Defence rejects proposed 25-year sentence for ex-reservist Patrik Mathews, seeks 33 months

Lawyers representing a former Canadian Armed Forces reservist from Manitoba accused of being part of a neo-Nazi group intend to recommend he be sentenced to 33 months in prison, instead of the 25-year term U.S. prosecutors are pursuing.

The prosecutors made a pre-sentencing submission late last month in the case against Patrik Mathews, an alleged recruiter for the white supremacist group The Base who illegally fled from Manitoba to the United States in 2019. 

Mathews had initially pleaded not guilty to charges linked to his role in an alleged plot to set off a race war in the United States.

In June, he changed his plea to guilty to various charges filed in Delaware and Maryland, including possessing a firearm while in the country illegally, illegal possession of a machine gun, possession of an unregistered machine gun and obstruction of justice for destroying a cellphone that was a part of a federal investigation.

He faces up to 10 years in prison for each of the first three charges, as well as up to 20 years and a $250,000 fine for destroying the cellphone evidence.

In court documents filed in September, prosecutors argued Mathews and his co-accused, Brian Lemley Jr., were working toward a civil war that would "decimate racial and ethnic minorities and subjugate women."

Neither Mathews nor Lemley face terrorism-related charges, but prosecutors planned to seek what's known as a terrorism enhancement against the former reservist that could significantly increase his prison sentence.

A statement of defence filed on Oct. 12 in Maryland District Court says the government is seeking "a dramatic sentencing enhancement," arguing Mathews's offence "was intended to promote a federal crime of terrorism."

But the defence says Mathews "vehemently rejects" that accusation "and contends the government's request to apply the terrorism guideline should be denied."

Baited into discussing 'imaginary plans': defence

The prosecution has submitted video evidence from January 2020 captured by the FBI.

On Jan. 11, 2020, an undercover FBI agent who had infiltrated The Base visited the Delaware apartment where Mathews and Lemley were living.

The prosecution says the video evidence shows Mathews and Lemley discussing acts of terrorism in connection with a planned gun rights rally in Virginia, including plans to kill a police officer and the Speaker of the Virginia House of Delegates. 

Forfeiture documents filed last week also list a series of items investigators seized when executing a search warrant at the residence in Newark, Del., where Mathews and Lemley lived on Jan. 16, 2020. Police seized two rifles, including an AR-15 with no serial number, and about 2,000 rounds of different kinds of ammunition.

The defence denies Lemley and Mathews intended to commit acts of terrorism in Virginia. Mathews was scheduled to work the day of the gun rally, the defence says, and wasn't planning on attending.

Mathews's defence claims the undercover FBI agent had a "clear intent to pressure the defendants into developing" those plans.

"While the [undercover agent] managed to bait the defendants into discussing some imaginary plans — as they commonly discuss while intoxicated — whenever the [agent] attempted to pin down a substantive plan, the defendants consistently asserted that they did not plan to attend or really do anything in Virginia," the defence statement reads.

Ideas may be 'repugnant,' but not illegal: defence

The defence says those conversations reflected Mathews's "beliefs and advocacy of ideas that many would find repugnant. Discussion of such ideas, especially within one's own home, do not establish the intent to commit crimes of terrorism."

The defence goes on to claim any speech of Mathews's intercepted by agents can't be the subject of prosecution because those remarks are protected under the First Amendment of the U.S. Constitution. Recordings included Mathews espousing racist and antisemitic views and advocating for anti-government and political violence.

The defence also points to sentences handed down to people for hate speech and anti-government violence since the case against Mathews began in January 2020.

They point to those implicated in the January 2021 Capitol Hill riots in an attempt to illustrate why the 25-year term sought by prosecutors in this case represents a "grossly disproportionate sentencing."

"Even the most severe of these cases, where actual violent acts occurred, have not resulted in sentences over one year of imprisonment," the defence says.

"In those cases, the defendants not only intended to promote crimes to influence government, they took concrete steps to plan and carry out acts of intimidation and coercion against government."

Recommendations 'unreasonable': prosecution 

In response to the defence statement, prosecutors said Mathews and Lemley are seeking a degree of leniency that "they never contemplated showing those they intended to murder, terrorize and humiliate."

"Their unreasonable sentencing recommendations are untethered to the facts," court documents filed in Maryland District Court on Monday say.

Prosecutors say the First Amendment doesn't shield individuals from their own words.

They also attack the defence's claim that Mathews had no plans of attending the rally. They accuse the defence of narrowly defining what constitutes a "plan" and say it is the defendants' intentions, not the details of a plan itself, that matter when determining whether terrorism enhancement applies.

"All that is required is that the crimes of conviction (or relevant conduct) involved or were intended to promote a federal crime of terrorism — not that the defendants actually had a plan or the capacity to succeed," the prosecution's court filing says.

Prosecutors and Mathews's lawyers will argue for and against the 25-year term at an Oct. 25 terrorism enhancement hearing. A sentencing hearing is scheduled for Oct. 28.