IN THE UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v.
No. 1:21-cr-175 (TJK)
DOMINIC PEZZOLA,

Defendant.

DEFENDANT PEZZOLA’S MOTION FOR DISMISSAL WITH PREJUDICE; OR,

IN THE ALTERNATIVE, MISTRIAL REGARDING RECENT REVALATIONS ON
TUCKER CARLSON AND ASSOCIATED TESTIMONY AND THE DISCOVERY
OF MASSIVE BRADY AND JENCKS VIOLATIONS AND VIOLATIONS OF DUE
PROCESS AND THE SIXTH AMENDMENT
WITH INCLUDED MEMORANDUM OF LAW

Defendant Dominic Pezzola, by and through his undersigned counsel, Roger Roots, and

Steven Metcalf, hereby move the Court for dismissal of the indictment in this case, with

prejudice, due to recent revelations on the Tucker Carlson show, and associated testimony on

Thursday, March 2, as well as due to Jencks and Brady violations revealed on March 8 which

establish that the prosecution has been monitoring attorney/client communications of defendants,

destroying evidence and doctoring and fabricating evidence involving confidential human

sources (CHSs).

Pezzola requests an evidentiary hearing.

Background.

During trial on Thursday, March 2, 2023, the prosecution in this case presented Mr.

Kevin McCumber, Deputy Clerk of the U.S. House of Representatives as a prosecution witness.

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McCumber is the highest ranking official of Congress to testify in this case. Mr. McCumber was

called to testify starting on March 2 at about 11:45 AM.

Mr. McCumber has been employed by the House of Representatives for over two

decades. He has vast knowledge of congressional politics, and has watched hundreds of

representatives interact in the House Chamber. McCumber’s daily duties include being in the

House Chamber where he helps run the proceedings of the House and records entries in the

official House journal logs.

During direct examination, McCumber showed the jury the video recordings of both the

Senate Chamber and the House Chamber gaveling into recess on January 6, 2023. Prosecutors

have claimed that defendant Pezzola and codefendants caused Congress to go into recess by

entering the Capitol on January 6. In fact, several counts of Pezzola’s indictment—including

Counts 2 and 3—require proof that Pezzola and codefendants caused the recess of Congress on

Jan. 6.

During the cross-examination, Mr. McCumber was asked about the recess (or

“obstruction”) of the Joint Session of Congress. During questioning by undersigned counsel

Roots, Mr. McCumber admitted that there was no need for Congress to recess on January 6,

2021. Mr. McCumber testified that protestors have frequently – at least six (6) times in his

personal experience and observation – demonstrated in the actual chamber and on the floor of the

U.S. House. McCumber testified that each time the protestors were removed and the

Congressional session continued. Yet on January 6, 2021, no demonstrators ever entered the

House Chamber at all.

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 For over two (2) years, the Government has claimed that some of the demonstrators who

were in the halls and outside the U.S. Capitol building obstructed an official proceeding in

violation of 18 U.S.C. 1512(c)(1).

Yet the Government has steadfastly refused to identify in what way any of these

Defendants directly caused the recess of the Joint Session, despite repeated demands for

disclosure of this information as potentially exculpatory evidence whose disclosure is required

under Brady v. Maryland, 373 U.S. 83 (1963).

Mr. McCumber’s testimony plainly refutes the government’s claim that defendants

caused an obstruction of an official proceeding on January 6, 2021.

What about the Senate Chamber?

Even if the House could have continued without recess on January 6, what about the

Senate? Evidence in this trial has established that for a brief time around 2:30 to around 3 pm on

January 6, protestors did in fact “breach” the Senate chamber. Inspector Loyd of the Capitol

Police testified that a protestor managed to leap down onto the lower floor from the balcony; and

that the protestor then opened a door to let other demonstrators into the Senate chamber.

Never during this trial has there been any evidence of any raucous or extremely

disruptive or violent demonstration in the Senate chamber. (There have been a few images of

demonstrators sitting on chairs or standing in the well of the Senate.)

Then came the Tucker Carlson show on the evening of March 6, 2023.

On March 6, Tucker Carlson released shocking footage from January 6th, 2021 that

showed “QAnon Shaman” Jacob Chansley walking calmly through the halls of the Capitol with

two Capitol Police officers. At one point, one of the officers appears to try opening a door or

elevator, and then turns and leads Chansley in another direction. Later in the video clips,

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Chansley is seen walking past nine police officers gathered in a hallway intersection. Chansley

and his police escorts walk right past the nine officers without any resistance.

And then the Tucker Carlson show presented footage of officers calmly escorting

Chansley (and apparently other protestors) into the Senate chamber. The Washington Post wrote

that Albert Watkins, Chansley’s attorney through sentencing in November 2021, said he had

been provided many hours of video by prosecutors, but not the footage which Carlson aired

Monday night. He said he had not seen video of Chansley walking through Capitol hallways with

multiple Capitol Police officers.

“What’s deeply troubling,” Watkins said Tuesday, “Is the fact that I have to watch

Tucker Carlson to find video footage which the government has, but chose not to

disclose, despite the absolute duty to do so. Despite being requested in writing to do so,

multiple times.”

Pezzola, likewise, has had a right to the same footage. Yet the government has withheld

it. The most disturbing footage of all, from the perspective Pezzola, is video shown on Tucker

Carlson of protestor Chansley kneeling in a prayer amid a group of around two dozen

demonstrators and cops in the Senate Chamber. Chansley is shown giving a respectful prayer of

thanks to the Capitol Police officers for “letting us into the building.”

This footage is plainly exculpatory; as it establishes that the Senate chamber was never

violently breached, and—in fact—was treated respectfully by January 6 protestors. To the extent

protestors entered the chamber, they did so under the supervision of Capitol Police. The

Senators on January 6 could have continued proceedings.

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 It was not Pezzola or codefendants who caused the Congress to recess. Congress

interrupted its own proceedings.

This Brady evidence was requested many months ago, in this case.

Codefendant Rehl demanded all information regarding reasons for Congress’ recess as

early as November 23, 2021, at Docket # 230 (Memorandum at #230-1).

While Brady obligations do not extend to the entirety of the government, they do include

investigative agencies or agencies closely related who knew or should have known that

information would be material to a prosecution arising from their direct involvement. Here the

U.S. Capitol Police are directly related and fully aware of the events of January 6, 2021.

The Supreme Court in Brady held that the Due Process Clause imposes
on the prosecution an affirmative duty to disclose exculpatory
information to the defense. Under Brady, suppression of evidence
material to either guilt or punishment, whether or not there is bad faith
on the part of the government, constitutes a due process violation. See
373 U.S. at 87, 83 S.Ct. 1194.

However, the Brady doctrine requiring disclosure of exculpatory

information has been extended to situations where a division of the
police department not involved in a case has information that could
easily be found by the prosecutors if they sought it out, see Brooks, 296
U.S.App. D.C. at 221, 966 F.2d at 1502, and there is a duty to search
branches of government "closely aligned with the prosecution," id. at
222, 966 F.2d at 1503 (citation omitted). . . .

Robinson v. United States of America, 825 A.2d 318 (D.C. 2003).

Furthermore,

        "[T]he duty of disclosure affects not only the prosecutor, but `the
government as a whole, including its investigative agencies,' because
the Jencks Act refers to evidence gathered by `the government,' and not
simply that held by the prosecution." Wilson v. United States, 568 A.2d
817, 820 (D.C.1990) (quoting United States v. Bryant, 142 U.S.App.
D.C. 132, 140, 439 F.2d 642, 650 (1971) ("Bryant I"), on remand, 331
F.Supp. 927, aff'd, 145 U.S.App. D.C. 259, 448 F.2d 1182 (1971)
("Bryant II")).

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 ***

Even when the prosecutor does not know about certain evidence,
"the individual prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government's behalf in
the case, including the police." Kyles, 514 U.S. at 437, 115 S.Ct. 1555.

Robinson v. United States, 825 A.2d 318 326-329, (D.C. 2003).

FINALLY, A CLEAR AND FLAGRANT SIXTH AMENDMENT VIOLATION WAS

REVEALED IN COURT ON MARCH 8 WHICH SCREAMS FOR A DISMISSAL; OR
ALTERNATIVELY, A MISTRIAL TO BE DECLARED IMMEDIATELY.

Then, in the afternoon session of trial on March 8, it was revealed that the

FBI has been monitoring privileged communications of codefendant Rehl and his

attorney—and discussing Rehl’s case strategy amongst each other. These

revelations came out as codefendant Nordean’s counsel Nick Smith cross-

examined FBI Special Ageny Nicole Miller.

Smith revealed that a secret hidden tab in an FBI spreadsheet showed some

of Agent Miller’s emails in which the FBI agent admitted fabricating evidence and

following orders to destroy hundreds of items of evidence.

If justice means anything, it requires this case to be dismissed. “A Sixth

Amendment violation cannot be established without a showing that there is ‘a

realistic possibility of injury to the defendant’ or ‘benefit to the [government]’ as a

result of the government's intrusion into the attorney-client relationship.” United

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States v. Mastroianni, 749 F.2d 900, 907 (1st Cir.1984)(citing Weatherford, 429

U.S. at 558, 97 S.Ct. at 845, 51 L.Ed.2d at 41).

Further, in Weatherford the Court looked for the following: (i) tainted

evidence; (ii) communication of defense strategy to the prosecution; and (iii)

purposeful intrusion by the government. Weatherford v. Bursey, 429 U.S. 545, 97

S.Ct. 837, 51 L.Ed.2d 30 (1977).

In the Nordean case, confidential attorneys-client trial/defense strategy and

position was wrongfully obtained by the government, about which was overheard,

shared, utilized, where potentially “338 items of evidence” were “ordered to be

“destroyed”. (See Miller Production at Entry 8137, dated February 1, 2022, email

correspondence between kamcleod@ . . . and nmiller2@. . . .) (stating “also. . . my

boss assigned me 338 items of evidence i (sic) have to destroy”) (See also Miller

Production at Entry 11159, dated July 13, 2022, email correspondence between

dgsilk@ . . . and nmiller2@. . . .) (stating “You need to go into that CHS report

you just put and edit out that I was present.”).

Such information “benefitted the government” and consequently, each of the

defendants – including Pezzola – suffered substantial prejudice. Any deprivation of

the right to counsel and to a fair trial is, in itself, a basis for annulment of a

determination resulting therefrom. U.S. CONST. 6TH AMEND; N.Y. CONST., ART. 1.

§6; Matter of Fusco v. Moses, 304 N.Y. 424 (1952).

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 To require a defendant to show prejudice would of course implicate and

most likely intrude into the attorney/client relationship, a consequence hardly

commendable. It is apparent that the only way a defendant should have to show

prejudice would be to disclose what evidence he and his counsel would have

received. Therefore, to require the defendant to show harm would necessarily

require the disclosure of attorney/client communications. As a result, it is implicit

that an intrusion into communications protected by the attorney/client privilege

would be prejudicial to the defendant. "[M]ere possession by the prosecutor of

otherwise confidential knowledge about the defendant's strategy or position is

sufficient in itself to establish detriment to the criminal defendant." Briggs v.

Goodwin, 698 F.2d 486, 494-95 (D.C. Cir. 1983).

Moreover, it would be virtually impossible for the court to sort out how any

particular piece of information in the possession of the prosecution was

consciously or subconsciously factored into each of its decisions. Mere possession

by the prosecution of otherwise confidential knowledge about the defense's

strategy or position is sufficient in itself to establish detriment to the criminal

defendant. Such information is inherently detrimental... unfairly advantage[s] the

prosecution, and threatens to subvert the adversary system of criminal justice. Id. at

494-95.

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 As highlighted in the recent defense findings of Special Agent Miller’s

communications, the government is responsible for deriving evidence from such

communications. Prejudice may be presumed because "advice received as a result

of a defendant's disclosure to counsel must be insulated from the government”. Id.

Further, “its highly unlikely a court can... arrive at a certain conclusion as to how

the government's knowledge of any part of the defense strategy may benefit the

government.” United States v. Levy, 577 F.2d 200, 208 (3d Cir. 1978).

In Coplon the D.C. Court of Appeals held that the “right to have the

assistance of counsel is too fundamental and absolute to allow courts to indulge in

nice calculations as to the amount of prejudice arising from its denial.” Coplon v.

U.S., 191 F.2d 749, 759, 89 U.S.App.D.C. 103 (U.S. Court of Appeals, D.C. 1951).

Similarly, in Caldwell, the Government’s intrusion upon the defendant's

relationship with his lawyer “invalidates the trial at which it occurred. . .”.

Caldwell v. U.S., 205 F.2d, 879, 881 (U.S. Court of Appeals D.C. 1953) ,

respectively.

In both Caldwell and Coplon, the District of Columbia Court of Appeals

directed a new trial. In this matter, however, the intrusion has just been discovered

and thankfully before any guilty verdict has been reached. For that reason alone,

this matter must be treated as seriously as possible, right now – and the only

remedy is to dismiss this case or grant a mistrial.

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 CONCLUSION

The Court should order dismissal of the indictment in this case, with prejudice.

Dated: March 9, 2023 RESPECTFULLY SUBMITTED

/s/ Roger Roots

/s/ Steve Metcalf

CERTIFICATE OF SERVICE
I hereby certify that this document is being filed on this March 9, 2023, with the Clerk of
the Court by using the U.S. District Court for the District of Columbia’s CM/ECF system. All
attorneys of record will receive an electronic copy, including:
Erik Michael Kenerson
U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA
555 Fourth Street, NW, Suite 11-449
Washington, DC 20530
Telephone: (202) 252-7201
Email: [email protected]

/s/ Roger Roots

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