Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 1 of 16

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :

:
v. : Criminal No. 1:21-cr-214 (JDB)
:
JOSEPH LINO PADILLA, :
:
Defendant. :

GOVERNMENT’S TRIAL BRIEF

The government respectfully submits this brief summarizing the evidence the government

anticipates will be admitted at trial and the various evidentiary and legal issues that may arise. As

an initial matter, the government notes that the parties have been trying and will continue trying to

narrow the issues that are actually in dispute, and to agree to stipulated facts and the admissibility

of exhibits wherever possible. In the event that sufficient agreement can be reached, some of the

witnesses described in Section II below may not be called.

I. The January 6th Capitol Riot and the Defendant’s Actions

On January 6, 2021, thousands of people descended on the U.S. Capitol building and

grounds when a joint session of Congress had convened to certify the votes of the Electoral College

for the 2020 Presidential Election. Vice President Michael Pence, as the President of the Senate,

was there to preside over the joint session and, later, the Senate proceedings. On that day, physical

barriers surrounded the U.S. Capitol building and grounds. At all relevant times, the United States

Capitol building and its grounds—including the West Terrace, the partially-constructed inaugural

stage on the Capitol’s West front, and the entire Capitol building itself—were closed to members

of the public.

As the House and Senate proceedings took place, a large crowd of protestors gathered

outside the Capitol. Temporary and permanent barricades were in place around the exterior of the

Government’s Trial Brief—Page 1

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 2 of 16

building, and U.S. Capitol Police were present and attempting to keep the crowd away from the

Capitol building and the proceedings underway inside. Shortly after 2:00 p.m., a violent mob of

rioters forced entry into the Capitol. Mayhem broke out inside the building, putting an hours-long

halt to the electoral vote count while elected representatives, congressional staff, and members of

the press hid from the mob. The joint session of Congress, and thus the constitutionally-mandated

proceeding held to confirm the results of the 2020 Presidential Election, was effectively suspended

until shortly after 8:00 p.m.

At approximately 1:31 p.m., the defendant, Joseph Lino Padilla, approached a bike rack

barricade line manned by officers from the Metropolitan Police Department and the United State

Capitol Police, whom they were assisting, on the Lower West Terrace. As captured on several

body-worn cameras and videos captured by members of the crowd, the defendant pushed against

the barricade screaming, among other things, “Push! Push! Fucking push!” When his efforts to

break the police line failed, the defendant turned to the crowd behind him and called them cowards

for not joining his attack. A few minutes later, the defendant, along with other rioters, used a large

sign with a metal frame as a battering ram to push against the police line.

When the police line finally broke, officers retreated up to the inaugural stage through an

internal stairwell. The defendant followed close behind. Surveillance video shows that he was the

second rioter up that stairwell.

The officers retreated further into the Capitol, through a hallway that has come to be known

as the “Tunnel” in the context of January 6th related prosecutions. There, officers packed shoulder

to shoulder, with riot shields above their heads, to stop rioters from breaching into the heart of the

Capitol building. Within minutes of rioters packing into the Tunnel themselves, the defendant

Government’s Trial Brief—Page 2

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 3 of 16

walked into the Tunnel, just a few feet back from the officers, as alarms blared and rioters chanted

“Whose House? Our House!”

At approximately 4:45 p.m., rioters became increasingly violent at the officers positioned

in the mouth of the Tunnel, attacking them with flagpoles, hockey sticks, a megaphone, and other

objects. At the rioters’ feet, a fallen officer was being dragged out into the crowd and another

rioter was experiencing a medical emergency. As this was happening, the defendant threw a

flagpole into the Tunnel, striking a Capitol Police officer in the helmet. The violence directed

towards the officers defending the Tunnel waxed and waned for several hours, but did not stop

until the rioters were finally cleared from the Capitol building and the surrounding area.

The defendant later posted several messages and comments on social media about his

experience at the Capitol, including:

• After I had my right hand knuckles and ring finger crushed for just talking to an
officer I knew was a soldier and reminding him of his duty to refuse unlawful
orders, I got pissed, and so did many others. That’s when we started pushing.

• I was right there. I have the wounds to prove it. I pushed the rails, I pushed the
stairs, and then pushed the doorway. I was beaten unconscious twice, sprayed more
times than I care to count, received strikes from batons that should have been lethal
(Multiple temple and carotid strikes) except that God was on my side.

• Some chode had stalled everyone out saying he had an “announcement” that
amounted to “if we quit pushing the cops will quit beating us[.]” Basically
surrender. If that asshat hadn’t stalled our momentum, the cops wouldn’t have been
able to reinforce their position and we would have occupied the Capitol.

• If we could have occupied the Capitol, we could have invoked the right given to us
in the 2nd paragraph of the Declaration of Independence….We would have been in
the Seat of Power. All we would need to do is declare our grievances with the
government and dissolve the legislature, and replace it with Patriots who were
there. Then simply re-adopt the Constitution with amendments added to secure
future Federal elections.

• What happened Wednesday is what needs to be done again and again. I’m not
talking about those b[*]tches that were just let in, I’m talking about those of us who
got pissed when the cops starting bashing hands and pepper spraying people who
were only talking and shouting.

Government’s Trial Brief—Page 3

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 4 of 16

• Don’t you realize it yet? The war has been upon us for years and we’ve just been
wringing hands about it. After the events of the 6th, I’m done being passive.

• My conscious is clear. We've been lied to for decades, our elections too have been
fraudulent since at least 2000. Also, if I'm not mistaken, the 2nd paragraph of the
Declaration of Independence, one of our founding documents, specifically gave me
the right to do what I did. "... it is the Right of the People to alter or to abolish it,
and to institute new Government, laying its foundation on such principles and
organizing its powers in such form, as to them shall seem most likely to effect their
Safety and Happiness. Prudence, indeed, will dictate that Governments long
established should not be changed for light and transient causes; and accordingly
all experience hath shewn, that mankind are more disposed to suffer, while evils
are sufferable, than to right themselves by abolishing the forms to which they are
accustomed." Treason my ass. Keep on being jealous that I'm not a cowardly
worm.`

• I was Batoned, sprayed, gassed and tased. I was beaten unconscious. And I came
back for more because they were in the wrong. As soon as they started spraying
and beating people for no reason it went from being about protesting the election
to Restoring the Republic.`

• Also want to say that the riot was never about Trump. We were attempting to restore
the Republic by dissolving the legislature and convening a constitutional
convention of the people to add amendments that would prevent any federal
election from having ANY appearance of impropriety.

• The rest of us just gathered around the railing and talked to the cops until they
started attacking us. My right hand knuckles and ring finger were crushed by a cops
baton for the crime of touching the railing while I was talking to a cop who was a
Vet […] After that we started poushign them, and ended up fighting our way up to
the doors of the capitol and began trying to push our way in

• Most of us in the breach had nothing to protect us against the spray and gas. My
backpack, jacket and god are the only reason I'm not more severely injured […]
Just wish we had made it into the building

The evidence will also include messages the defendant sent during the riot on

January 6th, including:

• I've been beaten. Sprayed and tasted. Resting before I go in for more

• Were pushing the door. Had to take a break. Nuckles and fingers broke, pretty sure
I have a concussion

• Hurting, sprayed and beat again but I'm ok

Government’s Trial Brief—Page 4

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 5 of 16

• It's not a rally anymore it's a revolution

II. The Government’s Proof

The government anticipates calling several witnesses, including:

a. Inspector Lanelle Hawa, United States Secret Service

Inspector Hawa will testify about the presence of Vice President Pence in the Capitol on

January 6, 2021, about his evacuation from the Senate Chamber, and that he remained within the

restricted perimeter of the Capitol until at least 8:00 p.m.

b. Captain Carneysha Mendoza, United States Capitol Police

Captain Mendoza will testify about U.S. Capitol Building, generally, the restricted

perimeter in place on January 6, 2021, and the interruption of the congressional proceedings due

to the breach of the Capitol building and restricted perimeter.

c. Sergeant Jayson Cropper, Metropolitan Police Department

Sergeant Cropper will testify about his encounter with the defendant on the police line on

the West Plaza. He will authenticate his body worn camera video, as well as other videos depicting

the events on the West Plaza.

d. Officer Owais Akhtar, Metropolitan Police Department

Officer Akhtar will testify about his encounter with the defendant on the police line on the

West Plaza.

e. Sergeant Paul Riley, Metropolitan Police Department

Sergeant Riley will testify about his experience defending the Capitol against rioters in the

Tunnel.

f. Officer Oscar Corado, United States Capitol Police

Officer Corado will testify about his experience defending the Capitol against rioters in the

Tunnel. He will identify himself in various video exhibits and will testify that the flagpole thrown

Government’s Trial Brief—Page 5

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 6 of 16

by the defendant struck his helmet. The government does not anticipate that Officer Corado will

testify that he was injured by the flagpole.

g. Special Agents Mac Montana and Timothy Ervin, Federal Bureau of

Investigation

Special Agent Montana will introduce various exhibits into evidence, including the jacket

and backpack worn by the defendant on January 6, 2021, videos of the defendant, the defendant’s

social media posts, and other self-authenticating records. If necessary, the government may call

another case agent, FBI Special Agent Timothy Ervin, to establish the admissibility of certain

exhibits.

III. Elements of the Crimes Charged

a. Assaulting, Resisting, or Impeding Certain Officers (Count 1)

Count 1 relates to the defendant’s actions at the police barricade line between

approximately 1:37 p.m. and 1:39 p.m. To find the defendant guilty of Assaulting, Resisting, or

Impeding Certain Officers in violation of 18 U.S.C. § 111(a)(1), the Court, as the finder of fact,

must be convinced that the government has proved each of the following beyond a reasonable

doubt:

First: the defendant assaulted, resisted, opposed, impeded, intimidated, or interfered

with an officer from the Metropolitan Police Department or United States
Capitol Police;

Second: the defendant did such act forcibly;

Third: the defendant did such act intentionally;

Fourth: the person assaulted, resisted, opposed, impeded, intimidated, or interfered with
was an officer or an employee of the United States who was then engaged in
the performance of his official duties, or any person assisting officers of the
United States who were then engaged in the performance of their official duties;
and

Government’s Trial Brief—Page 6

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 7 of 16

Fifth: the defendant made physical contact with a person who was an officer or an
employee of the United States who was then engaged in the performance of his
official duties or assisting officers of the United States who were then engaged
in the performance of their official duties, or acted with the intent to commit
another felony.

b. Assaulting, Resisting, or Impeding Certain Officers Using a Dangerous

Weapon (Counts 2 and 4)

Count 2 relates to the defendant’s actions involving the large metal sign between

approximately 1:39 p.m. and 1:41 p.m. Count 4 relates to the defendant throwing the flagpole at

approximately 4:47 p.m. To find the defendant guilty of Assaulting, Resisting, or Impeding Certain

Officers Using a Dangerous Weapon in violation of 18 U.S.C. § 111(a)(1) and (b), the Court, as

the finder of fact, must be convinced that the government has proved each of the following beyond

a reasonable doubt:

First: the defendant assaulted, resisted, opposed, impeded, intimidated, or interfered

with an officer from the Metropolitan Police Department or United States
Capitol Police;

Second: the defendant did such act forcibly;

Third: the defendant did such act intentionally;

Fourth: the person assaulted, resisted, opposed, impeded, intimidated, or interfered with
was an officer or an employee of the United States who was then engaged in
the performance of his official duties, or any person assisting such an officer or
employee in the performance of that officer’s duties; and

Fifth: in doing such acts, the defendant intentionally used a deadly or dangerous
weapon.

If the Court finds that the large metal sign or the flagpole are not dangerous weapons, the

Court may find the defendant guilty of felony assault under 18 U.S.C. § 111(a)(1), provided the

government has met its burden on the elements of that crime.

Government’s Trial Brief—Page 7

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 8 of 16

c. Civil Disorder (Counts 3 and 5)

Count 3 relates to the defendant’s actions along the police line between approximately 1:37

p.m. and 1:41 p.m. involving the bike racks and the large metal sign. Count 5 relates to the

defendant’s actions, including throwing the flagpole, near the Tunnel at approximately 4:47 p.m.

To find the defendant guilty of Civil Disorder in violation of 18 U.S.C. § 231(a), the Court, as the

finder of fact, must be convinced that the government has proved each of the following beyond a

reasonable doubt:

First: the defendant knowingly committed an act or attempted to commit an act

with the intended purpose of obstructing, impeding, or interfering with one
or more law enforcement officers;

Second: at the time of the defendant’s actual or attempted act, the law enforcement
officer or officers were engaged in the lawful performance of their official
duties incident to and during a civil disorder; and

Third: the civil disorder in any way or degree obstructed, delayed, or adversely
affected either commerce or the movement of any article or commodity in
commerce or the conduct or performance of any federally protected
function.

d. Obstruction of an Official Proceeding (Count 6)

To find the defendant guilty of Obstruction of an Official Proceeding in violation of 18

U.S.C. § 1512(c)(2), the Court, as the finder of fact, must be convinced that the government has

proved each of the following beyond a reasonable doubt:

First: the defendant attempted to or did obstruct or impede an official proceeding;

Second: the defendant intended to obstruct or impede the official proceeding;

Third: the defendant acted knowingly, with awareness that the natural and probable
effect of his conduct would be to obstruct or impede the official proceeding;
and

Fourth: the defendant acted corruptly.

Government’s Trial Brief—Page 8

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 9 of 16

The Court may also find the defendant guilty of Count 6 under an aiding and abetting

theory pursuant to 18 U.S.C. § 2.

e. Entering and Remaining in a Restricted Building or Grounds with a Deadly

or Dangerous Weapon (Count 7)

To find the defendant guilty of Entering and Remaining in a Restricted Building or Grounds

with a Deadly or Dangerous Weapon in violation of 18 U.S.C. § 1752(a)(1) and (b)(1)(A), the

Court, as the finder of fact, must be convinced that the government has proved each of the

following beyond a reasonable doubt:

First: that the defendant entered or remained in a restricted building or grounds

without lawful authority to do so;

Second: that the defendant did so knowingly; and

Third: that the defendant carried a deadly or dangerous weapon during or in

relation to this offense.

f. Disorderly and Disruptive Conduct in a Restricted Building or Grounds with

a Deadly or Dangerous Weapon (Count 8)

To find the defendant guilty of Disorderly and Disruptive Conduct in a Restricted Building

or Grounds with a Deadly or Dangerous Weapon in violation of 18 U.S.C. § 1752(a)(2) and

(b)(1)(A), the Court, as the finder of fact, must be convinced that the government has proved each

of the following beyond a reasonable doubt:

First: that the defendant engaged in disorderly or disruptive conduct in, or in

proximity to, any restricted building or grounds;

Second: that the defendant did so knowingly, and with the intent to impede or disrupt
the orderly conduct of Government business or official functions;

Third: that the defendant’s conduct occurred when, or so that, his conduct in fact
impeded or disrupted the orderly conduct of Government business or
official functions; and

Government’s Trial Brief—Page 9

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 10 of 16

Fourth: that the defendant carried a deadly or dangerous weapon during or in

relation to this offense.

g. Engaging in Physical Violence in a Restricted Building or Grounds with a

Deadly or Dangerous Weapon (Count 9)

To find the defendant guilty of Engaging in Physical Violence in a Restricted Building or

Grounds with a Deadly or Dangerous Weapon in violation of 18 U.S.C. § 1752(a)(4) and (b)(1)(A),

the Court, as the finder of fact, must be convinced that the government has proved each of the

following beyond a reasonable doubt:

First: that the defendant engaged in any act of physical violence against any
person in any restricted building or grounds;

Second: that the defendant did so knowingly; and

Third: that the defendant carried a deadly or dangerous weapon during or in

relation to this offense.

h. Disorderly Conduct in a Capitol Building or Grounds (Count 10)

To find the defendant guilty of Disorderly Conduct in a Capitol Building or Grounds in

violation of 40 U.S.C. § 5104(e)(2)(D) the Court, as the finder of fact, must be convinced that the

government has proved each of the following beyond a reasonable doubt:

First: that the defendant engaged in disorderly or disruptive conduct in any of the
United States Capitol Buildings or Grounds.

Second: that the defendant did so with the intent to impede, disrupt, or disturb the
orderly conduct of a session of Congress or either House of Congress.

Third: that the defendant acted willfully and knowingly.

i. Act of Physical Violence in the Capitol Grounds or Buildings (Count 11)

To find the defendant guilty of Act of Physical Violence in the Capitol Grounds or

Buildings in violation of 40 U.S.C. § 5104(e)(2)(F) the Court, as the finder of fact, must be

convinced that the government has proved each of the following beyond a reasonable doubt:

Government’s Trial Brief—Page 10

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 11 of 16

First: that the defendant engaged in any act of physical violence in any of the
United States Capitol Buildings or Grounds, and

Second: that the defendant acted willfully and knowingly.

IV. Anticipated Defenses

The government believes that the defendant may offer or attempt to offer evidence or

argument in support of the affirmative defenses of self-defense and/or defense of others. The

defendant may also argue that the large metal sign and the flagpole do not meet the definition of

“deadly or dangerous weapon.”

a. Self-defense

The government believes that the defendant may try to argue that the police initiated the

violence on the West Plaza by pushing the defendant away from the barricades, spraying him with

pepper spray, and hitting his hands with their batons, and that, therefore, his subsequent assaults

of police officers were justified in self-defense.

A defendant charged under 18 U.S.C. § 111 may assert, as an affirmative defense, a theory

of self-defense or defense-of-others, “which justifies the use of a reasonable amount of force

against an adversary when a person reasonably believes that he is in immediate danger of unlawful

bodily harm from his adversary and that the use of such force is necessary to avoid this danger.”

United States v. Middleton, 690 F.2d 820, 826 (11th Cir. 1982) (emphasis added).

“A defendant cannot claim self-defense if he was the aggressor or if he provoked the

conflict upon himself.” Waters v. Lockett, 896 F.3d 559, 569 (D.C. Cir. 2018) (internal quotation

marks and citation omitted). That principle applies fully to Section 111 prosecutions. See, e.g.,

United States v. Mumuni Saleh, 946 F.3d 97, 110 (2d Cir. 2019) (“Mumuni was the initial

aggressor in the altercation with Agent Coughlin; as such, he could not, as a matter of law, have

been acting in self-defense”); United States v. Acosta-Sierra, 690 F.3d 1111, 1126 (9th Cir. 2012)

Government’s Trial Brief—Page 11

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 12 of 16

(“[A]n individual who is the attacker cannot make out a claim of self-defense as a justification for

an assault.”).

This defense, however, contains two important limitations. First, Congress enacted Section

111 “to protect both federal officers and federal functions.” United States v. Feola, 420 U.S. 671,

679 (1975). As a result, “[a]n individual is not justified in using force for the purpose of resisting

arrest or other performance of duty by a law enforcement officer within the scope of his official

duties.” United States v. Drapeau, 644 F.3d 646, 653 (8th Cir. 2011); see also United States v.

Branch, 91 F.3d 699, 714 (5th Cir. 1996) (“[Self-defense] principles must accommodate a citizen’s

duty to accede to lawful government power and the special protection due federal officials

discharging official duties.”). Second, even in circumstances where an individual might be justified

in using some force to resist a federal officer, that resistance must be reasonable under those

circumstances. See Abrams v. United States, 237 F.2d 42, 43 (D.C. Cir. 1956) (observing that “the

use of ‘reasonable force’ only would have been open to defendants”); see also United States v.

Wallace, 368 F.2d 537, 538 (4th Cir. 1966) (explaining that Section 111 permits “reasonable force

employed in a justifiable belief that it is exerted in self-defense”); United States v. Perkins, 488

F.2d 652, 655 (1st Cir. 1973) (defendant may be convicted under Section 111 where “he used more

force than was necessary to protect the person or property of himself or others”).

Both limitations apply here. The evidence in this case will show that the defendant had

illegally entered a restricted area of the U.S. Capitol and was therefore subject to arrest. The video

further shows that officers instructed him to back up and to not touch the barriers. At no point did

any officer use excessive force against the defendant. Cf. Drapeau, 644 F.3d 646, 653-654 (“[A]n

individual may be justified in using force to resist excessive force used by a law enforcement

officer.”). Because the video evidence shows officers lawfully defending the Capitol against a

Government’s Trial Brief—Page 12

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 13 of 16

violent, non-compliant, and unlawfully present crowd, the defendant was not justified in using any

force to resist an arrest or to move past a police line. He cannot therefore argue self-defense.

Moreover, even if the defendant had the right to resist the officers in some fashion, the

video evidence will show that the defendant escalated the encounter into a violent attack on the

officers. See Waters v. Lockett 896 F.3d 559, 570 (D.C. Cir. 2018) (self-defense not applicable “if

[the defendant] and his co-conspirators used excessive force to repel Hargrove’s attack”). This is

especially true in situations like this one, where the defendant returned to confront officers after

being repelled multiple times.

b. Defense of Others

The government believes that the defendant may try to argue that he threw the flagpole at

another rioter who he believed was about to attack officers at the mouth of the Tunnel, and that he

only hit the officers because the other rioter ducked as the pole was thrown.

The “defense of others” defense is founded on the same principles and carries the same

limitations as the defense of self-defense. In United States v. Slatten, 395 F. Supp. 3d 45, 112-113

(D.D.C. 2018), a federal murder case, District Court Judge Royce C. Lamberth instructed the jury

on defense-of-others as follows:

Self-defense or defense-of-others is a complete defense to murder where

Mr. Slatten actually believed that he or another person was in danger of
serious bodily injury, and actually believed that the use of deadly force was
necessary to defend against that danger and both of these beliefs were
reasonable. Every person has the right to use a reasonable amount of self-
defense or defense-of-others if: One, he actually believes he or another
person is in imminent danger of bodily harm; and if, two, he has reasonable
grounds for that belief. The question is not whether looking back on the
incident you believe that the use of force was necessary. The question is
whether Mr. Slatten, under the circumstances as they appeared to him at the
time of incident, actually believed he or another person was in imminent
danger of bodily harm, and could reasonably hold that belief. A person may
use a reasonable amount of force in self-defense, including, in some
circumstances, deadly force.

Government’s Trial Brief—Page 13

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 14 of 16

Id. Judge Lamberth drew that instruction from the “Redbook.” See id. (citing Barbra Bergman,

Criminal Jury Instructions for the District of Columbia §§ 9.500, 9.501(B)-(C), 9.503 (5th ed.

2018)).

A defendant must therefore satisfy five elements for a defense-of-others claim: (1) the

defendant actually believed that another person was in danger of injury; (2) that belief was

reasonable; (3) the defendant actually believed that the use of force was necessary to defend the

person against the danger; (4) that belief was reasonable as well; and (5) the defendant used a

reasonable amount of force in response. See Slatten, 395 F. Supp. 3d at 112-113; accord Pattern

Criminal Jury Instructions of the Seventh Circuit, 6.01 (2012 ed.) (“A person may use force when

he reasonably believes that force is necessary to defend [himself/another person] against the

imminent use of unlawful force.”); Wayne R. LaFave, Substantive Criminal Law § 10.5, Defense-

of-others (Dec. 2021) (“[O]ne is justified in using reasonable force in defense-of-others person,

even a stranger, when he reasonably believes that the other is in immediate danger of unlawful

bodily harm from his adversary and that the use of such force is necessary to avoid this danger.”).

Moreover, the defendant has the initial burden of production to raise a defense-of-others

claim. See United States v. Branch, 91 F.3d 699, 712 (5th Cir. 1996) (concerning the analytically

identical self-defense justification). Only after the defendant meets his burden of production does

the government have the burden to disprove the defense beyond a reasonable doubt. See id. The

government is under no duty to affirmatively produce evidence to refute the defense-of-others

claim. See id. For the defendant to satisfy the initial burden of production, “there must be evidence

[in the trial record] sufficient for a reasonable jury to find in [the defendant’s] favor.” Mathews v.

United States, 485 U.S. 58, 63 (1988).

Government’s Trial Brief—Page 14

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 15 of 16

c. Large sign and/or flagpole are not “deadly or dangerous weapons”

The defendant may argue that the large metal sign and/or the flagpole do not qualify as

deadly or dangerous weapons.

An object may be a “deadly or dangerous weapon” in one of two ways. First, an object is

a deadly or dangerous weapon if it is inherently or obviously dangerous or deadly. Such inherently

dangerous weapons include guns, knives, and the like. Second, if the object is not inherently or

obviously dangerous or deadly, an object is a deadly or dangerous weapon if the object is capable

of causing serious bodily injury or death to another person and the defendant used it in that manner.

In determining whether the object is a “deadly or dangerous weapon,” the Court, as the finder of

fact, may consider both the physical capabilities of the object used and the manner in which the

defendant used it.

The term “serious bodily injury” means bodily injury which involves a substantial risk of

death; extreme physical pain; medical intervention such as surgery, hospitalization, or physical

rehabilitation; protracted and obvious disfigurement; or protracted loss or impairment of the

function of a bodily member, organ, or mental faculty.

Due the size of the large metal sign and the way that it was used by the defendant and other

rioters to ram against the police line, the government believes the evidence will establish beyond

a reasonable doubt that it qualifies as a dangerous or deadly weapon. Similarly, due to the way

the defendant threw the flagpole, and due to the fact that it hit an officer in the head, the government

believes that the evidence will establish that the flagpole also qualifies as a dangerous or deadly

weapon, even if it did not cause any injury.

Government’s Trial Brief—Page 15

 Case 1:21-cr-00214-JDB Document 87 Filed 04/25/23 Page 16 of 16

V. Conclusion

The government anticipates that its case-in-chief will take approximately two trial days.

The government requests approximately 10 minutes for its opening statement and approximately

20 minutes, in total, for its closing argument and rebuttal.

Respectfully submitted,

MATTHEW M. GRAVES
UNITED STATES ATTORNEY
D.C. Bar No. 481 052

/s/ Douglas B. Brasher

DOUGLAS B. BRASHER
Assistant United States Attorney
Texas State Bar No. 24077601
1100 Commerce Street, Third Floor
Dallas, Texas 75242-1699
Telephone: 214-659-8604
[Link]@[Link]

/s/ Andrew Haag

ANDREW S. HAAG
Assistant United States Attorney
MA Bar No. 705425
601 D Street, N.W.
Washington, DC 20530
(202) 252-7755
[Link]@[Link]

Government’s Trial Brief—Page 16