It's FAFO day!
This is the tl;dr
Longer
Roger Parloff
@rparloff
·
6h
Ofc Owens apologized at some point for crying & Judge Mehta quickly told him that no apology was needed. He thanked each of the five witnesses for their statements & added words that were hard to hear from the gallery. (Victim impact statements are delivered from ...
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Roger Parloff
@rparloff
·
5h
... Judge is discussing how he to determine whether OKs "caused" what happened on J6.
"I think this is a circumstances were a strict but-for test is not required in order to carry out purposes of sentencing commission. ... Causation cause met in this case ...
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and therefore the 3-level enhancement will be applicable in this and the other matters."
Now discussing enhancements for defendants who exercised some control over other defendants or co-conspirators. ...
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[The probation department writes the presentence report. it's not public.]
Judge: 1st category: defense claim that evidence showed no conspiracy to oppose transfer of power after election. that's contrary to what the jury found.
[Judge now reviewing evidence to that effect.]
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Judge: there's also a defense claim that QRFs [quick reaction forces--the arsenals in VA hotels] were to be defensive forces. ... Abundant evidence form which jury concluded otherwise.
[Judge now reviewing a sampling of that evidence.]
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*from* not "form"
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Judge: Contention by defense that Rhodes's statements about using force on J6 were bombast ... abundant evidence from which jury could conclude otherwise.
[now reviewing some of that evidence.]
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Judge: defense makes contention that Rhodes did not instruct OK Kelly Meggs or other OKs to enter Capitol. ... Judge says there's abundant evidence to contrary.
[reviews some of that evidence.]
Judge: defense points out that gun purchases were legal. True but beside the point.
purpose of buying the guns was to oppose authority of the US and to create an arsenal for that purpose. ...
[judge reciting evidence to that effect, including things cooperating OK Joshua James said in his guilty plea statement.]
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Judge now says that contention that Rhodes ordered others to delete evidence based on instructions from girlfriend/general counsel Kelly SoRelle "doesn't pass the laugh test." Judge mentions Rhodes' own Yale Law School education and improbability of his taking orders from ...
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SoRelle.
Judge: Ok. That's out of the way. now let's talk about scope of conduct and application of guidelines.
AUSA Kathryn Rakoczy: scope of related conduct question. in definition of "relevant conduct" encompasses defendant's acts & those of others in
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within the scope of the jointly taken criminal activity and reasonably foreseeable conduct. ... all harm that resulted from defendants' acts or those of others who engaged in that joint activity.
for these 9 defendants, govt says each engaged in jointly undertaken
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criminal activity. Encompasses all the acts of these co-conspirators.
Rhodes presents much easier question. he's leader of this conspiracy. how he exercised control, instigated this conspiracy--court has already made findings of fact that he implicitly and explicitly directed/34
line 1 (14 people) and line 2 (5 people in stack formations) to enter the Capitol that day. ... and also [creating] the QRFs ...
Rakoczy continues: "substantial interference in administration of justice": Chief Judge Howell found in Rubenacker that it was ludicrous to think
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that participants in riot did not participate in interference in administration of justice. we think facts support that [Rhodes led] at least 30 individuals to Capitol. ... substantial expenditures on part of govt to prosecute ... involvement of various LE agencies ...
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Rakoczy continuing: moving on, next issue: leadership enhancement. court looking for some evidence of "control" here. hierarchy does play a role. it's our position that all 9 of these defs did play a hierarchical role here. ...
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Rhodes was at top. founder of OKs and president, leader for life. ... you heard from cooperators that they believed there was a specific hierarchy. Dolan spoke about a team that reported up thru harrelson to Meggs to Rhodes. ... Bennie Parker said he was recruited by Watkins
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and then listened to her about bringing guns. ... Ways Roberto Minuta led 2d group. Ed Vallejo led his QRF team at hotel. ...
from our perspective this is a leadership structure. some level of enhancement appropriate across this case [for all 9 defs]. Rhodes the actual leader/41
Rhodes own words explicitly state his view that he was leader.
He was at top , there were state and regional leaders, rank and file after that.
Siekerman and Greene in overall charge of operations on J6 ... everyone bringing a team ... but with himself at top.
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Rhodes approved aspects of operation. Meggs discussed with him the QRF ... Rhodes: "we will have a QRF, the situation calls for it." Rhodes is approving Meggs operational proposal.
Judge: Must enhancement be either 4, 3 or zero?
Rakoczy: that's our reading.
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[Leaders/organizers get 4 point enhancement; supervisors/managers get 3-point enhancement.]
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Rakoczy now turning to terrorism enhancement.
R: where defs convicted of seditious conspiracy to stop transfer or presidential power -- hard to not see that as terrorism ... "calculated or intended to result in coercion or intimidation of the govt."
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Rakoczy: we disagree with Mr. Woodward (for Meggs) that there's got to be either a 12-point enhancement or nothing. we think you can apply less than 12 levels. The 6-level enhancement is half of the 12 that couldve been imposed. this group did not cause loss of life.
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... but organizing force across the river comes pretty close. hard to forget chilling words of Rhodes on J10 about ~I should have called in the qrf on J6.~ this is terrorism. it's not blowing up a bldg, but in light of threat of harm & historic nature of attempting to stop
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certification of an election for the 1st time in american history, 6-point terrorism enhancement is appropriate.
I have thoughts about why a sentence of 25 yrs is appropriate that i can address at the end.
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[All this discussion about the phone call is a 3-way call between Rhodes, Meggs, and Michael Greene that took place just moments before Meggs led 14 OKs up Capitol steps and into Capitol.]
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Judge: 2 important issues. 1. mr. rhodes stands convicted of seditious conspiracy. 2. the facts i recited yesterday -- not going to recite again today -- all those facts and inferences i drew yesterday (with one exception) i'm incorporating into the record.
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some broad strokes of my findings by preponderance of evidence. Mr. R was convicted of leading conspiracy to oppose by force lawful transfer of power after 2020 election. ... because Mr. R position at top of hierarchy of Oks and conduct and actions & words i ascribe actions
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of all his coconspirators to him as well. ... in furtherance of conspiracy and reasonably foreseeable. he used violent imagery and language, drew comparisons to american revolution & civil war to inspire use of force ... signal messages & actions of coconspirators showed
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mutual understanding that force might be required. ...common understanding that force might be used to oppose transfer of power including on J6 itself. he and coconspirators brought weapons to area. fact never brought into city does not defeat reason he brought them
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ample evidence of consciousness of guilt. sought to cover his own actions and those of coconspirators. within 48 hrs told everyone on Old Leadership Chat to delete signal chats and "shut the (expletive) up." why else? ...
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it was reasonably foreseeable to rhodes that people were going in. he wouldve known objective that day was to resist transfer of power. when things went to hell at capitol he didn't tell people to stay at bay. he told them come to me, i'm on south side of capitol.
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why do that if he didn't know they'd join the melee? it defies explanation. why would he order & bring another 30 people to capitol if he didn't want them to go in. just not plausible.
it was reasonably foreseeable to him that people wouldve entered the bldg, use force
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once within the bldg. clearly foreseeable. no doubt in my mind.
closer question: whether i can conclude by preponderance of evidence that he in fact approved their entry into capitol. Mr. Bright, you're right, there's evidence could cause a reasonable jury to question that.
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but here's what other evidence showed. this was extremely hierarchical organization. rhodes was one giving orders. organizing teams. he was the reason they were in DC on J6. ... given that i find it hard to believe Meggs wouldve led those people in there without green
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light from Rhodes. why? 1., hierarchical relationship. 2. testimony at trial: Meggs was trying to get ahold of somebody and thought it was Rhodes. a 2d witness said Meggs was contemplating whether to go in. then Caleb Berry said Meggs said: we're going in to stop the vote.
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i don't ascribe Meggs ability to do that without clearing it with Rhodes. ... Rhodes not only knew but in some sense authorized it.
after J6, true testimony from dolan that he heard rhodes say "that was pretty stupid." exact testimony was a little equivocal.
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... Dolan-- 'i believe he was talking to kelly at the time but i'm not 100% sure.' Greene's testimony: somebody mentioned somebody by name and said they went in and stewart said that was (expletive) stupid. so some evidence.
but compare that to what he said afterward. ...
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not once did Rhodes say on signal chats that he regretted people going in. not once. then there's consciousness of guilt. ... not just protecting others; protecting self. he's Yale Law grad, pretty smart guy.
i find he knew and approved entry into capitoil.
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as to "due administration of justice" ... essence of seditious agreement represented threat to threat to others and members of congress. arsenal on other side of potomac ... conspiracy contemplated use of force ... threatened physical harm to staff members of speaker ...
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Rhodes responsible for actual injuries to certain officers & threatened injuries ... to officers Salke and Carrion near the east rotunda door. officer christopher owens and others in senate hallway who faced def watkins. officers jackson and martha lazzo who
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were object of Joshua James's assault. ... threats to Pelosi staffers cowering in fear in conference room when [meggs & others were outside]
proceedings were adjourned for some period of time. that's substantial interference with administration of justice. it was obstructed
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additional costs in terms of cleanup and additional Secret Service personnel that had to come to capitol.
substantial planning for events of J6. even if just take timing from 12/19 forward. ... hotels, bringing weapons, creating groups. ...
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they way people entered in a line -- whether you call it stack or not -- that shows organization and planning.
Rhodes was top of chain. not just founder & leader. OKs don't come to DC on J6 but for Mr. Rhodes. ... he directed coconspirators to capitol & they abided.
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He told them to come to capitol. ... There was testimony that he would have been the one to say whether to bring the arms in [to DC]. he referred to Minuta as "one of my most trusted men" suggesting control. he designated siekerman & greene & meggs as operational leaders.
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so 4-level enhancement for leadership applies. not a close call.
the 6-level enhancement for terrorism--definition of seditious conspiracy meets that. ... their objective was to affect conduct of govt thru intimidation & coercion by means of force.
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In terms of levels. i disagree that it's an all or nothing proposition. [i.e., 12 levels or nothing]. it only establishes a cap, not a floor. I think the 6 levels is appropriate. how do i get there? this is separate and more serious conduct than what's captured by guideline.
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this is an additional level of planning and targeting of institutions of american democracy at its most important point--its transfer of power. that's what jury found and i agree with them.
a 6-level enhancement is appropriate.
what all of that means-- 3 other things
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defense has requested 2 level reduction for acceptance of responsibility. I [reject] that. Mr. R's comments since J6 ... clearly demonstrate no acceptance of responsibility.
defense has requested downward departure for military service. ...
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doesn't apply here. R served country but not to an unusual degree. i'm not going to say there weren't charitable purposes that OKs [sometimes] undertook. but not extraordinary and doesn't eclipse what happened on J6.
...
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guidelines calculation is for seditious conspiracy: treason is analog but conduct not "tantamount to waging war" so all in agreement that guideline [begins with obstruction of justice] ...
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base offense is 14. 8-level enhancement for causing or threatening injuyr. 3 -levels for interference ... etc etc ... total offense level of 39
guideline range: 262-327 months
Rakoczy: govt asking 25 yrs incarceration. in middle of applicable guidelines court just found
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From AUSA
J6 neither 1st nor last time he will seek to organize political violence. ... he's been calling for violent [resistance] to govt for well over a decade. ... he continues to advocate for political violence. ... from jail. just 4 days ago he addressed by phone
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a 'freedom corner rally' ... warned those in attendance "they're going to keep coming after those on political right. it's a terror campaign against political opposition. it's not going to stop till it's stopped we're going to have to stop it. it's going to take regime change."
Most of us want to believe J6 was an outlier. Not defendant Rhodes ... the court should and must impose sentence of 25 years.
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Defense
Atty Phil Linder (Rhodes): ... govt wants you to sentence rhodes out of fear. fear he'll do it again. they want to make Rhodes the face of J6. ... want 25 yr sentence. nothing has come close to that. go back to election in november. rhodes is upset as are millions of americans.
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he didn't start million MAGA march (11/14), Jericho March (12/12) , or J6. ... if he'd been called away, J6 would still have happened. ... want to put a face on J6, put it on Trump, right-wing media, politicians ... Rhodes just participant. didn't create it.
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...Bright now letting Rhodes speak on his own behalf
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Rhodes: start by saying i'm a political prisoner. like pres. trump and my only crime is opposing those who are destroying our country. ... using protected speech because of systemic violence of left to shut down speech of trump supporters. ... started at the trump inauguration
we started protecting vulnerable trump supporters from attack by antifa ... none of them was ever prosecuted to my mind ... obviously seditious conspiracy trying to stop transfer of power (to trump). we've protected people outside trump rallies from antifa ...
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antifa like to have unarmed victims. ... [now giving alleged examples] we stepped up across country to protect unarmed or elderly back to their vehicles. shouldn't have to do that in this country. repeated systemic examples ... one in Berkeley ... transgender trump supporter
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attacked. we stepped in. did so peacefully. we deterred antifa. ... that's been our focal point. unlike characterization of southern poverty law center. our people are nonviolent. ... zero record of actual use of force. we deter like other groups--unlike Proud Boys--who
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seek out street violence.
in DC we did [many] security operations without incidents, without a hitch. give our people option to wear helmets and body armor because antifa stabs people, throw bottles, [other things].
on J6 i did not go inside. nor did i expect anyone else
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(I hope Tarrio saw that bus coming and got out of the way)
to. i'd just spoke at Latinos for Trump rally about block north. when i was standing at NE corner of capitol, that's where next event was going to be for ali alexander.
kelly meggs team was escorting people from ellipse to ali alexander's event.
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my concern was they would get caught up in turmoil outside capitol. ... wanted to make sure they didn't get caught up. that's why i said 'if anyone is not still on duty come to us.' when they did come to me, they said they'd gone inside and i said that was stupid.
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mr greene was actually in charge of assigning the teams that day. i never take personal leadership unless i have no choice. greene is retired police officer. i put good men in charge, trust them to do right thiing. on J6 saw a problem. saw a riot happening. ...
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(I hope Greene got out of the way of that bus too)
didn't want our guys to be part of it. so i said, 'come to me.' wanted them to be with mr. greene and me. to keep our guys from being caught up with that.
josh james was with team protecting roger stone ... didn't want them caught up with this. no OK took part in any
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of the fighting. no OK punched anyone, kicked anyone, pepper sprayed them, struck them with stun gun. worst thing an OK did that day--jessica watkins pushed in senate hallway. she was leading her own little militia. other one was josh james. he lost his military bearing ...
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[feel for the police who testified yesterday]. none of us caused that. bizarre to hear all that. find it offensive frankly. this has been. a surreal experience. feel i'm the lead character is Kafka's The Trial. ...
[now objecting to characterization of OKs as ...
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white supremacists] ... find that very offensive. ... all meant to smear the Trump supporters. and link them to the KKK--which was a Democrat organization. ...
the OKs--the NYT blames the OKs and PBs. they hate us because we stopped the violence in the street and they don't
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ike that.
Judge: I'm going to ask you to wrap up ...
Rhodes: ... after i said we need "regime change" [in interview 4 days ago] I said I hoped Trump won in 2024. Rakoczy took that out of context. ...
Every J6-er is political prisoner. all being grossly overcharged.
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it's not going to deter people. it's going to make people even more [angry with the govt].
[Rhodes now talking about the TX v. PA original suit in Supreme Court ... claiming constitutional problems.]
i cannot ignore text of constitution under my oath. ...
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characterizing trump supporters as racists or fools is not going to help. ... Rhodes says he is the "american solzhenitsyn to expose the criminality of this administration."
Rhodes done.
Judge: Short break.
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For those without a calculator, the guidelines that Judge Mehta has found to apply to Rhodes—262 to 327 months—come to 21 yrs 10mos to 27 yrs 3 months. Those were the guidelines the govt sought. Thus, its recommended sentence, 25 yrs, was toward middle of his guidelines.
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Judge Mehta back on bench.
(Note that max for seditious conspiracy is 20 yrs, so to achieve 25 he would have to impose some consecutive sentences.)
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the danger a conspiracy creates not confined to [facts that occur]
seditious conspiracy ... at start of civil war ... treason was primary tool available but constitution defined that narrowly. congress enacted statutes ... seditious conspiracy is among most serious crimes
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an american can commit. offense against the people of the country. it's not confined to one day. actions of one day. it's a series of acts in which you and others committed to use force including potentially with weapons against govt of US as it transitioned from
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from one president to another. what was motive? you didn't like the new guy. i get it. let me be clear. ... we don't paint with a broad brush. shame on you if you do. just because you support former president doesn't mean your white supremacist. you voted for other guy ...
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but what we cannot have, absolutely cannot have is group of citizens who because they didn't like outcome of eleciton or because they didn't think law was carried out way they think it should be were prepared to take up arms to foment a revolution. that's waht you did..
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those are your words not mine. you're not a political prisoner. you're here because 12 jurors in DC who acquitted you of multiple counts found you guilty of sedition. jury of your peers. make no mistake.
2 enduring impacts of J6 ... now all hold our breaths every time
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an election approaches.
otehr enduring legacy is what we saw yesterday: heroism, of police officers and people working on capitol hill that day to protect this democracy as we know it. they laid their bodies on the line.
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you talk about keeping oaths? nobody more emblematic than those police officers, Mr. Rhodes. their heroism, stamina, courage--but for their acts couldn't have been far blacker day than one already one of blackest of this country.
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you recently said in an interview that 2020 election not only stolen but taken by unc'l means ... you said you had to find a way to fix that ... l
nothing has changed. moment you are released you'll be prepared to take up arms against your govt. because you think that's
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appropriate way to find redress ... i'm not making this up ... you said under oath ...
Q. you and OKs were prepared to take steps to alter or abolish this govt ?
A. prepared to take steps, walk founders' path, yes. i hope that conflict can be avoided. i really do. ...
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but when govt steps outside constitution, puts you in a bad place. ...
Judge continuing: when you find yourself in a bad place, rest of us are too. we're all objects of your wilingness to engage in violence. we just cannot have that in this country.
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you are committed to custody of [Bureau of Prisons] for *216 months -- 18 years* ... on counts 1, 3, and 7
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Judge Mehta discussing other conditions after he reaches after supervised release.
But SENTENCE IS 18 YEARS.
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Judge Mehta's final words: Mr. Rhodes, good luck to you.
Adjourned.
[I think we're resuming at 1:30pm for Kelly Meggs' sentencing hearing.]
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