MIDLAND, Texas — With just under a week to go until her sentencing for her participation in the Capitol riot, Jenny Cudd's defense team have submitted a sentencing memorandum.
Inside the 68-page document, the defense team asks the court to consider a sentence that does not involve imprisonment. The charge Cudd has plead guilty to includes a potential sentence of zero to six months in prison.
Cudd's defense team discusses her behavior inside the Capitol and mentions that since she accepted responsibility for her role in the riot, "the penalty of a fine is fair and equitable."
"[B]ased on new evidence discovered by the defense after Ms. Cudd’s guilty plea, the defense seeks sanctions in the form of dismissal or suspension of penalty for the government’s failure to timely produce exculpatory evidence," the court documents read.
Next the memorandum goes into Cudd's personal life, mentioning her business and how she "treats her employees like family members."
This section also includes snippets of a letters from people who know her, including Midland Mayor Patrick Payton who write a character reference for her:
In my experience with Ms. Cudd she is a woman who cares deeply about the United States of America, the freedoms of this great country... Her passion has always been to serve and do what is right as displayed in actions like running for the office of mayor in Midland, TX, doing what she can to help and serve veterans, running a thriving business in Midland, TX, and always being at the ready to serve her fellow citizens in her city, state, and country.
The document also lists a long string of community events and non-profits she has contributed to and organizations she has donated to. Accompanied with this are pictures of her in the community, including some from her mayor campaign and a shot with her and Midland Police Chief Seth Herman.
The next section discusses Cudd's behavior at the Capitol on January 6, recounting her Facebook live videos and her attendance at the protests.
Her defense team emphasizes that "Every door she went through was an open door" and that she joined a prayer circle at one point while inside.
Around a week after the FBI announced they would be looking into those involved with the Capitol riot, Cudd was arrested inside her flower shop.
The document also states Cudd was never "Alerted that she was wanted for misdemeanor offenses and was never given an opportunity to turn herself in on these charges."
Based on Cudd's stated reasons for being at the Capitol and her behavior while inside, the defense claims "[t]his is not the behavior of a radical revolutionary" and that the government not only omitted her conduct while in the capitol for its statement of offense but also cherry-picked certain elements of her videos to intentionally mislead others on what she said.
The defense also discusses what it says is new evidence discovered after Cudd entered her guilty plea for the charge she faced.
According to the memorandum, a few of the counts including the one Cudd plead guilty to involved a technicality of the Vice President and the Vice President-elect being on the Capitol and its grounds during the incident.
Later the defense says Cudd only knew about the whereabouts of these two based on what the government stated on the record; however, the government later narrowed the whereabouts down to only the Vice President himself and only the Capitol, not its grounds.
In January of 2022, the defense alleged it learned that the Vice President also might not have been in the Capitol at the time of the riot the way the government originally stated leading up to Cudd's indictment and plea.
The defense argues that since this evidence was withheld from Cudd and her team, the charges should be entirely dismissed. Alternatively, a suspension of the penalties or the imposition of her sentence would be accepted by the defense.
Additionally, Cudd's team argues that rehabilitation has already occurred between Jan. 6 and now, and that restitution has already been paid. They also presented the various letters showing that this sort of thing is "out of character" for her.
The team pulled another section of the letter from Mayor Payton to illustrate its point:
It is my firm belief that Ms. Cudd has suffered enough as a result of the actions of January 6, 2021 and I believe that should suffice. Ms. Cudd is no threat to this country or any person. As the mayor of this great city in West Texas I am more than willing to stand beside Ms. Cudd and advocate for her character. I believe her judgment and actions that took place on January 6, 2021 were not in her, or anyone else’s, best interest but that does not make her a threat to democracy, the rule of law, or anyone else for that matter. The lessons learned and the stress suffered over the past year should serve the purpose intended regarding actions and Ms. Cudd should be free to pursue her life and interests without interruption moving forward.
Another argument Cudd's defense team makes is a discrepancy among Capitol defendants' sentences and what she was offered.
Namely, Eliel Rosa was offered a plea deal for a Class B misdemeanor. While his actions were "almost identical inside of the Capitol" to those of Cudd, the defense says Cudd's only plea deal was for that of a Class A misdemeanor.
The document states her team inquired about the discrepancy multiple times and yet did not hear back from the government.
After Rosa's sentencing, his attorney disclosed to Cudd's legal team that the reason for the more lenient plea was apparently his immigration status.
Cudd's team then accuses the government of being more lenient towards immigrants than United States citizens, or committing "discrimination on the basis of national origin".
The document also brings up other examples of people being arrested, including the 2018 Women's March and the Kavanaugh protests. An emphasis was placed on these situations being preplanned, whereas Cudd "only planned to protest".
In conclusion, Cudd's lawyers asked for the charges to be dropped and the sentence suspended, or at maximum a $50 fine.
The government also submitted a sentencing memorandum, recommending the court sentence Cudd to 75 days in prison, one year of supervised release, 60 hours of community service and $500 restitution.
The prosecution's case focuses on the need to sentence Cudd in a way to discourage further conduct like this:
Cudd’s participation in a riot that actually succeeded in halting the Congressional certification combined with the defendant’s preparation for violence, her celebration of property destruction, her lack of remorse, and the potential for future participation in similar events renders a sentence of incarceration both necessary and appropriate in this case.
Following this, the government traces Cudd's movements through the Capitol and discusses comments she made on social media and via Facebook live.
Concerning Cudd's sentencing, the prosecution asked the court to consider how the Capitol riot "represented a grave threat to our democratic norms."
They also acknowledge that Cudd did not engage in violence or destruction herself, and if she had she would have been charged more harshly.
Concerning the difference between Rosa's and Cudd's sentencing, the government mentioned the fact that Rosa contacted the FBI voluntarily on Jan. 9, 2021. They also compared the two's Facebook posts to illustrate how "little remorse" Cudd expressed.
After considering all the elements, the prosecution asks the court to sentence Cudd the way they previously suggested.
Cudd is set to be sentenced in Washington, D.C. on March 23 at 3 p.m. CST.