Case l-:21-cr-00052-TJK Document 15 Filed OzlLOt2I Page 1 of 15

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

V Crim No.: 1:21-cr-52 (TJK)

Dominic Pezzola

Defendant.

DEFENDANT'S MOTION FOR MODIFICATION OF

OF BOND TO PLACE THE DEFFENDANT
ON CONDITIONAL RELEASE PENDING TRIAL

Defendant by and through undersigned counsel, respectfully moves

this Court, pursuant to the Bail Reform Act of 1984, 18 U.S.C. 3141 et seq.,

to release the defendant on personal release. Alternatively, if the Court is

not amenable to release defendant on personal recognizance, defendant

moves this court to release defendant into the third-party custody of his

wife, and commit him to the supervision of a High lntensity Supervision

Program (HISP) with GPS monitoring by local Pretrial Servicesl. The

defendant requests that he be placed on house arrest with reasonable

curfew privileges that allow him to leave the house for work and activities

related to this case. ln support of this request the defense states the

t There is a US District Court in Rochester NY, the Western District of New

York. They have a Pretrial Services unit that could provide supervision
and has the ability to install GPS monitoring devices and supervise in a
High lntensity Supervision Program (HISP).
 Case 1-:21-cr.00052-TJK Document 15 Filed O2lLOl21, Page 2 ol t5

following:

FACTS

Defendant is before the count charged with multiple counts arising out

of his alleged participation in the activities that occurred at the US

Congress on January 6,2021. The prosecution's indictment and detention

memorandum allege defendant travelled from Rochester, NY, to participate

in the activities and that while present the defendant broke a window

thereby, facilitating others entry into the Capitol. ln assessing

dangerousness the prosecution's memorandum must be examined for

what it does not allege. There is no claim defendant ever physically injured

anyone at any time. There is no claim defendant ever attempted to injure

anyone at any time. There is no claim defendant ever threatened to injure

anyone at any time. There is no claim defendant ever planned, conspired,

agreed, aided, abetted, facilitated or encouraged anyone to physically harm

anyone at any time2. There is no claim defendant ever possessed let alone

zThere is a claim on p. 14 of the Prosecution's detention memorandum

where the prosecution claims an unidentified person, Wl, apparently a
cooperating witness, claims defendant was present when "other persons"
expressed an intention to commit acts of violence and possession of
weapons which would enable them to do so. There is no allegation that
defendant made any such claim nor that he expressed an intent to join in
those acts. Respectfully, it is an impermissible stretch to claim that because
defendant was allegedly present when others expressed an intent to
commit future acts of violence, defendant shared that intent by implication.
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used a firearm or weapon of any type at any time. There is no claim

defendant ever attempted to obtain nor transfer any weapon at any time for

any purpose in connection with the underlying event or in connection with

the activities at issue3. Similarly there is no claim defendant ever

possessed any handcuffs or flexi cuff restraints as has been alleged

against other persons involved in the underlying event

There is no evidence defendant participated in the planning of the

underlying event nor that he played any role as a leader instructing others

in what to do during the event, merely that he was one of allegedly

thousands who participated in the event. The only act that seems to

distinguish defendant from thousands of other participants is that he used a

shield to break a window and he, along with hundreds if not thousands,

actually entered the capital.

The prosecution executed a search warrant at defendant's home. No

firearms were recovered nor any other weapons of any type nor explosives

nor any materials suspected of being potentially utilized In connection with

violence. A thumb drive was recovered at the defendant's home which

Those intents were expressed in connection with an intent to commit those

acts on January 20,2021, in conjunction with the presidential inauguration.
Notwithstanding the statements of intent, the professed acts of future
violence never occurred nor is there an indication they were attempted.
g Defendant is retired military. Obviously, he possessed firearms in
connection with his military service many years ago.
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contained a variety of materials related to making weapons, explosive

devices, etc.4. The prosecution places great weight on defendant's

possession of this thumb drive, (Pros. Memo p 16) There is no indication

defendant nor anyone else ever attempted to use the materials on that

thumb drive for any purpose. There is no indication defendant ever

downloaded any of the material on that device nor that he even opened or

accessed the material on that device. The prosecution has not expressed

any knowledge of how that material got onto the thumb drive nor how it

ended up in defendant's home. Most significantly there is no indication the

material on that thumb drive was ever accessed nor used by anyone for

anything at any timeS.

The prosecution places great reliance on defendant's "membership"

in the "Proud Boys" to infer that he is "dangerous." Upon information and

+ lt has been claimed that the materials on that drive is principally a

download of a publication called "The Anarchist's Handbook." Undersigned
counsel "googled" " lt is a commercial
publication that has been issued in multiple editions and updated versions
since the 1970s. lt is available from numerous retailers, libraries, Amazon,
Abe's Books, etc. There was even a PDF version of it online which counsel
opened and may have accidentally downloaded. The version opened
contained materials much the same as that described in the prosecution's
memorandum, particularly explosive devices, silencer devises, improvised
weapons, poisons, etc..
5 Defendant's family has expressed the opinion that defendant's computer
technology skills are so rudimentary that he could not open the thumb drive
by himself if he wanted to.
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belief, the defendant's contact and alleged involvement with the Proud

Boys is relatively short lived and minimal. Upon information and belief, he

had no involvement with Proud Boys prior to shortly before the events at

issue. Based on disclosures made by the prosecution it seems defendant's

only other "action" as a Proud Boywas that on December 12,2020,he

attended a "Make America Great Again" (MAGA) rally in support of then

President Trump. There is no alleged criminal activity by defendant in

relation to that event. This occurred shortly after defendant's introduction

to the Proud Boys. Upon information and belief, his only other activity as a
Proud Boy was discussing politics over drinks at bars on occasion

The Defendant

The defendant is 43 years old and has never been convicted of a

crime6. After graduating from Aquinas lnstitute in 1995, a Catholic High

School in Rochester, NY he enlisted in the Marines Corps as a reservist.

He served for 6 years and was honorably discharged with the rank of

corporal. Upon leaving the military he began working with his father

installing floors. After learning that trade he set off on his own starting

De'Pezzola flooring in 2013; a floor installation company in his home town

oThis memorandum is being prepared without a pretrial services report.

The prosecution confirms that based on their records the defendant has no
criminal history.
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of Rochester, N.Y.. Defendant is the sole proprietor of that business. He

currently employs 2 other installers, but on occasion, depending on

business demands, has employed up to 4 installers. Their primary focus is

commercial rather than residential accounts: hospitals, schools, offices,

stores, etc.. Defendant has been lawfully gainfully employed his entire

adult life. He is clearly not oriented toward a criminal lifestyle. Rather he

has consistently made his living through honest lawful work

The defendant is a lifelong resident of Rochester, N.Y., having lived

there his entire life. His wife, children, parents, siblings, sole surviving grand

parent and the majority of his extended family live in that area. lf released

he will return to that area awaiting trial. Having lived there his whole life it is

extremely doubtful he would flee because he does not "know" anywhere

else nor does he have substantial contacts anywhere else

The defendant lives with his wife Lisa MageeT. They have been

together 20 years. They have one child together, Angelina Pezzola, 16. The

defendant has another child, Maria Pezzola from a prior marriage who

resides in the same house and has done so virtually her whole life because

defendant has had sole custody of her since her early childhood. Defendant

is the sole supporter for the family. His wife is currently in graduate school

z Common law marriage

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pursuing a graduate degree in social work. Previously she had been

employed as a Pre-Trial Services worker in the NY State Court System.

Upon learning of the warrant in the instant case the defendant

contacted a lawyer in NY and made arrangements to voluntarily turn himself

in. He did nothing to avoid law enforcement nor to avoid or delay capture8

When requested by Pretrial Services in NY he surrendered his passport as

part of the release conditions in that Court

Defendant's Prooosed Conditions of Release

Defendant's first request is that he be released on personal

recognizance, consistent with the statutory presumption as the favored form

of release. lf the Court believes personal recognizance is not sufficient,

defendant requests that he be released into the third-party custody of his

wife, Lisa Magee. Ms. Magee was previously employed as a Pretrial

Release Supervisor in the State Courts of NY. She fully understands the

responsibilities and obligations of a third-party custodian, including her

obligations to ensure that Mr. Pezzola appear when ordered to do so, that

he complies with all conditions of release and that she inform the Court

eThe prosecution claims that the defendant "changed his appearance,"

implying he did so to somehow evade capture. lt is not clear what the
prosecution is referring to but it appears most people would describe this
"change of appearance" as his having trimmed his beard. ln all other ways
his appearance is the same as it was on January 6,2021.
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and/or Pretrial Supervisor of any violations of the conditions. Assuming

defendant is permitted to return to the family home in Rochester, NY,

pretrial supervision should be transferred there. lf the Court feels additional

supervision is warranted the defendant is requesting, he be released into

the HISP program, that a GPS monitoring system be employed along with a

reasonable curfew that permits him to work, support himself and his family

MEMORANDUM OF LAW AND ARGUMENT

Defendant submits that the order of detention should be vacated and

that this court should set conditions of release in this case. The Bail Reform

Act ("the Act"), 1B U.S.C.SS 3142, et.seq., creates four bail options: release

on personal recognizance, release on conditions, temporary detention and

pretrial detention. The Act mandates pretrial release on personal

recognizance or unsecured bond ("shall orderthe pretrial release. . . .", 18

U.S.C. S 3142(b)) unless the court determines that release will not

reasonably assure the person's appearance or will endanger the safety of

any person or the community. When personal recognizance or an

unsecured bond is determined to be inadequate to guarantee appearance

or safety, the Act still mandates release ("shall order the pretrial release.

.", 18 U.S.C. $ 31a2(c)) subject to specified conditions. The conditions must

be the least restrictive conditions necessary to reasonably assure the

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defendant's appearance and the community's safety. United Sfafes y

Fortna,769 F.2d 243 (sth Cir. 1985), cert. denied , 479 U.S. 950 (1986)

There are several factors in the instant case which demonstrate that

there are conditions of release which would both guarantee Defendant's

appearance and assure the safety of the community. Defendant showed

determination to voluntarily surrender himself upon learning of the warrant

He contacted a lawyer, was advised of his rights and then in conjunction

with his counsel, voluntarily surrendered himself. Those actions do not

indicate an intent to flee. There is nothing in the history of the defendant

nor in the history of his actions in this case that show an inclination to flee.

Virtually all defendant's ties, family, professional and social are in his

community in Rochester, N.Y. . He is a lifelong resident of the area. Since

his ties to the community are substantial, there is no reason to think that he

would flee or not return to court when given notice to do so.

Congress enacted the Bail Reform Act of 1984 to give courts the

authority to consider factors such as the likelihood of flight and community

safety in making release determinations. ln passing the Act, however,

Congress did not intend to authorize the wholesale pretrial incarceration of

all persons accused of criminal offenses. Indeed, the Act expressly provides

that "[n]othing in this section shall be construed as modifying or limiting the

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presumption of innocence.' 18 U.S. Code Section 31420. To the contrary,

the passage of the pretrial detention provision of the 1984 Act bespeaks a

recognition that "there is a small but identifiable qroup of oarticulady

dangerous [persons] as to whom neither the imposition of stringent release

conditions nor the prospect of revocation of release can reasonably assure

the safety of the community or other persons. lt is with respect to this limited

group ... that the courts must be given the power to deny release pending

trial." S. Rep. No. 225, 98th Cong., 1st Sess. 6-7, reprinted in U.S. Code

Cong. & Ad. News 3189 (emphasis supplied). Notwithstanding the charge at

issue, defendant should not be considered to be within that limited group. lt

is apparent from the Act's legislative history, as well as the statutorily

mandated consideration of the least restrictive alternatives to detention, that

Congress contemplated pretrial detention of only a small percentage of the

individuals awaiting trial

The legislative history of the Act also stresses that '[t]he decision to

provide for pretrial detention is in no way a derogation of the importance of

the [accused's] interest in remaining at liberty prior to trial. lt is anticipated

that [pretrial release] will continue to be appropriate for the majority of

federal defendants." ld. a17,12, reprinted in,1984 U.S. Code Cong. & Ad.

News 3189. Defendant is among that majority for whom a combination of

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conditions short of detention without bond can be fashioned to "reasonably

assure" the safety of the community and his appearance for trial. United

Sfafes v. Orta,760 F.2d 887 (8th Cir. 1985). See also 18 U.S.C

$1a2(c)(1XB) fiudicial officer shall order the pretrial release of an accused

"subject to the least restrictive further condition or combination of conditions,

that such judicial officer shall determines will reasonably assure the

appearance of the person as required and the safety of any other person

and the community") (emphasis supplied). Courts have recognized that,

consistent with the intent expressed in the 1984 Act's legislative history, the

statutory scheme of Section 3142 continues to favor release over pretrial

detention. See, United Sfafes v. Orta,760 F.2d BB7, 890-892 (8th Cir

1985); United Sfafes v. Miller, 625 F. Supp. 513, 516-17 (D.Kan. 1985). ln

the instant case defendant's continued detention without bond is not the

least restrictive alternative case; there are conditions available that will

assure the community's safety and his return for future court dates

See U.S. v. Xulam,84 F.3d 441 (D.C. Cir. 1996).

Title 18 U.S.C. Section 31a2@) provides for pretrial detention if the

government is able to show that no condition of release will reasonably

assure the accused's appearance as required and the safety of any other

person or the community. See, United Sfafes v. Salerno,481 U.S. 739,741

1.L
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(1987). Here there are conditions available which will reasonably assure

the defendant's presence and safety of the community. There is no reason

to believe that a 43-year-old with no record of criminal activity, who is

gainfully employed with no history of violence nor flight, must be

preventively detained because his release poses an unreasonable risk of

flight or danger to the community

Notwithstanding that the defendant has been indicted he is still

presumed innocent. The defendant's ability to prepare a defense will be

hampered by his pretrial incarceration.

Assuming the prosecution can prove the allegations they make did

occur, it still has to be noted that at no time do they even allege the

defendant personally attempted to physically harm anyone. They claim

other individuals of the thousands who participated in the activities of

January 6,2021, did attempt to inflict physical harm on individuals. Still

others expressed a desire and intent to do so. But they do not claim that

there is evidence Mr. Pezzola personally did so. In view of that it is difficult

to see how they can credibly claim there are no conditions of release that

protect the community from the danger his release poses, particularly when

they cannot point to any attempt by him to physically injure anyone.

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Lastly, although the alleged accusations about the defendant's

activities are of understandable concern, in assessing the danger his

release poses defendant's alleged activities must be viewed in context

Notwithstanding that his beliefs were not rationally based; defendant was

not acting out of criminal intent. Defendant sought no personal nor

pecuniary gain. Rather defendant acted out of the delusional belief that he

was a "patriot" protecting his country. Defendant is former military who is

sworn to protect his country. He was responding to the entreaties of the

then commander in chief, President Trump. The President maintained that

the election had been stolen and it was the duty of loyal citizens to "stop

the steal9." Admittedly there was no rational basis for the claim, but it is

apparent defendant was one of millions of Americans who were misled by

the President's deception. Defendant did not act out of criminal intent but

out of conscience, albeit a frighteningly confused and distorted sense of

conscience. Hopefully, as a result of this experience he has learned not be

so gullible and will not be so easily duped again. His solitary action in this

g Press accounts of the underlying event are rampant with the universal
claim by all protesters that they were acting at the behest of President
Trump to save the country from a stolen election. Many of those who
heeded his call will be spending substantial portions if not the remainder of
their lives in prison as a consequence. Meanwhile Donald Trump resumes
his life of luxury and privilege

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case, measured against a history of being a law-abiding citizen for the last

43 years, safely predicts that he is more likely to resume behaving as a law

abiding citizen if released pending trial. His history does not suggest that he

is likely to resume the type of behavior that brings him before this court

WHEREFORE for the foregoing reasons, and any others which may

appear at a full hearing on this matter, and any others this Court deems just

and proper, defendant through counsel, respectfully requests that he be

released on personal recognizance. lf that request is denied defendant

requests as an alternative that he be released on Third Party Custody and

placed into the High lntensive Supervision Program of the Pretrial Services

Agency conditioned on reasonable conditions including but not limited to

work release and curfew

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Respectfu lly su bm itted,

/s/
Jonathan Zucker # 384629
37 Florida Av. NE
Suite 200
Washington, DC 20002
(202) 624-0784
ionathanzuckerlaw@g mai l.com
Counsel for Dominic Pezzola

CERTIFICATE OF SERVICE

I certify that on February 10,2021, I caused a copy of the foregoing

Memorandum to be filed with the Clerk using the CM/ECF System which
will send notification of this filing to all parties.
Courtesy copies were sent by email to the assigned AUSAs.

/s/

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