PATTIS & PAZ 383 Orange Set New Haven, CT 06511 ATTORNEYS AT LAW Tel, 203.393.3017 Fax 203.393.9745 www pattispaziaw.com November 13, 2024 President-Elect Donald J. Trump Re: Presidential Pardon of Joseph R. Biggs Dear Mr. President ‘Congratulations on your re-election to the Presidency. You are now in a position to close a painful chapter in American history involving the prosecution and imprisonment of protesters at the Capitol on January 6, 2021. On behalf of Joseph Biggs, | am urging you to do so by granting Mr. Biggs’ request for a complete pardon for his actions on that day." He was one of five individuals prosecuted in a trial that began in mid-December 2022 and fended in early May 2023, All were leaders or members of a group known as the Proud, Boys. Each man was convicted by a Washington, D.C. jury and sentenced to a lengthy period of incarceration. Mr. Biggs was sentenced to 17 years in prison by United States District Court Judge Timonthy J. Kelly. While the sentence was well below what the ‘Government sought, twas, and it remains, an obscene and vindictive prosecution. The cconvietion is currently on appeal before the United States Court of Appeals forthe District ‘of Columbia, where the Justice Department has signaled it intends to file a cross-appeal contending that the sentence imposed is too low. 1. Whois Joe Biggs? Retired Staff Sergeant Joseph Randall Biggs served with distinction in the United States Army for almost 8 years until he was honorably discharged due to a complete disability in 2012. He saw active duty in Afghanistan and lag, receiving a Purple Heart as a result of combat injuries. Upon retirement, he received a disability pension which he Used to support his daughter, now aged seven. A resident of Florida at the time of his arrest, he worked as a journalist, social media personality and veterans advocate since his military discharge. He is legally separated from his wife, who is the mother of their child. Unti his arrest, he was a full-time caregiver for his daughter. He is 40 years old. His, highest level of education is a GED. "The undersigned represented Mr. Biggs at trial and now represents him on appeal. We will submit separate applications for a pardon, or amnesty, for co-defendants Zachary Rehl and Dominic Pezzola,(Mr. Biggs was actively involved in the Proud Boys in 2020, Il. Of What Crimes Was Mr. Biggs Convicted? ‘After a five month trial, Mr. Biggs was convicted of the following crimes: Seditious Conspiracy, in violation of 18 U.S.C 2385%; Conspiracy to Obstruct an Official Proceeding, in violation of 18 U.S.C. Section 1512(k),? Obstruction ofan Official Proceeding and Aiding and Abetting, in violation of 18 U.S.C. Section 1512(c)(2)*, Conspiring to Prevent an Officer from Discharging Any Duties, in violation of 18 U.S.C. Section 3728; Civil Disorder, in violation of 18 U.S.C 231(a)(3), 2%, ‘Destruction of Government Property and Aiding and Abetting, in violation of 18 U.S. 1361, 2’. He was acquitted of one count of Assaulting, Resisting, or Impeding Certain Officers, in violation of 18 U.S.C. Section 111(a)(1). After the jury failed to reach a verdict on separate counts of Destruction of Government The statute reads in pertinent part as follows: lf two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to ‘oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States... they shall each be fined under this tite or imprisoned, ‘not more than twenty years, or both.” 2 The statute reads in pertinent part as follows: “(k) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.” “The statute reads in pertinent part as follows: “c) Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, withthe intent to impair the object's integrity or availabilty for use in an official proceeding, oF (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do ‘50, shall be fined under this tite or imprisoned not more than 20 years, or both.” * The statute reads in pertinent part as follows: “If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from ... discharging any duties thereof, or to induce by lke means any officer of the United States to leave the place where his duties as an officer are required to be performed... such persons shall be fined under this title or imprisoned not more than six years, or both.” The statute reads in pertinent part as follows: “reason to know or intending that the same will be used unlawfully in furtherance ofa civil disorder, or (3) Whoever commits or attempts to commit any act to obstruct, impede, or interfere with ‘any fireman or law enforcement officer lawfully engaged in the lawful performance of his, official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function— ‘Shall be fined under this tite or imprisoned not more than five years, or both.” "The statute reads in pertinent part as follows: "Whoever wilfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, ... shall be punished as follows: Ifthe damage or attempted damage to such property exceeds the sum of $1,000, by a fine under ths tte or imprisonment for not more than ten years, or both...” 2Property and Aiding and Abetting, pursuant to 18 U.S.C. 1361, 2; and, Assaulting, Resisting, or Impeding Certain Officers, in violation of 18 U.S.C. 111(a\1), the Court dismissed the counts. Trial Transcript, herein “TT,” May 4, 2023, He was sentenced to a term of imprisonment of 17 years. He is currently confined at the Talladega Correctional Institution in Alabama, He has been incarcerated since 2021, more than three years. Because of his conviction of seditious conspiracy, he lost his miliary pension, and the United States Government commenced collection efforts to try to recoup benefits, Mr. Biggs has no other criminal record and served his country honorably in the riitary Il, Presidential Pardon Power The United States Constitution gives the President unfettered discretion to “grant reprieves and pardons for offenses against the United States.” Article Il, Section 2, Clause 1, This power i limited to federal offenses and is not a check on the power of states.* At the time of the founding, there was limited debate on the scope of the power. However, in the end, the power was granted to the executive branch without the need for the executive branch to consult with either Congress or the Judiciary. As Alexander Hamilton noted in Federalist Papers No. 74: “the criminal code of every country partakes, much of necessary severity that without an easy access to exceptions in favor of unfortunate guit, justice would wear a countenance too sanguinary and cruel.” He went fn ta argu that the power fo pardon was particularly important at times of deep poltical divisions. “In seasons of insurrection or rebellion, there are often critical moments when ‘a welltimed offer or pardon to the insurgents or rebels may restore the tranquility of the commonwealth...” Id ‘The United States Supreme Court has noted two rationales for a President's broad pardon power. Chief Justice John Marshall, in 1833, wrote: “A pardon is an act of grace, proceeding from the power intrusted (sic) with the execution of the laws, which exempts the individual, on whom its bestowed from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 32 U.S. 150, 160-161 (1833). Almost a century later, Justice Oliver Wendell Holmes, ur. offered a different rationale for pardons: "When {granted itis the determination of the ultimate authority that the public welfare will be better ‘served by inflicting less than what the judgment fixed.” Biddle v. Perovich, 274 U.S. 480, 486 (1927) ‘As will be argued below, both mercy and public interest would be served by the ‘grant ofa full pardon in Mr. Biggs's case. * A ref overview of the recent history of the pardon power can be found P'S. Ruckman, Jt. "Executive Clemency in the United States: Origins, Development, and Analysis (1900-1993)," 1997 Presidential Studies Quarterly, 27, no. 2 (Spring). For a more extended but accessible study see: Jeffrey Crouch, The Presidential Pardon Power, (2009, University Press of Kansas).IV. Historic Uses of the Pardon Power The pardon power has been used throughout the nation’s history to address criminal convictions arising in the context of deep and divisive political controversies. In 4795, President George Washington granted an amnesty to participants in the Whiskey Rebellion in Pennsylvania including pardoning two men, John Mitchell and Philip Vigol who had been sentenced to death for their leadership role in the rebellion. President ‘Washington reasoned, in part, that the rebellion had been extinguished. President John ‘Adams pardoned participants in Fries's rebellion, and President Thomas Jefferson pardoned those prosecuted under the Alien and Sedition Act, President James Madison also pardoned individuals involved in a bizarre scheme to create an independent republic in Louisiana, During the Civil War, President Abraham Lincoln used the power to grant an amnesty to rebels as a means of encouraging desertions from the South. After the war, President Andrew Johnson enacted a clemency program in 1865 that culminated in his pardon of Jefferson Davis, who was charged with complicity in the assassination of Lincoln, and other confederate soldiers. At the end of Johnson's administration in March 1869, there were no longer leaders ofthe confederacy behind bars, In 1921, Warren Harding commuted the sentences of 24 individuals accused of wartime crimes, including Eugene Debs. Debs, a three-time presidential candidate, was Convicted of a violation of the Espionage Act or criticizing he United States’ entry into the First World War. He garnered 1 milion votes for president while behind bars. In recent times, Gerald Ford pardoned Richard Nixon; George Bush pardoned former defense secretary Caspar Weinberger; President Jimmy Cartor granted olomenoy to Puerto Rican separatists, including those who had fired shots into the well ofthe House of Representatives, and President Carter also pardoned those who were convicted of selective service violations during the Vietnam War. Finally, Joe Biden pardoned those convicted of federal marijuana offenses. The pardon power has been used historically as a means of promoting national unity after periods of deep division in the nation as a whole. This is one of those times, V. Why We Are Appealing Directly To You, Mr. President Although the Constitution grants the President unfettered rights to pardon and reprieve, the Department of Justice maintains a Pardon Attorney, whose responsibilty is to receive and evaluate pardon applications before submitting recommendations to the President. By administrative regulation, a person cannot submit a pardon application until atleast five years after their conviction. There is a waiver process by which an applicant can request relief from the five year waiting period. The office helps evaluate the hundreds of pardon applications received each year. The average time elapsing between application and presidential decision is two years. (Mr. Biggs offers four reasons for tendering this request directly to the President- ElectFirst and foremost, the Department of Justice has for the past four years engaged in an ambitious campaign to identify and punish anyone associated with January 6, 2021 protest. More than 1,500 hundred people have been arrested thus far, about 1,000 have been convicted. Upon information and belief, these arrests and convictions will continue tntil Inauguration Day. While an incoming president is powerless to grant a pardon until he or she is actually in office, a strong and public signal of an intent to grant pardons, perhaps even an amnesty to all those charged, would signal to the current administration that further eriminalization of events that day is futile, Next, the great number of potential pardon applications will create a backlog in the Department of Justice's evaluation process that could further delay. Within four years of the American Civil War, a war which cost the lives of 600,000 Americans, al of the rebels, including Jefferson Davis, were granted a clemency. Four years after an afternoon's riot, the Government continues to prosecute and imprison rioters. Justice delayed is justice denied ‘Additionally, national unity requires that we put January 6, 2021 behind us. What should have been a minor footnote in our history has become a chapter, with thousands of lives upended and tens, if not hundreds, of millions of dollars ‘spent on legal proceedings without end. After all the trials, the Countless hours of investigations, there is sii no direct evidence of a plan to engage in insurrection at the Capitol. Charles Dickens ‘wrote famously in Oliver Twist that the law is a (sic) “ass.” There have been few greater “asses” in American public life in recent years than Attomey General Merrick Garland, ‘who has directed a biter and vindictive prosecution of well nearly 1300 protestors at the Capitol on January 6. Strong and decisive executive action can close this chapter once and forall and focus the nation’s attention on the future. Finally, there is no reason to believe that an entrenched bureaucracy at the Department of Justice will act with dispatch or alacrty. Indeed, the opposite is likely true. 'No matter how big the shake up at Justice will be come January 2025, the agency has gone all in on the theory that January 6, 2021 was a direct threat to democracy. One fears, litle wil change with the change in administrations, An agency empowered by hyperbole will wth dificuty, learn to hear the more subtle message that justice requires. VI. The Prosecution’s Case Mr, President, you are no stranger to prosecutions warped by partisan vendetta. ‘Mr. Biggs also has been victimized by a cynical misuse ofthe law. He was charged at trial with seditious conspiracy. In specific, he was charged with agreeing with others to use force against the authority ofthe United States government. To that end, the Government trawled through all of his social media communication and used otherwise protected politcal opinions as circumstantial evidence of his intent to engage in such conduct ‘These expressions of opinion that in any other context would have been regarded as pattiotic utterances. When, for example, has uttering "1776" been used as proof of criminal intent? ur law permits otherwise protected speech to be used as evidence of criminal intentin a conspiracy cases. This creates a clear and present danger that political speech uttered on a Monday will be used to prove criminal intent later in the week if a person happens upon a protest that turns into a rot. In the context of the January 6 cases, which swere tried before District of Columbia juries, the Government has had no dificulty persuading citizens of the District, almost al either employed by the federal government for dependent on the presence of the federal government in the District for their livelihood, that harsh partisan rhetoric was evidence of criminal intent. The prosecutions offer @ bizarre twist on the old aphorism that a “prosecutor can convince a grand jury to indict a ham sandwich." It may someday be said that a good prosecutor can persuade a D.C. jury that uttering the pledge of allegiance is a crime. Yet, the facts are stubborn. And, after more than four months of trial, the prosecution atthe Proud Boys trial conceded that it had not realy proven any plan among the defendants to use force against the Government. Read the words of one of the lead prosecutors addressing the jury during closing argument Now, three things to keep in mind. First, a conspiracy can be unspoken. it doesn't have to be in writing, hashed out around a table, or even in words. It can be unspoken; it can be implicit can be a mutual understanding reached with a wink and a nod, or even just suddenly acting in concert together toward a common goal. Unspoken or implicit conspiracies are stil conspiracies Second, there is no specific time requirement for when the conspiracy begins. Now, the indictment alleged a time frame of December 2020 through January of 2021, but there's no magic date within which that time frame that you need to find that this agreement started. So long as you find that a defendant joined that agreement at any point within that time frame, that is enough, even if it's not unt the end of the day of January 6, even ifs nol unll Uiose bavticades al Peace Circle have already come down, Third, a conspiracy does not require an agreement as to all the details. That's why ‘plan’ is not the right word for what this case is all about.... These defendants are charged with an agreement with an objective, And the essential nature of the agreement was to stop the certification of the election and do so by any means necessary, including force, Trial Transcript, April 24, 2023, pp. 19715-19716 This theory of an “implicit conspiracy,” reached without an actual utterance of any agreement, is a chilling and cynical appeal to prejudice. It crosses the line distinguishing prosecution of actual criminal conduct and persecution of political enemies. Indeed, there |'s much about the Proud Boys trial that requires further inquiry, Mr. President. At ‘numerous times, the press was removed from the courtroom, the proceedings sealed to the public, and participants, including the undersigned, were ordered to keep secret Information about how the Federal Bureau of Investigation recruits, uses and relies upon ‘so-called "Confidential Human Sources" in its surveillance of an ever-widening groups of ‘Americans. The information was chilling, suggesting that we are on the road to the sorts, of abuses that led Sen. Frank Church to engage in a broader inquiry into the use and ‘abuse of the nation's inteligence agencies against American citizens,‘There is no doubt that crimes were committed on January 6, 2021. But such crimes ‘as were committed fall far short of a threat to the republic or a challenge to democracy itself. Mr. Biggs was animated by a fear that the election to the highest office in the land hhad been stolen and the wil of the people thwarted. A stolen election is a threat to democracy; an aftemoon's rit, even if some of the members of the crowd engaged in violence, is not. Mr. Biggs did not engage in violence on January 6, 2021, nor did he plan, provoke or encourage others to behave violently Vil. Mr. Biggs is Not a Terrorist, Yet the Government Sought a Sentence to Punish “Terrorism” The Government sought a sentence of imprisonment of 33 years for Mr. Biggs, ‘seeking a sentencing enhancement applicable to crimes Congress specified as acts of potential terrorism. In Mr. Biggs's case, the underlying crime was destruction of property = 2 perimeter fence that cost approximately $32,000 to replace. This stunning act of cynicism was greeted with open arms by the trial court, which sentenced Mr. Biggs to 17 years behind bars, a sentence well in excess of what was recommended by Mr. Biggs's pre-trial services report. The Government promises to seek an appeal of the 17 years, Viewing the sentence as too short. Congress has designated nearly 50 crimes as a predicate, or necessary precondition, for a terrorism enhancement under federal sentencing guidelines. Those crimes are set forth in the folowing table. 18 U.S.C. Proscribed conduct Consequence of vi Section (i) 1. 32 destruction of aircraft substantial property damage or aircraft facility 2. 37 relating to violence at violence; isk of injury to person International airport 3. 81 arson within specified areas substantial property damage 4. 175. t@: biological weapons. risk of widespread injuries to persons 5. 175¢_ use of variola virus risk of widespread injuries to persons 6. 229 re: chemical weapons risk of widespread injuries to persons 7. 361 assassinationkidnapping risk of serious injury to person 8. 831 re: nuclear weapons risk of widespread injuries to persons 9. 832 threatened mass destruction _substantial disruption of normal life 10.842 re: plastic explosives risk of widespread injury to persons. 11.844 arson/bombing federal property risk of injury to personsiproperty 42.930 re: attempting to kil risk of serious injury to person 19.956 conspiracy to murderikidnap _ risk of serious injury to person 14,1030 re. protection of computers _ substantial interference with commerce 15.1114. kiling federal officials risk of serious injuries to persons 16.1116 killing diplomats risk of serious injury to person 17.1203 re: hostage taking risk of serious injury to person18.1361 re: government property ‘THE INSTANT OFFENSE* 19.1362 re: communications systems property damage 20.1363. re: maritime property property damage 21.1366 re: energy faciity property damage 22.1751. kidnapping presidentistaft isk of serious injury to person 23.1992 te: mass transportationitilties property damage 24.2155. re: national defense facilties property damage 25.2156 te: national defense faciities property damage 28.2280 te: maritime navigation property damage 27-2281 re: fixed martime property _—_—property damage 28.2332 re: murder outside U.S. ‘serious injury to person 29.2332a re: weapons of mass destruction isk of serious injuries to persons. 30.2332) re: terroriam across borders risk of serious injury to persons. 131.2332 re: bombing public places tisk of injury to personsiplaces '32.2332g re: missiles targeting aircraft _risk of injury to persons/places 33.2332h re: radiation dispersal devices risk of serious injury to person 34.23321 re: nuclear terrorism Fisk of serious injury to person 35.2339 re: harboring terrorists risk of injury to person 36.2339A re: material support to terrorists risk of injury to person. 37.2339B re: support terrorist organization risk of injury to person. 38.2339C re: financing terrorism Fisk of injury to person 39.2390 re: training by foreign terrorists risk of injury to person 40.2340A re: torture 82 risk of injury to person Section (i 41.92 re: atomic weapons risk of injury to persons/oroperty 42.236 sabotage of nuclear facility _risk of injury to persons/property Section (il 43, 46502 re: aircraft piracy risk of injury to persons 144, 48504 re: assault on a fight crew injury to persons 45. 48505 re: used of explosives on aircraft serious risk of injuries to persons ‘48, 46506 re: homicide on aircraft injury to person 47.60123 re: destruction pipelines injury to property Section (i) 48, Specified narcotics offenses"? Injury to persons, Even a blind man should be able to see that destruction of $32,000 fence is worlds removed from such crimes as using explosives on aircraft, assassination or kidnapping of a public official, or use of atomic weapon. In this case, Lady Justice wasn't nearly blind, she was deaf and dumb as well. The misapplication ofthis statute reflects the Department ® The defendants were convicted on one count of 18 U.S.C. Section 1361, involving a perimeter fence at the Capitol. The entire fence was replaced, ata cost of approximately $32,000. The Government sought, and obtained, enhancements under Section 3a1.4 of the United States Sentencing Guidelines. *® Section 1010A of the Controlled Substances Import and Export Act (relating to narco- terrorism),of Justice's mislaid priorities in this case. It is further evidence of why a pardon is necessary, if for no other reason to chasten fulure DOJ officals about how they use the criminal statutes. "* ‘A consequence of the terrorism has been that Mr. Biggs is held in more restrictive conditions of confinement than would otherwise be the case. Upon information and belief, the United States Attorney for the District of Columbia, Matthew Graves, has taken a special interest in assuring that Mr. Biggs be punished more severely than would otherwise be warranted, Vill. Why Mr. Biggs Should Be Granted a Full and Complete Pardon Historically, the pardon power has been used as a means of granting mercy to the convicted and promoting the broader public interest. A complete and full pardon of Mr. Biggs would serve both ends (Mr. Biggs has thus far spent well over three years in prison for the, a good deal of itin solitary confinement, for his role in the events of January 6. He has lost daily contact with his daughter, and, significantly, has been deprived of a military pension that he risked his lfe in service of this country to eam, A show of mercy, a presidential prerogative, is appropriate in this case not as a means of condoning the actions of anyone on January 6, but as a means of signaling that enough is enough. The election of 2020 was a season of insurrection, the sort Hamilton had in mind, when he counseled the use of the pardon ower as a means of mitigating the law’s harshness. “[T]he criminal code of every country partakes such much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Hamilton, Federalist No 74. ‘The broader public interest would be served as well "The politcal nature of these prosecutions cannot be ignored; the call for draconian sentences is consistent with the desire to send the loudest possible signal, to change “social norms,” as it were, in such a way as to deter others from ever even considering acts similar to those engaged in by the defendants. See, Cass Sunstein, On the Expressive Function of Law, University of Pennsylvania Law Review, Vol. 144: 2021 (1996) (exploring the function of law as ‘making statements” rather than controlling behavior). “[Reformers] argue that the expressive value is lost when an alleged domestic terrorist is criminally charged without being expressly labeled as a terrorist.” Note Responding to Domestic Terrorism: A Crisis of Legitimacy, Harvard Law Review, Vol 136, 1914, 1920 (2023). The author of the Note goes on to note: [T]he government may not be able to differentiate adequately between peaceful, First Amendment-protected conduct, land genuine threats of domestic terrorism. Moreover, those who are concerned about the Civil liberties risks associated with aggrandizing the federal government's power in this context argue that the risk of selective targeting of groups is higher due to political polarization.” fd., 1926. The author notes the obvious: “There is no federal crime of domestic terrorism.") Id, 1916; efforts to use the Guidelines effectively to create one are “misguided.” Jd,‘These are divisive times. The divisions were acute in 2020, when millions believed the election was stolen and turned out to make sure electoral integrity was preserved. ‘Suspicions and bitterness about the election lingers to this day. A pardon of Mr. Biggs wil help close that wound and inspires confidence in the future. ‘As argued above, even in times of war, the pardon power has been used liberally. Four years after the Civil War concluded, all the confederates were pardoned or granted ‘amnesty, this despite the fact some 600,000 Americans died in the conflict. We are stil, prosecuting folks for participation ina riot lasting mere hours of January 6. An event that ‘should have been a minor footnote in our national ife has become a chapter we are stil, writing, We urge you to close the book, to tur the bitterness into reconciliation. Agrateful nation would respond positively to magnanimous action. ‘Much is written and has been said about so-called "iaware,” that is, the targeting of political opponents for legal process by those in power. The Justice Department's ‘obsession with January 6, 2021, has wasted enormous resources and eroded confidence in the even-handed administration of justice. Mr. President, the time for a pardon is past due. We ask you to make the pardon of Mr. Biggs a top priority in your administration. We make this appeal directly to you because we believe in the power of ustice and the ability of a courageous leader to make a real and sustaining difference in American life 1X. Conclusion Mr. President, we request that you grant a full and unconditional pardon to Mi Biggs, together with an order than hie veteran's benefits be restored, Sincerely, (Cul Foe