As federal authorities continue to arrest people accused of invading the U.S. Capitol on Jan. 6, the suspects fit into three general categories.
Those who entered the building without premeditation and did not engage in vandalism or violence face misdemeanor charges and will likely avoid prison sentences, said Samuel D. Hodge Jr., a professor of Legal Studies at Temple University.
A smaller subset of rioters might be linked to the most serious crimes, potentially including sedition and violence against law-enforcement officers, including U.S. Capitol Police Officer Brian Sicknick, who died after confronting rioters.
A Lakeland woman arrested last month seems to occupy the middle category, suspects charged with felonies based on actions intended to disrupt the work of Congress.
FBI agents arrested Corinne Lee Montoni at her Lakeland home on March 9. Montoni, 31, faces four sets of federal charges: obstruction of an official proceeding; entering and remaining, including disorderly and disruptive conduct in a restricted building; disorderly conduct for parading, demonstrating or picketing in a Capitol building; and aiding and abetting the commission of those crimes.
Montoni has a hearing scheduled for May 10 before a federal judge in Washington, D.C. She was released on signature bond of $25,000 with restrictions on her movements and activities.
Montoni’s FBI arrest affidavit quotes repeatedly from her own statements on social media before the attack, expressing her wish to stop Congress from certifying the results of last year’s presidential election. The incursion temporarily stopped Congress from certifying Electoral College results that confirmed President Joe Biden’s victory over former President Donald Trump.
The FBI affidavit quoted Montoni as posting in December on Parler: “Insurrection Act coming in hot … void the fraudulent 2020 election, arrest these traitors and restore order and faith in our justice department. GitMo is readyyyyyy.”
In another post from December, Montoni echoed Trump’s false claim that former Vice President Mike Pence, in overseeing the Electoral College count, had the authority to block Biden’s election.
“If Pence betrays us, we riot,” Montoni posted on Parler, according to the FBI affidavit.
Such statements indicate a prior intent to disrupt the actions of Congress, Hodge said. That element is required for a conviction on the felony charge, he said.
“That’s where they’ll use her social media posts to show that this wasn’t somebody that was just there that day who got caught up in the moment and just followed the crowd,” Hodge said.
The most serious charge against Montoni, Hodge said, is aiding and abetting, “because by filing aiding and abetting they’re trying to make the person responsible for the actions of another.”
Technology is key
Hodge is an expert in forensics, the use of science in legal matters. He said the government will rely heavily on technological evidence in prosecuting the Jan. 6 cases.
As Hodge noted, police apparently didn’t make any arrests that day. It was only later that arrests occurred, based on three main sources of evidence.
Law enforcement received tips from people who recognized participants, often through photos and videos. Authorities also discovered social media posts implicating suspects.
“And the third thing that most people don’t realize is that there are hundreds of cameras that caught the people that went into the building,” Hodge said. “OK, well, there were hundreds of people. How are you going to identify these individuals? This is where forensics comes in.”
Montoni’s arrest affidavit including two images, one apparently a “selfie” taken inside the Capitol and the second an overhead shot in a hallway with a red arrow pointing to a woman the FBI identified as her.
Facial recognition technology can be used in court to confirm someone’s identity through photos or video. Hodge said investigators feed images into a computer program that analyzes the face, focusing on key elements.
An algorithm then compares the images to those in a government database containing millions of photos of known people, taken from driver’s licenses, passport photos and social media.
Montoni was identified by three unnamed informants who called law enforcement after the Jan. 6 attack, the affidavit said, saying they either saw her social media posts or heard directly from her about her participation. Montoni posted multiple statements and photos on Facebook and Parler attesting to her presence in the Capitol, the affidavit said.
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“And I am sure she was identified by the FBI by videos of her inside the building using facial recognition technology,” Hodge said. “So they have three different sources to link her to the entry into the building.”
The arrest affidavit said that Montoni deleted social media posts about her presence at the Capitol on Jan. 6, an action that Hodge said many other suspects have taken. But he said the FBI almost certainly secured a search warrant and seized Montoni’s computers and cell phones.
As the affidavit shows, the FBI gained access to social media and to private chats in which Montoni allegedly discussed her planned role in a “revolution” and later bragged about her participation.
“The general rule is something you post on social media is in the public discourse,” Hodge said. “So if you put it on your Twitter account or your Facebook account, you can’t turn around later and say, ‘This is confidential.’ Once you put it out there it’s in the public realm, and once it’s in the public realm it’s fair game.”
So is the case against Montoni a slam dunk? Rod Smith, a former state attorney for the Gainesville area, said the combination of video evidence and social media posts gives the government “a fairly compelling case” against defendants such as Montoni.
“Remember, if it’s the federal system it’s had to go to a grand jury, so a grand jury has already looked at the evidence,” said Smith, a former Democratic state senator. “This is clearly where someone else, including U.S. attorneys, assistant U.S. attorneys and a grand jury, have all looked at this evidence.”
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What are Montoni’s options for a defense? Her lawyer, Paul Showalter, did not respond to a request for comment.
Miami lawyer Joel Hirschhorn has defended clients charged with inciting and participating in riots. Those include antiwar activists accused of spurring riots at the 1968 Democratic National Convention in Chicago and the 1972 Republican National Convention in Miami.
All but one of the convictions in the “Chicago Seven” cases was overturned. Hirschhorn also represented the Jewish Defense League after members disrupted a Russian pianist’s concert by releasing mice into the audience. The members were acquitted of rioting charges, said Hirschhorn, who works for GrayRobinson, which has offices in Lakeland.
Hirschhorn said he doesn’t see a parallel between the political activists he defended and those accused in the Jan. 6 riot. Trump held a rally earlier that day and urged supporters to put pressure on Congress not to certify Biden as the election winner, but Hirschhorn said he doesn’t think Montoni and others can claim they were doing what they thought the current president wanted.
“That defense won’t work,” he said. “It’s called the Nuremberg defense.”
In trials held after World War II, some Nazi officials argued that they shouldn’t be punished for following orders that involved killing Jews and other prisoners. Judges rejected that defense, and many defendants were convicted of war crimes and executed.
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Brian Bieber, another attorney with GrayRobinson, was less definitive on that score. He said Montoni’s legal team likely will argue that she thought she was following the direction of the most powerful person in the world when they stormed the Capitol.
“Receiving direction will not absolve Ms. Montoni of criminal conduct,” Bieber said. “However, if a jury believes Donald Trump ordered his followers to do precisely what Ms. Montoni did, she very well could avoid significant criminal liability.”
Bieber represented Ethan Berdah, a 19-year-old man arrested last year after a social-justice protest in Miami that turned violent. Police accused Berdah of vandalizing a police car and stealing a bulletproof vest.
Berdah posted a photo of himself on Instagram wearing the vest with the caption, “F— the police,” Bieber said. After negotiations with prosecutors, Berdah pleaded no contest to a reduced felony charge.
While Bieber said his client was “immature and stupid” to do what he did, he said, “This case, however, was in a significantly different climate than that of Ms. Montoni’s and those who stormed the Capitol.”
The activists Hirschhorn defended in the 1960s and 1970s could claim as motivation the wish to end American involvement in the Vietnam War, a sentiment with growing popular support. Can Montoni and other Jan. 6 suspects also cite sincere political concerns as a mitigating factor?
“I suppose they can, but then again they’re going to have to ask for what is known as a Machiavellian jury instruction, and that is the ends justify the means,” Hirschhorn said. “I don’t think it’s going to fly.”
Polls show that a sizeable minority of Americans believe Trump’s groundless claims that widespread fraud cost him the 2020 election. Might that make prosecutors less likely to pursue trials, knowing that one holdout juror could block a conviction?
“I seriously doubt any federal prosecutor would be afraid to try these types of cases for fear of a jury pardon in favor of Donald Trump or his supporters,” Bieber said.
Smith, now a lawyer in private practice, said jury selection before a trial would likely remove anyone who might ignore evidence pointing to a conviction. That includes questionnaires intended to detect biases.
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“Is there a concern that somehow you would get a biased juror one way or the other?” Smith said. “Yes, but most of the time, with skilled attorneys and veteran attorneys and a skilled judge, people who hold a bias one way or the other will not be selected to the jury.”
Smith said he expects prosecutors to pursue charges of sedition, or inciting revolt against the government, for those determined to be organizers of the Jan. 6 attack. He said the charges so far filed against Montoni don’t suggest she is in that category.
The federal court system uses scoresheets that compile the relevant factors in a case and determine possible sentences for specific crimes. Smith said federal prosecutors don’t offer “classic” plea agreements as state attorneys do, though the system includes some discretion if a defendant pleads guilty and cooperates, especially in helping identify others who broke laws.
A search found no previous criminal record for Montoni either in Florida or her home state of Connecticut.
“I haven’t looked at the scoresheet,” Smith said. “In the scoresheet, there’s a whole weighted set of variables, but the underlying issue is would they score imprisonment? Yes. It is likely that a person convicted of these crimes would be facing a prison sentence. Yes, absolutely.”
Gary White can be reached at email@example.com or 863-802-7518. Follow on Twitter @garywhite13.