WASHINGTON (CN) — A man under investigation for his conduct at the insurrection of Jan. 6, 2021, took the stand as a key defense witness Tuesday for five associates of the Oath Keepers, including the leader of the far-right militia.
In what the judge called an “unexpected turn,” however, Dario Aquino pleaded the Fifth Amendment to avoid the possibility of self-incrimination.
“I have to plead the Fifth under my lawyer’s advice,” Aquino said when defense attorney Phillip Bright asked the witness to confirm that they had met twice before today's proceedings.
U.S. District Judge Amit Mehta quickly dismissed both the jury and the witness, whereupon a lawyer for Aquino complained to the courtroom that he had learned only on Monday that his client was planning to testify for the defense.
“They spoke with him without talking to me first," the lawyer said. “Based upon our discussions, he now wants to invoke.”
The Obama-appointed Mehta asked counsel for Rhodes to explain what they expected the court to learn from Aquino's testimony and to offer an estimation of the witness's potential criminal exposure.
Bright said he prepared a line of questioning that would not expose Aquino to legal jeopardy while detailing how Rhodes made his way to the Capitol on Jan. 6 after he and Kellye SoRelle left the Save America rally supporting Donald Trump, the outgoing president. SoRelle had been dating Rhodes at the time and also faces charges related to the Capitol riot.
“He fills in that two-hour gap,” Bright told the judge, adding that he expected Aquino's testimony to establish that Rhodes neither directed nor ordered Oath Keepers to go to the Capitol after the rally.
Bright said Aquino would back up what Rhodes has claimed: that he and SoRelle left the rally because lines at the port-a-potties were long and they wanted to warm up. Rhodes says they met Aquino at the hotel he was staying at where they watched television until Rhodes was alerted that things were happening on Capitol Hill, at which point they made their way to the Capitol.
Aquino's attorney, who did not give his name during proceedings, noted that the government had also approached his client with regard to this case. Aquino invoked his Fifth Amendment right to those questions as well. Although Aquino has not been charged with Capitol riot-related crimes, the lawyer said he remains a target of the government’s Jan. 6 investigation.
U.S. Attorney Kathryn Rakoczy recalled that the government has already introduced evidence involving Aquino at trial. In addition to Signal chats said to be conspiratorial plans, there is a video of Aquino with Rhodes outside the Capitol during the siege. Given all of those reasons, she said the government would argue that allowing Aquino's testimony exposes him to a realm of charges that Rhodes and his co-defendants are facing, up to and including seditious conspiracy.
David Fischer, an attorney for co-defendant Thomas Caldwell, claimed that the prosecution had stated previously that the government was aware, through Aquino’s counsel, that he would invoke the Fifth Amendment if called to testify by either side. He said their decision to proceed in spite of this introduced potentially incriminating evidence.
“So, they put messages in from Mr. Aquino that the defense believes are out of context and could be explained away and now the defense doesn’t get to,” Fischer said. “That’s the problem we’re having your honor — it’s distorting the trial.”
But Judge Mehta said the situation in a criminal trial is not uncommon. The main question, he said, is whether the defense is contesting the witness’s invocation.
The defense insisted they could keep the line of questions fairly narrow with a focus on the time leading up to Jan. 6 and the manner in which Rhodes told Oath Keepers to come back to the Capitol during the riot.
But that is the problem, the judge said, because the line of questions would place Aquino outside the Capitol with Rhodes, thus opening him up to potential criminal liability.
Aquino’s attorney agreed, telling the judge his client is not sophisticated in laws surrounding criminal exposure.
“He communicated to the defense team that he had an attorney — they said to hell with that — and I found out about it while he was on a plane here,” he said. “That’s unbelievable to me.”
Aquino’s lawyer said the government did things properly by contacting him before reaching out to his client. The defense meanwhile wants to take the “questionable issue and play it to their favor,” he said, by putting his client in a potentially incriminating situation “for their self-gain."
Bright, the lawyer for Rhodes, tried to frame the decision as an unintentional lapse in judgement, not an ethical issue. He insisted that he only reached out to Aquino after he was told that Aquino's counsel had already been contacted.
“An accident happened, and I asked for forgiveness," Bright told the court, "and if he can’t give it, then so be it.”
Judge Mehta tried to calm down the attorneys, telling them to “turn the temperature down” and insisting he believed everybody was acting in good faith and doing their job, “so let’s keep the emotions in check.”
Without an agreement on a narrow set of questions that the witness is prepared to answer and would not expose him to criminal liability on cross-examination, the judge said, “I don’t see that there is a basis at this point to overrule.”
The judge sent the parties out in the hall to try to come up with an agreed upon set of questions. But they returned less than 15 minutes later empty-handed, insisting they could not come to an agreement.
Mehta refused a bid by the defense to grant the witness immunity, stating that D.C. Circuit precedent does not authorize him to do so.
Rhodes and Caldwell are standing trial in Washington alongside Kelly Meggs, 53, Kenneth Harrelson, 41, and Jessica Watkins, 40. They all are accused of seditious conspiracy, charges that carries a 20-year maximum prison sentence.
To win a conviction, prosecutors must prove that the accused Oath Keepers had an actual agreement to "overthrow, put down, or to destroy by force" the U.S. government. They say the defendants communicated about their plans via encrypted chats, stocked up on weapons and traveled across the country to carry out the Jan. 6 attack.
The Justice Department so far has charged more than 880 people in connection with the Capitol riot. As of Oct. 6, about 313 people have pleaded guilty to misdemeanors, about 99 have pleaded guilty to felonies. Approximately 152 people have been sentenced to prison time.
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