENTION as to Defendant Donohoe. In that article I specifically pointed to page 5 of the Government’s Memo -which proffered photographic evidence that Pezzola and Donohoe had numerous exchanges

• April 21, 2021: first superseding indictment and third defendant added (Matthew Greene) indicted. https://ecf.nynd.uscourts.gov/doc1/12505806826 ¹ ECF or you can access the SR1 via the the DOJ Capitol Attack Database; https://www.justice.gov/usao-dc/capitol-breach-cases —unfortunately this database sometimes lags behind.

Defendant Matthew Greene - relevant filings

…note there are two jurisdictions NDNY is the MJ-Case and DDC is the CR-case: 1) Rule 5 Documents Received as to Matthew Greene https://ecf.nynd.uscourts.gov/doc1/12505806826,

2) BRADY ORDER as to Matthew Greene. Signed by Magistrate Judge Miroslav Lovric https://ecf.nynd.uscourts.gov/doc1/12505807012

3) ORDER OF DETENTION PENDING TRIAL as to Matthew Greene. Signed by Magistrate Judge Miroslav Lovric on https://ecf.nynd.uscourts.gov/doc1/12505811811

4) Document No 10 filed by USA in support of Detention pending trial, as to Defendant Greene pictures of seized items pursuant to the authorized search and seizure warrants Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 11, # 11 Exhibit 12, # 12 Exhibit 13, # 13 Exhibit 14, # 14 Exhibit 15, # 15 Exhibit 16, # 16 Exhibit 17, # 17 Exhibi

May 25, 2021 Minute Entry:

proceedings held before Judge Timothy J. Kelly: VTC Arraignment/Status Conference as to DOMINIC PEZZOLA (1) as to Counts 1s, 2s, 3s, 4s, 5s, 6s, 7s, 8s, 9s, and 10s and as to WILLIAM JOSEPH PEPE (2) as to Counts 1s, 2s, 3s, 6s, 7s, 8s, and 9s held on 5/25/2021. Both defendants appeared by video.

Plea of NOT GUILTY entered as to DOMINIC PEZZOLA (1) as to Counts 1s, 2s, 3s, 4s, 5s, 6s, 7s, 8s, 9s, and 10s. Plea of NOT GUILTY entered as to WILLIAM JOSEPH PEPE (2) as to Counts 1s, 2s, 3s, 6s, 7s, 8s, and 9s. Speedy Trial Excludable (XT) started 5/25/2021 through 8/2/2021, in the interest of justice, as to DOMINIC PEZZOLA (1) and WILLIAM JOSEPH PEPE (2). VTC Status Conference set for 8/2/2021 at 2:00 PM before Judge Timothy J. Kelly. Bond Status of Defendants: 1-Remains Committed, 2-Remains on Personal Recognizance

Defendant William Pepe:

On May 11, 2021 Defendant Pepe filed a trifecta of Motions. None of which are surprising because during the April 26, 2021 Joint Status Update ²Defendant Pepe’s Counsel disclosed the following:

“…[reserve] his right to challenge any and all counts in the indictment due to defects in the indictment, insufficient evidence, and/or dismissal for any other legal impediments in the interest of justice.”

Page 2 of April 26, 2021 Joint Status Update as to Defendant Pepe

…Further, Mr. Pierce and his associates intend on filing a motion to “transfer” the case from the District of Columbia to the Southern District of New York, where Mr. Pepe resides.

1) MOTION to Sever by Defendant PEPE (Doc No 46) https://ecf.dcd.uscourts.gov/doc1/04518516661 Memorandum in Support (Doc No 46-1) https://ecf.dcd.uscourts.gov/doc1/04518516662 - Defendant Pepe is essentially arguing that his charges are not as serious as co-defendants Pezzola and Greene and this alone could impede and prejudice his right to a fair trial.

The disclosure by Defendant Pepe that he and Pezzola met (for the first time) during the December 20, 2020 protest in DC - and claims he has never met co-defendant Greene - thereafter Defendant Pepe stated his decision to come to DC was “spontaneous” and he arrived on Jan 6th at 5:30AM and went to a hotel where his “friend” was staying - there were seven individuals sharing the hotel room two of whom were co-defendants Pezzola and Greene. I genuinely do not think this is a persuasive argument/filing…

Defendant Pepe acknowledged (see page 5, 1st paragraph, last sentence, which reads in part: “…spontaneous decision to go to D.C. to protest on the 6th and decided to drive through the night..” Now read page 6 …”…Pepe received a ride home from his Hudson valley friends, not Mr. Pezzola or Mr. Greene” -these two statements are diametrically opposed. This is just one of numerous conflicting statements in Defendant Pepe’s Motion to Sever

2) MOTION to Transfer https://ecf.dcd.uscourts.gov/doc1/04518516669, Memorandum in Support (Doc 47-1) https://ecf.dcd.uscourts.gov/doc1/04518516670

In Defendant Pepe’s Memorandum of Support - this is his opening paragraph. In short his entire argument is premised on he can’t be given a fair and impartial jury because in the 2020 election -Washington DC residents “94.6% of District of Columbia voters voted against Donald Trump” and that the ongoing media coverage, coupled with high profile politicians have used intentionally provocative language like “white supremacist” and “domestic terrorism” and “insurrection”

Notwithstanding I agree (in part) that Defendant Pepe does make a few valid points as it relates to SCOTUS and specifically Skilling v. United States, 561 U.S. 358 (2010)³ - incidentally other defendants (I believe both Munchel & his mother and Pezzola had previously argued and the District Court denied their request) but I’m not sure it’s a compelling argument given how other Judges in DDC have previous ruled regarding change in Venue

3) MOTION to Dismiss Count 2: Obstruction of an Official Proceeding https://ecf.dcd.uscourts.gov/doc1/04518516677, Memorandum in Support (Doc 49-1) https://ecf.dcd.uscourts.gov/doc1/04518516678 In sum Defendant Pepe’s central argument is unavailing and frankly offensive purely from a mendacity stand point that an officer of the Court would filed this garbage.

“…indictment as to Count 2 as defective because, as a matter of law, the Electoral College Vote Certification was not an “official proceeding” within the meaning of the statute.

Defendant Pepe - motion to dismiss count 2 of the indictment

…As such, the Government has failed to state an essential element of the charge and it must be dismissed…

This is probably one of the more audacious arguments made. The certification of the Electoral College is literally enumerated in our Constitution. Specifically the Electoral College system; established under Article II and Amendment 12 of the U.S. Constitution. Also see 3 U.S.C. 15 which establishes the procedures to Object to the certification.

Government’s May 25, 2021 Response(s)

The Government’s Opposition to Defendant Pepe’s Motion to Sever https://ecf.dcd.uscourts.gov/doc1/04508546050 all but eviscerates the Defendant’s arguments —furthermore the Government proffered Hotel Surveillance footage which shows all three defendants returning to the Hotel on January 6, 2021 shortly after 11:30PM

And correctly argued that Defendant Pepe’s Motion failed to meet the burden of “establishing the requisite prejudice” that absent a severance Defendant Pepe would be prejudiced. Moreover the Government dismantled Pepe’s over reliance of “Mardian v. United States, 546 F.2d 973 (D.C. Cir 1976)” and adds both context and content. My guess is Pepe relied on this case because there really are a few to zero cases that would support Pepe’s argument. Because Mardian was not considered an active member of the conspiracy- whereas Defendant Pepe can be seen in videos and other photographic evidence. Of which investigators obtained by his Co-Defendant Pezzola & Greene’s cell phone as well as Pepe’s cell phone

Government’s Opposition to Defendant Pepe’s change in venue https://ecf.dcd.uscourts.gov/doc1/04508546053 - the Government cited the United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976)..(en banc)⁴ case - setting aside this was adjudicated in the very same District Court where Defendant Pepe et al will stand trial it is also one of my favorite cases to read. The 103+ page Opinions is one of the more robust and pragmatic rulings. The Government focused on the “stage” of their case (timelines and ripeness) and that an “extensive voir dire” ultimately assured that the defendants “were tried by an unbiased jury capable of basing its verdict solely on the evidence introduced at trial.” Id. at 70.

Here the Government draws attention to the specious argument that Defendant Pepe hung his hat on the purported voting preference of Washington DC Voters. It’s been 45 years since Halderman and I think you could say it’s “settled law” and I genuinely do not understand why Defendant Pepe would use that as a central argument concerning venue.

Defendant Pepe here: that based upon “the District of Columbia’s voting record in the past two presidential elections[,]” the defendants could not receive a fair trial in this District and a change of venue was required. United States v. Haldeman, 559 F.2d 31, 64 n.43 (D.C. Cir. 1976) (en banc)

…court declared that, “[n]ot without reason, the relevance of this information seems to have escaped the prosecution, the defendants, their counsel, and the trial court,” and that there was no legal support for the proposition “that a community’s voting patterns are at all pertinent to venue.” Id. at 64 n.43.

Because sometimes you don’t need to be fancy in your counter argument—sometimes all you need to do is recite a case’s final disposition. Again this goes directly to the subtext of the Government’s counter argument - that Defendant Pepe’s Motion to Change Venue is untimely and not exactly ripe…hence the importance of “pre-voir dire Motion to Transfer…” but my favorite sentence in the Government’s Opposition: “the defendant’s Motion is premature and otherwise meritless.”

Government’s Opposition to Defendant Pepe’s Motion to Dismiss Count Two https://ecf.dcd.uscourts.gov/doc1/04508546082 - I actually have nothing to add concerning the Government’s Opposition beyond Res ipsa loquitur…

And lastly if your disinclined to pay >$18.00 for the various Court filings via the ECF links I’ve embedded- well I created a folder entitled Pezzola and Pepe Criminal Cases and uploaded the May 2021 filings, and you can pull down the filings at no cost…

And with that I believe you are now caught up - so what to look for next? The Court’s ruling on the three Motions. I’m not one to make predictions but I don’t think Defendant Pepe argued very well nor were his arguments convincing. But then again I’m not an attorney nor have I purported to be one. A plain reading of the Government’s three Opposition replies make it a very binary choice and I can’t see how that’s favorable for Defendant Pepe. I started working on this last night but decided to publish it after my very long day of shoving bonbons in my calorie hole. That said the follow up interview for the ongoing criminal matter was exhausting but thank you for providing investigators and my attorneys with additional evidence <insert eye roll and snort laughing>

-Filey

1. First Superseding Indicted as to Pezzola et al —which added a third defendant Matthew Greene https://www.justice.gov/usao-dc/case-multi-defendant/file/1388681/download (note the lack of bates header)

2. The April 26, 2021 - Joint Status Update as to Defendant Pepe also uploaded to my public drive

3. Skilling v. United States, 561 U.S. 358 (2010 - there were two questions posed to SCOTUS it’s the 2nd question that appear to be material in Defendant Pepe’s Motion to change venue. The question reads as follows: “When the presumption of jury prejudice arises because of widespread community impact of the defendant's alleged conduct and widespread inflammatory pretrial publicity, may the government rebut the presumption of prejudice, and, if so, must the government prove beyond a reasonable doubt that no juror was actually prejudiced?” https://www.supremecourt.gov/opinions/09pdf/08-1394.pdf - last visited May 25, 2021

4. United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) - you might run into a paywall via https://casetext.com/case/united-states-v-haldeman in any event I pulled the filing down and uploaded to my public drive.