Case 1:21-cr-00175-TJK Document 734 Filed 04/05/23 Page 1 of 11

U.S. District Court

District of Columbia

UNITED STATES

v. 1:21-cr-00175-TJK
NORDEAN et al

MOTION TO COMPEL DISCLOSURE OF ALL CONFIDENTIAL HUMAN

SOURCES OF HOMELAND SECURITY
COMES NOW Defendant Dominic Pezzola, by and through undersigned

counsel, with this motion to compel the United States to reveal all informants,

undercover operatives and other Confidential Human Sources (CHSs) relating to

the events of January 6.

Pezzola recently learned that a federal agency other than FBI—the

Homeland Security Investigations (HIS) unit—was handling and running

undercover CHSs on Jan. 6. The federal prosecutors in this case are refusing to

disclose information regarding these non-FBI informants. The existence, and

likely conduct of these CHSs is almost certainly exculpatory for Pezzola.

BACKGROUND
The United States has torturously avoided disclosing the full scale of

undercover CHSs among the Proud Boys on Jan. 6. Government FBI agent
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witnesses first admitted there was one CHS embedded among the Proud Boys on

Jan. 6. Then there were two; then there were three. Then the government

stipulated on April 4 that there were 8 FBI CHSs among the Proud Boys.

On Friday, March 31, federal prosecutors pulled defense counsel aside and

disclosed there were additional undercover officers belonging to Metro PD among

defendants on Jan. 6.

Pezzola has become aware that the largest numbers of undercover

CHSs on Jan. 6 belonged to agencies other than FBI.
At least two law enforcement agencies each outnumbered the FBI in terms

of running undercover agents, informants, and CHSs on Jan. 6. First, the DC

Metro Police had at least 13 undercover plain-clothes agents among the Proud

Boys and other patriots on Jan. 6. Next, there appear to have been some 19 CHSs

on Jan. 6 belonging to an agency called HIS (Homeland Security Investigations).

When added to the 8 FBI CHSs now acknowledged by the prosecutors, this means

that there were at least forty (40) undercover informants or agents doing

surveillance among defendants on January 6.

On Thursday, March 31, Pezzola filed a motion to serve witness Ray Epps

by publication. Defendants contend Mr. Epps is being suspiciously protected from

prosecution by the government. Pezzola’s motion included a paragraph

addressing revelations by J6 defendant William Pope in another J6 case that

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undercover Metro officers were among the crowd on Jan. 6 instigating the crowd

to storm the Capitol.

The following day, Friday, March 31, federal prosecutors in this case pulled

defense lawyers aside and revealed that the United States possessed previously

undisclosed information regarding MPD officers working undercover on Jan. 6.

Specifically, there are previously undisclosed text messages between the

undercover officers and Proud Boy supporters which evidence very close, familial

and/or intimate contact and relationships.

The information involved twelve (now known to be 13) undercover or plain-

clothes Metropolitan Police Officers among demonstrators on Jan. 6, 2021.

Some of these undercover Metro officers marched with the Proud Boy

march. And some appear to have played roles of instigators, in that they are seen

on body-worn videos chanting “Go! Go!,” “Stop the Steal!,” and “Whose house?

Our house!” on Jan. 6. Others generally followed demonstrators toward the

Capitol.

Pezzola submits that the entire defense in this trial, including opening,

cross, and defense cases, would have been different, and much more aggressive, if

defense counsel had known of the scope and scale of undercover government

operations on Jan. 6. Prosecutors made arguments contrary to information they

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possessed and withheld; and defense counsel could have lodged different cross-

examination and direct examination questions if they had known of these

materials.

For example, this newly disclosed information supports Proud Boy

assessment of antifa prior to Jan. 6. Undercover metro officers are seen on videos

and private texts remarking on the dangerousness and violence of antifa. (Prior to

these revelations, prosecutors had painted Proud Boy statements regarding antifa as

exaggerated or even illusionary. Indeed, prosecution witnesses had said antifa in

DC was largely illusionary. Prosecutors repeatedly suggested through their

witnesses that defendants’ chats, texts, and posts about antifa were not defensive in

nature; but were secret Proud Boy code for intending violence against Congress,

the Capitol, or federal officers.

The government has withheld this exculpatory information.

With each bombshell, the government generally begins its responses to late

disclosure complaints by saying the government was provided with the

information; even if buried in mountains of unnavigable discovery debris. But in

this situation, prior discovery dumps did not provide all the information. Buried in

this discovery was a chart naming twelve Metro officers working for the unit on

Jan. 6. But an additional, thirteenth undercover Metro officer was revealed in the

recent revelations. (And, coincidentally, the thirteenth undercover officer appears

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to have been the most vociferous in promoting the storming of the Capitol on Jan.

6.)

The material rebuts significant portions of the 404(b) motive evidence the

government was permitted to present over objection. In particular, it confirms the

reality of law enforcement concerns about antifa violence, provides percipient

evidence that antifa engaged in the exact sort of violence described by Proud Boy

members as reasons for joining the Proud Boys, and otherwise supports the claim

that antifa initiated violence against Trump supporters. If defense counsel had

possession of this material earlier the information would have informed defense

cross examinations. Given the circumstantial nature of this case, the material is

exculpatory, material and relevant.

The defense is entitled to know every Homeland Security Investigations CHS

operating among Proud Boys and Capitol protestors on Jan. 6.
More recently, Pezzola has become aware that another agency, the

“Homeland Security Investigations” (HSI) unit, was also handling more CHSs on

Jan. 6 than the FBI. The startling case of J6 defendant Jeremy Brown brought the

existence of HSI informants on Jan. 6 to light. See Mitch Perry, “Federal trial in

Tampa begins after Jan. 6 defendant Jeremy Brown detained for 14 months,”

Florida Phoenix, Dec. 12, 2022.1 In the days before Jan. 6, HSI handlers visited

1
: https://floridaphoenix.com/2022/12/05/federal-trial-in-tampa-begins-after-jan-6-defendant-
jeremy-brown-detained-for-14-
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Brown’s residence and attempted to recruit Brown into becoming a paid CHS for

Homeland Security Investigations.

Brown recorded the would-be handlers’ attempt to recruit him. And in the

video, the HSI handlers (Brett Lindsey and Paul Ura) indicated they were making

nineteen additional stops that day. From the context, it seems obvious that the

HSI agents were planning on similar recruitment contacts to meet with or recruit

19 other HSI CHSs.2 (Note that the Justice Department appears to be retaliating

against Brown for refusing the agents’ offer by charging Brown with multiple

crimes.)

Prosecutors in this case say they have no duty to provide CHS from agencies
other than FBI.
On April 4, Assistant U.S. Attorney Ballentine responded to undersigned

counsel’s email by stating

Mr. Roots,

I don’t know whether [name redacted by Roots] or Oath Keeper Jeremy Brown are sources for another
agency. But even if they were, I don’t see how that fact would be relevant here. Homeland Security —
and I’m not even sure specifically what that would be — is not the investigative agency in this case. I
understand the relevance of your CHS theory to be that if there was “a plan,” then the FBIs CHSs would
have reported the existence of the plan to their handlers. They did not report a plan, and therefore
there was no plan. What is the relevance of [name redacted by Roots]’s purported status as a source to
another agency?3

months/#:~:text=In%20a%20federal%20courtroom%20in,in%20connection%20with%20the%20
Jan (accessed 4/5/2023).
2
The December 9, 2020 audio has been filed in Brown’s case in the U.S. Middle District of
Florida. The disclosure that the handlers were scheduled to meet with 19 additional CHSs is at
the 58:23 minute mark).
3
Ballantyne’s email was in response to an email which read:
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Of course, AUSA Ballantyne’s proclamations violate the government’s

obligations under Brady and its progeny.

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

they do include any and all investigative agencies who worked on the case or

agencies related who knew or should have known that information would be

material to a prosecution arising from their direct involvement.

Here, for example, the U.S. Capitol Police are directly related and fully aware

of the events of January 6, 2021. The USCP is an agency of Congress. The USCP

and Congress are the two primary alleged victims and the USCP is the primary

investigative agency in terms of the immediacy to events and geographic proximity.

Most of the witnesses and investigators from the Federal Bureau of Investigation

have no first-hand knowledge of the events of January 6, 2021, but are merely

reviewing the reports of others, primarily USCP officers.

Jocelyn,

Still following up on [name redacted by Roots]. We have two witness who absolutely insist that
Proud Boy [name redacted by Roots] made suspicious calls on Jan. 6. [name redacted by Roots]
called one individual (named Brett) by mistake (wrong number) and made statements consistent
with being a CHS awaiting instructions to engage in activities at the Capitol. Note that the name
Brett is shared by a “Homeland Security Agent” who seemed to be running CHSs on Jan. 6.

The case of Jeremy Brown in Tampa involves a “Homeland Security” agent named Brett. As
you may know, “Homeland Security” and FBI went to Brown’s house to recruit Brown into
becoming a CHS after J6, and when Brown refused, Brown was arrested on numerous charges.
1. This begs the question: even if [name redacted by Roots] was not an FBI CHS; was he a
“Homeland Security” CHS?
2. Same question regarding Ray Epps. Was Epps a “Homeland Security” CHS?
--Thanks,
-----Roger
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The City of Washington, D.C.’s Metropolitan Police Department had

undercover officers on the scene at the U.S. Capitol on the early afternoon of

January 6, 2021, and were on standby under memoranda of understanding to

respond to assist the U.S. Capitol Police.

Plainly, under Brady, the prosecution is obligated to provide the identities of

Homeland Security Investigations (HSI) informants operating on Jan. 6.

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

We have defined "Brady material" as "exculpatory

information, material to a defendant's guilt or
punishment, which the government knew about but
failed to disclose to the defendant in time for trial."
Coleman v. United States, 515 A.2d 439, 446 (D.C.1986).
(quoting Lewis v. United States, 393 A.2d 109, 114
(D.C.1978), aff'd after rehearing, 408 A.2d 303 (D.C.1979)).

This case does not present the classic Brady situation involving
information in the hands of prosecutors which they do not have
an incentive to divulge. See United States v. Brooks, 296
U.S.App. D.C. 219, 221, 966 F.2d 1500, 1502 (1992). Here, the
prosecutors never heard the tape and, therefore, could not have
known whether the recording would have been exculpatory.

The government asserts that the duty to disclose information

under Brady does not include a duty to investigate the records
of the Department of Corrections. See Lewis v. United States,
393 A.2d 109, 115 (D.C.1978) ("The Brady principle does not
imply a prosecutor's duty to investigate— and come to know—
information which the defendant would like to have but the
government does not possess."); Levin v. Katzenbach, 124
U.S.App. D.C. 158, 162, 363 F.2d 287, 291 (1966) ("[W]e do not
 Case 1:21-cr-00175-TJK Document 734 Filed 04/05/23 Page 9 of 11

suggest that the government is required to search for evidence

favorable to the accused.").

However, the Brady doctrine requiring disclosure of

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

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

"[T]he duty of disclosure affects not only the prosecutor, but

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

In Wilson we applied Brady and Jencks requirements to the

Washington Metropolitan Area Transit Authority (WMATA),
where WMATA police were involved in the investigation and the
case arose out of an attempt to enforce WMATA regulations. 568
A.2d at 819-21; see also Morris v. Washington Metro. Area
Transit Auth., 251 U.S.App. D.C. 42, 44, 781 F.2d 218, 220(1986)
(when the Metro Transit Police are involved, WMATA is
considered a governmental entity); Bryant I, 142 U.S.App. D.C.
at 140, 439 F.2d at 650 (tape recordings in the possession of the
Bureau of Narcotics and Dangerous Drugs are in the possession
of the government). Appellant urges that the Corrections
Department should similarly be considered part of the
government for disclosure purposes.

The case before us does not require that we go that far. This
case presents a narrower issue: whether the government
has a duty to preserve evidence obviously material
which, as the trial court found, the police knew or should
have known about, and could have obtained if requested
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promptly from another government agency. In Brooks, the

Court of Appeals explained courts' willingness to insist on
an affirmative duty of inquiry on the part of the
prosecutor, because an "inaccurate conviction based on
government failure to turn over an easily turned rock is
essentially as offensive as one based on government non-
disclosure." See Brooks, 296 U.S.App. D.C. at 222, 966 F.2d at
1503 (citing as an example Calley v. Callaway, 519 F.2d 184, 223
(5th Cir.1975) (en banc) (reflecting concern for "inherent
fairness")). Brooks dealt with information that was already in
the hands of the police department, albeit in a different unit
than the one that investigated the case, and the law is clear that
information in the hands of the police department is considered
to be held by the "government" for Brady purposes. See Kyles,
514 U.S. at 437, 115 S.Ct. 1555 (holding prosecutor's Brady
obligation to disclose exculpatory evidence to defense applies to
facts known to anyone acting on the government's behalf,
including the police).

***

Even when the prosecutor does not know about certain

evidence, "the individual prosecutor has a duty to learn
of any favorable evidence known to the others acting on
the government's behalf in the case, including the police."
Kyles, 514 U.S. at 437, 115 S.Ct. 1555.

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

CONCLUSION
The United States is refusing to provide information which obviously has a

high likelihood of being exculpatory. Under the most foundational principles of

Brady v. Maryland, defendants are entitled to this information.

ACCORDINGLY, Pezzola asks for an order compelling the United States to

provide the names, identities, and reports of all HSI confidential informants

operating at or near the Capitol or around the Proud Boys on January 6, 2021.
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RESPECTFULLY SUBMITTED,

/s/ Roger Roots, esq.

Co-counsel for Defendant Pezzola

CERTIFICATE OF SERVICE

I hereby certify and attest that on April 5, 2023, I caused this document to be

uploaded into this Court’s electronic filing system, thereby serving it upon all

parties of record.

/s/ Roger Roots