United States v. Matthew Perna: It Didn't Have To Be This Way.
I don't know who it is, but there is a DOJ Supervisor -- maybe a political appointee -- who should think about Matthew every day the rest of his or her life
Captain’s Log: This is another free article because I think this is an important story to tell. Investigative jouralist Lara Logan has done a long video story on Matthew Perna, and I spoke with her for her story about much of what is below.
PROLOGUE:
On June 28, 2024, the United States Supreme Court held in Fischer v. United States that a violation of 18 U.S.C. Seç. 1512(c)(2) could not be based on allegations involving illegal protest activities, i.e., “by entering and remaining in the United States Capitol without autority and committing an act of civil disorder and engaging in disorderly and disruptive conduct.” In doing so, the Court vacated of every District Court Judge in the District of Columbia who had answered that same question with the opposite finding — except for one.
On December 17, 2021, Matthew Perna was charged by the Biden DOJ with violating Sec. 1512(c)(2) “by entering and remaining in the United States Capitol without authority and committing an act of civil disorder, and threatening Congressional officials, and engaging in disorderly and disruptive conduct.”
Pursuant to a pre-indictment plea agreement that had been negotiated between Matthew, assisted of an experience criminal defense attorney, and the Biden DOJ, Matthew entered a plea of “Guilty” to that charge the same day.
On February 25, 2022, only 70 days after pleading guilty and two weeks prior to his scheduled sentencing, Matthew Perna took his own life.
On March 1, 2024, the United States Court of Appeals for the District of Columbia held in the case of United States v. Larry Brock that two sentencing enhancements applied to calculate Brock’s sentence, both expressly relating to the “administration of justice,” were not applicable to convictions for Sec. 1512(c)(2) because the proceedings before Congress on January 6 did not involve the “administration of justice.” In doing so, the Court of Appeals overruled all but one of the same District Court Judges on the same question.
The effect of those two provisions on sentencing calculations for a Sec. 1512(c)(2) offense was to increase the recommended sentence from 1 year to close to 4 years.
The Circuit Court of Appeals said four months ago that DOJ should not have asked for the two sentencing enhancements relating to “administration of justice” and the District Judges should not have imposed those sentencing enhancements; and the Supreme Court said yesterday that DOJ should have never charged Matthew with a violation of Sec. 1512(c)(2) based on the facts it alleged in his indictment.
Matthew Perna did not live to see either — two days ago would have been his 40th birthday.
THE PATH TRAVELED
On January 18, 2021, an FBI Agent signed an Affidavit in Support of a Criminal Complaint alleging probable cause to believe that Matthew committed a series of crimes at and inside the Capitol on January 6, 2021. Notably, the Complaint only alleged what have come to be known as the four “common” misdemeanor offenses that have been filed against more than 1400 individuals. The Complaint does not allege that Matthew committed a violation of Sec. 1512(c)(2) or any other felony offense.
The Complaint Affidavit does allege than an individual who claimed to know Matthew called him a “conspiracy theorist” and “QAnon supporter.”
It is noteworthy that when writing the Affidavit the FBI and DOJ thought it was necessary to include the following in a footnote — based on the comment from one person that Matthew was a QAnon supporter:
See Judge — Matthew Perna is a dangerous anti-government conspiracy theorist along with all the other Trump supporters who came to the Capitol on January 6.
On January 14, 2021, FBI Agents interviewed Matthew at his home. Matthew admitted he was at the Capitol and went inside. He said he went to the top of the steps with a friend and they were surprised to see the doors open. He said that he and his friend were then caught in the crowd and pushed inside by people behind them. He said he was inside for only 5-10 minutes. He admitted to at one time using a metal pole to tap on a window from outside the building. Also included in the Affidavit were images and descriptions of videos showing Matthew inside the Capitol, including a video taken by Matthew himself and posted to his Facebook account. The videos were entirely consistent with Matthew’s description of his actions to the Agents.
Matthew was arrested on January 25, 2021, and released on bail. In the 10 months between January arrests and November, the DOJ was asking at every status conference for additional time to gather and produce discovery to defendants. This left all the cases — a few hundred at that point — pretty much stuck in neutral for nearly the entirety of 2021. In late October and early Nov, the Biden DOJ began telling judges that it has produced all relevant discovery — not really — and that cases could begin to be set for trial.
The sequence of events supports the conclusion that the negotiations and agreement to a guilty plea in Matthew’s case took place in this Nov-Dec. time frame, with Matthew pleading guilty on December 17.
All during 2021 Matthew was still only charged by a criminal complaint with the four misdemeanors. But his attorney was certainly telling him that if he wanted to enter into a plea agreement, the Biden DOJ was going to insist on a felony — a Sec. 1512(c)(2) offense.
At this point it is important to understand the range of charges the Biden DOJ was employing when seeking indictments.
I believe the charge of “seditious conspiracy” was included in only two cases — the main Oath Keeper case involving the leaders and ones who went inside the Capitol as a group, and the main Proud Boys case involving their national leaders.
Besides 1512(c)(2) and its statutory maximum sentence of 20 years, the Biden DOJ charged violations of 18 U.S.C. Sec. 111, assaulting law enforcement. The (a) provision under that statute involved certain specific facts that could make the charge a felony with a maximum term of 8 years. The (b) provision is “aggravated assault” — use of a deadly weapon or inflicting serious bodily injury — with the maximum sentence increased to 20 years.
The other felony regularly charged is 18 U.S.C. Sec. 231 — “civil disorder”. That is basically refusing to obey law enforcement officers, or interfering with them in the execution of their lawful duties during a “civil disorder” — i.e., a riot. This is the most “minor” of the felonies, with a maximum sentence of 5 years.
Some defendants faced a felony charge for destruction of government property if the damage was in an amount of $1000.
In addition to these felonies, defendants have all been charged under a variety of misdemeanors for various forms of trespass or unlawful protesting inside the Capitol.
What the above tells you is that the Sec. 1512(c)(2) charge, with its potential 20 year max sentence, was the KEY felony charge for the Government to use against defendants who did not have any physical encounters with law enforcement charged under Sec. 111. It was very common during the first year to see the Sec. 1512(c)(2) count charged as the only felony, along with multiple misdemeanors.
But the use of Sec. 1512(c)(2) together with misdemeanors became an issue with some of the judges. The “obstructive conduct” needed to be “corrupt”. To prove “corrupt” the DOJ argued that the illegal misdemeanor conduct showed the “corrupt” state of mind. In effect, the DOJ was employing Sec. 1512(c)(2) to turn misdemeanor conduct punishable by less than 1 year into a felony punishable by up to 20 years. That proved to be a step too far for some judges. As a result, after several months when cases started to lead to guilty pleas, the DOJ began charging a second felony along with Sec. 1512(c)(2). With that they were able argue that the other felony conduct showed “corrupt” obstruction for purposes of Sec. 1512(c)(2). That practice continued right up to Fischer — one of my new clients was indicted two days before Fischer was decided and was charged with violations of Sec. 1512(c)(2) and Sec. 231 (civil disorder).
So that is where Matthew’s case stood when he agreed to plead guilty to an indictment that ended up charging him with one felony — Sec. 1512(c)(2), and three misdemeanors.
Here is an excerpt from the “Statement of Offense,” describing the factual basis for his guilty plea to the Sec. 1512(c)(2) count:
“At approximately 2:47 pm, PERNA entered the Capitol through the Senate Wing door….
This was 34 minutes after those doors were first breached by the crowd, and it is more than 20 minutes after the House and Senate had recessed.
PERNA remained inside the building for approximately 20 minutes. He held a cellular device in his right hand and and filmed and chanted (“USA! USA!”) along with the crowd.
That’s it — that is horrendously bad as a “factual basis” for a plea to felony offense. There are no other facts set forth which describe how Matthew’s conduct “corruptly obstructed an official proceeding.”
There is one wholly conclusory paragraph — by that I mean is simply repeats the language of the statute as if it was factual:
The defendant, in concert with others, obstructed, influenced, and impeded an official proceeding …. Congress’s certification of the Electoral College’s vote.
In my view, that “Factual basis isn’t even close to being sufficient.” But more significantly now, nothing Matthew did or said on January 6 had anything to do with the “impairment of evidence” in connection with an official proceeding that the Supreme Court has now said must be the basis of a charge.
But that is not where the story ends.
Matthew’s plea agreement with the Government required him to agree to a +3 level “sentencing enhancement” under the Guidelines. That enhancement reads:
If the offense resulted in substantial interference with the administration of justice, increase by 3 levels.
I’m not going to do guideline calculations here, but what those 3 levels did was increase his sentencing guideline by 5 months — from 13 to 18.
That was the part of the deal that he accepted. My understanding is that while he was deeply troubled by the fact he was being prosecuted and DOJ wanted to send him to prison, the number of months was such that he would be able to get through it and return to normal life again with his family.
But shortly before the sentencing date in mid-February — and just before Sentencing Statements were due to be filed by both sides — the Government asked for a two week delay. The Government did not explain why is wanted a delay but this was in the very early days of cases being resolved by guilty pleas and sentencing hearings actually taking place.
Just before the end of the extension, the DOJ prosecutor told Matthew’s attorney that the Government was going to argue for a second sentencing enhancement that was not part of the agreement — this one for +8 levels. This second enhancement was never discussed at the time the plea agreement was reached, but the agreement did allow both sides to argue for/against other sentencing factors besides those agreed upon.
The +8 level sentencing enhancement reads:
If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice, increase by 8 levels.
I’m not sure what the “physical injury” or “property damage” was that the Government intended to rely on — the case never got that far for reasons we all know.
There is no guarantee that the +8 levels would have been imposed. In fact, knowing who the judge was, I would have bet a small fortune that the +8 levels would NOT have been imposed based on the facts as them seem to be. The “tapping” on a window with a pole? Ludicrous.
The additional 8 levels — if imposed — would have increased Matthew’s guideline from 18 months to 46 months, or almost 4 years in federal prison. When the Government’s intention was explained to him — all he heard was the “46 months.” Rather than a sentence in the teens, the Government wanted him to sit in prison for 4 years.
I’m told that the prosecutor handling the case let it be known that he did believe the +8 level enhancement should be applied based on the facts. But I believe 110% based on my own experiences over nearly 3 years that a supervisor on the J6 prosecution team told the prosecutor handline the case that he had to include the +8 in his sentencing statement and he had to argue for it at the sentencing hearing.
The strategy — 100% in my experience — is that DOJ is seeking EVERY possible enhancement for every defendant regardless of how inappropriate or weak the factual basis is. They claim this is being done in the interests of consistency across hundreds of similar cases.
Bullshit. It is all the proverbial “pound of flesh along with a pint of blood.”
I think his family has commented publicly over the past two years how this effected Matthew emotionally. I’m not going to include that here, as it is not my place. I have met his aunt Geri on a few occasions, and sat with her on a panel about the weaponization of DOJ back in January at the Capitol. I asked her for permission to write this story before I started because I’m not sure any of the family understand the actual mechanics of how his case played out both at the beginning and the end. I didn’t want to add to their pain by maybe giving them more insight into the horror than they already had.
Four months ago the Circuit Court of Appeal said DOJ was wrong to seek both the +3 and +8 level enhancements in connection with the events of January 6.
With great respect to our district court colleagues’ thoughtfully reasoned efforts to apply this Guideline, we hold that, for purposes of Sentencing Guideline 2J1.2, the phrase “administration of justice” does not encompass Congress’s role in the electoral certification process.
That simple. Nearly EVERY defendant had argued this issue — I did so maybe a dozen times. Only one judge agreed with me and the other defense counsel.
The +8 enhancement that increased his possible sentence to 46 months — becoming the hurdle Matthew could not surmount — should have never be asked for.
The individuals responsible for the horrendous decisions to charge Sec. 1512(c)(2) and push for the +11 levels in enhancements at sentencing hearings know who they are, and will have to live with that on their consciences for the rest of their lives.
Be at peace Matthew.
I’m told the world is worse off without you in it.
Heart rending story. Evil runneth amok in DOJ. Watching events and closely following the J6 stories, I’ll simply say this isn’t what my dad, uncle’s and myself fought wars for. Millions in Heaven are weeping for Matthew, Ashley and the thousands more affected by this horrific treatment of American citizens. God Bless you for your diligent efforts for them, and for telling Matthew’s story.
Just a suggestion, and I say this as someone with no skin in the game, but...
Although this was a 'free' article, anybody that liked this piece and have concerns with the other things that are happening with the J6 persecutions should, if they haven't already, subscribe to ShipWreckedCrew's substack.
The country needs what he's doing to help the people being persecuted, politically, by the Dems and their allies in the justice system.