WASHINGTON — A Beverly Hills salon owner who pleaded guilty to six counts last year in connection with the Capitol riot now wants to withdraw her plea on the most serious of them – arguing her judge’s novel reading of an obstruction statute means she’s innocent.
In a new filing Friday, Gina Bisignano argues the Justice Department “bullied" her into pleading guilty to a charge she didn’t understand. She also says a ruling by the judge who accepted her plea, U.S. District Judge Carl Nichols, imposed a new requirement on the obstruction statute she pleaded guilty to meaning it no longer applies to her actions on Jan. 6.
In March, Nichols dismissed an obstruction of an official proceeding charge against Garrett Miller, of Texas. In doing so, he relied on a narrow reading of the statute — 18 USC § 1512(c)(2) — that would require a defendant to be accused of taking “some action with respect to a document, record or other object” in order to corruptly obstruct the joint session of Congress on Jan. 6. Nichols stuck to that reading in February when he dismissed the same obstruction charge in the case against another defendant, Pennsylvania police officer Joseph W. Fischer.
No other judge on the D.C. District Court has agreed with Nichols’ reading of the statute. That includes fellow Trump-appointees on the bench, U.S. District Judges Dabney Friedrich and Trevor McFadden, who, respectively, called Nichols’ reading “unnatural” and “strained.” Nichols himself said earlier this month he was “very seriously contemplating” a request from the Justice Department to reconsider his ruling – an unusual step for a federal judge to take on a question of law.
In a motion Friday, Bisgnano’s attorney, Robert L. Jenkins, said Nichols’ ruling meant Bisignano could not have had a full understanding of the law when she pleaded guilty and, thus, her plea to the obstruction count should be thrown out.
"With respect to this claim of innocence, the Defendant told the Government during her proffer sessions that she did not know that a Senate hearing was taking place," Jenkins wrote. "Also, during her plea hearing, she indicated her discomfort with the Statement of Offense, which was incorporated into the record, and therefore requested to speak with counsel. She felt that her actions did not rise to the level of Obstructing an Official Proceeding and Aiding and Abetting..."
Bisignano signed her plea deal and statement of offense in August – seven months before Nichols’ ruling – admitting she filmed herself and other California supporters of former President Donald Trump scaling a wall as they headed to the U.S. Capitol Building to “put some pressure on mike Pence.”
“Okay, we are storming the Capitol,” Bisignano said in one video. “And I’m going up in there, I’m going to break into Congress.”
Bisignano was part of the mob that attempted to force its way past the police line at the Lower West Terrace Tunnel – the site of some of the most violent assaults on officers that day. After being forced out of the tunnel, Bisignano regrouped with other rioters to talk about “what Pence’s done” and discuss how to gain entry into the building. She began shouting, “Break the window! Break the window!” while another rioter took out a hatchet and began to hammer away at the glass. She then helped another rioter climb up and smash in the glass window with a fire extinguisher before entering the building herself.
Once inside, Bisignano used a bullhorn to encourage other rioters to enter the Capitol, at one point yelling, “Everybody, we need gas masks! We need weapons! We need strong angry patriots to help our boys. They don’t want to leave. We need protection.” At another point, Bisignano yelled, “This is 1776!”
As part of her plea deal, prosecutors agreed to drop the destruction of property charge – a significant factor for Bisignano at sentencing because prosecutors could have used it to seek a terrorism enhancement against her.
Bisignano’s plea deal also included an agreement to cooperate with the government’s investigation into other riot suspects. That was expected to include testimony about a meeting at her house after Jan. 6 with at least three other defendants, including Danny Rodriguez – who is charged with repeatedly electroshocking former DC Police Officer Mike Fanone in the neck – and Ed Badalian, who is charged, along with Rodriguez and a third defendant, with conspiring to bring weapons and tactical gear to D.C. to disrupt the joint session of Congress.
The plea deal estimated a recommended sentencing range of 41-51 months in prison with the possibility of a downward departure. That’s something prosecutors can request if they feel a defendant warrants it – generally contingent upon substantial cooperation.
That downward departure – along with a reduction for accepting guilt and the government’s agreement to drop the destruction of property charge – would likely be off the table if Bisignano were allowed to withdraw her plea. Bisignano’s plea deal also stipulates that, if she fails to plead guilty or withdraws her plea, “any statements your client makes (including this plea agreement and admission of guilt)… may be used against your client in this or any other proceeding.”
Withdrawing a guilty plea after sentencing – as “QAnon Shaman” Jacob Chansley is now attempting to do – is difficult to accomplish. Plea agreements, like Chansley’s and Bisignano’s, often include clauses waiving the majority of rights to appeal. But backing out of a plea before sentencing doesn’t face as many hurdles. Rule 11 of the Federal Rules of Civil Procedure instructs judges to allow defendants to withdraw their pleas prior to sentencing if they can show “a fair and just reason” for requesting withdrawal.
Bisignano is currently scheduled to be sentenced on July 12. Federal prosecutors have until July 7 to file their memo laying out the sentence they believe she should serve.
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