2017.12.15 Trial Day 13

1
1 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA.
2 CRIMINAL DIVISION
3 - - - - - - - - - - - - - - x
4 UNITED STATES OF AMERICA,
5 Plaintiff
6 vs. Criminal Action Nos.
7 MICHELLE MACCHIO, 2017 CF2 1183

JENNIFER ARMENTO, 2017 CF2 1193
8 CHRISTINA SIMMONS, 2017 CF2 1210
ALEXEI WOOD, 2017 CF2 1221
9 OLIVER HARRIS and 2017 CF2 1254
BRITTNE LAWSON, 2017 CF2 1256
Defendants.
11 - - - - - - - - - - - - - - x
12 Washington, D.C.
December 15, 2017
13
The above-entitled matter came on for jury
14 trial before the HONORABLE LYNN LEIBOVITZ, Associate Judge,
in Courtroom 203, commencing at approximately 9:33 a.m.
15
16 THIS TRANSCRIPT REPRESENTS THE PRODUCT

OF AN OFFICIAL REPORTER, ENGAGED BY THE
17 COURT, WHO HAS PERSONALLY CERTIFIED THAT
IT REPRESENTS TESTIMONY AND PROCEEDINGS
18 OF THE CASE AS RECORDED.
19 APPEARANCES:
20 On behalf of the Government:

Jennifer Kerkhoff, Esquire
21 Rizwan Qureshi, Esquire
Assistant United States Attorneys
22
On behalf of Defendant Lawson:
23
Sara Kropf, Esquire
24 Daniel Portnov, Esquire
Washington, D.C.
25
Page 1 to 1 of 173
2
1 APPEARANCES, CONT'D: 4
1 THE DEPUTY CLERK: Now calling Co-Defendant matters
2 On behalf of Defendant Armento:
2 United States versus Brittne Lawson, 2017 CF2 1256; United
3 Thomas Healy, Esquire
Carrie Weletz, Esquire 3 States versus Jennifer Armento, 2017 CF2 1193; United States
4 Washington, DC 4 versus Michelle Macchio, 2017 CF2 1183; United States versus
5 On behalf of Defendant Macchio: 5 Oliver Harris, 2017 CF2 1254; United States versus Alexei
6 Jamie Heine, Esquire 6 Wood, 2017 CF2 1221; and United States versus Christina
Christina Copsey, Esquire
7 Andrew Lazerow, Esquire 7 Simmons, 2017 CF2 1210.
Alaina Whitt, Esquire 8 THE COURT: Good morning, everybody.
8 Michael Kennedy, Esquire
Washington, DC 9 The Government are both here.
9
On behalf of Defendant Harris: 10 We're missing one out of --
10
Steven McCool, Esquire 11 MS. COPSEY: She's coming. She's in line.
11 Washington, DC 12 THE COURT: We have all Macchio counsel, all Simmons
12 On behalf of Defendant Wood: 13 counsel, all Armento counsel, all -- Mr. Portnov is not here.
13 Brett Cohen, Esquire 14 MS. KROPF: He's in line, too.

Washington, DC
15 THE DEPUTY CLERK: And one of the jurors is in line,
14
On behalf of Defendant Simmons: 16 too.
15
Tammy Jacques, Esquire 17 THE COURT: Mr. McCool and Mr. Harris are here.
16 Washington, DC
18 I think that's everything.
17 Reported by: 19 Everybody's here. Good morning.
Lisa Edwards, RDR, CRR
18 Official Court Reporter 20 I've got the theories of the case, which we'll talk
Telephone (202) 879-1079
19 21 about when we get some time later, and an email from the
20 22 Government about the civil suit, which we can talk about

21 23 later.
22
23 24 I also think I got a few exhibit lists from you --
24
25 25 not everybody from the defense case, but I could be mistaken,
3 5
1 TABLE OF CONTENTS
1 unless I've gotten some more since the last time I looked.
TRIAL
2 2 But I think I have Macchio, Lawson, Armento. I had
3 Mr. Harris's, but I think it got updated. Am I wrong?
3
4 MR. McCOOL: It may have. I have a copy of the
4 Closing Argument by Ms. Kropf.................. 7 5 latest.
6 THE COURT: Okay.
5 Closing Argument by Ms. Heine.................. 27
7 MR. McCOOL: I think the Government has it as well.
6 Charge Conference.............................. 54 8 But I'll hand it up.
9 THE COURT: It's good for us to have them.
7 Rebuttal Argument by Ms. Kerkhoff.............. 69
10 For whoever is missing, does that mean you didn't
8 Charge Conference.............................. 89 11 actually offer exhibits?
12 MS. JACQUES: Yes.
9 Charge of the Court............................ 111
13 THE COURT: I think that also -- Mr. Cohen, did you
10 14 have an exhibit list?
11
15 MR. COHEN: I thought I emailed it last night.
12
13 16 THE COURT: Oh. You did email it last night?
14 17 MS. KERKHOFF: I don't believe it was attached.
15
18 MR. COHEN: Oh, it wasn't attached?
16
17 19 THE COURT: So try again, please.
18 20 MR. COHEN: Sorry. Long day. I'll do that tonight,
19
21 your Honor.
20
21 22 THE COURT: Thank you. You don't have a way you can
22 23 just email it on a break from whatever device you have?
23
24 Mr. Cohen, you can't just email it on a break from
24
25 25 whatever device you have?
Page 2 to 5 of 173
6 Closing Argument by Ms. Kropf
1 MR. COHEN: Actually, I may have just hit reply 8
2 rather than reply all. I'll check that. If I did a reply -- 1 on what people were wearing and what they had with them.
3 Ms. Jacques said she got it. 2 They said there was a plan. Everyone got the memo. So what
4 MS. JACQUES: I did. 3 was Ms. Lawson wearing?
5 THE COURT: So maybe just send it to my law clerk or 4 Ms. Lawson was wearing this that you've heard about
6 something and we'll have it that way. 5 and seen, a bright white helmet with a red cross, and she had
7 MR. COHEN: I'll forward it at some point today.

6 a patch -- a red and white patch on the back of her jacket.
8 THE COURT: I guess we are waiting for a juror.

7 She was marked with red tape. And she was wearing this fanny
8 pack right here, also marked with a red cross.
9 THE DEPUTY CLERK: Seat No. 2.
9 She wasn't hiding. She wasn't there to hide anyone
10 THE COURT: In that case, if anyone needs a rest
10 else. She wasn't dressed like the people the Government say
11 room break, now is the time to do it.
11 joined that conspiracy. And that's undisputed.
12 MR. COHEN: Your Honor, I didn't send the exhibit
12 Now, what did she have with her? And don't worry.
13 list to anybody. It's sitting in my home. That's where I
13 I'm not going to unpack the fanny pack again, as much fun as
14 did it. So I'll have to do it this evening. I apologize.
14 that was the first time around. But what she had with her is
15 THE COURT: No problem.
15 also undisputed.
16 MR. COHEN: I'll do it tonight.
16 Ms. Kerkhoff said at the beginning of the trial she
17 THE DEPUTY CLERK: They are all here. They just
17 promised you she was going to show Ms. Lawson was prepared
18 knocked. 18 for a fight, was ready for a fight. She was going to show
19 THE COURT: Now we're waiting for Mr. McCool. 19 you she had tourniquets.
20 Here he is. Here he is. 20 Mr. Qureshi doubled down in his closing. He said
21 (Thereupon, Mr. McCool entered 21 she was prepared for war.
22 the courtroom and the following 22 Well, you all saw what was in there. She had
23 proceedings were had:) 23 Band-Aids and alcohol wipes, glucose tablets, things you'd
24 THE COURT: So we have all parties and lawyers. 24 use for first aid.
25 And we're going to get the jury now. 25 She had other things you'd use for any large
Closing Argument by Ms. Kropf Closing Argument by Ms. Kropf
7 9
1 (Whereupon, the jury entered the courtroom at 1 gathering. She had glucose tablets in case somebody was a
2 9:46 a.m. and the following proceedings were had:) 2 diabetic. She had safety pins. She had tampons, cough
3 THE COURT: Good morning, ladies and gentlemen. 3 drops, granola bars. Ready for a war?
4 THE JURY: Good morning. 4 Now, she didn't have with her what you'd expect if
5 THE COURT: Thanks for being here. I hope you had a 5 she was ready for a war. There were no bags of blood, no
6 good evening. And we are ready to pick back up with closing 6 syringes full of morphine, not ready to send the soldiers out
7 arguments. 7 on the battlefield, which is what the Government wants you to
8 Next will be Ms. Kropf for Ms. Lawson. 8 believe. She had first aid supplies and that's it.
9 MS. KROPF: Thank you, your Honor. 9 Now, the Government also spent a lot of their trial
10 THE COURT: Please go ahead. 10 and a lot of their trial time talking about what people were
11 MS. KROPF: At the beginning of this case, I told 11 doing that day and where they were. And that's important.
12 you that the Government would spend their time talking to you 12 We don't deny that.
13 about what other people did that day. 13 They spent a lot of time trying to show you that
14 And that's exactly what they did. They spent eight 14 people were just near things that were broken, just near
15 days of trial, eight days, before Ms. Lawson's name was 15 them, not that they did it, because they know they didn't,
16 mentioned, before her picture went on that screen, because 16 just that they were near them.
17 they were focused on what everyone else did that day. 17 And they showed you Exhibit 153. Exhibit 153 is
18 Now, the Government proved three things about 18 their compilation. It's their greatest hits, their best
19 Ms. Lawson. They proved that she showed up that day on 19 evidence of what Ms. Lawson did on January 20th.
20 January 20th. 20 We're not going to rewatch it. But what -- what's
21 They proved that she was dressed like a medic. And 21 shown in that video is Ms. Lawson walking, walking and
22 they proved that she was carrying a first aid kit. And, 22 walking and walking. And that's it.
23 frankly, we don't dispute any of that, but none of that is a 23 Mr. Qureshi also said that Ms. Lawson was in the
24 crime. 24 thick of it, but that's not true. And we know why. Their
25 Now, the Government has focused a lot in this trial 25 lead detective, Detective Pemberton, stood on the stand and I
Page 6 to 9 of 173
10 12
1 asked him -- we went through several clips -- "Where is 1 So I want to show you this clip. Before I show it,
2 Ms. Lawson in relation to the police?" She's in front of the 2 I'm going to show you where it happened because that's
3 police. She's at the back of this protest. She's not in the 3 equally important. This is Government's Exhibit 310.
4 thick of it at all. 4 The bus stop is right here. It's at the corner of
5 Now, one question is whether or not she saw any of 5 14th Street, just before the protesters are kettled onto
6 the property damage. Now, first, I'd argue that doesn't 6 L Street. And this is where the protest finally ends.
7 matter. There's no crime here for seeing property damage. 7 It was right at this corner. The first angle you're
8 We live in the District. We see property damage all the 8 going to see is coming north on 14th. And then you're going
9 time. That's not a crime. 9 to see how everyone ends up on L Street.
10 But you're going to see she didn't see any of the 10 What's important to notice in this video -- this is
11 property damage happen that's charged conduct in this case. 11 two angles, two different body cameras, Government's Exhibits
12 The only thing that she saw happen was the bus stop. We'll 12 123-Y and 123-O.
13 get to that in a moment. 13 You're going to see Ms. Lawson in her white helmet.
14 But the rest of it, she didn't see it happen. She 14 You're going to see the bus stop shatter, which is to her
15 walked past some of it. And you can watch the video and 15 right. And then you're going to see what the cops do who are
16 determine for yourselves whether or not she actually saw it, 16 chasing after her.
17 whether or not she even noticed that happening or the 17 (Whereupon, segments of Government's Exhibit
18 aftereffects of it. 18 Nos. 123-O and 123-Y were published in open court.)
19 The other thing the Government showed you is what 19 MS. KROPF: The cops at that moment are yelling,
20 happened in the kettle. Because they spent a lot of time 20 "Move, move." They are screaming at these protesters and
21 arguing with you and telling you about what happened in the 21 they are spraying them with pepper spray.
22 kettle was violent, the people at the front of the line, they 22 So ask yourself whether or not the Government's
23 rushed it. 23 theory holds up. She should have left? At that moment when
24 But with Detective Pemberton on the stand, we 24 she -- this is the only time she is next to property damage,
25 watched the video, the video that the Government put on. And 25 next to something happening right there that she sees.
11 13
1 we showed you that, from the time of the countdown to the 1 The Government's theory is she should have stopped.
2 time we see Ms. Lawson's white helmet, it's 30 seconds. 2 She should have apparently defied what the cops were saying,
3 She's not in the thick of it. She is at the back of 3 ignore the fact that they were chasing her on all sides with
4 it. She is literally standing there with the police at her 4 their riot batons out and their pepper spray going. Now,
5 back with a riot baton at her back and the Government claims 5 these are the bag ML-46s, the big ones. They're shooting
6 she's in the thick of it. 6 directly at them.
7 Now, there are also several things that the 7 The Government says, "Oh, she should have stopped."
8 Government didn't show you. But before we get to those, I 8 That doesn't make any sense.
9 want to show you another angle of the bus stop. I promise 9 Now, it goes without saying, but Ms. Lawson didn't
10 this is the only video I'm going to show you. It's less than 10 break anything, didn't cheer on any of this destruction,
11 30 seconds. 11 didn't throw any rocks, didn't rush the police, didn't
12 But the Government made a very big deal about 12 vandalize anything. Nothing.
13 Ms. Lawson being next to this bus stop when it shattered, and 13 She walked, she wore her white helmet, and she had
14 she was. She was absolutely right next to it. 14 her first aid supplies.
15 Now, first of all, that's not charged conduct. 15 There were a few videos that Detective Pemberton
16 That's not claiming that, as part of this riot -- or that 16 left out, a few things he didn't put in, a few things maybe
17 there was property damage as a result of that bus stop. 17 he didn't want you to see. I don't know. But we showed you
18 But that doesn't really matter. What matters is 18 a few of them.
19 what happened when that -- when Ms. Lawson was there. 19 We showed you how Ms. Lawson ended up in the kettle,
20 Now, I don't know if the Government deliberately 20 which was the aftermath of what we just saw. We showed you
21 shows a clip that suggested that Ms. Lawson may have broken 21 the clip. This is kind of a still from the last piece of it,
22 it, but they aren't saying that. And she didn't. 22 Lawson 3.
23 But they have made the argument to you again and 23 She was standing next to the building as the police
24 again that she should have left. They said that about 24 are running down the street in a little alcove with a whole
25 everyone. They should have just left. Why not just leave? 25 bunch of other people, trying to get out of the way, maybe
Page 10 to 13 of 173
14 16
1 trying to leave. 1 ambulance? They didn't have a single ambulance there, not
2 And the police go in, get everyone out, and push 2 that we saw.
3 them forward, forced her into the kettle with a riot baton at 3 Now, they also suggested -- the Government also
4 her back. And, yet, the Government persists: She should 4 suggested that Ms. Lawson wouldn't have helped a cop or that
5 have just left. 5 she wouldn't have helped a bystander. I'm not sure where
6 And we also showed you some videos -- and we're just 6 they're getting that from because we sure didn't hear that
7 going to look at some stills -- of how Ms. Lawson was 7 and we didn't see it.
8 providing first aid in the kettle. 8 And I asked Detective Pemberton when he was on the
9 Now, this is after the protest has ended, after 9 stand -- he's watched all the video. He probably knows that
10 everyone is under arrest. Even under the Government's 10 video better than anyone -- had he heard when -- in the
11 theory, there's no other crime going on right now. 11 kettle people calling for medics, and he said "yeah."
12 There's Ms. Lawson in the middle. She's helping 12 This is their lead detective telling you that,
13 someone who -- I don't know if they got shot with pepper 13 "Yeah. People in the kettle were calling for medics."
14 spray or what. 14 I sure didn't hear him follow up his answer saying,
15 And then we showed you a second clip. This one's a 15 "But we were right there. We had the ambulance there. We
16 little harder to see. But Ms. Lawson is right here on the 16 had the EMTs there. We were ready to help." Because they
17 left-hand side with that green bottle, spraying out someone's 17 weren't there. The medics were, but the ambulance wasn't.
18 eyes from the pepper spray. 18 We saw on Mr. Wood's video -- part of his video
19 Now, one thing I do want to address are medics -- 19 showing two medics -- not Ms. Lawson, but two other medics --
20 streets medics because the Government has suggested that was 20 coming out with someone from the kettle who was having an
21 her role -- that was her role in this conspiracy, and they're 21 asthma attack, I assume from the pepper spray.
22 suggesting that there's something wrong with it. 22 First they go out and the cop's, "No, no, no, no."
23 I'm not sure how we got to the place where a nurse 23 And the medics keep trying and keep trying and, eventually,
24 being there to provide first aid has become a crime. But we 24 the person does get medical help.
25 heard a little bit about street medics. 25 That's what the medics were doing. That's what
15 17
1 They asked Ms. Hess, who was Ms. Lawson's boss at 1 Ms. Lawson was doing, trying to get people help in the
2 the University of Pittsburgh Medical Center on the oncology 2 kettle.
3 unit there, "What's a street medic?" 3 Now, I do want to talk with you a little bit about
4 And she actually -- she as far as I know -- I'm not 4 the charges because there are three main ones against
5 a street medic -- she gave a pretty good definition, which is 5 Ms. Lawson. There's engaging in a riot, there's conspiracy
6 that they are people who show up to give first aid at large 6 to riot, and there's property damage.
7 events. 7 There is reasonable doubt as to every single one of
8 If you've been to any large events in DC, there were 8 them.
9 probably street medics there. There were medics there. You 9 Now, for engaging in a riot, as I understand it, the
10 may not have noticed them if you were lucky enough not to get 10 Government isn't actually saying that Ms. Lawson engaged
11 hurt. 11 personally in tumultuous or violent conduct. Their whole
12 But if you run in a 5K, there are street medics 12 theory is aiding and abetting.
13 there. If you've been to a rally, been to one of the 13 By showing up as a street medic, they say she
14 concerts up at Fort Reno, there are medics there. There are 14 committed a crime. By showing up with that fanny pack with
15 all sorts of large events. Their presence at an event 15 Band-Aids in it, she committed a crime. She is just as bad,
16 doesn't make it a crime. 16 in their mind, as the person who went up and smashed that
17 Now, one thing -- other thing to consider is this: 17 Starbucks window.
18 Who else was there to help? Now, we watched -- I don't even 18 The Government puts them all together. Because they
19 know how many hundreds of videos in this trial -- hours and 19 arrested 200 people that day, and they're treating them all
20 hours and hours. 20 the same. There's no evidence and there is certainly
21 Did you see a single ambulance? A single EMT? 21 reasonable doubt that Ms. Lawson engaged in a riot.
22 Anyone there to help? 22 Mr. Qureshi said that her role, I guess, as she was
23 The police had 100 riot police at the beginning of 23 preparing for the war was to fix them up and send them on
24 this protest surrounding this protest from the very start. 24 their way. Well, did any of you see that happen?
25 100 cops. And they knew it was going to be large. A single 25 Now, maybe -- it'd be different, maybe, if we saw
18 20
1 someone -- Ms. Lawson there, someone goes out, smashes a 1 Read the aiding and abetting instruction carefully. It's a
2 window, cuts themselves, she comes back, she tapes them up, 2 little bit long. And, as lawyers, we love different
3 she stitches them up, she bandages them up, pats them on the 3 elements. We love the lists. There are a couple different
4 back and sends them back out. Okay. 4 elements.
5 There's not what happened. And you all know that's 5 The Government has to prove every single one of them
6 not what happened. Because all you saw Ms. Lawson doing was 6 beyond a reasonable doubt. They have to prove to you that
7 walking, wearing that helmet, carrying those first aid 7 Britt Lawson associated with the crime of property damage,
8 supplies. That's it. 8 she somehow associated herself with it.
9 Now, the second count is conspiracy to riot. Now, 9 Now, even if you believe that showing up there and
10 to prove that, the Government first has to prove that there 10 staying in this protest associated with it, they also have to
11 was a conspiracy. 11 show that she personally assisted in it.
12 And their case for that relies on a couple things. 12 And Mr. Qureshi said, "This is like the getaway
13 One, it relies on a video, a video taken by Project Veritas, 13 car."
14 a video taken by a group that has every bias against the 14 The nurse who showed up with a fanny pack full of
15 folks that were protesting that day against Donald Trump. 15 Band-Aids is the same as a getaway driver in a robbery to the
16 They showed you that video. We don't know where 16 prosecutors. They treat everyone the same.
17 exactly the video came from, how authentic it is or what 17 She didn't personally do anything to assist any of
18 changes may have been made to it. But that's their evidence. 18 the property damage. She didn't hand someone a hammer. She
19 They also had Officer Adelmeyer. He was the 19 didn't hide them when they came back into the group.
20 undercover officer. What was interesting is that he was the 20 Nothing.
21 only person who testified about that meeting who was there. 21 The other thing they have to prove is that she
22 He told you that his take was that the group was nonviolent, 22 wanted the crime to succeed, that by her actions that day,
23 but confrontational. Nonviolent. 23 she wanted this crime to happen.
24 The Government says that that meeting -- that 24 How in the world would they show that? All they've
25 meeting was to plan a conspiracy to riot, a conspiracy to be 25 shown you is that she walked. She had first aid supplies.
19 21
1 violent, and the undercover officer told you they weren't 1 She was there as a medic. That's it. She wasn't looking to
2 violent. 2 have a crime happen, and they haven't proven that it did.
3 Even if you believe that the Government has proven 3 That is reasonable doubt.
4 that there was a conspiracy, the second part is you have to 4 Now, during opening statement, Ms. Kerkhoff said you
5 prove that Ms. Lawson joined it, she was part of it, her 5 will not hear the Government present evidence about political
6 personally. Not the group. Her personally. That's your 6 opinions or disagreements or dissent.
7 job. 7 And I'm pretty sure the Government doesn't want to
8 And what the Government keeps saying is, "How do we 8 talk about political opinions and disagreements and dissent
9 know people joined the conspiracy?" Well, they showed up at 9 because that gets to the uncomfortable position of explaining
10 Logan Circle and 10:00 a.m. wearing all black. 10 why they are prosecuting these folks who are protesting
11 But they can't show you that Ms. Lawson was at Logan 11 against Donald Trump.
12 Circle at 10:00 a.m., and we know she wasn't wearing all 12 But we know that there was politics going on. We
13 black. 13 know that this is about politics. And we know for a couple
14 So I don't understand. Do you join the conspiracy 14 of reasons.
15 by doing that or do you -- do they get to change their 15 We know because Commander DeVille almost from the
16 definition of a conspiracy along the way to fit any Defendant 16 moment this group stepped off Logan Circle calls them
17 that they want? Change it, change it, change it. Jam 17 anarchists. Anarchists. The commander that day almost
18 everyone in, treat them all the same, accuse them all of a 18 immediately identifies their politics and says to go after
19 crime. 19 them.
20 They have their theory of what a conspiracy is, and 20 We know from Detective Pemberton, who got on the
21 Ms. Lawson doesn't fit it. 21 stand, their lead detective, who showed you his views about
22 The third set of counts is property damage. And, 22 Black Lives Matter, about the false narratives.
23 again, the Government is proceeding basically on an aiding 23 We know because the prosecutors are relying so
24 and abetting theory. 24 heavily on that Project Veritas video, that video that they
25 You'll have Judge Leibovitz's instructions with you. 25 know is from a group that hates the people standing --
22 24
1 sitting at that table. Hates them. 1 She helps cancer patients day in and day out. She
2 Ask yourself whether or not the Government hid the 2 helps the sickest of the sick. She helps make them better.
3 identity of anyone in this case, any of the bystanders or 3 She helps them when it's the end. She helps their families.
4 that biker for Trump, blurred out any of their faces. No. 4 And you heard Ms. Hess testify. She's seen
5 They hid the undercover cop. No problem with that. 5 Ms. Lawson in situations that are stressful dealing with
6 And they hid the identity from you and from us of who taped 6 patients who have brain cancer, who are violent, and that
7 that video. So ask yourself why. 7 she's always been nonviolent herself.
8 We also know it was political because of the MPD 8 You heard Ms. Hess tell you about all the other
9 contract that was for the undercover officer. That's the 9 nurses on the unit who know Ms. Lawson and they would say the
10 contract. This is what it says. 10 same thing. That's who Ms. Lawson is.
11 It says that members shall visit the public websites 11 And the Government wants you to believe that she
12 designed by his or her control officer and study the concerns 12 just picked up on January 20th and she came here to engage in
13 and issues that are paramount within the anti-establishment 13 a riot? To engage in violence?
14 community. 14 We heard during this trial from people who had their
15 That undercover officer was not investigating groups 15 property damaged and who were scared, and that was hard to
16 they thought were violent or groups they thought were going 16 hear. I've lived in DC for over 25 years, going on 30 years,
17 to commit a crime. That undercover officer was sent in to 17 and that is hard to watch and is hard to see.
18 investigate what the police consider anti-establishment 18 But that damage was not caused by the group and it
19 groups. 19 was not caused by the folks sitting at this table or
20 That's politics. We can't avoid it, and the 20 Ms. Lawson.
21 Government can't avoid it just by saying, "Well, we won't ask 21 It was caused, like we've all been hammering from
22 about it." 22 the very start of this trial, by a few people within the
23 Now, we also know this about politics by 23 group.
24 Mr. Qureshi's closing argument. Because he stood in front of 24 What would be harder to hear in the District of
25 you from the United States Department of Justice and put up a 25 Columbia, what would be the hardest thing for us to hear,
23 25
1 video and showed you one protest and said, "You know what? 1 would be silence, silence because, if these folks are found
2 That protest is okay." 2 guilty, we may not hear protests anymore. We may not hear
3 But this protest? This anti-Trump protest? This 3 dissent when it's more important than anything.
4 anti-fascist protest? This one's not all right. This one is 4 MS. KERKHOFF: Objection.
5 a crime. 5 THE COURT: Sustained.
6 On each of the screens that they put up, they put a 6 MS. KROPF: Silence is dangerous.
7 seal. And I don't know if it was to make it look more 7 MS. KERKHOFF: Objection.
8 official or what. 8 THE COURT: Counsel, please approach.
9 But if you read the seal, it said "United States 9 (Whereupon, the following proceedings were had at
10 Department of Justice." That's who they are. Not our local 10 side-bar outside the presence of the jury:)
11 prosecutors. The Federal Government. And we know that they 11 THE COURT: So what's the basis for your objection?
12 report to it. This is about politics. 12 MS. KERKHOFF: That it's relaying the same argument
13 So I was on Twitter this morning. And I saw, 13 the Court just sustained. It's effective --
14 remarkably, that today, December 15th, 1791, is when the 14 THE COURT: I know.
15 states ratified the Bill of Rights. It's when the states 15 But what's the objection?
16 ratified the First Amendment. 16 MS. KERKHOFF: That my objection is that she is
17 And that's sort of perfect because here we are, 17 appealing not on the elements of the law, but she's appealing
18 226 years later, still fighting about it, still protecting 18 to emotions that they have to send a message, they have to --
19 it, still trying to make sure it protects not just the 19 THE COURT: And so it is an improper purpose of
20 establishment, but everyone else. 20 closing arguments of somebody who I know argues before the
21 Now, before I finish, I do want to talk about 21 Court of Appeals, Ms. Kropf, to ask the jury to send a
22 Ms. Lawson as a person. 22 message to the community that's not the purpose of their
23 You heard about Ms. Lawson from Ms. Hess, who was 23 consideration.
24 her boss at the University of Pittsburgh Medical Center. 24 You can tell them that or I can tell them that.
25 Ms. Lawson is an oncology nurse. 25 MS. KROPF: I will move on.
Closing Argument by Ms. Kropf Closing Argument by Ms. Heine
26 28
1 THE COURT: Thank you. 1 such that anyone who believed those things and wanted to show
2 (Whereupon, the following proceedings were had in 2 up on Inauguration Day could. And hundreds did just did.
3 open court:) 3 Hundreds of people were there to protest. They were
4 THE COURT: I do sustain the objection. 4 there to exercise their right to free speech. They were
5 MS. KROPF: That property damage -- 5 there to exercise their right to associate with others who
6 THE COURT: So -- 6 share their political views. They were there to express
7 MS. KROPF: I'm sorry. 7 their opposition to Donald Trump.
8 THE COURT: So you were going to say it or I was 8 All of those things are protected by the First
9 going to say it. 9 Amendment of our Constitution. It's the very First Amendment
10 MS. KROPF: Which part, your Honor? 10 that the founders wrote into the Constitution.
11 THE COURT: Ladies and gentlemen, it is not the 11 And no matter your politics, that is a right that we
12 purpose of your decision-making in this case to send a 12 all enjoy and that is a right that we should all enjoy
13 message to the community or to others outside this case. 13 equally. But that right was taken away on January 20th.
14 It is your purpose to decide whether the Government 14 When I spoke to you during opening statements, I
15 has proved guilt beyond a reasonable doubt. And I will give 15 told you that the evidence would show that the police blurred
16 you further instructions which you must follow. 16 the line on January 20th between First Amendment conduct and
17 Thank you. 17 criminal conduct, that they failed to draw a distinction
18 MS. KROPF: Thank you, your Honor. 18 between people who were protesting and people who were
19 Your job is to prove -- or to decide whether or not 19 breaking windows, and that's exactly what you saw over the
20 Ms. Lawson is guilty beyond a reasonable doubt. That's 20 last four weeks.
21 exactly your job. 21 The police and now the prosecution are relying on a
22 Your job isn't to decide what the group did, and 22 theory of guilt by association to smooth over the fact that
23 your job isn't to judge what the people who broke the windows 23 the police failed to even attempt to identify the leaders of
24 did. Your job and your job alone is to decide whether 24 this protest and failed to isolate and detain the people
25 Ms. Lawson is guilty. 25 actually responsible for the destruction.
Closing Argument by Ms. Heine Closing Argument by Ms. Heine
27 29
1 All the Government proved in this case was that 1 The police's own procedures recognize that sometimes
2 Ms. Lawson showed up, walked with the protesters, wore her 2 at these protests individuals break the law. The rules say
3 white helmet and had her first aid kit. That's it. And that 3 identify, isolate and detain those people. Only if that
4 is not a crime. 4 fails do the rules say call for a dispersal order.
5 We ask you to find her not guilty. 5 Why? Because these rules ensure that people can
6 Thank you. 6 assemble, that voices are heard, and that opinions are
7 THE COURT: Ms. Heine on behalf of Ms. Macchio. 7 shared.
8 MS. HEINE: Good morning. 8 MPD did none of this.
9 THE JURY: Good morning. 9 To cover up these failures, the police and the
10 MS. HEINE: Four weeks ago I told you that this case 10 prosecution are blaming the group. They are criminalizing
11 would be about drawing a line between criminal conduct and 11 association rather than recognizing that individuals are
12 conduct protected by the very First Amendment of our 12 responsible for their own personal conduct.
13 Constitution. 13 Ladies and gentlemen, the First Amendment is not
14 And you saw both of those things over the last four 14 some getaway car with tinted windows. The Government's use
15 weeks. The Government showed you a lot of video of people 15 of this analogy speaks volumes. Rather than offer clarity,
16 destroying property and people dragging newspaper stands into 16 they seek to hide reasonable doubt behind smoke and mirrors.
17 the street and people herding other people. 17 The Government calls a protest a riot where hundreds
18 I won't stand here and condone that conduct, and I 18 of people protested, but a small handful destroyed property.
19 certainly will not ask you to do so either. 19 Mr. Qureshi said yesterday that he thinks it's more than a
20 But this event was not advertised as a riot. It was 20 handful of people.
21 not advertised as destructive. There was no question that it 21 That's not how it works. Thinking and guesswork do
22 was advertised as an anti-fascist and anti-capitalist march 22 not get the Government beyond a reasonable doubt.
23 and that it was anti-Donald Trump. 23 The Government identified the small number of people
24 There is no question that it was publicly 24 who were not protesting that day. Yet, for the past four
25 advertised, open source, to use Officer Adelmeyer's term, 25 weeks, they've bombarded you with video of criminal conduct.
30 32
1 Why? Because they don't want you to see the 1 No. 45 were published in open court.)
2 hundreds of other people who were simply protesting. But I 2 MS. HEINE: As the march continues down 13th Street,
3 do. So let's go through it with Macchio Exhibit 45. 3 you're going to see that the aerial shows the demonstration
4 We'll start at Logan Circle, where Commander DeVille 4 continued to occupy over a city block.
5 told you that there were 400 to 500 people at 10:00 a.m. when 5 They'll pass the Au Bon Pain, and three windows are
6 he arrived with his armada of police vans. He told you that, 6 broken there.
7 when these people started marching down 13th Street, the 7 Mr. Lapp told you that other individuals who weren't
8 entire march stretched over a couple of city blocks. 8 breaking property were walking and carrying flags and
9 Let's go ahead and play to 45 seconds. 9 banners. He told you that it took a couple minutes for all
10 (Whereupon, segments of Defendant Macchio's Exhibit 10 of these people to pass by.
11 No. 45 were published in open court.) 11 (Whereupon, segments of Defendant Macchio's Exhibit
12 MS. HEINE: All of that, chanting, "Black Lives 12 No. 45 were published in open court.)
13 Matter," chanting, "No Trump," "No KKK," "No fascist USA," 13 MS. HEINE: Look at the clips of the yellow ABP
14 having a sign that says "Trump equals KKK," marching down 14 sign, right there.
15 13th Street, having a sign that says "No borders," "No 15 (Whereupon, segments of Defendant Macchio's Exhibit
16 nations," "Just people," that's protesting. That's free 16 No. 45 were published in open court.)
17 speech. That's freedom of association. And that is on this 17 MS. HEINE: Next, the march continues down
18 side of the line. 18 13th Street and makes a rights on K. That's where the
19 So you all know that this march continued down 19 limousine is. Then they continue through Franklin Park and
20 13th Street to the BP. Fitsum Menna told you that two people 20 leave Franklin Park on I Street.
21 came up to the windows of her BP. Two out of the 500 spread 21 Let's go ahead and play until 6:18.
22 across a couple city blocks. 22 (Whereupon, segments of Defendant Macchio's Exhibit
23 Let's go ahead and play to 1:41. 23 No. 45 were published in open court.)
24 (Whereupon, segments of Defendant Macchio's Exhibit 24 MS. HEINE: Mr. Villarroel, the limo driver, told
25 No. 45 were published in open court.) 25 you that four or five people smashed his limo. But he also
31 33
1 MS. HEINE: At the very top of the screen, just 1 told you that the rest of the people were walking on
2 coming into vision, you see the sign for the BP. You see 2 K Street.
3 that this march is taking up nearly two city blocks. 3 You can see here in the aerial that this mass of
4 There are people who had barely stepped on to 4 people keeps going and going as people turn onto K Street.
5 13th Street from Logan Circle when the BP is hit by the two 5 There's still more people coming down 13th Street.
6 people that Ms. Menna saw. 6 (Whereupon, segments of Defendant Macchio's Exhibit
7 To the Government, each one of those people on that 7 No. 45 were published in open court.)
8 screen is just as guilty as the two people Fitsum Menna saw. 8 MS. HEINE: The point of this isn't to tell you the
9 But Ms. Menna told you that, even though those two 9 limo wasn't broken because we know that it was. The point of
10 people came up to her store and caused damage, the rest of 10 this is to show you that hundreds of people were there
11 the people were walking. 11 walking, chanting and protesting.
12 (Whereupon, segments of Defendant Macchio's Exhibit 12 Look at these people on this screen. Who were they
13 No. 45 were published in open court.) 13 hiding from the police? Who are they absorbing? No one.
14 MS. HEINE: Now we can take a look at what was 14 Let's go ahead and play.
15 happening on the ground heading towards BP. 15 (Whereupon, segments of Defendant Macchio's Exhibit
16 (Whereupon, segments of Defendant Macchio's Exhibit 16 No. 45 were published in open court.)
17 No. 45 were published in open court.) 17 MS. HEINE: (Speaking during publication of
18 MS. HEINE: These people were walking. I didn't see 18 Defendant Macchio's Exhibit No. 45) We're going to see the
19 them breaking a window. I'm not saying a window wasn't 19 march leave Franklin Park.
20 broken. That's not my point. 20 THE COURT: Stop. Stop. She has to be able to hear
21 My point is these people in this clip were walking. 21 you when you talk.
22 Someone was playing an instrument. People had signs. They 22 MS. HEINE: You're going to see the march leave
23 were protesting. 23 Franklin Park and head onto I Street.
24 Let's go ahead and play to 4:18. 24 Go ahead and play.
25 (Whereupon, segments of Defendant Macchio's Exhibit 25 (Whereupon, segments of Defendant Macchio's Exhibit
34 36
1 No. 45 were published in open court.) 1 wearing a purple jacket who has blonde hair. Her face isn't
2 MS. HEINE: The vast majority of these people are 2 covered and she's holding the corner of a sign. Her conduct
3 walking. 3 is no different than anybody else walking down the street.
4 The Government can tell you that that is criminal 4 The Government's claim that they're not seeking to
5 conduct, but saying it doesn't make it so. 5 criminalize people who wore black clothing is demonstrably
6 Someone did throw a brick towards Officer Anderson. 6 false.
7 Go arrest that person. No one was hiding anyone. They were 7 Let's play until 10:27.
8 walking by. 8 (Whereupon, segments of Defendant Macchio's Exhibit
9 I heard Officer Anderson say that she felt helpless. 9 No. 45 were published in open court.)
10 But when she got on her bike to follow this group, she was 10 MS. HEINE: You can see it on the ground. Most of
11 behind the armada of scooters, cops dressed in yellow 11 the people are simply walking by. You can even see these two
12 jackets, cops dressed in black uniforms with helmets and big 12 people in the front who aren't even looking at the Starbucks
13 wooden sticks. 13 as they walk by.
14 Let's go ahead and play to 8:54. 14 Let's play until 11:22.
15 (Whereupon, segments of Defendant Macchio's Exhibit 15 (Whereupon, segments of Defendant Macchio's Exhibit
16 No. 45 were published in open court.) 16 No. 45 were published in open court.)
17 MS. HEINE: Who's the guy walking the dog hiding 17 MS. HEINE: Those people were being herded by the
18 from the police? How about the guy ten steps behind him 18 police with OC spray and motorcycles. You saw that woman
19 looking at his phone? Those people are walking. 19 there get slammed to the concrete after she had been sprayed
20 Let's go ahead and play. 20 with OC spray.
21 (Whereupon, segments of Defendant Macchio's Exhibit 21 Free to leave? Was she free to leave when she was
22 No. 45 were published in open court.) 22 knocked to the ground? No.
23 MS. HEINE: How about the guy on the scooter? 23 Let's go ahead and play to 12:01.
24 What's he doing? Is that criminal conduct? Is he hiding 24 (Whereupon, segments of Defendant Macchio's Exhibit
25 anybody? 25 No. 45 were published in open court.)
35 37
1 How about all of those people near him who are 1 MS. HEINE: Here you're just going to see people
2 simply walking by? 2 marching down the street in a peaceful manner.
3 Let's go ahead and play. 3 (Whereupon, segments of Defendant Macchio's Exhibit
4 (Whereupon, segments of Defendant Macchio's Exhibit 4 No. 45 were published in open court.)
5 No. 45 were published in open court.) 5 MS. HEINE: Now we'll get to the McDonald's. We
6 MS. HEINE: So now we're going to get to the 6 know the McDonald's window was broken.
7 Starbucks and the Bank of America. And we all know that that 7 But what we'll see is most of the people going by
8 is the worst part of this destruction. 8 are not breaking anything. They're being herded by the
9 Let's go ahead and play until 10:23. 9 police with pepper spray and sting-balls.
10 (Whereupon, segments of Defendant Macchio's Exhibit 10 Go ahead and play.
12 MS. HEINE: Even though this is going to be the 12 No. 45 were published in open court.)
13 worst part of the destruction, the Starbucks manager told you 13 MS. HEINE: Watch the woman on the right in the
14 that only select individuals came up to her window and broke 14 green hat.
15 the window. She told you that, while that happened, the 15 (Whereupon, segments of Defendant Macchio's Exhibit
16 street was completely packed with a dense mass of people. 16 No. 45 were published in open court.)
17 (Whereupon, segments of Defendant Macchio's Exhibit 17 MS. HEINE: Watch her. What was she doing wrong?
19 MS. HEINE: As this frame zooms out, you cannot 19 No. 45 were published in open court.)
20 credibly claim that the people in that mass walking down the 20 MS. HEINE: Now we'll see the march continue up
21 street are in concert with the people on the sidewalk, the 21 13th Street, go back through Franklin Park, move up K Street
22 select individuals breaking the window. 22 where the Crowne Plaza is.
23 (Whereupon, segments of Defendant Macchio's Exhibit 23 Go ahead and play.
25 MS. HEINE: So you see the woman who appears to be 25 No. 45 were published in open court.)
38 40
1 MS. HEINE: Pause it. 1 pack in all the video they reviewed.
2 You see people walking back through Franklin Park. 2 Let's take a look at Government's Exhibit 124-D from
3 And another walking. They're not destroying any property. 3 3:10 to 3:18.
4 They're not hiding anybody from the police. 4 (Whereupon, segments of Government's Exhibit
5 Let's go ahead and play until 16:58. 5 No. 124-D were published in open court.)
6 (Whereupon, segments of Defendant Macchio's Exhibit 6 MS. HEINE: I wanted to show you a close-up image of
7 No. 45 were published in open court.) 7 these boots. To me, they look blackish-gray with gray soles
8 MS. HEINE: So the march has now just passed where 8 and turquoise around the laces.
9 the head of security told you that only a few people broke 9 I didn't hear the Government tell you that they
10 windows. 10 looked for turquoise on any pair of black boots. And I
11 Specifically, he said that two individuals broke the 11 assure you there were lots of black boots that day.
12 Starbucks window that's inside the hotel, but that the rest 12 And you don't see a fanny pack, black gloves or
13 of the crowd continued walking. 13 turquoise on the boots in any of the images of -- supposed
14 So now we're going to see the last segment of this. 14 images of Ms. Macchio during this protest in Government's
15 It's when the march turned onto L Street. What you're going 15 Exhibit 152.
16 to see is more herding of people with OC spray. And you 16 So let's take a look at one of those, which is from
17 won't hear any dispersal orders. 17 Franklin Square, Government's Exhibit 152 at 2:05.
18 We can go ahead and play till the end. 18 (Whereupon, segments of Government's Exhibit No. 152
19 (Whereupon, segments of Defendant Macchio's Exhibit 19 were published in open court.)
20 No. 45 were published in open court.) 20 MS. HEINE: Can you back it up for a little bit.
21 MS. HEINE: Sorry to make you watch 20 minutes of 21 Right there. 2:05. Back it up just a second and play it.
22 people walking, but I think you can see what we did there. 22 (Whereupon, segments of Government's Exhibit No. 152
23 We took the Government's format of their exhibit and we 23 were published in open court.)
24 turned it into our own, Macchio 45, to show you what really 24 MS. HEINE: Can you just back it up. We'll play it
25 happened that day. 25 and I'll pause it.
39 41
1 Because when you look at the evidence from an angle 1 (Whereupon, segments of Government's Exhibit No. 152
2 other than the Government's narrow view, you see reasonable 2 were published in open court.)
3 doubt at every turn. 3 MS. HEINE: So this person on the left who's walking
4 Think about that for a moment. We have no burden of 4 is who the Government thinks is Ms. Macchio. What I want to
5 proof here. None. But we kept in a lot of the destruction. 5 point out to you is that, in this clip, which is Government's
6 But in their version of this exhibit, the Government 6 Exhibit 152, you don't see this person's face so that you
7 edited out the First Amendment. 7 have to think about what property they had and what they were
8 Let's talk about what evidence you heard about 8 wearing in order to determine who you think it was.
9 Michelle Macchio and what she did on January 20th. 9 But I see white gloves, not black gloves, like they
10 The Government says they've identified places where 10 found in Ms. Macchio's property. I don't see turquoise on
11 they saw Ms. Macchio that day, but you'll recall no witness 11 those boots, and I don't see a fanny pack.
12 actually said that. 12 But regardless of who this person is, that person's
13 The Government told you that Ms. Macchio was wearing 13 not doing anything wrong. If you watch this clip, that
14 a black jacket, a black hoodie, black pants. They showed 14 person is walking. They're not breaking anything. They
15 you -- they pulled items out of a box, including a black 15 don't have any weapons. They're not hiding anybody from the
16 JanSport backpack, several bandanas, a black ski mask, green 16 police.
17 goggles and black gloves. 17 Mr. Qureshi made a big deal about the person on the
18 Let's take a look at Government's Exhibit 124-H from 18 right, how these people are walking together. Folks, there's
19 10 seconds to 15 seconds. 19 nothing illegal about that.
20 (Whereupon, segment of Government's Exhibit 20 So let's go ahead and look at 152 at 3:44.
21 No. 124-H were published in open court.) 21 (Whereupon, segments of Government's Exhibit No. 152
22 MS. HEINE: What the Government didn't tell you is 22 were published in open court.)
23 that Ms. Macchio was also wearing a black fanny pack around 23 MS. HEINE: It's really the same thing here. I see
24 her waist with a silver zipper. 24 white, not black, gloves. I don't see turquoise on the
25 The Government never said they searched for a fanny 25 boots. And I can't see a fanny pack.
42 44
1 But regardless of who that person is, that person is 1 Let's pull up Government's Exhibit 123-X and play it
2 walking. They aren't carrying a weapon. They aren't hiding 2 from 14:45 to 15:02. You can pause it at 14 -- well, just go
3 anybody from the police. They are walking. 3 ahead and play it.
4 Let's look at 152 at 5:12 on New York Avenue. 4 (Whereupon, segments of Government's Exhibit
5 (Whereupon, segments of Government's Exhibit No. 152 5 No. 123-X were published in open court.)
6 were published in open court.) 6 MS. HEINE: Pause it.
7 MS. HEINE: Same thing here: You're only going to 7 The person that the Government thinks is Ms. Macchio
8 see -- in this clip, you only see the person from behind. I 8 in the L Street clip is within that mass of people. And
9 won't play the whole clip for you because you have seen it 9 you'll see as we continue to play that they get soaked with
10 before. 10 OC spray.
11 You don't see the person's face. So you have to 11 Play till 15:13.
12 think about what they had. 12 (Whereupon, segments of Government's Exhibit
13 I do see a backpack there. I do see boots. I don't 13 No. 123-X were published in open court.)
14 see turquoise on the boots. You can't see any gloves in this 14 MS. HEINE: Mr. Qureshi stood before you yesterday
15 shot. But I don't see a fanny pack either. 15 wondering whether or not this person had red tape on them the
16 But regardless of who that is, that person is simply 16 whole time or whether her jacket was simply unzippered when
17 marching down New York Avenue. They don't have a weapon. 17 she stepped out of the kettle.
18 They're not hiding anyone from the police. 18 A prosecutor cannot stand before a jury in this
19 Let's look at the Crowne Plaza at 6:01. 19 courtroom and wonder and reasonably expect you to find proof
20 (Whereupon, segments of Government's Exhibit No. 152 20 beyond a reasonable doubt.
21 were published in open court.) 21 Mr. Qureshi spoke about a text about tearing stuff
22 MS. HEINE: The person that the Government thinks is 22 up. He can't prove because he doesn't know when Ms. Macchio
23 Ms. Macchio is -- her backpack is being held on to by another 23 read this text.
24 person sort of right in the center of the screen. 24 But what we do know is that she had no outgoing
25 Yet, again I see white, not black, gloves. I don't 25 calls, texts or messages on January 20th between 8:46 a.m.
43 45
1 see a fanny pack, and I don't see turquoise on the boots. 1 until after she was kettled. The text that Mr. Qureshi is
2 But regardless of who that person is, they are 2 talking about is received within that time frame.
3 walking. 3 Let's talk about the jail support form.
4 And while in this clip that the Government actually 4 Folks, there's nothing nefarious about jail support
5 put into their exhibit, you see a single bottle thrown by 5 forms. This is not the stuff of conspiracy. In a
6 somebody else. 6 conspiracy, you don't keep a list of the people involved and
7 What the Government didn't tell you, what they 7 their emergency contact info.
8 didn't include in their exhibit, is that this person walks 8 At most -- if you'll scroll down.
9 by, exits the frame, before the windows are even broken. 9 At most, what this form tells you is that, when
10 Let's look at the clip from L Street, which is 10 people are wrongfully arrested, they want their mothers and
11 Government's Exhibit 152, at 6:57. 11 their bosses to know where they are.
12 (Whereupon, segments of Government's Exhibit No. 152 12 In fact, the form makes clear to put down your real
13 were published in open court.) 13 name and phone number and not a co-op name likeGoodnight
14 MS. HEINE: That black blur on the screen is 14 Moon.
15 supposed to be Ms. Macchio, according to the Government. 15 Ladies and gentlemen, the Government has submitted
16 I don't see that person's face. I see clear, not 16 to you a piece of evidence: this. The Government has
17 green, goggles. But I could be wrong. You can decide for 17 submitted to you a piece of evidence that references one of
18 yourself. I see white, not black, gloves. 18 the greatest children's books of all time.
19 That's the first time I've seen that water bottle. 19 They submit that to you as proof beyond a reasonable
20 But regardless of who that person is, that person's 20 doubt. I think that's absolutely nonsense.
21 not doing anything wrong. They are walking. 21 So let's take the reasonable doubt about
22 And you know why that person's wearing goggles? The 22 Ms. Macchio's identification. You'll have that to take back
23 Government left out another thing from this exhibit. What 23 with you to the jury room. So set that aside for a moment.
24 they left out is that, in about 15 seconds, that person's 24 There is no evidence that Ms. Macchio rioted or
25 going to get doused by OC spray. 25 agreed with others to riot by, at most, simply protesting.
46 48
1 She didn't have any weapons. She didn't personally 1 know who you are.
2 destroy property. And the Government presented no evidence 2 Rather than talk about Michelle Macchio, the
3 to you that she charged the police line. 3 Government talks about the group. Rather than ask their
4 Mere presence is not enough. Walking is not enough. 4 witnesses what did Michelle Macchio do, the Government asks
5 Wearing the color black is not enough. Being anti-fascist is 5 what the group did.
6 not enough. Being anti-Trump is not enough. Staying and 6 The Government put the group on trial before you
7 continuing to protest while a handful of other people commit 7 over the last four weeks. But you must judge Ms. Macchio
8 destruction is not enough. 8 based on her own conduct. That's the law.
9 To convict Ms. Macchio of the conduct that you saw 9 The Government can ask all they want, but you cannot
10 in Government's Exhibit 152 would strip the First Amendment 10 convict Ms. Macchio for her association alone.
11 of all meaning. 11 Let me give you some examples.
12 The Government can't have it both ways. They can't 12 Officer Anderson said, "The group was approaching
13 come in here and, on the one hand, tell you there's nothing 13 us, yelling things, throwing things." But you didn't hear or
14 wrong with wearing black and then in the next breath tell you 14 see any evidence that Ms. Macchio yelled or that she threw
15 it amounts to criminal intent. 15 something.
16 Wearing black does not mean you approve of criminal 16 Officer Anderson said they were violent. But you
17 conduct. Bringing goggles because the police are not going 17 didn't hear or see any evidence that Ms. Macchio did
18 to respect your rights does not mean you approve of criminal 18 something violent.
19 conduct. Covering your face so Project Veritas doesn't 19 Mr. Villarroel said the group was cheering. But you
20 publish your identity is not criminal conduct. 20 didn't see or her any evidence of Ms. Macchio cheering.
21 The Government is taking things that are perfectly 21 Commander DeVille told you the group itself was the
22 legal -- wearing black, covering your face, marching, being 22 danger. But you didn't hear him say Ms. Macchio posed any
23 anti-fascist -- and trying to convince that you they add up 23 danger.
24 to something illegal. But we all know that that's wrong. 24 Ladies and gentlemen, Michelle Macchio is entitled
25 Wearing the color black is a form of political 25 to be judged as if she was on trial alone. This case is
47 49
1 expression. Your common sense tells you that people wear the 1 called United States of America versus Michelle Macchio.
2 same color, wear the same article of clothing, as an 2 Nowhere will you find the case charged as United States of
3 expression of their political beliefs. 3 America versus the group.
4 Officer Adelmeyer told you that this protest was 4 That's because doing so turns the presumption of
5 advertised as being anti-fascist and anti-capitalist and that 5 innocence in this country on its head. Guilt by association
6 people were asked to wear black. 6 is not just the theory of the prosecution.
7 Ms. Macchio is not charged with illegally covering 7 That theory was hatched 46 weeks ago on January 20th
8 her face. She's not charged with the illegal possession of 8 with Commander DeVille. That's the reason these people were
9 goggles. People protect their faces because they fear police 9 arrested to begin with.
10 use of force. 10 At Commander DeVille's direction, the police treated
11 Officer Adelmeyer told you that one reason why 11 people who were protesting and marching the same as they
12 people cover their face is to protect against pepper spray. 12 treated people who were breaking things.
13 People shield their identity because they want to protest 13 The very second that Commander DeVille decided there
14 anonymously. 14 was a riot, he also decided to arrest everyone present.
15 You heard Officer Adelmeyer tell you that that is 15 Commander DeVille told you, "When I decided to stop
16 one reason why people could cover their face. That makes a 16 the group, the decision was based on riotous behavior. I
17 lot of sense in the age of the Internet and social media, 17 wasn't differentiating who was demonstrating and who was
18 where anyone can out you for your apparent political beliefs. 18 rioting. The group was involved in riotous behavior and I
19 Detective Pemberton confirmed that this is something 19 wanted to stop it."
20 that happens on social media, that people get outed, 20 Ladies and gentlemen, fortunately for all of us,
21 threatened and harassed because of their apparent beliefs. 21 Commander DeVille will not go back in that room with you and
22 He said it happened to him. When that happened, he said he 22 decide this case. He has no understanding whatsoever of the
23 made his account on Twitter private. 23 First Amendment.
24 It's no different than covering your face at a 24 The law tells him to differentiate between
25 protest. You can still express yourself, but people don't 25 protesters and lawbreakers. He refuses to do so. He resorts
50 52
1 to his easy instincts. 1 this was a riot on the radio, we all know what he should have
2 Commander DeVille was out to get these people as 2 said next.
3 soon as he knew they would be on Logan Circle. Commander 3 The next words out of his mouth to his officers
4 DeVille testified he wanted to gauge what type of crowd he 4 should have been, "Start giving dispersal orders. Tell these
5 was dealing with. 5 protesters that they will be arrested if they don't
6 Does that testimony cause you to hesitate? If he 6 disperse."
7 really wanted to gauge this crowd, why is he showing up with 7 But you will not hear the Government play that part
8 11 vans packed with 99 riot police? 8 of the radio run because it doesn't exist.
9 He didn't have any bike cops or any motorcycles 9 Commander DeVille's complete failure to follow the
10 there to facilitate this march. He never used the terms 10 rules on First Amendment assemblies is reasonable doubt. And
11 "facilitate" or "rolling road closures" over the radio run. 11 it's more than reasonable doubt; it is an abomination.
12 So what was he supposed to do? What did the rules 12 How can you in the nation's capital take one of our
13 tell him he had to do? Contact the leader of this group. He 13 most sacred liberties and disregard it because you don't want
14 never did this. 14 to do your job?
15 If he were there to honor the First Amendment, those 15 Detective Pemberton sat in that chair and tried to
16 vans would have been empty. Those officers would have 16 justify his bombastic words to you. He told you there's no
17 marched down both sides of 13th Street. 17 one more critical of MPD management than him.
18 Commander DeVille would have blocked off the very 18 But he's no better than DeVille. DeVille didn't
19 first intersection. He would have determined whether anyone 19 draw a line and Pemberton didn't draw a line.
20 in that group was there for a reason other than to protest. 20 In Pemberton's words, the guy who dragged the
21 Ladies and gentlemen, this is the heart of the 21 newspaper stand into the street is exactly the same as the
22 matter. If he did his job, we wouldn't be here today. It 22 person carrying a "How did we let hate win?" sign 20 feet
23 would be clear who was protesting and who was bent on 23 away.
24 destruction. 24 He investigated them all the same. Why? Because he
25 The SOPs make clear that police lines shall not be 25 saw people dressed in black on January 20th not as
51 53
1 used to encircle demonstrators unless it is necessary for 1 individuals, but as a group who doesn't think like him. He
2 their protection or a decision has been made to arrest the 2 understood quite clearly that some of these people supported
3 participants who are being isolated. 3 affinity groups like Black Lives Matter.
4 Commander DeVille did not isolate anyone. He saw 4 Detective Pemberton can try to cloak his character
5 everyone in Logan Circle as anarchists. He told you he 5 with words like "bombastic," but he can't escape the fact
6 wanted to split the group up. 6 that he liked a tweet that said "Black Lies Matter."
7 But he wasn't following any rules. He made his own. 7 And you know what's bombastic to me? Prosecuting a
8 The only reason he wanted to split the group up is because it 8 group of protesters for the conduct of others.
9 would be easier to catch a smaller school of fish. 9 Ladies and gentlemen, once I sit down, you won't
10 The rules say broadcast a dispersal warning. 10 hear from me again. You won't hear from any other defense
11 Commander DeVille, as we all know, doesn't follow the rules. 11 attorney in this case.
12 Commander DeVille ordered the abuse of OC spray and 12 The Government will come back up. They'll stand
13 the abuse of large wooden sticks to herd and arrest anyone he 13 before you and make a second argument. They're permitted to
14 could. 14 do this because the law requires them to prove their case
15 Now, Ms. Kerkhoff's going to get up, stand in front 15 beyond a reasonable doubt.
16 of you, tell you that the sirens, the OC spray, the grenades, 16 When you sit there and you listen to Ms. Kerkhoff
17 the sounds of Win 6, that's equivalent to a dispersal order. 17 speak, don't just think about what I said. Think about what
18 Are you kidding me? 18 I didn't say.
19 Ladies and gentlemen, I could stand here right now, 19 Reasonable doubt is wherever you find it. You are
20 read youGoodnight Moon and the SOPs, and nowhere in either 20 the jury.
21 one of those publications would you see that MPD can throw 21 Ms. Macchio cannot depend on me alone for justice.
22 grenades at people, beat them with wooden sticks and douse 22 She has to rely on you, on your wisdom, on your common sense
23 them with pepper spray. There's a greater chance that cows 23 and on your sense of justice.
24 will jump over the moon. 24 I am proud to represent Ms. Macchio in this case
25 Ladies and gentlemen, when Commander DeVille said 25 that means so much to her and so much to the rights that we
Charge Conference Charge Conference
54 56
1 hold dear. 1 say "with the intent that," or there's a place in the actual
2 We have to draw a line. We have to draw a line 2 instruction that might also solve it, which is that the
3 between what is right and what is wrong. We have to draw a 3 assemblage engaged in conduct that either included the use of
4 line between what is a protest and what is criminal conduct. 4 actual force or violence against property or persons or that
5 Ladies and gentlemen, Michelle Macchio is on this 5 had a clear and apparent tendency to cause force or violence
6 side of the line. And on this side of the line, the only 6 to erupt and, thus, create a grave danger of damage or injury
7 appropriate and just verdict is a verdict of not guilty. 7 to property or persons.
8 Thank you all very much for your time. 8 In other words, I think that I need to solve the
9 THE COURT: Ladies and gentlemen, we're going to 9 problem of not simply instructing them as to what the
10 take a 15-minute break. I'll see you back at 25 after. 10 assemblage had to do by way of conduct, but to say expressly
11 Thank you. 11 what the Defendant had to do by way of conduct.
12 (Whereupon, the jury exited the courtroom at 12 AndMatthews did that. I don't think it did it in a
13 11:12 a.m. and the following proceedings were had:) 13 way that would pass muster underWilson-Bey. I can fix that.
14 THE COURT: Have a seat for a second. 14 But let me just ask, Ms. Kerkhoff, what's your
15 First of all, does the Government intend to -- you 15 reaction to that?
16 will do rebuttal, but how long do you think your rebuttal 16 MS. KERKHOFF: I guess the Government's concern is
17 will be? 17 what language is the Court proposing? Because --
18 MS. KERKHOFF: 20 minutes. 18 THE COURT: I mean, I propose two things. I think
19 THE COURT: So here's what I'm looking at in terms 19 either one would probably be right as long as we state the
20 of the engaging instruction. 20 right intent.
21 Now that the inciting instruction is out of it and, 21 MS. KERKHOFF: Yeah.
22 of course, I said 100 times that I wanted to be consistent 22 THE COURT: I mean,Matthews said -- I can quote it
23 withWilson-Bey and also incorporateElonis principles, and 23 again --Matthews said, "It is sufficient to establish
24 so -- what I ended up taking out of theMatthews instruction 24 willfulness on the part of the Defendant or any other member
25 was, for instance, the language that "the Defendant or any 25 of the assemblage if you find from the evidence -- from all
55 57
1 other member by act, gestures or words knowingly and 1 the evidence that, by acts, gestures or words, he knowingly
2 intentionally aided or encouraged the tumultuous or violent 2 and intentionally aided or encouraged the tumultuous or
3 conduct and involving grave danger to property or persons." 3 violent conduct involving grave danger to property or
4 The reason I took it out was I thought that it did 4 persons."
5 run afoul ofWilson-Bey. I think, if it was to be consistent 5 Because the question is, you know, a person can be
6 withWilson-Bey, to have words like "encouraging" or "aided," 6 physically present on the street, you know, tied up like a
7 you would have to say "with the intent that the assemblage 7 mummy or whatever and have the intention that the riot occur,
8 created a grave danger by violent and tumultuous," et cetera. 8 even have the intention that the assemblage do all these
9 So I'm looking at the instruction now, and it may be 9 things, but what do they have to actually be doing?
10 that this is what Ms. Heine intended to address in that 10 And so --
11 paragraph on Page 14 of the original submission about 11 MS. KERKHOFF: Well, the Government -- my
12 "inferred only from his conduct." 12 preference, if the Court is going to include that, is to use
13 I don't agree with "only from his conduct," but I 13 theMatthews language with theWilson-Bey added in a separate
14 think it may be that we've left out the conduct that would be 14 component.
15 required to commit the offense. 15 My concern with including it in the assemblage
16 In other words, participation in a riot, in a 16 portion is that I don't think that's where it goes.
17 general sense, is the conduct and the intent is stated -- you 17 THE COURT: No. I think that's right. But I think
18 know, with the intent that the assemblage created a grave 18 it just needs to go somewhere.
19 risk by violent and tumultuous.... 19 In fact, it could even be an element, although it's
20 But I'm concerned that I should probably be adding 20 not. It could either be an element or -- where was I seeing
21 in something explicit about the conduct that is required, 21 myself putting it?
22 which would either be theMatthews language that the 22 MS. KERKHOFF: I think you say you have to find
23 Defendant, by acts, gestures or words, aided or encouraged 23 beyond a reasonable doubt that the Defendant --
24 the tumultuous or violent conduct involving grave danger to 24 THE COURT: Well, here's where I was thinking of it.
25 property or persons, adding inWilson-Bey language that would 25 MR. McCOOL: Could you give us the paragraph, your
58 60
1 Honor? 1 in conduct because, at this point, you could be wrapped up
2 THE COURT: I'm telling you. 2 like a mummy out there in the street and if, in your mind,
3 So what I think is now on Page 8. 3 you really, really want all this bad stuff to happen, you're
4 MR. McCOOL: Yes. 4 guilty.
5 THE COURT: And it could be divided into two 5 And so I don't want it to sound like that's what I'm
6 paragraphs. It's the paragraph that starts, "To prove that a 6 telling them.
7 public disturbance involved..." Okay? 7 I actually think that that is, at least in part, the
8 MR. McCOOL: Yes. 8 point that Ms. Heine was making in the -- I don't agree with
9 THE COURT: And then it says down farther, "You need 9 the point that -- the determination whether the Defendant
10 not find that the Defendant personally engaged in actual 10 acted willfully requires that a juror not think about
11 force or violence" -- so we're saying what they need not 11 anything other than the Defendant's own words or conduct.
12 find -- "but you must find that the Defendant and at least 12 But I do think we need to specify the words or
13 four other persons who were part of the assemblage willfully 13 conduct that makes you guilty along with the intent and the
14 engaged in the riot." 14 other elements.
15 I could say instead one of two things: "Willfully 15 I'm looking at Ms. Heine or whoever. What do you
16 engaged in conduct that either included the use of actual 16 think about this?
17 force or violence against property or persons or that had a 17 MS. HEINE: Yes.
18 clear and apparent tendency to cause force or violence to 18 I agree that we should add that in, make that clear.
19 erupt and, thus, create a grave danger of damage or injury to 19 I think I would prefer the first formulation the
20 properties or persons" or I could say, "willfully, by acts, 20 Court said, but not the formulation that has the aid part in
21 gestures or words or -- aided or encouraged the tumultuous or 21 it. Because I think we discussed that previously, about
22 violent conduct involving grave danger to property or persons 22 taking it out.
23 with the intent that" -- and then, of course, it gets to be a 23 THE COURT: So "conduct that had a clear and
24 really long sentence. 24 apparent tendency to cause force or violence to erupt," I
25 MS. KERKHOFF: Right. 25 mean, that is something that is --
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1 I guess the Government's preference is to keep the 1 MS. KERKHOFF: I think that's directly in
2 language the Court has because it is the assemblage. The 2 contradiction with --
3 Defendant doesn't have to engage in actual force or violence 3 THE COURT: Isn't that someplace else in the
4 or create a danger and has -- but has to willfully engage, 4 instruction now? I think that's where I got it from.
5 that is, the Defendant had to have by words, acts and 5 MS. KERKHOFF: Yes. It's two sentences above.
6 conduct, theMatthews language, with the intent and then add 6 THE COURT: So what we're saying is the assemblage
7 the "with the intent" at the end. 7 must have engaged in conduct. So we're saying what conduct
8 I think it -- 8 the assemblage has to have engaged in.
9 THE COURT: So you would want me to use theMatthews 9 And how, I guess, is that any different from the
10 sentence rather than clear and apparent tendency? 10 conduct the Defendant would have had to have engaged?
11 MS. KERKHOFF: What I do think is appropriate is 11 MS. KERKHOFF: Because the Defendant doesn't have to
12 that we keep the sentence that's there and then define what 12 have personally engaged in the actual force or violence.
13 it means to have willfully engaged by the conduct. That's 13 THE COURT: But doesn't "conduct that has a clear
14 what I'm saying because I think -- 14 and apparent tendency to cause force or violence to erupt
15 THE COURT: Willfully engaged in the riot. Engaging 15 and, thus, create a grave danger" take care of that?
16 in a riot -- 16 In other words, no, he doesn't have to have engaged
17 MS. KERKHOFF: That is -- 17 in violence himself or herself, but there has to be conduct
18 THE COURT: "To have willfully engaged in a riot, 18 that is both intended to, but, in fact, would have a tendency
19 the Defendant must have, by words, conduct or gestures" -- 19 to cause the conduct of others to occur.
20 Matthews,Matthews,Matthews -- "with the intent that the 20 MS. KERKHOFF: I disagree. Because I think it takes
21 assemblage by violent and tumultuous conduct create -- 21 out how they're allowed to find aiding and abetting. It
22 MS. KERKHOFF: "Create a grave danger." Yes. 22 makes that confusing because you say that or that they aided.
23 THE COURT: Now, looking at the defense table, I 23 Because there's a causation issue. It's a direct
24 know that I'm just saying words and it's confusing. 24 causation that there's -- specific conduct is a direct
25 But I do think I need to solve this problem and put 25 causation.
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62 1 MS. KERKHOFF: So -- that's fine. Yes.
1 That's not required under the theories ofPinkerton 2 THE COURT: So why don't you all think about it. I
2 or aiding and abetting. I think that's where it gets 3 think -- if the defense is satisfied with that, I think
3 confusing. 4 that's right. It does specify that the Defendant has to have
4 THE COURT: But that's a separate matter. This is 5 done something rather than be tied up like a mummy.
5 what makes a person a principal. Then we instruct you on 6 And so -- but you think about it. I'll think about
6 what makes a person an aider and abettor.
7 it. I think that would solve it, if that's good enough for
7 And I suppose, if you stand there and say, "Yo, go
8 you all.
8 engage in conduct that has a clear and apparent tendency to
9 MR. McCOOL: May I address the Court?
9 create a grave danger," you are aiding and abetting or, you
10 Your Honor, will there be an opportunity -- we
10 know --
11 proposed just some changes to the First Amendment instruction
11 MS. KERKHOFF: I guess the point is if the Court --
12 and then a slight addition to the co-conspirator liability.
12 THE COURT: -- encouraging, aiding, et cetera.
13 THE COURT: I know. I know. I've got them.
13 MS. KERKHOFF: If the Court does that, then the same
14 MR. McCOOL: Thank you.
14 counterbalancing language where it says it will also discuss
15 THE COURT: That doesn't mean I'm agreeing with it.
15 aiding and abetting liability should go there because
16 So let's take our break so that we can get -- how
16 otherwise, I think you're telling the jury they have to have
17 caused. I think that's the confusion.
17 long -- I'm sorry. You told me. But how long do you think?
18 THE COURT: The cause is -- well, no. But it's 18 MS. KERKHOFF: I was hoping 20 minutes.
19 conduct that has a tendency to cause, not that it actually 19 THE COURT: For your rebuttal?
20 does cause. 20 MS. KERKHOFF: That's what I'm hoping.
21 I mean, the problem with encourage or -- encourage 21 THE COURT: Okay. And then that would mean that I
22 is the same thing. It's an effort to cause. 22 could actually instruct. So we may have to take a break
23 MS. KERKHOFF: Right. 23 before I instruct just to iron out these last few things.
24 THE COURT: And -- 24 MS. KERKHOFF: Thank you.
25 MS. KERKHOFF: I would just request the 25 THE COURT: Thank you. I'll see you in 15.
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1 counterbalancing language to note that that's as a principal, 1 (Thereupon a recess was taken, after which the
2 as the Court said. 2 following proceedings were had:)
3 THE COURT: I'm not going to do that in every 3 THE COURT: Why don't we pick back up, please.
4 sentence here because every element here -- what we say in 4 All counsel and all Defendants are here.
5 aiding and abetting is you don't have to have done any of 5 MR. LAZEROW: We're running --
6 this if you satisfy aiding and abetting. 6 THE COURT: Well, Ms. Macchio is straggling.
7 And I could modify every sentence in the instruction 7 So -- well, let's just get her back in here.
8 on what makes you a principal -- 8 (Thereupon, Defendant Macchio
9 MS. HEINE: Your Honor -- 9 entered the courtroom and the
10 THE COURT: -- to do that. 10 following proceedings were had:)
11 MS. HEINE: Your Honor, if I may, in this paragraph 11 THE COURT: Ms. Macchio's now come in.
12 where we say that the assemblage engaged, if we say -- 12 The solution of adding in that parenthetical
13 THE COURT: Where are we? 13 including the Defendant, does that satisfy everyone at the
14 MS. HEINE: Same paragraph, third line. 14 defense table?
15 THE COURT: Okay. 15 MR. McCOOL: It does for Ms. Harris. Yes.
16 MS. HEINE: If we say that the assemblage, including 16 MS. KROPF: Yes, your Honor.
17 the Defendant, engaged, I think I would be okay with that. I 17 MS. JACQUES: Yes.
18 would have to check with the other folks here. 18 THE COURT: So here's the question. I could make it
19 Because I think that gets across that you're 19 an element. You're not telling me to make it an element.
20 still -- you're not just talking -- that the Defendant and 20 You're satisfied -- because the element is -- it's not that
21 the four other people that constitute the assemblage all have 21 the elements lack in a conduct. It's that there was an
22 to be engaging in order to be -- for the Defendant to be 22 assemblage of five or more persons, including the Defendant,
23 found guilty of this count. 23 who engaged in the riot.
24 THE COURT: Ms. Kerkhoff, is that something that 24 So engaging in the riot is the element. And,
25 would satisfy you? 25 arguably, this is the conduct that defines engaging.
66 1 ahead and we can discuss it after we've heard the rest of the
1 So if you're satisfied with it, I will keep it that 2 arguments.
2 way. But I could make it its own separate element. 3 We can bring them in.
3 MR. McCOOL: That's fine. 4 What I think I may do is simply let you finish your
4 MS. HEINE: Well, if we could make it a little bit 5 rebuttal closing. If it's 20 minutes, it'll be five after,
5 more active the way it's phrased in No. 2. Rather than 6 ten after 12:00.
6 saying "there was," could we just say "an assemblage of five
7 We can excuse the jury for an early lunch, pick back
7 or more persons, including the Defendant, engaged"?
8 up at ten after 1:00 and get it to them by 2:00 --
8 THE COURT: I think that taking out the who makes it
9 MS. KERKHOFF: Yes, your Honor.
9 unclear what that sentence says. There was a riot,
10 THE COURT: -- or so.
10 Element 1.
11 MS. WELETZ: Your Honor, will you be talking to
11 Five or more persons, including the Defendant,
12 Juror No. 6?
12 engaged in the riot.
13 THE COURT: Well, that's another question I have to
13 So instead of there was --
14 deal with. I mean, that's something we haven't discussed.
14 MS. HEINE: Right.
15 That's why I was thinking I excuse them possibly for longer
15 THE COURT: -- that "an assemblage of five or more
16 than an hour because that'll mean we all have to talk.
16 persons, including the Defendant, engaged that the riot"?
17 MS. HEINE: Yes.
17 Maybe I'll excuse them for the weekend and instruct
18 THE COURT: That's a "yes" for everybody? 18 them Monday morning so we can solve all of this.
19 MS. HEINE: And that's -- we're still, in addition 19 MR. McCOOL: I think that's fine.
20 to that, making the change in the paragraph we discussed 20 THE COURT: Do you think that makes the most sense?
21 before the break. 21 MR. McCOOL: I think so. Given the schedule today,
22 MR. McCOOL: Yes. 22 your Honor, I think that might be best.

23 THE COURT: Right. 23 MR. LAZEROW: I definitely agree. But that's me.
24 So it would say, "The Government must prove that the 24 THE COURT: I guess I think there are a few things
25 assemblage, including the Defendant, engaged in conduct that 25 we need to sort out and I might as well instruct them first
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67 69
1 either" -- blah, blah, blah. 1 thing Monday morning. It can't hurt to just sort out what we
2 MS. HEINE: Yes. 2 need to sort out once they're gone.
3 THE COURT: So what we're going to do hear rebuttal 3 (Whereupon, the jury entered the courtroom at
4 closings. And it might be that I should excuse the jury 4 11:45 a.m. and the following proceedings were had:)
5 before lunch unless -- for lunch early unless the 5 THE COURT: Good morning again, ladies and
6 Government's agreeing to the proposed defense theories. Or 6 gentlemen.
7 are we going to have talk about them? 7 THE JURY: Good morning.
8 MS. KERKHOFF: I believe we need to -- let's see. 8 THE COURT: We're going to hear the Government's
9 I do object to their additions -- changes to the 9 rebuttal closing argument now.
10 First Amendment instruction. So I don't know if we need to 10 (Whereupon, segments of an unidentified audio
11 talk about that. 11 recording were published in open court.)
12 I believe the Court's original -- they took out the 12 MS. KERKHOFF: That's the sound of a riot. That is
13 very sentence that the Court said it would not take out. And 13 a riot. The sound alone demonstrates chaos. You've seen the
14 I don't think their edits have changed that. 14 actions.
15 THE COURT: I haven't taken out anything that I 15 There was a riot on January 20th, 2017. So when
16 wrote. There's a proposal here. 16 defense counsel stands here and tells you there were just
17 MR. McCOOL: Your Honor, if I may -- 17 some people doing some unlawful things, let's be clear:
18 THE COURT: Hold on. 18 There was a riot.
19 MR. McCOOL: -- I think we've captured the Court's 19 There are not one riotous group and one peaceful,
20 and the Government's concern. 20 lawful group moving through the city for 16 blocks for
21 THE COURT: In what? 21 33 minutes, every move they make together. There was a riot.
22 MR. McCOOL: With these edits. 22 The question before you is: Did each of the
23 THE COURT: Just have a seat, Mr. McCool, because I 23 Defendants choose to participate? Isn't that what we're
24 actually think we should go ahead -- now that I know that 24 being asked to decide here? Because there was a riot.
25 we're going to have to discuss it further, let's just go 25 To understand that, you've got to look at the map
Rebuttal Argument by Ms. Kerkhoff Rebuttal Argument by Ms. Kerkhoff
70 72
1 again. To understand the choices that were made, look at how 1 a crime while exercising your First Amendment rights or help
2 far the group went. The way it moved, straight down 2 another to do so. That's a crime. Fantastic. We agree.
3 13th Street, may be a demonstration moving down the street. 3 Because that's exactly what happened here. That's
4 After you get to the limo, the group moves. It 4 precisely what went on when you move with a group, when you
5 circles back on itself. And look at the destruction after 5 aid them, either because you're the sea of black, because
6 destruction after destruction. 6 you're cheering it on, because you're there to provide a
7 Each of these Defendants ended up at 12th and L. 7 service. You help.
8 Look at each of their PowerPoints, each of those maps, each 8 That's why we're here.
9 of the places they were located. 9 The group. There's been a lot of talk about the
10 They maneuvered their way, crossed Franklin Square, 10 group, the power of the group. A group can be a very
11 down I Street, down 12th, working back around to New York, up 11 powerful thing. There is strength in numbers.
12 13th, back through Franklin Square, up 14th, before they 12 It can make people do things they might not
13 turned to get to 12th and L. 13 otherwise do on their own. It can give them the type of
14 This is not a group that's simply moving while 14 encourage they might not otherwise have, for better or for
15 others just happen to be in an area. 15 worse.
16 This movement is active, conscious choice. It's 16 You throw a mask or a hood on that with the power of
17 conduct you may consider. To move with the group, to stay 17 the group, the anonymity you think you have. You give more
18 with it, to be a part of it. 18 courage and strength, for better or for worse.
19 No one started at the Starbucks and magically, 19 There is power to a group. It is precisely what you
20 coincidentally ended up at 12th and L without purposefully, 20 can hear in that podcast. It's precisely what you can hear
21 consciously and willingly moving with the destruction. 21 in the planning meeting. The power of the group. The
22 This is a lot of city blocks. It is a long period 22 ability to be anonymous that day.
23 of time. At 10:32, after the limo was hit, Commander DeVille 23 Listen to what they talked about: "MPD can't arrest
24 says, "This is a riotous act." 20 minutes later the group is 24 us. No mass arrests. We stay as a group. Wear black.
25 stopped after moving many city blocks. 25 Safety in our group. MPD, they're just well-trained little
71 73
1 These are conscious choices. It's not easy to have 1 piggies. They can't kettle us. They can't mass arrest us.
2 gotten from the limo to 12th and L on the exact same route. 2 They'll just post a forfeit or let us go. That's what
3 You had to, at times, stop, wait for the group, just like 3 they'll do," almost as if they had received some advice or
4 they did on I Street right before Starbucks. 4 reviewed a standard operating procedure on a mass First
5 You had to run, work around yourself, move past 5 Amendment demonstration.
6 barricades, run down New York Avenue. These are choices, 6 Standard operating procedure. You heard a lot about
7 conscious actions. 7 that. The Judge is actually going to instruct you whether or
8 Mr. McCool gave the Redskins analogy. Sometimes 8 not a standard operating procedure applied, whether there was
9 you're at a stadium. You look over. There's some Philly 9 compliance or not, is not a defense to the Defendants'
10 fans getting rough with the Redskins' fans. That's the 10 conduct.
11 analogy he gave. 11 You know that standard operating procedure they've
12 And if you're just sitting in your seat and you see 12 cited to you again and again. But the part they didn't
13 that, that's not why they're here today. 13 present to you:
14 But if you stand up, you go to them, you move with 14 "It is impossible to devise specific standard
15 them as security comes in to the next spot for the next 15 operating procedures for handling all possible situations for
16 assault, you stay with them, you look, security's moving in, 16 each has its own characteristics and challenges.
17 you move again to the next one, you move again and again and 17 "The overall police philosophy must be one of
18 again, that's not just being there and watching. There's a 18 moderation, flexibility and response. Each situation is
19 purpose to your presence. 19 unique. Both commanding and supervisory officials must plan
20 Defense counsel has said mere presence is not 20 to respond according to the nature and size of the crowd.
21 enough. The Judge is going to instruct you. The Judge tells 21 "The tactical procedures are established within this
22 you the law. And the law says mere physical presence is 22 a guide, but are not a substitute for the exercise of sound
23 enough if it is intended to aid the admission of a crime. 23 judgment and proper command and supervision."
24 That's the law. 24 So standard operating procedures aren't a defense.
25 So Mr. McCool said that he agreed you cannot commit 25 And Commander DeVille and the officers were there to try to
74 76
1 figure out what to do when they were faced with this. 1 Now, the defense -- and perhaps I haven't been
2 What could they do? Officer Anderson told you, "I 2 clear -- seems confused by when the Defendant joined the
3 was so unprepared." 3 conspiracy and what it infers. So I'm going to take a
4 You saw Officer Rembiszewski's body cam. Did his 4 moment.
5 squad look like they knew what they could do and get this 5 Now, you know there was a planning meeting. At that
6 under control? Because the group, it was so large. 6 planning meeting, there was certainly discussions of
7 There's been a lot of criticism of Commander 7 traveling through gentrified neighborhoods, people wearing
8 DeVille, saying he had an old way of thinking, old way of 8 all black.
9 thinking. 9 And let's just assume maybe some people, some
10 Since 2002, Commander DeVille has had access to and 10 people, might have had that violence and destruction in their
11 authority to issue sting-balls. The first time ever was 11 mind.
12 during this riot, ever. It's an old way of thinking? 12 And Officer Adelmeyer, in fact, said he went to
13 A million people came to the District of Columbia 13 meetings and he reported to law enforcement destruction of
14 and protested on the weekend of the inauguration. What was 14 property was discussed and planned.
15 the old way of thinking he had? This was the arrest because 15 Commander DeVille said, when he went to Logan
16 this was a riot. 16 Circle, he had information there may be destruction of
17 The police were bullies? Officer Anderson looked 17 property.
18 like a bully to you? How about Officer Rembiszewski? 18 But let's say these six Defendants went there and
19 Officer Reid? Bullies? 19 said, "I thought it was just anti-fascist, anti-capitalist.
20 This sea of black mass came at them, threw rocks at 20 I mean, I'm wearing the clothes." You know, that's fine.
21 them, looked right at them and broke window after window 21 You step off Logan Circle. We've got the tagging of
22 after window. And the police were the bullies? 22 the police car. Maybe they didn't see it.
23 There's been a lot of talk: How dare the police not 23 The BP with the cheering. Maybe they didn't see or
24 issue a dispersal order? How dare they? Dispersal order. 24 hear that.
25 What kind of privilege or entitlement do you have when you 25 The newspaper stands, the trash cans, start being
75 77
1 come to this city and, after you break window after window, 1 pulled in the street again and again.
2 people are on the ground in fear? 2 The ABP, the parking meters, the graffiti on the
3 You think you get a dispersal order to just walk 3 Metro bus, the graffiti on the side.
4 away or you might get arrested for the crimes you committed? 4 Then we turn onto K Street. That limo. And
5 What kind of privilege and entitlement do you have 5 Mr. Villarroel tells you everyone's cheering.
6 to stand here, to invoke the words of Martin Luther King, and 6 So at that point, at that point, as they work their
7 compare this riot to the Civil Rights Movement? 7 way through Franklin Square Park, more trash cans are being
8 No. This was a riot. This is about the violence 8 pulled in and the sound -- remember the sound from the
9 and conduct. 9 videos. This is now a riot.
10 The Judge is going to instruct you the First 10 So each Defendant at that point has a choice to
11 Amendment, as many times as they've cited it, does not allow 11 make. At that point at least, do they stay? Do they go? Do
12 you to engage in violence or destruction. It doesn't. 12 they move with the group?
13 You're not deciding the scope of the First 13 When you watch those videos in the back -- and maybe
14 Amendment. Because if you decide, as the evidence showed 14 you've already noticed it -- some of the videos up here, you
15 you, that the Defendants participated in these crimes, they 15 see a little more variance in clothing.
16 are not protected by the First Amendment because you don't 16 You actually can see on Alexei Wood's livestream --
17 get to hide behind it. You don't get to use it as a mask for 17 when he stands on the box, you see a couple that appear to be
18 your criminal plans. 18 about 75, 80 years old walking down the streets, not in
19 And that's how we protect the First Amendment, 19 black, with a cup of coffee. You see other people holding
20 because we honor its language. We must peaceably assemble. 20 signs, not all in black.
21 We must affirm it by honoring and respecting that language. 21 You don't see them at 12th and L. You don't see
22 That is how we protect the profound right we all have that 22 them at the Crowne Plaza. In fact, you can even see on the
23 can impact and have such profound change in this country. 23 videos people walking away.
24 We protect it by not allowing it to be used as a 24 Because once it's clear to all this is a riot, at
25 mask for their crimes. 25 least as of that point, if you want to give the Defendants
78 80
1 the benefit of the doubt, well, maybe they didn't know, they 1 someone and you're cheering it on. That's not passive
2 wore the mask, they have this stuff, maybe, maybe they didn't 2 watchfulness. It's active encouragement or participation.
3 see the BP. By the time they're in Franklin Square Park, we 3 And let me be clear about this: Whether or not
4 know. You can hear it. 4 Mr. Wood is a real journalist or not, whether or not he also
5 They line up. You can see it on Government's 5 wanted to document, you can be a journalist and you can riot.
6 Exhibit 112, the Michael Cali video. You can hear the 6 You can be a medic and you can riot. You can be there to
7 commands. 7 meet a friend and you can riot.
8 Aurelia Taylor says they line up ready to move 8 And, as the Judge will tell you, you can be
9 forward like a malitia. 9 expressing your views under the First Amendment, but you can
10 And then look at how far each of the Defendants has 10 also be a rioter. They're not exclusive. And here each of
11 to purposefully, consciously and actively move to stay with 11 these Defendants willingly chose to participate in this riot.
12 the riot. It's an incredible distance for an incredible 12 The things you should also consider, not just how
13 amount of time. 13 each Defendant was dressed. Dressing alone is not the act.
14 And each time the noise, the shattering of glass, 14 But combine their choice of clothing, combine their choice of
15 the cheering, there's a choice to be made. Each running to 15 accessories, combine their active movements with the group to
16 the next spot is a choice. 16 decide: Did they know and were they choosing to participate?
17 When the police form a line, it's a choice. To move 17 Look at their demeanor. Ms. Lawson: She's just a
18 back down towards the McDonald's, it's a choice. Up to 18 medic. You can be a medic and you can choose to participate
19 McDonald's, through the park again, choice after choice after 19 in a riot. Watch.
20 choice. 20 Here's what you see: At 13th and I, right before
21 And when you watch those videos, the DDOT cameras, 21 the Starbucks get destroyed, she's walking across the street
22 the stuff throughout the park, you see people, lots of 22 as there's trash cans being dragged in front of her. And she
23 people, stopping. 23 watches it and moves away with her friends right towards that
24 But the Defendants don't. 500 people or so step off 24 Starbucks.
25 Logan Circle. Just over 200 are stopped at 12th and L 25 The police set up that line at New York. She's
79 81
1 because that is the group of individuals that chose to 1 watching. She's calmly moving up through the median, turning
2 participate in this, to move, to actively be a part of this 2 it around, ready to re-form.
3 riot. 3 Watch as she passes the Crowne Plaza with the
4 Now, a couple of points. 4 destruction. She looks happy. It's not a crime to be happy.
5 Ms. Macchio raised how do we know that's her. I 5 But is there a shocked, surprised and, "What is this going on
6 just want to point out a couple things to you. 6 around me?" look on her face?
7 Those white gloves? I want you to take a look at 7 No. It's evidence you can consider to look at:
8 Daniel Kaufman, who's with her over here. Take a look at 8 What is her state of mind? What's her intent in being there?
9 what's on his hand and the other person's hand next to him. 9 Is she choosing to be part of this? The same with each
10 What are those? Latex gloves. Take a look at Ms. Macchio. 10 Defendant.
11 What do those look like? Latex gives. Right? You know, the 11 The defense has talked to you a little bit about
12 kind that -- not exactly. 12 reasonable doubt. You're going to get an instruction from
13 What did Ms. Macchio -- her text messages say she 13 the Judge.
14 was going to be? She was part of the medic group ready to 14 And you can tell it's clearly written by a bunch
15 meet up, unmarked and in bloc fashion, at 10:00 a.m. with her 15 lawyers. It doesn't mean a whole lot. But look at the last
16 buddy, Daniel Kaufman. Right? 16 line.
17 The ID? Each of those Defendants is exactly who the 17 THE COURT: So wait.
18 Government presented on those boards. Isn't the question 18 MS. KERKHOFF: I apologize.
19 before you: What choices did they make? 19 THE COURT: I know she didn't mean to say what she
20 And from their conduct is how you know their intent 20 just said. But --
21 to be part of this. You know it from their conduct. The 21 MS. KERKHOFF: It means a lot.
22 number of times they moved with this group to stay with them 22 THE COURT: I just need to say, ladies and
23 and the purpose of it. 23 gentlemen, you will be instructed on reasonable doubt. You
24 It did provide cover for Alexei Wood, that cheering, 24 must follow each and every word of my instructions on
25 that enthusiasm. Somebody's breaking a window or beating 25 reasonable doubt.
82 84
1 MS. KERKHOFF: Yes. 1 It's not a coincidence that the sound of the riot
2 THE COURT: Ms. Kerkhoff did not mean to trivialize 2 could be heard all around.
3 any portion of it, and it's just as important that you 3 It's not a coincidence that people brought goggles,
4 understand -- 4 gas masks, for expected pepper spray.
5 MS. KERKHOFF: I apologize. 5 It's not a coincidence that people had roles to
6 THE COURT: -- that every word of the reasonable 6 play.
7 doubt instructions, like all the rest of my instructions, are 7 It's not a coincidence those signs that you can see
8 very important. 8 throughout are moved in front of police officers to block
9 MS. KERKHOFF: It's an important instruction. 9 their passage.
10 What I intended to say is it was clearly written by 10 It's not a coincidence that there were individuals
11 a bunch of lawyers because it's a lot of words, a lot of 11 cheering this on.
12 words. It says firmly convinced, firmly convinced. 12 It's not a coincidence that each of the Defendants
13 But it also says you can't base your doubt on 13 traveled the entire distance to end up at 12th and L.
14 speculation. It must be on the evidence in this case, the 14 These are not coincidences. It's the evidence in
15 evidence in this case, the evidence that shows this was a 15 the case. It's the evidence that talks to you about the
16 riot and it was planned. 16 conduct -- the conscious, purposeful conduct for each
17 At what point the Defendants knew about it, you know 17 Defendant.
18 that the evidence shows that, by Franklin Square Park, when 18 The Defendants engaged in a riot. They agreed with
19 Officer Anderson has lined her bike up, it's clear it's a 19 others to do so at least as of Franklin Square Park.
20 riot and they're making a choice. You know that because 20 And because they did that, because, whether their
21 that's the evidence in the case. 21 presence was designed to aid, the role they had was designed
22 But you also know that it is not a coincidence that 22 to aid, their enthusiasm and cheering was designed to help,
23 in that podcast in early January, when they're talking about 23 they are responsible for the destruction that takes place.
24 this event, they're laughing about the police and saying 24 That's why we're here.
25 they're just well-trained little piggies. 25 The First Amendment says peaceful assembly. It does
Rebuttal Argument by Ms. Kerkhoff 85
83 1 not allow violence, and it does not allow you to hide behind
1 On January 8th, when they talk about this event, 2 it.
2 they're instructing people how to dress. It's not a 3 The evidence demands that you find the Defendants
3 coincidence that they're telling people, "Wear all black. 4 guilty.
4 It's safe in the black bloc." 5 Thank you.
5 It's not a coincidence that they're saying to 6 THE COURT: Can I just ask counsel to approach,
6 people, "When we get to the Festival of Resistance, no window
7 please.
7 breaking there."
8 (Whereupon, the following proceedings were had at
8 It's not a coincidence that there is discussion
9 side-bar outside the presence of the jury:)
9 about going through a gentrified neighborhood so it's all
10 THE COURT: So I think Mr. Lazerow is going to be
10 fair game. That's not a coincidence.
11 the one who decides what we do next.
11 It's not a coincidence that, at Logan Circle, the
12 I think, in a perfect world -- you know, in an
12 tenor and energy begins to change as the power of the group
13 imperfect, but slightly perfect, world, what I would do right
13 increases to 500.
14 now is excuse them until 1:30, spend 15 minutes just ironing
14 It's not a coincidence as they move down the streets
15 out what we're going to do next -- what we're going to do
15 people come from out of the crowd, move back in.
16 with the instructions and then instruct at 1:30. It'll
16 It's not a coincidence that during those planning
17 meetings they talked about things like unarrest, reabsorbing
17 probably take, you know, a good 45 minutes to instruct.
18 people, safety in the group. 18 Does that mean you'd miss your train or something?
19 It's not a coincidence that newspaper stands, trash 19 MR. LAZEROW: No. I've made peace. I'm going to my
20 cans, are being pulled into the street throughout the riot. 20 train and you should do exactly that.
21 It's not a coincidence people brought hammers. It's 21 MS. KERKHOFF: Okay.
22 not a coincidence they brought crowbars. It's not a 22 THE COURT: Are you sure?
23 coincidence that they used those very weapons. 23 MR. LAZEROW: If that's what you want to do.
24 It's not a coincidence that rocks were being thrown, 24 Yeah. Yeah.
25 that fireworks and flares were going off. 25 THE COURT: Just so I'm not keeping them out there
86 88
1 waiting while we're rushing through stuff. They can get 1 MR. LAZEROW: Maybe. Maybe.
2 their lunch and I can instruct them after lunch. 2 MS. JACQUES: Maybe.
3 Does that make sense to everybody? 3 THE COURT: Right. If deliberations go long.
4 MS. KERKHOFF: Yes, your Honor. 4 And I'm just letting you know that. So change
5 (Whereupon, the following proceedings were had in 5 whatever plans you have. I think one is in Pittsburgh and
6 open court:) 6 one is just in town. So I think that will probably work out.
7 THE COURT: So, ladies and gentlemen, here's what 7 We just have to talk to them.
8 we're going to do. I'm asking to excuse you for lunch now. 8 So I guess what we'd be saying is: If you're still
9 It's early. I'm going to excuse you till 1:30. 9 deliberating, you'd be back here on the 27th. You'd have the
10 At 1:30, I will give you final instructions in this 10 Saturday, Sunday, Monday and Tuesday off, but you'd be back
11 case and, hopefully, be in a position to excuse you to 11 on the 27th.
12 deliberate. 12 I think that's reasonable. Right?
13 So please don't discuss the case. Please don't make 13 And so -- but it's No. 6 who has this travel plan
14 any decisions about it. Please don't look at anything in the 14 all the way till January 2nd who we'd be asking: Assuming
15 media or online about this case. 15 you would be back here on the 27th -- what was my -- I had
16 I will see you at 1:30. Have a good lunch. Thank 16 good language a minute ago -- would you be able to change
17 you. 17 your travel plans to return to deliberations on the 27th?
18 (Whereupon, the jury exited the courtroom at 18 Is that what I should ask him?
19 12:17 p.m. and the following proceedings were had:) 19 MS. JACQUES: Yes.
20 THE COURT: You can all have a seat. Thank you. 20 MR. McCOOL: Yes.
21 Just so I don't forget to mention this, Ms. Rice and 21 THE COURT: If he says, you know: Boy, that would
22 Ms. Laborge I believe have worked out with everybody how 22 really be terrible for me, what's everybody's position going
23 you're going to give us your exhibits. 23 to be?
24 In other words, the Government's providing videos on 24 MR. McCOOL: Can we cross that bridge when we come
25 an external drive for the trial. 25 to it?
87 Charge Conference
1 And I believe you all are providing everything on 89
2 flash drive? Yes. Okay. So good. 1 THE COURT: Yes.
3 So to the extent that that needs to be worked out so 2 MR. McCOOL: Thank you.
4 that it's all workable in the jury room, they're onboard to 3 THE COURT: I mean, I really am going to ask you to
5 help you do that. I'm going to assume that you're all going 4 decide you're going to do because then I'm going to have to
6 to make that happen because I'm not going to object much help 5 decide whether I'm basically going to -- I mean, I'm -- well,
7 in that process.
6 I need you to tell me what your position is at the time.
8 The juror in Seat 6, should I ask him -- I think I

7 Now, instructions. Maybe we can just make this
8 happen quickly. Okay?
9 should say: It's not an impossibility that deliberations
9 So for aiding and abetting, you sent in strikeouts
10 could go into the time when he expects to travel to
10 that -- and that was from Ms. Macchio -- that simply had me
11 California -- I don't know if they will or not. I don't have
11 do what I already promised to do, and I've done that.
12 control over that -- but if they were to go into that time
12 For co-conspirator liability, I didn't word it
13 period, would he able to change his travel plans and continue
13 exactly the way you wanted me to, but I put in, "In deciding
14 with deliberations until the case is done.
14 Element 1, you should apply the instructions already given on
15 What I guess I should say to him and to everybody
15 conspiracy to engage in a riot and multi-conspiracies."
16 is: Given two other jurors' travel plans, that they would
16 MR. McCOOL: That's fine. Thank you.
17 get the 26th and 27th off no matter what.
17 THE COURT: I've also added in the words "malicious
18 So whatever happens, at the close of business on the 18 for destruction of property." And that satisfies that.
19 22nd, they'd have Saturday, Sunday -- shoot -- all the way 19 For engaging, we've already had a discussion about
20 through Wednesday. That seems crazy. It's not a good idea, 20 that.
21 is it? I guess we'd have to do that and they'd come back on 21 Other than that, Ms. Macchio was getting me to put
22 the 28th and 29th. 22 in things that I had already agreed to do.
23 Well, at this rate, they're going to have a whole 23 Other than that, at the -- there was one line that
24 week next week. So either I tell all three of those jurors: 24 you asked me to fix, "You must apply the same definition of
25 Too bad for you. You're going to be here on the 27th -- 25 willfulness in determining whether the other persons in the
90 92
1 assemblage..." and let me just tell you how I've written 1 the heck is it called?
2 that: "You must apply the same definition of willfulness in 2 MS. KERKHOFF: It was the preliminary findings of
3 determining whether the other four persons you find were 3 OPC.
4 engaged in the riot were engaged in the riot willfully." 4 THE COURT: "The preliminary report of" -- OPC is
5 MS. HEINE: That's okay with me. 5 not -- I'm not putting OPC.
6 THE COURT: Thank you. 6 MS. KERKHOFF: Office of Police -- okay.
7 MS. HEINE: And I just want to make sure you saw the 7 MR. McCOOL: Office of Police Complaints.
8 other edits on there. 8 THE COURT: -- "by the Office of Police Complaints.
9 THE COURT: Those were the ones I already agreed to 9 You may not consider the allegations in those matters as
10 do. Right? 10 substantive evidence of what happened on January 20, 2017."
11 MS. HEINE: Yes. And then -- 11 Is that okay?
12 THE COURT: I took out the extra "that." 12 MS. KERKHOFF: Yes.
13 MS. HEINE: Yeah. 13 MR. McCOOL: That's fine. Thank you.
14 THE COURT: Yes. So I did that. 14 THE COURT: Thank you.
15 MS. HEINE: Okay. 15 That gets me to the defense theories.
16 THE COURT: And the Government proposed an 16 Rather than ask Ms. Kerkhoff to tell me her
17 instruction on the admission of the civil complaint, which I 17 position -- oh, well. There's the First Amendment.
18 assume she's correct that you all are offering the -- at 18 I'm going to do it the way they proposed. The only
19 least some portion of the allegations in the civil complaint 19 thing that it takes out is that, "You must find the Defendant
20 be admitted or are you not? 20 guilty if the Government's proved the offense." In other
21 MR. McCOOL: No. I don't think -- I don't think we 21 words, "you must find the Defendant guilty" is what they've
22 need to do that. With the civil complaint and the SOPs, I 22 effected the removal of by their language.
23 don't think that -- I mean, not the SOPs -- the OPC report 23 And so, since in another instruction I tell them,
24 and the civil complaint, I crossed on it. I think that's 24 "If you find the Defendant guilty beyond a reasonable doubt,
25 fine. I don't think they need to go back and sift through 25 you must -- if the Government's proved the elements" --
91 93
1 that. 1 MS. KERKHOFF: That's not my objection, your Honor.
2 THE COURT: Given they're not going to have the 2 My objection is it does not clarify that an
3 actual document, do I need to give that instruction? 3 individual can be committing the offense in addition to
4 MS. KERKHOFF: I think they should be told that that 4 committing the offense they were also expressing their views.
5 information was provided solely for bias at that point, that 5 It kind of leaves it as one versus the other.
6 there's no allegation. He read the allegation. So I think 6 THE COURT: No. I -- well, "If you find that the
7 we need -- 7 Government has proved all of the elements of an offense
8 THE COURT: Okay. So then I propose to give a 8 charged against a particular Defendant in this case, it is
9 limiting instruction that says, "You have heard evidence 9 not a defense that the particular Defendant was expressing
10 about allegations in a civil lawsuit. This evidence was 10 his or her views at the time."
11 introduced solely for your consideration in deciding whether 11 You think that that doesn't cover that?
12 witnesses testified with a bias, and you may not consider the 12 MS. KERKHOFF: I think that -- I think it's clearer
13 allegations in the civil lawsuit as substantive evidence of 13 to say that they could have been doing both at the same time.
14 what happened on January 20, 2017." 14 You could say the "Defendant was also expressing his or her
15 Is that okay with you? 15 views."
16 MR. McCOOL: That's fine. 16 THE COURT: Okay. "Also was."
17 But if you could also include the OPC report or the 17 MR. McCOOL: Where is the "also was" going? I'm
18 police complaint board report, because that was also offered 18 sorry. Did you just say -- I'm sorry.
19 for bias as well. 19 THE COURT: "It is not a defense that this
20 THE COURT: Do you want that in, Ms. Kerkhoff? 20 particular Defendant also was expressing his or her views."
21 MS. KERKHOFF: I think the Court can combine it. 21 MR. McCOOL: Fine. Thank you.
22 THE COURT: Right. That's what I'm saying. 22 And, your Honor --
23 MS. KERKHOFF: That's fine, as long as it's 23 THE COURT: So that's fine with you?
24 combined. 24 MR. McCOOL: Yes.
25 THE COURT: And so in a civil lawsuit and in -- what 25 THE COURT: Let me just make that change.
94 96
1 MR. McCOOL: Okay. 1 I would take out "does not lose its First Amendment
2 THE COURT: And then are you talking to me further 2 protection" for the reasons I've already said and would say
3 about the First Amendment instruction right now or are you 3 "was not unlawful merely because some members of the group,"
4 trying to talk about something else? 4 et cetera.
5 MR. McCOOL: I just want to maintain my record that 5 Is that okay with you?
6 I've preserved, you know, objections to jury instructions 6 MS. HEINE: Yes.
7 along the way so that, you know, if we, God forbid, get 7 MR. LAZEROW: Yes.
8 there, that somehow I've waived my objections earlier. I 8 THE COURT: So for everybody else who said the same
9 just want to make sure -- 9 stuff in your instruction, are you okay with that?
10 THE COURT: Well, I don't know what specific 10 MS. JACQUES: Agreed.
11 objections you mean. And so the record is what the record 11 MR. McCOOL: Yes.
12 is. 12 MS. KROPF: Yes.
13 MR. McCOOL: Yeah. 13 THE COURT: Is anyone not okay with that?
14 THE COURT: And you just said what you said. So 14 MR. McCOOL: Mr. Harris's is the same. So you can
15 we're going to keep going now. 15 make the same change.
16 Defense theories. I'm going to start with 16 THE COURT: That's what I'm asking.
17 Ms. Macchio's. I'm not going to put the word "pre-arrest 17 So going to Ms. Armento, I think the same changes.
18 identification" because that appears to be a challenge to 18 And if you're fine with that, I'll hand it out before --
19 probable cause, not for the jury to decide. Is I'm just 19 MS. WELETZ: As long as we can review it right
20 going to delete "pre-arrest." 20 before, your Honor. But yes. Thank you.
21 Down at the top of the -- whatever it is -- fourth 21 THE COURT: Yes. Well, let me just tell you.
22 paragraph: Ms. Macchio asserts that the First Amendment 22 What it would do is, in the first sentence -- well,
23 protects her conduct and her manner of dress on January 20th. 23 actually, this is new. This is not something other people
24 That is a line that's in a number of these. 24 did.
25 I don't want to be telling the jury that there is an 25 "She asserts that she was participating in lawful
95 97
1 overlay of First Amendment protection that, in addition to 1 First Amendment speech." I'm going to take out "First
2 their needing to find the elements beyond a reasonable doubt, 2 Amendment" because it suggests to the jury that there's this
3 they also must be applying. 3 First Amendment quality that they have to decide whether it
4 And so what -- and I also don't want the defense 4 exists or not. And it's not an element of the offense that
5 theories to be instruction to the jury on what the First 5 they find that it was not lawful First Amendment speech.
6 Amendment does and does not require. 6 And so I would just take out "that she was
7 That's the purpose of my First Amendment 7 participating in lawful speech by marching."
8 instruction, and what I want the theories to be is the 8 Of course, you could say "conduct," too, "and
9 theories of the defense. 9 maintains that her conduct was not unlawful because some
10 And so I'm willing to write it, "Ms. Macchio asserts 10 members of the group may have participated in conduct."
11 that neither her conduct nor her manner of dress on 11 So I'm taking out "does not lose its First Amendment
12 January 20, 2017, were unlawful." 12 protection."
13 MR. McCOOL: That's fine. That's fine. 13 Ms. Weletz, any position on that?
14 THE COURT: If that's how you want to put it. 14 MS. WELETZ: Is there any way, since you're taking
15 But I'm not making a part of that an instruction 15 out "First Amendment," we can change "she asserts she was
16 about what the First Amendment protects and does not protect. 16 participating in protected speech"?
17 MS. HEINE: That's good with us, your Honor. 17 THE COURT: No. Because "protected" again suggests
18 THE COURT: "Ms. Macchio asserts that the law did 18 that there's some additional thing that the jury has to
19 not require her to leave." 19 decide about whether the First Amendment protected the
20 I will say instead that she was not required to 20 conduct; and what they have to decide is whether the elements
21 leave. 21 have been proven. So that's why I'm saying that.
22 MS. HEINE: Yeah. 22 And then, moving down, "asserts that" --
23 THE COURT: And then, for the last sentence, 23 So, Ms. Weletz, I really need you to listen to me.
24 "Ms. Macchio further asserts that her conduct does not lose 24 MS. WELETZ: Yes. I'm listening.
25 its First Amendment protection." 25 THE COURT: -- "asserts that she was not required to
98 100
1 leave the protest," which is the change that I made in the 1 better way of saying it. I was trying to keep your "for the
2 other first instruction. 2 purpose of" language in there without stating it as his state
3 MS. WELETZ: Yes. 3 of mind, but that the Government has not proved that he did
4 THE COURT: Otherwise, it would be the same. 4 anything other than follow the group for the purpose of
5 MS. WELETZ: Yes, your Honor. 5 providing the information about the demonstration to the
6 THE COURT: For Ms. Simmons, in the sentence where 6 public.
7 it says, "It is Ms. Simmons' position that lawful First 7 MR. COHEN: The defense theory is in the negative.
8 Amendment conduct includes," I would take out "lawful First 8 The Government did (inaudible) --
9 Amendment conduct includes" and say, "It is Ms. Simmons' 9 THE COURT REPORTER: I'm sorry?
10 position that she was not committing any offense when she was 10 THE COURT: So can you just say that more clearly,
11 walking with others who hold similar political beliefs and 11 Mr. Cohen.
12 wearing uniform clothing" or it could say instead "acting 12 MR. COHEN: I think the Court said it fine, that the
13 unlawfully." In other words, I'm taking out "lawful First 13 Government failed to prove that Mr. Wood didn't follow the
14 Amendment conduct." 14 group for purposes of reporting.
15 Do you have a preference either way? "She was not 15 THE COURT: Well, how about, "Mr. Wood contends that
16 acting unlawfully"? "She was not committing any offense"? 16 the Government has proved -- has failed to prove that the
17 MS. JACQUES: "Not acting unlawfully." 17 Defendant did anything other than follow the group for the
18 MS. KERKHOFF: Is the Court also taking out -- 18 purpose of providing information," et cetera? Is that okay?
19 THE COURT: Yes. In the final sentence, "She 19 MR. COHEN: That's good, your Honor.
20 maintains that her conduct was not unlawful merely because 20 THE COURT: Okay. "Failed to prove."
21 some members of the group...", taking out "does not lose 21 And then I think we're good until the last
22 constitutional protection." 22 sentence of the last paragraph, where -- I'm not going to say
23 MS. KERKHOFF: What about the first sentence of the 23 "although the reporting in the livestream may be subject to
24 second paragraph, "Protected by First Amendment"? 24 criticism."
25 THE COURT: Oh. "Protected by the First Amendment." 25 That's argument. You can stand -- you've gotten a
99 101
1 Yes. I think I need to do that. 1 chance to stand up there and say all that.
2 So I would take out "protected by the First 2 I would just say, "Mr. Wood contends that the
3 Amendment." 3 Government failed to prove," et cetera. So I would take out
4 Next one, Mr. Wood: In the second paragraph, 4 that first phrase --
5 Mr. Cohen, I'm adding a "he," "maintains he was conducting 5 MR. COHEN: All right.
6 lawful First Amendment reporting." I would delete "First 6 THE COURT: -- because it's not going to come out of
7 Amendment." 7 my mouth that his conduct is subject to criticism.
8 And just to make it grammatically okay, "was 8 MR. COHEN: You're not even going to say, "Remember
9 conducting lawful reporting by" -- "was conducting lawful 9 what Mr. Cohen said yesterday and" --
10 reporting of the demonstration on January 20th," so that it's 10 THE COURT: So for Mr. Harris's, I'm taking out
11 not "lawful First Amendment reporting," which I'm not quite 11 "pre-arrest." It's all the same. Right? So everything I
12 sure what "First Amendment reporting" is supposed to be. 12 said about Ms. Macchio's --
13 But Mr. Wood contends that either -- this is a 13 Mr. McCool, you agree I can do this one?
14 sentence in which you purport to state his purpose, though he 14 MR. McCOOL: That's right. Yes, your Honor. Thank
15 has not testified. 15 you.
16 So I would either say: He contends that the 16 THE COURT: And Brittne Lawson: I would get down to
17 Government has failed to prove anything other than that he 17 Paragraph 3. "She asserts that the First Amendment protects
18 followed the group for the purpose of providing information 18 her conduct and her manner of dress" and instead say "asserts
19 about the demonstration to the public. Is that okay? 19 that neither her conduct nor her manner of dress were
20 MR. COHEN: That will work, your Honor. 20 unlawful." Is that okay with you?
21 THE COURT: I mean, it's not the most 21 MS. KROPF: I understand.
22 grammatically -- 22 THE COURT: And instead of "the law did not require
23 MR. COHEN: It has a double negative, but I think 23 her to," "she was not required to leave the protest." And
24 it'll work. 24 for the last sentence, that, "She asserts that her conduct
25 THE COURT: If you want, I can try to come up with a 25 was not unlawful merely because some members of the group,"
Page 98 to 101 of 173
102 1 MS. HEINE: Okay.
1 et cetera. 2 THE COURT: What I will do is -- if you really want
2 Is that okay? 3 to wait around, I can get my chambers to print out what we've
3 MS. KROPF: I understand the Court's ruling. 4 discussed and give it to you so you can take it with you over
4 Did -- we did have a sentence before that. 5 lunch. Would you like to do that?
5 "Further, Ms. Lawson did not commit a crime." 6 MR. McCOOL: Yes.
6 Do you have the correct version?
7 MS. WELETZ: Yes.
7 THE COURT: That's before it.
8 THE COURT: So why don't we break. We're going to
8 MS. KROPF: Before that last one.
9 break --
9 THE COURT: Traveling to the end, I was not
10 Are you okay if we only break for 50 minutes?
10 quarreling with that language.
11 THE COURT REPORTER: I'm fine, Judge.
11 MS. KROPF: Okay. Thank you.
12 THE COURT: We're going to break until 1:30. I'll
12 THE COURT: Anything, Ms. Kerkhoff, that I haven't
13 see you -- if you want to hang around, I'll give you copies.
13 covered?
14 Just wait a minute or two.
14 MS. KERKHOFF: I do have a problem with the sentence
15 (Thereupon, a luncheon recess was taken, after which
15 before that says: She did not commit a crime.
16 the following proceedings were had:)
16 THE COURT: She asserts that she did not or
17 maintains?
17 THE COURT: Good afternoon.
18 MS. KERKHOFF: Yeah. Yes. 18 THE DEPUTY CLERK: Good afternoon.
19 THE COURT: Okay. And other than that? 19 THE COURT: Good afternoon, everybody.
20 MS. KERKHOFF: That's fine. 20 MS. KERKHOFF: Good afternoon, your Honor.
21 THE COURT: Other than that, all right with you, 21 THE DEPUTY CLERK: Now re-calling United States
22 Ms. Kerkhoff? 22 versus Jennifer Armento, 2017 CF2 1193, et al.

23 MS. KERKHOFF: I'm fine. 23 THE COURT: Two familiar faces -- one unfamiliar
24 THE COURT: And if I add in "maintains that," is 24 face is there.
25 that fine with you? 25 MR. KENNEDY: Michael Kennedy. I'm here for my
103 1 partner, Mr. Lazerow.
1 MS. KROPF: That's fine, your Honor. 2 THE COURT: Would it be okay if you were just on the
2 THE COURT: And so I think -- 3 other side of the wall? To me, I just don't want to
3 MS. HEINE: We have one thing in the conspiracy to 4 introduce somebody else into this mix that the jury doesn't
4 engage in a riot. There were just a couple of 5 know.
5 noncontroversial items we had suggested that -- 6 MR. KENNEDY: Okay.
6 THE COURT: Tell me. Yes. Tell me.
7 THE COURT: Thank you.
7 MS. HEINE: At the top, it should be "Count 2."
8 So for Ms. Macchio, Ms. Whitt, Ms. Copsey,
8 THE COURT: It is Count 2 at the top, isn't it?
9 Ms. Heine. No Mr. Lazerow.
9 MS. HEINE: In the first sentence. Sorry.
10 For Ms. Simmons, Ms. Jacques.
10 THE COURT: "In Count 2, each" -- yes. I fixed
11 For Mr. Wood, Mr. Cohen.
11 that. Thank you.
12 For Ms. Armento, Ms. Weletz.
12 MS. HEINE: And then, in the third paragraph,
13 For Ms. Lawson, Mr. Kropf.
13 "inciting or urging" was still included.
14 And for Mr. Harris, Mr. McCool.
14 THE COURT: Oh, yes. Thank you.
15 And both Government counsel are here.
15 And it should be "malicious destruction of
16 I distributed what I think is the jury instructions
16 property."
17 Yes.
17 with our resolutions.
18 MS. HEINE: And then, on the sentence that starts, 18 Does anyone have any problems that they picked up
19 "You should apply the elements of engaging" -- 19 over the break? No? Okay.
20 THE COURT: Yes. 20 MR. COHEN: Just -- I was just looking at the --
21 MS. HEINE: -- it should be "engaging in a riot I 21 Alexei Wood's theory of the case. So your Honor doesn't get
22 have already given to you for Count 1." 22 tripped up, on the third sentence, it starts, "Mr. Wood's
23 MS. COPSEY: Instead of "Count 2." 23 contends..."
24 THE COURT: I took out "for Count 2." I've already 24 THE COURT: Oh, yes. Thank you.
25 made the change that we discussed yesterday. 25 MR. COHEN: Sure.
Page 102 to 105 of 173
106 108
1 THE COURT: So with respect to what to do about 1 THE COURT: And Ms. Kerkhoff?
2 Juror 6, I think, instead of just asking him whether he's 2 MS. KERKHOFF: No, other than to remind the
3 going to have a problem, since the case has gone on kind of 3 spectators regarding their conduct.
4 long -- I know that three people identified their issues to 4 THE COURT: And so I guess -- yeah -- since we've
5 Ms. Hodge. But other people -- people don't have necessarily 5 got -- I assume -- I don't know if there's people in the
6 a sense of how long the deliberations are going to take. 6 overflow courtroom or not, but I'm hoping that everybody who
7 They really may think it's going to be over in a minute. 7 is attending this trial understands that you must not ever
8 So I think what I should say is that the case -- to 8 approach, interact with or do anything that would catch the
9 the whole jury, once I've gotten through the instructions, 9 attention of a juror. If you're not sure, don't talk to
10 that: 10 them.
11 The case has gone on for longer -- a little bit 11 I appreciate that. If you do, you could cause this
12 longer than expected. I'm about to excuse the three 12 trial to end. While I take beverages seriously, I take
13 alternates. Once I've done that, the deliberating jury will 13 interaction with jurors much, much, much more seriously. So
14 be here until deliberations are completed. 14 that's my concern.
15 If the case is not over by the 22nd, you'd be 15 Shall we bring them in and shall I instruct them?
16 excused over the weekend and Christmas Day and the next day, 16 And you know our alternates, now that No. 7 became a
17 but you would be required to be back on the 27th to continue 17 regular juror, are 12, 5 and 14. And, obviously, those are
18 deliberations. 18 the people who would replace people if they become unable to
19 Is there anybody who feels that that would be an 19 serve because of whatever issues they raise with the me.
20 extreme hardship? 20 And for people who are here for the next hearing, I
21 That's how I would deal with the whole group. Then 21 apologize. It's going to be closer to 2:30 than to 2:00.
22 we can just talk to everybody. 22 And I'll get you to as soon as I'm able.
23 Is there any objection to that? 23 Thank you.
24 MS. KERKHOFF: No, your Honor. 24 In terms of exhibits and our discussion about them,
25 MR. McCOOL: No, your Honor. 25 we're going to have that discussion Monday morning.
107 109
1 THE COURT: I don't know how long that discussion 1 MS. KERKHOFF: Yes, your Honor.
2 will take, but at least we'll iron out what the problems are 2 THE COURT: And so you can get all your ducks in a
3 and they will understand that they'll be here until they're 3 row, figure out what they are, figure out what you think
4 done. 4 about exhibit lists, and then we'll just deal with all of
5 One more thing: Over the lunch break, Juror No. 3 5 that at 9:30. I'll tell the jury they're not going to get
6 has reported that a person who must have been a spectator 6 exhibits until Monday morning.
7 approached him -- it's a him -- in the corridor and said, 7 And I guess -- unless you think that there's
8 "Have you been" -- outside -- "Have you been in 203?" 8 something you can give them right away and there's other
9 And the juror sort of froze because the juror knew 9 stuff that they can have later.
10 that he was not supposed to talk to anybody. 10 MS. KERKHOFF: I think they can have the boards and
11 And the person said, "Didn't you think the 11 the photographs. And I think the videos are what's in
12 prosecutor" -- 12 dispute. So I think we can start to move some of that stuff
13 And he said, "I'm not supposed to talk to you about 13 back there.
14 the case." 14 THE COURT: And would there be an objection to
15 And the person apologized or said, "Oh, sorry. I 15 giving them boards and photos just so they have something to
16 didn't know." 16 work with and they don't feel like they're sitting back there
17 And also said, "I saw you with a notebook. So I 17 with no materials?
18 thought you might be a reporter" to the juror. 18 MR. COHEN: I would just say that maybe they
19 I guess reporters can be in all sorts of places at 19 shouldn't be allowed to reach any verdict until everything's
20 all sorts of times, but the jury box is not one of them. 20 back there. Maybe a short instruction like that, you know,
21 So that's what Juror No. 3 has reported. In my 21 the billion-to-one chance that, at 4:00, "Hey, we've got a
22 view, the juror did what he was supposed to do. 22 verdict."
23 But is anybody asking me to do anything about that? 23 I --
24 MR. McCOOL: No, your Honor, on behalf of 24 THE COURT: I'm not going to tell them when to reach
25 Mr. Harris. 25 a verdict.
Page 106 to 109 of 173
110 Charge of the Court
1 I can tell them they'll get nothing until Monday 112
2 morning, if you want. 1 Your function as the jury is to determine what the
3 Would you rather have me do that? 2 facts are in this case. You are the sole judges of the
4 MS. KROPF: I was going to speak to the exhibits, 3 facts.
5 your Honor. 4 While it's my responsibility to decide what is
6 I think it makes more sense to send all the exhibits 5 admitted as evidence during the trial, you alone decide what
7 in at once rather than piecemeal.

6 weight, if any, to give to the evidence. You alone decide
8 THE COURT: Well, we'll see. I mean, sometimes

7 the credibility or believability of the witnesses.
8 You should determine the facts without prejudice,
9 there's a straggler. But you're saying just wait until we
9 fear, sympathy or favoritism. You should not be improperly
10 have videos to give them?
10 influenced by anyone's race, ethnic origin or gender. You
11 MS. KROPF: Yes.
11 must decide this case solely from a fair consideration of the
12 THE COURT: Do you all have your flash -- oh. No.
12 evidence.
13 We haven't dealt with the admission of them yet.
13 You may not take anything that I may have said or
14 I mean, they may really feel like they should just
14 done as indicating how I think you should decide this case.
15 go home if they don't have any exhibits.
15 If you believe that I have expressed or indicated any such
16 MR. McCOOL: I'd ask that we just let them get
16 opinion, you should ignore it. The verdict in this case is
17 started. If they ask for exhibits, then we could deal with
17 your sole and exclusive responsibility.
18 it then and maybe just send then home and say we'll get it to 18 If any reference by me or by the attorneys to the
19 them Monday. 19 evidence is different from your own memory of the evidence,
20 But if they just want to get a foreperson selected 20 it is your memory that should control during your
21 and sort of get settled in, I think that would be useful. 21 deliberations.
22 MS. WELETZ: I do, too. 22 During your deliberations, you may consider only the
23 THE COURT: Okay. I'm not going to tell them they 23 evidence properly admitted in this trial. The evidence in
24 can't reach a verdict until they have exhibits. I'm not 24 this case consists of the sworn testimony of the witnesses,
25 going to say that. 25 the exhibits that were admitted into evidence and any facts
Charge of the Court Charge of the Court
111 113
1 MR. McCOOL: I don't think that's -- 1 stipulated to by the parties. You may treat any stipulated
2 MR. COHEN: Understandably. 2 facts as proven facts.
3 (Whereupon, the jury exited the courtroom at 3 When you consider the evidence, you are permitted to
4 1:46 p.m. and the following proceedings were had:) 4 draw from the facts that you find have been proven such
5 THE COURT: Good afternoon, ladies and gentlemen. 5 reasonable inferences as you feel are justified in the light
6 THE JURY: Good afternoon. 6 of your experience, reasoning and common sense.
7 THE COURT: The time has now come when all of the 7 The statements and arguments of the lawyers are not
8 evidence is in and you've heard the closing arguments. 8 evidence. They are only intended to assist you in
9 It's now up to me to instruct you on the law before 9 understanding the evidence.
10 you leave the courtroom and begin discussing the case in the 10 Remember also that sometimes during argument a
11 jury room. 11 lawyer for one party or another may appear to state a
12 Before we talk about the specific charges and some 12 personal belief or opinion concerning the facts or whether a
13 of the specific issues in the case, I am going to take a few 13 witness can be believed.
14 moments to talk with you about some general rules of law. 14 A lawyer is not permitted to express such a personal
15 Some of these will repeat what I've told you before. 15 opinion during argument. The lawyer only may argue to you
16 But the trial's gone on for a while and I want to make sure 16 based on what the evidence shows. So if you think a lawyer
17 you remember everything that you need to remember. 17 has expressed a personal opinion during argument, disregard
18 First, I'm sure that you now understand that you and 18 it and judge this case based only on the evidence.
19 I have different jobs in a trial. My function is to conduct 19 Each count charges a separate offense. Moreover,
20 this trial in an orderly, fair and efficient manner, to rule 20 each Defendant is entitled to have the issue of his or her
21 on questions of law and to instruct you on the law that 21 guilt as to each of the crimes for which he or she is on
22 applies to this case. 22 trial determined from his or her own conduct and from the
23 It is your duty to accept the law as I state it to 23 evidence that applies to him or her as if he or she were
24 you. You should consider all of my instructions as a whole. 24 being tried alone.
25 You may not ignore or refuse to follow any of them. 25 You should therefore consider separately each
Page 110 to 113 of 173
114 116
1 offense and the evidence that applies to it, and you should 1 not draw any inference of guilt from it.
2 return separate verdicts as to each count as well as to each 2 The weight of the evidence is not necessarily
3 Defendant unless I specifically instruct you to do otherwise. 3 determined by the number of witnesses testifying for each
4 The fact that you may find any one Defendant guilty 4 side. Rather, you should consider all the facts and
5 or not guilty on any one count should not influence your 5 circumstances in evidence to determine which of the witnesses
6 verdict with respect to any other count for that Defendant 6 you believe.
7 unless I specifically instruct you otherwise, nor should it 7 You might find that the testimony of a smaller
8 influence your verdict with respect to any other Defendant as 8 number of witnesses on one side is more believable than the
9 to that count or any other count. 9 testimony of a greater number of witnesses on the other side
10 Thus, you may find any one of the Defendants guilty 10 or you might find the opposite.
11 or not guilty on any one or more counts and you may return 11 You have heard evidence about allegations in a civil
12 different verdicts as to different Defendants and as to 12 lawsuit and in a preliminary report issued by the Office of
13 different counts. 13 Police Complaints.
14 At any time during your deliberations you may return 14 This evidence was introduced solely for your
15 your verdict of guilty or not guilty with respect to any 15 consideration in deciding whether witnesses testified with a
16 Defendant on any count. 16 bias, and you may not consider the allegations in these
17 During the course of this trial, a number of 17 matters as substantive evidence of what happened on
18 exhibits were admitted into evidence. Sometimes only parts 18 January 20th, 2017.
19 of an exhibit that are relevant to your deliberations were 19 Where a Defendant has introduced testimony that he
20 admitted. 20 or she has a good reputation in the community for
21 Where this has occurred, I have required the 21 peacefulness, noncombativeness and nonviolence and that, in
22 irrelevant parts of the statement or item to be blacked out 22 the witness's opinion, the Defendant is a peaceful,
23 or deleted. 23 nonviolent person, this evidence may indicate to you that it
24 Thus, as you examine exhibits, if you see or hear a 24 is unlikely that a peaceful, nonviolent person would commit
25 statement where there appear to be omissions or a video where 25 the crime charged or it may not.
115 117
1 there appear to be omissions, you should consider only the 1 You may consider this evidence along with other
2 portions that were admitted. You should not guess as to what 2 evidence in the case and give it as much weight as you think
3 has been taken out. 3 it deserves.
4 The lawyers in this case sometimes objected when the 4 Notwithstanding the evidence of character, if after
5 other side asked a question, made an argument or offered 5 weighing all of the evidence you are convinced beyond a
6 evidence that the objecting lawyer believed was not proper. 6 reasonable doubt that the Defendant is guilty of the crime
7 You must not hold such objections against the lawyer 7 charged, it is your duty to find him or her guilty.
8 who made them or the party that he or she represents. It is 8 On the other hand, evidence of good character alone
9 the lawyer's responsibility to object to evidence that they 9 may create a reasonable doubt as to a Defendant's guilt,
10 believe is not admissible. 10 although, without it, the other evidence would be convincing.
11 If during the course of the trial I sustain an 11 Every Defendant in a criminal case is presumed to be
12 objection to a lawyer's question, you must ignore the 12 innocent. This presumption of innocence remains with the
13 question and you must not speculate as to what the answer 13 Defendant throughout the trial unless and until the
14 would have been. 14 Government has proven that he or she is guilty beyond a
15 If after a witness answered a question I ruled that 15 reasonable doubt.
16 the answer should be stricken, you should ignore both the 16 This burden never shifts throughout the trial. The
17 question and the answer and they should play no part in your 17 law does not require the Defendant to prove his or her
18 deliberations. 18 innocence or to produce any evidence at all.
19 At the beginning of the trial, I told you that the 19 If you find that the Government has proven beyond a
20 Defendants each are charged in a document called an 20 reasonable doubt every element of a particular offense with
21 indictment. The indictment is merely the formal way of 21 which a Defendant is charged, it is your duty to find him or
22 accusing a person of a crime. 22 her guilty of that offense.
23 You must not consider the indictment as evidence of 23 On the other hand, if you find that the Government
24 any kind. You may not consider the fact that any person has 24 has failed to prove any element of a particular offense
25 been charged as evidence of that person's guilt, and you may 25 beyond a reasonable doubt, it is your duty to find the
Page 114 to 117 of 173
118 120
1 Defendant not guilty of that offense. 1 has testified, whether the witness has any interest in the
2 The Government has the burden of proving a Defendant 2 outcome of this case or friendship or hostility towards other
3 guilty beyond a reasonable doubt. In civil cases, it's only 3 people concerned with this case.
4 necessary to prove that a fact is more likely true than not 4 Inconsistencies or discrepancies in the testimony of
5 or, in some cases, that its truth is highly probable. 5 a witness or between the testimony of different witnesses may
6 In criminal cases such as this one, the Government's 6 or may not cause you to discredit such testimony.
7 proof must be more powerful than that. It must be beyond a 7 Two or more persons witnessing an incident or
8 reasonable doubt. 8 transaction may see it occur differently. An innocent
9 Reasonable doubt, as the name implies, is a doubt 9 misrecollection, like a failure of recollection, is not an
10 based upon reason, a doubt for which you have a reason based 10 uncommon experience.
11 upon the evidence or lack of evidence in the case. 11 In weighing the effect in inconsistency or
12 If after careful, honest and impartial consideration 12 discrepancy, always consider whether it pertains to a matter
13 of all of the evidence you cannot say that you are firmly 13 of important or unimportant detail and whether the
14 convinced of the Defendant's guilt, then you have a 14 inconsistency or discrepancy results from innocent error or
15 reasonable doubt. 15 intentional falsehood.
16 Reasonable doubt is the kind of doubt that would 16 You may consider the reasonableness or
17 cause a reasonable person, after careful and thoughtful 17 unreasonableness, the probability or improbability of the
18 reflection, to hesitate to act in the graver or more 18 testimony of a witness in determining whether to accept it as
19 important matters in life. 19 true and accurate.
20 However, it is not an imaginary doubt or a doubt 20 You may consider whether the witness has been
21 based on speculation or guesswork. It is a doubt based upon 21 contradicted or supported by other credible evidence.
22 reason. 22 If you believe that any witness has shown him or
23 The Government is not required to prove guilt beyond 23 herself to be biased or prejudiced for or against either side
24 all doubt or to a mathematical or scientific certainty. Its 24 in this trial, you may consider and determine whether such
25 burden is it prove guilt beyond a reasonable doubt. 25 bias or prejudice has colored the testimony of the witness so
119 121
1 Before I get going farther, I know this is a bad 1 as to affect the desire and capability of that witness to
2 time of day to instruct a jury. You just had lunch. You're 2 tell the truth.
3 sleepy. 3 You should give the testimony of each witness such
4 I need you to do whatever you have to do to stay 4 weight as in your judgment it is fairly entitled to receive.
5 awake. And if you actually had to stand while listening to 5 A police officer's testimony should be evaluated by
6 me, I'd be fine with that. I just do need you to stay awake. 6 you just as any other evidence in the case. In evaluating an
7 Okay? 7 officer's credibility, you should use the same guidelines
8 In determining whether the Government has 8 that you apply to the testimony of any witness.
9 established the charges against the Defendant beyond a 9 In no event should you give either greater or lesser
10 reasonable doubt, you must consider and weigh the testimony 10 weight to the testimony of any witness merely because he or
11 of all of the witnesses who have appeared before you. 11 she is a police officer.
12 You are the sole judges of the credibility of the 12 Every Defendant in a criminal case has an absolute
13 witnesses. In other words, you alone are to determine 13 right not to testify. Each Defendant has chosen to exercise
14 whether to believe any witness and the extent to which any 14 this right.
15 witness should be believed. 15 You must not hold this decision against him or her,
16 In reaching a conclusion as to the credibility of 16 and it would be improper for you to speculate as to the
17 any witness, you may consider any matter that may have a 17 reason or reasons for the decision not to testify.
18 bearing on the subject. 18 You must not assume that a Defendant is guilty
19 You may consider the demeanor and the behavior of 19 because he or she has chosen not to testify.
20 the witness on the witness stand, the witness's manner of 20 Ladies and gentlemen, I'm now going to talk with you
21 testifying, whether the witness impresses you as a truthful 21 about the specific offenses charged in this case. In going
22 person, whether the witness impresses you as having an 22 forward, if I use "he" or "she," I'm just picking one. I'll
23 accurate memory and recollection, whether the witness has any 23 do my best to alternate as much as possible.
24 motive for not telling the truth, whether the witness had a 24 And if I say "the Defendant," it applies to each
25 full opportunity to observe the matters about which he or she 25 Defendant. I'm speaking of them in the singular and each of
Page 118 to 121 of 173
122 124
1 these instructions applies to each one. 1 You need not find that the Defendant personally
2 In Count 1, each Defendant is charged with engaging 2 engaged in actual force or violence, but you must find that
3 in a riot. 3 the Defendant and at least four other persons who were part
4 The offense of engaging in a riot is a separate and 4 of the assemblage willfully engaged in the riot.
5 different offense from conspiracy to engage in a riot or 5 "Damage or injury to property" means either actual
6 malicious destruction of property. 6 physical damage to property of another or the taking of
7 The essential elements of this offense, each of 7 another's property without the consent of the owner.
8 which the Government must prove beyond a reasonable doubt, 8 The term "grave danger" means something more than
9 are: 9 the possibility of danger. The Government must prove that
10 One, that there was a riot, that is, a public 10 the danger is actually present or imminent.
11 disturbance within the District of Columbia, which, by 11 You may consider all the facts and circumstances
12 tumultuous and violent conduct or the threat thereof, created 12 shown by the evidence and determine from the evidence as a
13 grave danger of damage or injury to property or persons; 13 whole whether or not there existed an assemblage of five or
14 Two, that an assemblage of five or more persons, 14 more persons engaged in a public disturbance involving
15 including the Defendant, engaged in the riot; 15 tumultuous and violent conduct or the threat thereof which
16 Three, that the persons in the assemblage willfully 16 created a grave danger of damage or injury to property or
17 engaged in the riot; and, 17 persons.
18 Four, that the Defendant willfully engaged in the 18 In determining whether the Defendant engaged in a
19 riot. 19 riot, you may take into account only the conduct that was
20 I'm now going to tell you what I mean by some of 20 taking place in the general vicinity where the Defendant is
21 these words. 21 alleged to have engaged in the riot and you may consider only
22 An "assemblage," for purposes of establishing a 22 that conduct that the evidence indicates the Defendant saw or
23 riot, means an angry or aroused crowd or gathering of any 23 heard at or about the time the Defendant is alleged to have
24 five or more persons, one of whom was the Defendant, who 24 engaged in the public disturbance.
25 willfully engaged in the riot. 25 In order to find that the Defendant committed this
123 125
1 The Government does not need to prove that the 1 offense, you must find beyond a reasonable doubt that the
2 members of the assemblage acted pursuant to an agreement or 2 Defendant engaged in the riot willfully.
3 plan either made in advance or made at the time, or that the 3 This means that you must find beyond a reasonable
4 members concentrated their conduct on a single piece of 4 doubt that the Defendant participated in the riot on purpose,
5 property or on any one person or group of persons. 5 consciously and voluntarily and not inadvertently or
6 The Defendant does not have to personally know or be 6 accidently.
7 acquainted with the other members of the assemblage. 7 In addition, you must find that the Defendant
8 The other members of the assemblage need not be 8 intended that the assemblage by tumultuous and violent
9 identified by their name or their precise number need not be 9 conduct create a grave danger of damage or injury to property
10 established by the evidence, nor does the number of people 10 or persons.
11 need to be established by the evidence. 11 You must apply the same definition of willfulness in
12 To prove that a public disturbance involved 12 determining whether the other four persons you find were
13 tumultuous and violent conduct or the threat thereof which 13 engaged in the riot were engaged in the riot willfully.
14 created grave danger of damage or injury to property or 14 The mere presence of the Defendant among persons
15 persons, the Government must prove that the assemblage, 15 engaged in a riot without more does not establish willful
16 including the Defendant, engaged in conduct that either 16 participation or involvement even if the Defendant had the
17 included the use of actual force or violence against property 17 opportunity to leave the area in which other people were
18 or persons or that had a clear and apparent tendency to cause 18 acting tumultuously and violently and did not leave.
19 force or violence to erupt and, thus, create a grave danger 19 In a few minutes, I will instruct you on two
20 of damage or injury to property or persons. 20 additional theories of liability called aiding and abetting
21 It must also arouse or be apt to arouse public alarm 21 and co-conspirator liability.
22 or public apprehension in the area where it is occurring. 22 Can I just ask counsel to approach.
23 Tumultuous and violent conduct, therefore, must be 23 (Whereupon, the following proceedings were had at
24 something more than mere loud noisemaking or minor breaches 24 side-bar outside the presence of the jury:)
25 of the peace. 25 THE COURT: Where did that language -- did I use
Page 122 to 125 of 173
126 128
1 that language that we all talked about for 100 years? 1 deciding whether the Government has proved each of the
2 MS. KERKHOFF: The Defendant's conduct? 2 elements of conspiracy as to that person.
3 THE COURT: "That the assemblage, including the 3 It is not necessary that all conspirators be charged
4 Defendant..." 4 or even identified. If you find that a person who is not on
5 So, yes, I did use it. Right. 5 trial in this case is a co-conspirator, you are not to
6 MS. KERKHOFF: Yes, you did. 6 speculate about the reasons why he or she is not on trial.
7 THE COURT: Okay. Here's the question: I'm about 7 The essential elements of the offense of conspiracy,
8 to read the conspiracy instruction. I forgot to ask. It's 8 each of which the Government must prove beyond a reasonable
9 got 38 overt acts. 9 doubt, are:
10 I'm asking whether I can tell the jury that there is 10 One, that on or about January 20th, 2017, an
11 a list of overt acts that will be in their instructions and 11 agreement existed between two or more people to engage in a
12 that they must follow my instruction about being unanimous 12 riot with the objective to damage, destroy or deface property
13 about picking one of them, but I'm not going to read them all 13 located in the District of Columbia;
14 to them now. 14 Two, that the Defendant intentionally joined in that
15 Is there any objection to that from the Government? 15 agreement; and,
16 MS. KERKHOFF: No objection from the Government. 16 Three, that a member of the conspiracy committed at
17 THE COURT: Any from the defense? 17 least one of the overt acts listed below.
18 MR. McCOOL: None from Mr. Harris. 18 And I will tell you what "overt acts" are in a
19 THE COURT: I need to make sure. Let me just make 19 minute.
20 sure. If you could give me a line of sight. 20 You should apply the elements of engaging in a riot
21 So everybody's good with that. 21 that I've already given to you.
22 And -- because, if you told me I had to read them, I 22 For Element 1, which is that an agreement existed,
23 would read them all. I assume the defense would prefer not, 23 the agreement does not have to be a formal agreement or plan
24 but I just need to make sure because it's in the red book. 24 in which everyone involved sat down together and worked out
25 Okay. 25 the details.
127 129
1 MS. KERKHOFF: That's okay. 1 On the other hand, where people merely get together
2 MR. McCOOL: Fine. Thank you. 2 and talk about common interests or do similar things, this
3 THE COURT: Thank you. 3 does not necessarily show that an agreement exists to engage
4 (Whereupon, the following proceedings were had in 4 in a riot.
5 open court:) 5 It is enough if the Government proves beyond a
6 THE COURT: Thank you for your patience, ladies and 6 reasonable doubt that there was a common understanding among
7 gentlemen. 7 those who were involved to engage in a riot.
8 Now I'm going to tell you about Count 2. 8 For Element 2, which is that the Defendant joined
9 In Count 2, each Defendant is charged with 9 it, it is not necessary to find that the Defendant agreed to
10 conspiracy to engage in a riot. 10 all the details of the crime or that he knew the identity of
11 The Government alleges that the objective of this 11 all the other people the Government has claimed were
12 conspiracy was for the members of the conspiracy, including 12 participating in the agreement.
13 the Defendants and other persons whose identities are both 13 A person may become a member of a conspiracy even if
14 known and unknown, to engage in a public disturbance to 14 that person agrees to play only a minor part as long as that
15 damage, destroy or deface property located in the District of 15 person understands the unlawful nature of the plan and
16 Columbia. 16 voluntarily and intentionally joins in it with the intent to
17 Conspiracy is an agreement to commit a criminal 17 advance or further the unlawful object of the conspiracy.
18 offense. Put differently, it is a kind of partnership in 18 Even if a Defendant was not part of the agreement at
19 crime. It is against the law to agree with someone to engage 19 the very start, she can become a member of the conspiracy
20 in a riot. The Government is not required to prove that the 20 later if the Government proves that she intentionally joined
21 objective was achieved. 21 in the agreement.
22 The charge of conspiracy to engage in a riot is a 22 Different people may become part of the conspiracy
23 separate charge from the offenses of engaging in a riot and 23 at different times.
24 malicious destruction of property. 24 But mere presence at the scene of the agreement or
25 You must consider each Defendant separately in 25 of the crime or merely being with the other participant does
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130 132
1 not show that a Defendant knowingly joined the agreement. 1 As I've told you, the Defendants are charged in this
2 Also, unknowingly acting in a way that helps the 2 case with conspiracy to engage in a riot. I have instructed
3 participants or merely knowing about the agreement itself 3 you on the elements of the offense of conspiracy.
4 without more does not make the Defendant part of the 4 I further instruct you that, in order to find a
5 conspiracy. 5 Defendant guilty of the charge of conspiracy, you must find
6 Element 3 is the one that requires a conspirator to 6 that he was a member of the conspiracy charged in this case
7 commit an overt act. 7 as I have just described it for you and not some other
8 This means that Element 3 requires that one of the 8 separate conspiracy.
9 people involved in the conspiracy did something for the 9 Proof of several separate conspiracies is not proof
10 purpose of carrying out the conspiracy. This something is 10 of the single conspiracy charged in this case unless one of
11 referred to as an "overt act." 11 the several conspiracies which is proved is the single
12 In order to find a defendant guilty of the offense 12 conspiracy that is charged in this case.
13 of conspiracy, you must unanimously agree on at least one 13 What you must do is determine whether the single
14 overt act that you find was committed by a conspirator in the 14 conspiracy charged in this case existed between two or more
15 case. 15 conspirators. If you find that no such conspiracy existed,
16 And I should add it doesn't need to be one of these 16 then you must find the Defendant not guilty of conspiracy.
17 individuals here, but it must be a member of the conspiracy 17 However, if you find that such a conspiracy did
18 at the time. 18 exist, you must then determine who the members were. If you
19 There is a list of overt acts in the jury 19 should find that a particular Defendant was a member of
20 instructions that you will receive. There are 38 of them. 20 another conspiracy, but not a member of the one charged in
21 The parties have all agreed that I don't have to read them 21 this case, then you must find that Defendant not guilty of
22 all to you right now. 22 the charge of conspiracy.
23 And so, when you are deciding this case, to satisfy 23 In other words, to find a Defendant guilty of
24 Element 3, you must find beyond a reasonable doubt 24 conspiracy, you must find that she was a member of the
25 unanimously as to one of these overt acts that it was 25 conspiracy charged in the indictment regardless of whether
131 133
1 committed by a conspirator. And, as I said, you will have 1 she was a member of some other separate conspiracy.
2 the list. 2 And you would get an A in your law school class if
3 A conspiracy can be proved indirectly by facts and 3 that was -- that instruction alone was something you could
4 circumstances that lead to a conclusion that a conspiracy 4 repeat.
5 existed. The Government must prove that such facts and 5 So -- but you'll have these with you to read.
6 circumstances existed and that they lead to the conclusion 6 Now I'm going to talk to you about Counts 3, 4, 5, 6
7 that a conspiracy existed. 7 and 7, which charge malicious destruction of property.
8 In deciding whether a conspiracy existed, you may 8 In Count 3, the Defendants are charged with
9 consider the acts and statements of all the alleged 9 malicious destruction of property, specifically of the
10 participants except where I have instructed you otherwise. 10 windows of the Starbucks coffee shop located in the
11 In deciding whether a Defendant became a member of 11 1200 block of I Street Northwest.
12 that conspiracy, you may consider only the acts and 12 In Count 4, the Defendants are charged with that
13 statements of that particular Defendant. 13 same offense, alleging destruction of the windows at the Bank
14 In summary, a conspiracy is a kind of partnership in 14 of America branch also in the 1200 block of I Street
15 crime. For any Defendant to be convicted of the crime of 15 Northwest.
16 conspiracy, the Government must prove three things beyond a 16 In Count 5, the Defendants are charged with the same
17 reasonable doubt: 17 offense with respect to the windows of the Atrium Cafe
18 First: That on or about January 20th, 2017, there 18 located in the 1200 block of I Street Northwest.
19 was an agreement to engage in a riot; 19 And, in Count 6, the Defendants are charged with the
20 Second: That the Defendant intentionally joined in 20 same offense with respect to the windows of a McDonald's
21 that agreement; and, 21 restaurant at 1235 New York Avenue Northwest.
22 Third: That one of the people involved in the 22 And, finally, in Count 7, the Defendants are charged
23 conspiracy did one of the overt acts charged. 23 with the same offense with respect to the windows of a
24 I'm now going to instruct you on something called 24 Starbucks coffee shop located at the Crowne Plaza hotel.
25 multiple conspiracies. 25 The elements of the offense of malicious destruction
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134 136
1 of property, each of which the Government must prove beyond a 1 foreseeable consequence of the original plan.
2 reasonable doubt, are: 2 In deciding Element 1, which is that there was a
3 One, that the Defendant damaged or destroyed 3 conspiracy to engage in a riot, you should apply the
4 property of another; 4 instructions already given on conspiracy to engage in a riot
5 Two, that the property was not the Defendant's 5 and multiple conspiracies.
6 property; 6 You should apply this instruction to the counts
7 Three, that the Defendant acted voluntarily and on 7 alleging engaging in a riot and malicious destruction of
8 purpose and not by mistake or accident; 8 property.
9 Four, that the Defendant intended to damage the -- 9 Now I'm going to tell you about a different theory
10 or destroy the property or, under circumstances that 10 of liability called aiding and abetting.
11 demonstrated an extreme indifference to the value or 11 You may find a Defendant guilty in the circumstances
12 condition of the property, was aware that his or her conduct 12 I am about to describe for you without finding that he
13 created a substantial and unjustifiable risk of harm to that 13 personally committed each of the acts that make up the crime
14 property and engaged in that conduct nonetheless; and, 14 or that she was present while the crime was being committed.
15 Five, that the loss due to the destruction or damage 15 Any person who in some way intentionally
16 was $1,000 or more. 16 participates in the admission of a crime can be found guilty
17 Where only a portion of the property has been 17 either as an aider and abettor or as what we call a principal
18 injured, i.e., damaged or destroyed, the value of the damaged 18 offender.
19 property is measured by the reasonable cost of repairs 19 It makes no difference which label you attach. The
20 necessary to restore the property to the condition it was in 20 person is as guilty of the crime as he would be if she had
21 immediately before the injury, damage or destruction 21 personally committed each of the acts that make up the crime.
22 occurred. 22 To find that a Defendant aided and abetted in
23 You may not speculate or guess at the value of the 23 committing a crime, you must find beyond a reasonable doubt
24 property. Your determination must be based on the evidence 24 that the Defendant knowingly associated himself with the
25 presented. 25 admission of the crime, that she participated in the crime as
135 137
1 I'm now going to instruct you on the theory of 1 something she wished to bring about, and that he intended by
2 liability called co-conspirator liability. 2 his actions to make it succeed.
3 As I've told you, a conspiracy is a kind of 3 Some affirmative conduct by the Defendant in
4 partnership in crime. Its members may be responsible for 4 planning or carrying out the crime is necessary. Mere
5 each other's actions. A Defendant is responsible for an 5 physical presence by the Defendant at the place and time the
6 offense committed by another member of the conspiracy if the 6 crime is committed is not by itself sufficient to establish
7 Defendant was a member of the conspiracy when the offense was 7 his guilt.
8 committed and if the offense was committed in furtherance of 8 However, mere physical presence is enough if it is
9 and as a natural consequence of the conspiracy. 9 intended to help in the admission of the crime.
10 In order to find a Defendant guilty of an offense 10 The Government is not required to prove that anyone
11 under this theory, you must find beyond a reasonable doubt 11 discussed or agreed upon a specific time or method of
12 that: 12 committing the crime.
13 One, there was a conspiracy to engage in a riot; 13 The Government is not required to prove that the
14 Two, the offense was committed by a co-conspirator 14 crime was committed in the particular way planned or agreed
15 of the Defendant; 15 upon, nor need the Government prove that the principal
16 Three, that the Defendant was a member of the 16 offender and the person alleged to be the aider and abettor
17 conspiracy to engage in a riot at the time of the offense; 17 directly communicated with each other.
18 Four, that the offense was committed during the 18 I have already instructed you on the elements of the
19 existence of the conspiracy; 19 offenses of engaging in a riot and malicious destruction of
20 Five, that of the offense was committed in 20 property.
21 furtherance of the conspiracy; and, 21 With respect to the charge of engaging in a riot,
22 Six, that the offense was a reasonably foreseeable 22 regardless of whether a Defendant is an aider and abettor or
23 consequence of the conspiracy. 23 a principal offender, the Government must prove beyond a
24 It is not necessary to find that the crime was 24 reasonable doubt that the Defendant personally acted with the
25 intended as a part of the original plan, only that it was a 25 intent that an assemblage of five or more persons by
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138 140
1 tumultuous and violent conduct create a grave danger of 1 the Government has proved beyond a reasonable doubt that the
2 damage or injury to property or persons. 2 Defendant acted with the necessary state of mind.
3 With respect to the charge of malicious destruction 3 So we're getting there. I'm just asking you to --
4 of property, regardless of whether a person is an aider and 4 do you want to stand and stretch or something? I need you to
5 abettor or a principal offender, the Government must prove 5 stay alert and listen to all these instructions carefully. I
6 beyond a reasonable doubt that the Defendant personally acted 6 appreciate it.
7 with the intent to damage or destroy the property or, under 7 The burden is on the Government to prove beyond a
8 circumstances which demonstrated an extreme indifference to 8 reasonable doubt not only that the offense was committed as
9 the value or condition of the property, was aware that his or 9 alleged in the indictment, but also that the Defendant was
10 her conduct created a substantial and unjustifiable risk of 10 the person who committed it.
11 harm to the property and engaged in that conduct nonetheless. 11 In considering whether the Government has proved
12 It is not necessary that all the people who 12 beyond a reasonable doubt that the Defendant is the person
13 committed the crime be caught or identified. It is 13 who committed the offense, you may consider any one or more
14 sufficient if you find beyond a reasonable doubt that the 14 of the following with respect to each witness:
15 crime was committed by someone and that the Defendant 15 One, the witness's opportunity to observe the
16 knowingly and intentionally aided and abetted in committing 16 criminal acts and the person committing them, including the
17 the crime. 17 length of the encounter, the distance between the various
18 You should apply this instruction on aiding and 18 parties, the lighting conditions at the time, the witness's
19 abetting only to the charges of engaging in a riot and 19 state of mind at the time of the offense, and any other
20 malicious destruction of property, in other words, not to the 20 circumstances that you deem relevant affecting a witness's
21 conspiracy count. 21 opportunity to observe a person committing the offense;
22 The First Amendment guarantees the rights of free 22 Two, any subsequent identification, failure to
23 speech and assembly. This includes the right to demonstrate 23 identify or misidentification by the witness, the state of
24 in public places. It is not a crime to be present with 24 mind of the witness at the time of any subsequent
25 persons who, while demonstrating, become violent or to 25 identification, the length of time that elapsed between the
139 141
1 sympathize with their views. 1 crime and any subsequent identification, and any other
2 However, it is a crime to engage in a riot, to join 2 circumstances that you deem relevant bearing on the
3 a conspiracy to engage in a riot or to destroy property as 3 reliability of the witness's identification, including
4 either an aider and abettor or as a principal offender. 4 whether the witness knew or had seen the person who committed
5 If you find that the Government has proved all of 5 the offense on an earlier occasion and the circumstances of
6 the elements of an offense charged against a particular 6 the identification procedure used by the police; and,
7 Defendant in this case, it is not a defense that the 7 Three, any other evidence that may identify the
8 Defendant also was expressing his or her views at the time. 8 person who committed the offense charged or either support or
9 During this trial, you have heard evidence about 9 not support the identification by the witness.
10 standard operating procedures and/or general orders issued by 10 You must be satisfied beyond a reasonable doubt of
11 the Metropolitan Police Department. 11 the accuracy of the identification of the Defendant and that
12 Compliance or lack of compliance with standard 12 the Defendant is the person who committed an offense before
13 operating procedures or general orders is not a defense to 13 you may convict him.
14 any of the offenses charged in this case. 14 If the circumstances of the identification of the
15 Someone's intent or knowledge ordinarily cannot be 15 Defendant are not convincing beyond a reasonable doubt, you
16 proved directly because there is no way of knowing what a 16 must find the Defendant not guilty.
17 person is actually thinking. But you may infer a Defendant's 17 I'm now going to read to you the theories of the
18 intent or knowledge from the surrounding circumstances. 18 case of each person on trial.
19 You may consider any statement made or acts done or 19 Ms. Macchio maintains that the Government has not
20 not done by a Defendant and all other facts and circumstances 20 proven any identification of her beyond a reasonable doubt.
21 received in evidence that indicate his or her intent or 21 Ms. Macchio asserts that the Government has not
22 knowledge. It is entirely up to you, however, to decide what 22 proven beyond a reasonable doubt that she engaged in a riot,
23 facts to find from the evidence received during this trial. 23 that she joined any agreement to engage in a riot, and that
24 You should consider all the circumstances in 24 she destroyed any property or that she aided anyone in
25 evidence that you think are relevant in determining whether 25 destroying property.
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142 144
1 Ms. Macchio further asserts that the Government did 1 It is further her position that it is not unlawful
2 not prove beyond a reasonable doubt that she intended to 2 to walk with others who hold similar political beliefs or to
3 commit any of the charged offenses because she did not say or 3 wear uniform clothing.
4 do anything to show that she intended to commit the charged 4 Ms. Simmons asserts that she did not commit a crime
5 offenses. 5 merely because she was in the same march and/or geographic
6 Moreover, Ms. Macchio asserts that the other facts 6 area in which a small number of people were involved in
7 received in evidence, including the failure of MPD officials 7 criminal activity.
8 to follow the standard operating procedures governing First 8 She maintains that she was not required to leave or
9 Amendment assemblies are reasons to doubt that Ms. Macchio 9 disassociate from the protest because of the criminal
10 acted with the necessary state of mind. 10 activity of others.
11 Ms. Macchio asserts that neither her conduct nor her 11 Ms. Simmons maintains that her conduct was not
12 manner of dress were unlawful on January 20th, 2017. She 12 unlawful merely because some members of a group may have
13 further asserts that she was not required to leave the 13 participated in conduct that is not protected by the First
14 protest, even if others were involved in riotous behavior, 14 Amendment.
15 because she maintains that the Government has not proven 15 Alexei Wood contends that he is not guilty of
16 beyond a reasonable doubt that her mere presence was intended 16 engaging in a riot or related offenses. He maintains he was
17 to help in the admission of the crimes charged in the 17 conducting lawful reporting of the demonstration on
18 indictment. 18 January 20th, 2017.
19 Ms. Macchio further asserts that her conduct was not 19 He further contends that the Government has failed
20 unlawful merely because some members of the group may have 20 to prove that he did anything other than follow the group for
21 participated in conduct that is not protected by the First 21 the purpose of providing information about the demonstration
22 Amendment. 22 to the public.
23 Ms. Armento's theory of the case is as follows: 23 Mr. Wood asserts that the Government has failed to
24 Ms. Armento maintains that she is not guilty of any 24 prove beyond a reasonable doubt that he intended his conduct
25 of the charges against her. 25 and reactions during the demonstration to cause others to
143 145
1 She asserts that she was participating in lawful 1 begin or continue in any destructive or other riotous
2 speech by marching in protest on January 20th, 2017, and 2 behavior.
3 maintains that her conduct was not unlawful because some 3 He further asserts that the Government has failed to
4 members of the group may have participated in conduct that is 4 prove that anybody reacted to Mr. Wood's conduct during the
5 not protected under the First Amendment. 5 demonstration.
6 Ms. Armento maintains that she did not take part in 6 He mains that the Government has failed to show that
7 any violent or riotous behavior and that the Government has 7 he participated, created, or joined any common understanding
8 not proven beyond a reasonable doubt that she intended any 8 that may have existed at or prior to this demonstration on
9 violence or destruction of property. 9 January 20th, 2017.
10 Ms. Armento asserts that she was not required to 10 He also contends that the Government further has
11 leave the protest even if others were involved in riotous 11 failed to establish beyond a reasonable doubt that his
12 behavior. 12 livestream was intended to be an advertisement for joining
13 Ms. Armento maintains that the Government has not 13 the demonstration nor did the Government prove beyond a
14 established beyond a reasonable doubt that she willfully 14 reasonable doubt that Mr. Wood intended the livestream to be
15 engaged in any riotous conduct, joined any agreement to 15 used as a means of recruitment for any group or future
16 engage in a riot, that she destroyed any property or that she 16 demonstration.
17 aided anyone in the destruction of property. 17 Mr. Wood contends that the Government has failed to
18 Ms. Simmons maintains that she is not guilty of any 18 prove that anything he did or said in the livestream is
19 of the charges against her. She asserts that she did not 19 criminal beyond a reasonable doubt.
20 take part in any violent or riotous behavior, did not join 20 Oliver Harris maintains that the Government has not
21 any agreement to engage in a riot, and did not commit any 21 proven any identification of him beyond a reasonable doubt.
22 acts of property destruction. 22 He asserts that the Government has not proven beyond a
23 It is Ms. Simmons's contention that she participated 23 reasonable doubt that Mr. Harris engaged in a riot, that he
24 in a lawful protest of the inauguration of Donald Trump on 24 joined any agreement to engage in a riot, that he destroyed
25 January 20th, 2017. 25 any property or that he aided anyone in destroying property.
Page 142 to 145 of 173
146 148
1 Mr. Harris further asserts that the Government did 1 unlawful merely because some members of the group may have
2 not prove beyond a reasonable doubt that he intended to 2 participated in conduct that is not protected by the First
3 commit any of the charged offenses because he did not say or 3 Amendment.
4 do anything to show that he intended to commit the charged 4 Before I excuse you to deliberate, ladies and
5 offenses. 5 gentlemen, I'm going to discuss a few final matters with you.
6 Moreover, Mr. Harris asserts that the other facts 6 The question of possible punishment of a Defendant
7 received in evidence, including the failure of MPD officials 7 in the event of a conviction is not a concern of yours and
8 to follow the standard operating procedures governing First 8 should not enter into or influence your deliberations in any
9 Amendment assemblies, are reasons to doubt that Mr. Harris 9 way.
10 acted with the necessary state of mind. 10 The duty of imposing sentence in the event of a
11 Mr. Harris asserts that neither his conduct nor his 11 conviction rests exclusively with me. Your verdict should be
12 manner of dress were unlawful on January 20th, 2017. 12 based solely on the evidence in this case and you should not
13 He asserts that he was not required to leave the 13 consider the matter of punishment at all.
14 protest even if others were involved in riotous behavior 14 When you return to the jury room, you should first
15 because he maintains that the Government has not proven 15 select a foreperson to preside over your deliberations and to
16 beyond a reasonable doubt that his mere presence was intended 16 be your spokesperson here in court.
17 to help in the admission of the crimes charged in the 17 If it becomes necessary during your deliberations to
18 indictment. 18 communicate with me, you may send a note by the clerk or the
19 Mr. Harris further asserts that his conduct was not 19 marshal, signed by your foreperson or by one or more members
20 unlawful merely because some members of the group may have 20 of the jury. No member of the jury should try to communicate
21 participated in conduct that is not protected by the First 21 with me except by such a signed note; and I will never
22 Amendment. 22 communicate with any member of the jury on any matter
23 Brittne Lawson asserts that the Government has not 23 concerning the merits of this case except in writing or
24 proven beyond a reasonable doubt that Ms. Lawson engaged in a 24 orally here in open court.
25 riot, that she joined any agreement to engage in a riot, that 25 Bear in mind also that you must never under any
147 149
1 she destroyed any property or that she aided anyone in 1 circumstances reveal to any person, not to the clerk, not to
2 destroying property. 2 the marshal and not to me, how jurors are voting until after
3 Ms. Lawson further asserts that the Government did 3 you have reached a unanimous verdict.
4 not prove beyond a reasonable doubt that she intended to 4 This means that you never should tell me in writing
5 commit any of the charged offenses because she did not say or 5 or in open court how the jury is divided on any matter, for
6 do anything to show that she intended to commit the charged 6 example, six to six, seven to five or 11 to one or in any
7 offenses. 7 other fashion, whether the vote is for conviction or
8 Moreover, Ms. Lawson asserts that the other facts 8 acquittal or on any other issue.
9 received in evidence, including the failure of MPD officials 9 As I've instructed you before, you may not
10 to follow the standard operating procedures governing First 10 communicate with anyone not on the jury about this case. As
11 Amendment assemblies, are reasons to doubt that she acted 11 I explained, this includes any electronic communications such
12 with the necessary state of mind. 12 as emailing, texting or blogging about the case.
13 She asserts that neither her conduct nor her manner 13 In addition, you may not conduct any independent
14 of dress were unlawful on January 20, 2017. 14 investigation before or during deliberations. This means you
15 She further asserts that she was not required to 15 may not conduct any research in person or electronically via
16 leave the protest even if others were involved in riotous 16 the Internet or in any other way. In other words, you can't
17 behavior because she maintains that the Government has not 17 look anything up, including the meaning of words. You must
18 proven beyond a reasonable doubt that her mere presence was 18 not even look up definitions.
19 intended to help in the admission of the crimes charged. 19 In some cases, there may be reports in the newspaper
20 Further, Ms. Lawson maintains that she did not 20 or on the radio, Internet or television concerning the case
21 commit a crime merely because she was in the same march or 21 while the trial is going on.
22 geographic area in which a handful of other people were 22 If there should be such media coverage in this case,
23 involved in criminal activity or because she was prepared to 23 you may be tempted to read, listen to or watch it. You must
24 act as a medic that day. 24 not read, listen to or watch such reports because you must
25 Finally, Ms. Lawson asserts that her conduct was not 25 decide this case solely on the evidence presented in this
Page 146 to 149 of 173
Charge of the Court 152
150 1 I'll ask counsel to approach, please.
1 courtroom. 2 (Whereupon, the following proceedings were had at
2 If any publicity about this trial inadvertently 3 side-bar outside the presence of the jury:)
3 comes to your attention, do not discuss it with other jurors 4 THE COURT: Are all parties satisfied with the
4 or anyone else. Just let me or my clerk know as soon after 5 instructions as given?
5 it happens as you can, and I will then briefly discuss it 6 MS. KERKHOFF: Yes.
6 with you.
7 MR. McCOOL: On behalf of Mr. Harris, I have no new
7 I will be sending into the jury room all of the
8 objections, your Honor. We maintain our prior objections,
8 exhibits that have been admitted into evidence. You may
9 but we have nothing to add further.
9 examine any or all of them as you consider your verdict.
10 Thank you.
10 As you know, there's a lot of evidence and in
11 THE COURT: Ms. Jacques?
11 particular a lot of digital evidence. We're going to get all
12 MS. JACQUES: No objections, your Honor.
12 that to you on Monday morning. You're not going to have it
13 THE COURT: Ms. Heine?
13 by the time you leave this afternoon. It just has to be all
14 MS. HEINE: On behalf of Ms. Macchio, we maintain
14 put together and put in a form in which it's playable in your
15 our prior objections but we have no new objections.
15 jury room.
16 THE COURT: Ms. Kropf?
16 As I understand it, we are certain that you will be
17 able to play everything that you need to play in the jury
17 MS. KROPF: On behalf of Ms. Lawson, we renew our
18 room with the equipment that's there. You'll have technical 18 prior objections.
19 assistance if there's any problem with any of it. So just 19 THE COURT: Any objections, though, that are new?
20 let Ms. Hodge know if there is a problem. 20 MS. KROPF: No, your Honor.
21 You will not be getting anything that was, for 21 THE COURT: Ms. Weletz?
22 instance, talked about but not admitted into evidence 22 MS. WELETZ: No objections on behalf of Ms. Armento.
23 formally. So if there's something that you heard about or 23 THE COURT: Mr. Cohen?
24 thought was talked about that you don't get, that would be 24 MR. COHEN: No objection on behalf of Mr. Wood.
25 the reason you don't have it. 25 THE COURT: Did I get everybody? Yes.
Charge of the Court 153
151 1 So I'm going to have my conversation with the jurors
1 I am going to give you a copy of my instructions. 2 now.
2 I'll give you a couple of copies. During your deliberations, 3 (Whereupon, the following proceedings were had in
3 you may, if you want to, refer to the instructions. And 4 open court:)
4 while you may refer to any particular part of the 5 THE COURT: Ladies and gentlemen, before I excuse
5 instructions, you need to -- I remind you that you must 6 the deliberating jury, now is the time when I'm about to
6 follow the instructions as a whole. You can't follow some
7 excuse the three alternate jurors that are in the jury box.
7 and ignore others. The fact that I give you the written
8 And I want to ask you a question before I do that.
8 instructions should not keep you from writing me a note if
9 Once I excuse the three alternates and the
9 you have any questions at all about the meaning of the
10 deliberating jury begins its deliberations, you will be
10 instructions.
11 required to be with us until the conclusion of the
11 Please return the instructions to Ms. Hodge once
12 deliberations. I can't tell you how long they're going to
12 you've rendered your verdict.
13 take, because you all are going to be the ones doing it, not
13 When you've reached your verdict, please send me a
14 me.
14 note telling me you've reached your verdict and have the
15 And so I know that some of you have identified
15 foreperson sign the note. Do not tell me what your verdict
16 holiday travel plans. I want to say that I expect our
16 is in the note, however. The foreperson should fill out and
17 sign the verdict form that will be provided. We will then
17 schedule to be that you would be here all week next week,
18 call you into the courtroom and ask you your verdict in open 18 which is the 18th through the 22nd. If the case is resolved
19 court. 19 by then, great. If the case is not resolved by then, I would
20 You'll get a separate verdict form for each of the 20 take a break with the trial over Christmas, which is a
21 Defendants. 21 Monday, and the next day, the 26th, which is Tuesday, and the
22 A verdict must represent the considered judgment of 22 jury would return on Wednesday the 27th to resume. And
23 each juror; and in order to return a verdict, each juror must 23 hopefully I don't even have to talk about the following
24 agree to the verdict. In other words, your verdicts must be 24 weekend.
25 unanimous. 25 So, like I say, I don't know. You all could be
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154 156
1 finished by next week. But I want to raise the possibility 1 Can you explain why that's something that would be a
2 of the return of the jury to continue deliberations on the 2 hardship for you?
3 27th of December. 3 JUROR NO. 6: I mean, it's a flight that I've had
4 And so I need to know now whether there is anyone 4 for quite a while. My whole family is going to see my
5 who would experience a hardship on the deliberating jury 5 parents. I'm sure some people wouldn't consider that a
6 according to that schedule. 6 hardship. But --
7 Nobody is raising your hand. That means that for 7 THE COURT: So can you explain to me, if I were to
8 those who are not the alternates, you understand that you 8 basically make you cut short your trip or make you, I guess,
9 will be with us until the conclusion of deliberations. And I 9 not go until this case was over, would it affect your ability
10 do appreciate your service very much. I know that you may 10 to fairly decide the case?
11 have interrupted other plans in order to be able to do that. 11 JUROR NO. 6: No. I mean, I wouldn't hold any
12 So I'm asking you whether any -- whether there's 12 grudges, if that's the question.
13 anyone who believes that they would not be able to fulfill 13 THE COURT: Tell me how it would affect you. In
14 the obligations of a juror to the end of the deliberations in 14 other words, how awful would it be for you? How much of a
15 this case, given that schedule. 15 hardship would it be?
16 If you do have a problem, can you raise your hand. 16 JUROR NO. 6: I mean, it's, you know, visiting
17 JUROR NO. 6: (Indicates.) 17 family and people I don't see on a regular basis. It's going
18 THE COURT: That's Juror No. 6. 18 with my son, both my sons and my wife. So --
19 Anybody else? 19 THE COURT: And I appreciate that you've said you
20 You know what I'm going to do? I'm going to let -- 20 wouldn't hold it against anybody.
21 what should I do? I think what I'll do is ask all the rest 21 Would it cause you to rush deliberations at all to
22 of you just to go to the jury room for a minute. I'll bring 22 get through so you could get going?
23 you back in. And that way, it's less cumbersome to have this 23 JUROR NO. 6: No.
24 conversation in front of all of you. 24 THE COURT: And so are you saying that if I did this
25 Thank you. I'll bring you back in this about two 25 to you that you would not hold it against any party in this
155 157
1 minutes. 1 case and that it would not affect your deliberations in any
2 (Whereupon, the jury, excepting Juror No. 6, exited 2 way?
3 the courtroom at 2:44 p.m. and the following proceedings were 3 JUROR NO. 6: No.
4 had:) 4 THE COURT: And I --
5 THE COURT: So I can bring the juror to the bench 5 JUROR NO. 6: Sadly, I say that.
6 and have the conversation with him and you all can just 6 THE COURT: Sadly, you say that.
7 listen in. 7 Sir, I appreciate your candor with me. I know
8 Sir, can you come on up, please. 8 everybody else does.
9 (Whereupon, the following proceedings were had at 9 Let me excuse you to go to the jury room so I can
10 side-bar with Juror No. 6:) 10 talk to the lawyers. Thank you so much.
11 THE COURT: Hi. How are you? 11 (Whereupon, the following proceedings were had in
12 JUROR NO. 6: All right. 12 open court:)
13 THE COURT: Let me make sure everybody is listening. 13 THE COURT: His Hodge, can you escort him out,
14 Everybody good? 14 please.
15 Sir, you are Juror -- in Seat No. 6. You're Juror 15 THE DEPUTY CLERK: (Complies.)
16 609. 16 MR. McCOOL: May I approach on this?
17 JUROR NO. 6: Yes. 17 THE COURT: Yes.
18 THE COURT: I knew you did tell Ms. Hodge that you 18 (Whereupon, the following proceedings were had at
19 have plans to travel to California on the 26th of December 19 side-bar:)
20 and you wouldn't return until January 2nd. 20 THE COURT: Is everybody listening?
21 JUROR NO. 6: Yes, ma'am. Correct. 21 So just so everybody understands, if we allowed him
22 THE COURT: And so, like I said, if you are on the 22 to go, he'd be replaced by the juror in Seat 12, Juror 978.
23 deliberating jury and the jury has not yet reached a verdict 23 And I guess that's nine, ten, 11, 12.
24 by the 22nd, I would have you return after Christmas on the 24 So what is the position of the Defendants on this?
25 27th. 25 MR. McCOOL: Mr. Harris wants to keep the juror.
Page 154 to 157 of 173
158 160
1 THE COURT: Is there anybody -- are there other 1 THE COURT: Juror No. 6, can I just ask you to
2 positions or is Mr. McCool stating everybody's position? 2 approach.
3 Everybody would like to keep the juror, I see. 3 (Whereupon, the following proceedings were had at
4 Does the Government have a position? 4 side-bar with Juror No. 6:)
5 MS. KERKHOFF: I would feel really bad for the guy. 5 THE COURT: So I wanted you to know we're going to
6 If they weren't objecting, I'd say let him go. They've all 6 keep you and ask you to change your plans because you've said
7 been attentive and we have alternates. 7 you can be a fair juror and decide this case fairly. I
8 But I think for the appellate record, my position 8 appreciate that you were so candid with us, with the
9 means nothing at this point. 9 understanding that it could really put your holiday plans at
10 THE COURT: You're right about that. 10 risk.
11 So I think I should have him remain. He says he can 11 So I want to thank you very much on behalf of all
12 be fair. Obviously, we're going to make him a little bit 12 the parties and the Court. We really do appreciate your
13 sad, but he did say he could do it. 13 contribution.
14 So I'm leaving it to you all. It's up to you. If 14 JUROR NO. 6: Is there any document that I can use
15 you tell me I should excuse him, I obviously would. 15 for the airline?
16 And I guess I can say if Juror No. 12 is your 16 THE COURT: We'll get you what we can get you. If
17 problem -- she's been kind of sleepy throughout. I think 17 there's anything we can do, just let me know.
18 that's the one I said I was looking at when it -- was she the 18 JUROR NO. 6: Okay. Thank you.
19 one in the sweatshirt who was sort of dozy? 19 THE COURT: Thank you.
20 MR. McCOOL: She's an alternate. 20 (Whereupon, the following proceedings were had in
21 THE COURT: She is. The next one would be 5. I'm 21 open court:)
22 not picturing in my mind who 5 is right now. But we could 22 THE COURT: So, ladies and gentlemen, now is the
23 get rid of the sleepy lady and have Alternate -- the 23 time when I'm required to excuse the alternate jurors. There
24 alternate in Seat 5 take his place instead, if that is what 24 are three alternates in the jury box. Those seats were
25 the deal breaker is. 25 selected long before you were ever in them. So I don't want
159 161
1 But like I said, if you all say you want to keep No. 1 anybody to feel insulted. I know that you've all paid such
2 6, he has said he can do this. And it's on you guys. 2 close attention and been so reliable and have come on time
3 MR. McCOOL: We'll keep 6. 3 every day and put in a lot of commitment. So I do thank you
4 THE COURT: All right. 4 all for your service.
5 MR. McCOOL: Thank you. 5 The alternates in this case are the jurors in Seats
6 (Whereupon, the following proceedings were had in 6 5, 12 and 14. So that's 5, 12 and 14.
7 open court:) 7 I have some final instructions for the alternate
8 THE COURT: Can we bring the jurors back. 8 jurors:
9 THE COURTROOM DEPUTY: Yes. 9 First of all, I instruct you not to make any
10 THE COURT: Should I bring him up to the bench and 10 decisions about this case or talk about it to anyone even
11 tell him how much we appreciate his service and we decided 11 after you leave here until you've heard from Ms. Hodge that
12 we're going to have him stay? 12 the case is over. She will call you to tell you the result
13 MR. McCOOL: Yes, your Honor. 13 of the deliberations.
14 THE COURT: I think I should, just to make him feel 14 The reason that I instruct you not to talk about the
15 like what he's doing is at least appreciated. 15 case or make any decisions about it until you've heard from
16 Does anybody object to that? 16 us is that if for some reason we had to ask you to come back
17 MS. KERKHOFF: No, your Honor. 17 to join the deliberating jury, it would be critically
18 THE COURT: When the whole jury comes in, I'll have 18 important that you have not decided the case or discussed it
19 him come on up. 19 with anyone.
20 Is there any objection to my now excusing Jurors 5, 20 So that's the reason I'm giving you these
21 12 and 14? 21 instructions not to do these things for a little while
22 MS. KERKHOFF: No, your Honor. 22 longer.
23 MS. HEINE: No objection. 23 I also do need to ask you therefore not to read any
24 (Whereupon, the jury entered the courtroom at 2:50 24 news accounts or see any media information about this case
25 p.m. and the following proceedings were had:) 25 until you've heard from us.
Page 158 to 161 of 173
162 164
1 So I want to thank the alternate jurors for your 1 So I say we excuse them and then we can talk. I'm
2 participation and your service and your attention. Don't 2 going to excuse them until Monday at 9:30.
3 forget if you have items in the jury room. 3 (Whereupon, the jury exited the courtroom at 4:05
4 For the ladies and gentlemen of the deliberating 4 p.m. and the following proceedings were had:)
5 jury, I'm now going to excuse you to begin your 5 THE COURT: Good afternoon again, ladies and
6 deliberations. 6 gentlemen. I'm now going to excuse you for the weekend.
7 I'll be excusing you at 4:00, so you're not going to 7 I just want to tell you how much -- how grateful I
8 be here that much longer today. I'll bring you into the 8 am and how grateful we all are for all the time and attention
9 courtroom at that time and let you know that you're coming 9 you've put in. I want you to have a weekend in which you
10 back on Monday at 9:30. 10 don't think about us at all.
11 And as I said, you'll be getting verdict forms, 11 Of course, do not discuss the case at all until all
12 written instructions and exhibits from me. But you will not 12 12 of you are together again in the jury room on Monday
13 be getting them until Monday morning because I need to make 13 morning.
14 sure they're all correct. 14 I'm going to excuse you until 9:30 on Monday. From
15 So thank you very much. You may be excused to begin 15 now on, you'll be coming in at 9:30, just because you don't
16 your deliberations. 16 have to wait for me to call my cases anymore.
17 I thank the deliberating jury for your attention and 17 So I hope you have a good, restful, clear-headed
18 your patience. You may take your notebooks with you. 18 weekend; and we'll see you Monday.
19 Thank you. 19 Thank you very much.
20 UNIDENTIFIED JUROR: Do we take ours? 20 (Whereupon, the jury exited the courtroom at 4:06
21 THE COURT: Mr. Hodge will take them. 21 p.m. and the following proceedings were had:)
22 Thank you very much, everybody. 22 THE COURT: So I gave out all my copies of the
23 (Whereupon, the jury exited the courtroom at 2:54 23 verdict form to everybody else and I don't have them. So I
24 p.m. and the following proceedings were had:) 24 guess all I need to ask is: Are there any corrections
25 THE COURT: I think I'd just like to let you go 25 anybody has? I can do it.
163 165
1 forth until 4:00. I'll excuse them at 4:00. If you don't 1 MS. KERKHOFF: Yes.
2 mind, come back at 4:00. That way, you can look at them in 2 On Count 2 and Count 4, for each of the Defendants,
3 the eye when you do excuse them. In the meantime, you can do 3 I think the word "the" is missing in front of "Defendant."
4 some work getting exhibits ready and thinking through what 4 It is: "How do you find Defendant?"
5 we're going to give them. 5 THE COURT: Okay.
6 And I'm going to be holding another hearing. I was 6 MS. HEINE: And, your Honor --
7 going to give the court reporter five minutes. Okay? It'll 7 THE COURT: Hold on. Hold on.
8 only be another hour. How about ten minutes? It's been a 8 Ms. Kerkhoff, you're saying where?
9 long time. 9 MS. KERKHOFF: Count 2.
10 THE COURT REPORTER: Thanks, Judge. 10 THE COURT: "Defendant." Yes. Okay. So in 2 and
11 THE COURT: Thank you, everyone. I'm excusing you 11 in 4.
12 until 4:00. 12 Ms. Kerkhoff, that's everything from you?
13 And for the ladies and gentlemen who are here for 13 MS. KERKHOFF: That's what I had. Yes.
14 the next hearing, I'm going to call it in ten minutes. 14 THE COURT: Yes, Ms. Heine.
15 That's five after 3:00. 15 MS. HEINE: We'd actually like to use the
16 I'm going to ask people to step out of the well. 16 Defendants' names rather than say "the Defendant."
17 (Thereupon a recess was taken, after which the 17 And our second request is to put "malicious" on
18 following proceedings were had:) 18 malicious destruction of property.
19 THE COURT: Good afternoon. 19 THE COURT: I am going to -- well, I'll tell you
20 THE DEPUTY CLERK: Now re-calling United States 20 what: If you all want to send me back corrected verdict
21 versus Jennifer Armento, 2017 CF2 1193, et al. 21 forms in exactly the same format with the names changed
22 THE COURT: Good afternoon, everybody. 22 properly, you can do it. But otherwise, I'm not changing it.
23 MS. HEINE: Good afternoon, your Honor. 23 I don't have an administrative assistant right now. This is
24 THE COURT: They are so ready to leave. They're 24 how I usually send my verdict forms back.
25 lined up right outside the courtroom. 25 MS. HEINE: We're happy to change it. Is it
Page 162 to 165 of 173
166 168
1 possible to get an electronic copy of this? 1 there that day who were watching a livestream feed. They're
2 THE COURT: You can contact my law clerk. 2 wholly irrelevant to this case.
3 MS. HEINE: We can just type it. 3 THE COURT: So the hearts indicate that people are
4 MR. McCOOL: We'll just type it. We'll take care of 4 watching and favor it?
5 it. 5 MS. KERKHOFF: Since I was -- this was just raised
6 THE COURT: But I want them all the same, if you 6 for the first time about an hour ago, it does seem to
7 know what I'm saying, same font, for everybody. 7 indicate that people are watching or liking whatever it is.
8 MS. HEINE: We'll do it all the same. 8 It is not being offered for the truth of anything. It's not
9 THE COURT: Do me a favor: Email them to my law 9 listed as a statement against anybody. I'm not certain how
10 clerk and I'll save them, because if we need to do corrected 10 we can short of --
11 verdict forms at any point, we will have them all. 11 THE COURT: Can I just ask, where are you
12 MS. HEINE: Okay. 12 objecting -- what do you think the hearts mean?
13 THE COURT: Is it Crowne with an E? It is, right? 13 MS. COPSEY: Not just to the hearts; mostly to the
14 MS. KERKHOFF: Correct. 14 comments. Actual people were watching this remotely and were
15 THE COURT: So -- and malicious. But you're going 15 typing comments in real time, and they appear on the video.
16 to do it anyway. 16 THE COURT: And --
17 I will await the corrected verdict forms. 17 MS. COPSEY: I can give you some examples.
18 And then for exhibits -- what does my Monday morning 18 THE COURT: Are you in a position to know how many
19 calendar look like? 19 are there?
20 THE DEPUTY CLERK: Let's see. 20 MS. COPSEY: It's throughout the whole video, I
21 THE COURT: I probably have a ton of stuff because 21 think. It's just a continuous live feed of comments.
22 I've been putting everybody off. 22 THE COURT: So how many comments do you think there
23 Let's assume we're going to meet at 9:30 and get 23 are?
24 through our discussion of exhibits. As much as you can 24 MS. COPSEY: I couldn't say.
25 accomplish without me, I'd be grateful for that. 25 THE COURT: I mean, isn't it proof --
167 169
1 And at this point, what are the sort of biggest 1 MS. COPSEY: Maybe 10 to 12.
2 subjects of controversy? 2 THE COURT: 10 to 12 comments?
3 MS. KERKHOFF: Your Honor, the Government has 3 Isn't it proof it's actually reaching other people,
4 provided in direct response to a chart of objections to -- 4 which is the point of the whole thing?
5 made by Ms. Macchio, we provided our response. We have 5 MS. COPSEY: It's not Alexei Wood's livestream, if
6 reposted every exhibit as it exists to go back to the jury on 6 that's what you mean.
7 the portal. 7 THE COURT: Oh, okay. Now we're talking about
8 The main objections appear to be comments in videos 8 something else.
9 that the Government submits are present-sense impression or 9 MS. KERKHOFF: I think it would be --
10 nonhearsay. And it's in, I would say, probably 10 to 12. 10 THE COURT: What exhibit are we talking about?
11 And today for the first time it's raised with me 11 MS. KERKHOFF: 126. This would be --
12 that counsel didn't want some of the stuff that's captured on 12 MS. COPSEY: 126.
13 the livestreams, which are people putting hearts, like 13 MR. KERKHOFF: -- a guy named Alexander Rubenstein.
14 responding back, interacting on the videos. And we would 14 He had two livestreams, 126 and 127, both of which were
15 object to that because it's not being offered for the truth. 15 admitted.
16 So I think it's that kind of thing. We can narrow down the 16 MS. KERKHOFF: The Government's position is I'm not
17 time periods and provide it to the Court. 17 certain how I can redact out all that material without also
18 THE COURT: If there's a chart, maybe you could send 18 impacting the video portion.
19 the chart too. 19 THE COURT: So I don't think -- I mean, it's going
20 MS. COPSEY: Your Honor, Christina Copsey on behalf 20 to be altering an exhibit entirely to do that. And I don't
21 of Michelle Macchio. 21 know what the comments say, so I'm not in a position to rule
22 We actually -- regarding the chart Ms. Kerkhoff is 22 on them.
23 referring to, our only standing is on one particular 23 I have to assume that none of them are offered for
24 objection. And it's the comments that she mentioned that 24 their truth. I don't know if any of them say anything that
25 appear on the livestream. They're from people who are not 25 the import of which would be significant. Since this is the
Page 166 to 169 of 173
170 172
1 first time it's being raised, of course, one could have 1 MR. McCOOL: It's a good thing Andrew is not here.
2 addressed it with a jury instruction. 2 He's been worried about that. He thinks they're all going to
3 MS. COPSEY: Your Honor, this portion of the video 3 leave him.
4 hasn't been published, and we -- to the jury in trial. And 4 THE COURT: Have a good weekend. I'll see you on
5 so in our tentative agreement with Ms. Kerkhoff that we would 5 Monday. A really, really good job, everybody.
6 agree to have full exhibits go back to the jury if they 6 MR. McCOOL: Thank you, your Honor.
7 hadn't been published in full, that was contingent upon our 7 (Proceedings concluded.)
8 objections being addressed first. 8
9 THE COURT: And so I -- 9
10 MS. COPSEY: And we have been asking her since at 10
11 least Tuesday to provide us with the final versions of the 11
12 exhibits she wanted to send back to the jury. 12
13 THE COURT: Why don't -- 13
14 MS. COPSEY: We just got them an hour ago. 14
15 THE COURT: Will you stop talking? 15
16 MS. COPSEY: Yes. 16
17 THE COURT: Could you submit to me all of the quotes 17
18 that you want me to consider just so I know what I'm talking 18
19 about? 19
20 MS. COPSEY: Yes. We can also confer with our tech 20
21 people to see if there's something we could do on our end, if 21
22 that would be helpful. 22
23 THE COURT: Submit to me everything I'm going to be 23
24 considering and ruling on. Any of the texts that I need 24
25 to -- whether it's screen shots or -- submit to me the actual 25
171
1 statements so I know what it is I'm being asked to think
2 about. 1 CERTIFICATE
3 MS. COPSEY: Yes. 2 I, Lisa Edwards, RDR, CRR, an Official Court
3 Reporter for the Superior Court of the District of

4 THE COURT: I guess see what it'll take to get it
4 Columbia, do hereby certify that I reported by machine
5 off. I recognize nobody's raised it until now. But to the
5 shorthand, in my official capacity, the proceedings had and
6 extent the jury hasn't seen it, we can solve it one way or 6 testimony adduced, upon the Trial in the case of the United
7 another if we need to and just see what's feasible. 7 States of America v. Michelle Macchio, Criminal Action No.
8 MS. KERKHOFF: Thanks. Apparently that's the only 8 2017 CF2 1183, in said Court on the 15th day of December,
9 2017.
9 exhibit, although I think Ms. Kropf has an exhibit.
10 I further certify that the foregoing 172 pages
10 MS. COPSEY: We're still working through the charts
11 constitute the official transcript of said proceedings, as
11 as well. 12 taken from said shorthand notes, my computer realtime
12 THE COURT: Why don't we just talk on Monday 13 display, together with the audio sync and digital recording
14 of said proceedings.
13 morning. If there's something that I'm going to be asked to
15 In witness whereof, I have hereto subscribed my
14 rule on, I want to know what the text is of it. That's the
16 name, this 15th day of December, 2017.
15 thing on it. 17
16 MS. KERKHOFF: Thank you. 18
17 THE COURT: So thanks, everybody. 19 ___________________________

Lisa Edwards, RDR, CRR
20 Official Court Reporter
18 MR. McCOOL: Thank you.
21
19 THE COURT: I know this was long and a lot of work
22
20 was put into it. So I really want to thank everybody. I 23
21 really do appreciate all of the work of all counsel. 24
25
22 Everybody did a phenomenal job trying this case.
23 All you law firm lawyers should get a better job so 173
24 you can try another case someday in the future. This

25 shouldn't be the last trial you ever do.
Page 170 to 173 of 173

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1

1 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA.

4 UNITED STATES OF AMERICA,

6 vs. Criminal Action Nos.

7 MICHELLE MACCHIO, 2017 CF2 1183

16 THIS TRANSCRIPT REPRESENTS THE PRODUCT

20 On behalf of the Government:

13 Brett Cohen, Esquire 14 MS. KROPF: He's in line, too.

20 22 Government about the civil suit, which we can talk about

4 MS. JACQUES: I did. 3 was Ms. Lawson wearing?

7 MR. COHEN: I'll forward it at some point today.

8 THE COURT: I guess we are waiting for a juror.

20 does cause. 20 MS. KERKHOFF: That's what I'm hoping.

22 MR. McCOOL: Yes. 22 your Honor, I think that might be best.

8 The juror in Seat 6, should I ask him -- I think I

18 MS. KERKHOFF: Yeah. Yes. 18 THE DEPUTY CLERK: Good afternoon.

22 Ms. Kerkhoff? 22 versus Jennifer Armento, 2017 CF2 1193, et al.

4 MS. KROPF: I was going to speak to the exhibits, 3 facts.

5 your Honor. 4 While it's my responsibility to decide what is

7 in at once rather than piecemeal.

8 THE COURT: Well, we'll see. I mean, sometimes

19 court. 19 by then, great. If the case is not resolved by then, I would

3 MS. COPSEY: Yes. 2 I, Lisa Edwards, RDR, CRR, an Official Court

3 Reporter for the Superior Court of the District of

17 THE COURT: So thanks, everybody. 19 ___________________________

21 really do appreciate all of the work of all counsel. 24

24 you can try another case someday in the future. This

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