Also Thursday, the only Jan. 6 defendant to testify about his conduct in front of the House select committee investigating the riot was sentenced to two years of probation for disorderly conduct. Stephen Ayres, a 39-year-old Ohio carpenter, said he thinks about Jan. 6 “every single day” and prays for the injured officers and everyone who lost a loved one.
Hale-Cusanelli, 32, worked as a security guard at Naval Weapons Station Earle and lived on the base in Colts Neck, N.J. In addition to being a supporter of President Donald Trump, the man was a white supremacist who supported Nazi ideology and admired Adolf Hitler, even wearing a “Hitler mustache” to work, the government said in court filings. But U.S. District Judge Trevor N. McFadden ruled that Hale-Cusanelli’s racist preferences were too prejudicial to present to a jury, though he did allow the defendant’s comments that he wanted a civil war to come into evidence.
Surveillance video showed Hale-Cusanelli climbing through a window on the Lower West Terrace at 2:13 p.m., moments after it was first smashed, wearing a gray suit and a red MAGA hat. Before entering, prosecutors said, he moved a bicycle rack barrier aside to enable crowds to get closer to the building, and then urged the mob forward by waving his arms and yelling, “Advance! Advance!”
Once inside, Hale-Cusanelli was part of a group that overwhelmed U.S. Capitol and D.C. police in the crypt. Photos and videos showed that he then attempted to pull a rioter away from a police officer who was arresting that person. Hale-Cusanelli claimed that he didn’t know the officer was an officer, and that he thought the electoral vote certification “was going to be in a building called ‘Congress.’ As stupid as it sounds, I did not realize that Congress sat in the Capitol building.”
On Thursday, McFadden called that “a risible lie,” and after the jury convicted Hale-Cusanelli in May, the judge suggested to prosecutors that he would consider a request for a longer sentence for “obstruction of justice.” And McFadden did, in fact, increase Hale-Cusanelli’s sentencing range for those sworn statements.
But prosecutors sought two even longer sentencing enhancements for obstructing and interfering with the “administration of justice” at the Capitol. Defense attorney Nicholas D. Smith said that while Congress’s act of certifying the electoral college vote might qualify as an “official proceeding,” and all but one D.C. federal judge has agreed, the certification did not qualify as administration of justice. Prosecutors argued in their sentencing brief that the “’administration of justice’ is synonymous with ‘official proceeding.’ ”
McFadden agreed with the defense. He said the electoral college count was “appreciably different” from the investigations and other justice-related actions of Congress. “I don’t think the administration of justice, as used in the sentencing enhancement, is a fair way to describe what is happening here.”
He then reduced the sentencing guidelines range of 70 to 87 months down to 21 to 27 months. The guidelines are advisory, but judges typically issue sentences within the range. The government had requested a sentence of 78 months for Hale-Cusanelli.
But McFadden then blasted Hale-Cusanelli for his racist, sexist and antisemitic remarks, some of which were captured on a recording made by his roommate when Hale-Cusanelli returned to New Jersey after the riot. The judge repeated a profane taunt that Hale-Cusanelli shouted at a female Capitol Police officer during the riot, and criticized his “decision to lie on the witness stand.”
“Neither the jury nor I believed your claim that you didn’t know Congress resides in the Capitol building … you participated in a national embarrassment,” the judge said.
Though he had lowered the sentencing range to 21 to 27 months, McFadden sentenced Hale-Cusanelli to 48 months, followed by three years of supervised release.
The judge credited Hale-Cusanelli for showing remorse.
“My behavior that day was unacceptable and I disgraced my uniform and I disgraced the country,” Hale-Cusanelli said. He claimed he was “operating under the advice of counsel” when he testified about his confusion on where Congress sits. “I was challenging the law as it applied in my case.”
Elsewhere in the courthouse, Ayres told U.S. District Judge John D. Bates that he’s embarrassed and concerned by the political rhetoric that once captivated him. “I wish everybody in this country could stop and see where it’s going,” he said, in comments similar to those he made during a nationally televised meeting of the House Jan. 6 committee, where he said he hoped like-minded people would “take the blinders off.”
Prosecutors asked for 60 days in jail, citing violent social media comments Ayres made before Jan. 6 and his “lukewarm” response on Capitol Hill when asked if he still thought the 2020 presidential election was stolen. But Bates said he believed Ayres’s remorse was “sincere” and placed him on probation.