An Auburn-area man and leader of the far-right Proud Boys group was ordered detained once again while he awaits trial on charges that he helped plan and lead January’s deadly attack on the U.S. Capitol.
U.S. District Court Judge Timothy J. Kelly on Monday granted the latest bid by federal prosecutors to revoke a previous order freeing Ethan Nordean and fellow Proud Boys leader Joseph Biggs pending their trials.
“The defendants stand charged with crimes to steal one of the crown jewels of our country in a sense — the peaceful transfer of power,” said Kelly, when ruling on the Justice Department’s motions before the U.S. District Court for the District of Columbia.
“In the end, the evidence is overwhelming that Nordean and Biggs had a plan that day,” Kelly added. “In my view, the weight of the evidence is strong enough in favor of detention.”
Kelly’s ruling followed two hours of arguments during a hearing on April 6, and several delays and canceled hearings since then. U.S. marshals were expected to take both men into custody later Monday, but the judge said he would hold off for now on ordering Nordean transferred from Washington state to the District of Columbia.
Both Nordean, 30, and Biggs, 37, of Florida, have pleaded not guilty.
Both men were widely captured in photos and video leading scores of Proud Boys and other pro-Donald Trump protesters on a march to the Capitol just before it was breached and ransacked on Jan. 6. Nordean, Biggs and two others — Zachary Rehl of Pennsylvania and Charles Donohoe of North Carolina — since have been accused as ringleaders of the siege that interrupted Congress’ certification of Joe Biden’s presidential victory.
All four men are now charged with six federal criminal counts, including four felonies: conspiracy, obstruction of an official proceeding, obstruction of law enforcement during civil disorder, destruction of government property, entering and remaining in a restricted building and disorderly conduct.
Nordean, known by his alias “Rufio Panman,” had previously won release orders from two federal judges, but was held for a month after his Feb. 3 arrest before being released to confinement at his home near Auburn. Biggs was released shortly after his arrest on Jan. 20.
Prosecutors contended in motions filed in March and argued April 6 that a grand jury’s superseding indictment provided new information about the alleged leadership roles of both men in the Capitol attack that warranted they be taken into custody pending trial.
The indictment, which was unsealed in March, alleges the men coordinated fundraising for the Jan. 6 event, encouraged others to participate and obtained paramilitary equipment to carry out the siege. They also allegedly communicated using handheld radios and messaging applications to coordinate the attack, and, just prior to its breaching, dismantled metal barriers protecting the Capitol, the indictment says.
“The additional facts demonstrate that (Nordean) participated in and led a violent attack upon this county’s democracy and Capitol,” Assistant U.S. Attorney James B. Nelson argued in his pleadings. “It is now clear that there is no condition or combination of conditions, including home confinement, that could reasonably assure the appearance of the Defendant as required and, more importantly, the safety of the community.”
Assistant U.S. Attorney Jason McCullough added that before, during and after the deadly attack, Nordean had shown an “unwavering commitment to defy” the U.S. government, and since “has shown no remorse for that action.”
Even if confined to his home, Nordean still poses a threat of planning similar future attacks on the government, McCullough argued.
“His ability to encourage, plan, organize and lead others to this kind of activity in the future, that poses a danger to the public,” the prosecutor said.
Attorneys for both defendants countered Nordean and Biggs had been planning an event on the day of the Capitol riot, but not an insurrection as prosecutors allege. Rather, they were organizing a concert later in the day for participants who attended the “Stop the Steal” rally and protest events, their lawyers said.
“They did have a plan on Jan. 6 and it involved a musician,” said Nicholas Smith, one of Nordean’s attorneys. “A music party in D.C. blocks away from this offense.”
In pleadings, Smith and partner David Smith described the government’s third attempt to detain their client as “vexatious litigation,” countering that the latest indictment still proffers no evidence indicating Nordean destroyed any property or assaulted anyone during the riot. Because Nordean hasn’t been charged with the kinds of violent offenses that warrant pretrial detention, he should remain free, they said.
“The government’s motion to overturn the settled decision of two federal judges … and to detain Nordean, during a prison pandemic, for months as he awaits trial in the midst of unprecedented docket congestion, is frivolous,” their pleadings contend.
Defense attorney John Hull called Biggs “a model pre-trial defendant” who has complied with all conditions during his release. Prosecutors’ bid to revoke Biggs’ release is based on “a handful of speculative, somewhat dramatic interpretations of certain `new evidence'” but “nothing acquired by the government since his pretrial release on January 20 nor any of Biggs’ actions since his release supports detaining him now,” Hull added.
Before the judge ruled, Nordean’s attorneys filed into the court record allegations that various Capitol riot suspects “have been subjected to violence, threats
and verbal harassment from guards in the D.C. jail where the protestors are being held in pretrial confinement.”
During Monday’s hearing, Kelly pointed out that in the March 3 order releasing Nordean, Chief Judge Beryl A. Howell for the U.S. District of the District of Columbia had called arguments over his pre-trial detention a “close call” that could be revisited should more evidence emerge.
Kelly then read through various encrypted messages and social media posts shared by Nordean, Biggs and other Proud Boys leaders in the weeks leading up to the Jan. 6 attack that have since appeared in the grand jury’s unsealed indictment. They included statements about the election being stolen, setting up fundraising activities, obtaining paramilitary equipment and a number of profane messages about planning and tactical preparations on the day of the event and as the attack unfolded.
While Kelly noted that evidence doesn’t show that either Nordean or Biggs had a weapon or used physical violence, the judge said both men “positioned themselves at the very front of the crowd that pushed their way into the Capitol.”
“Both defendants celebrated what happened that day,” he added. “Neither defendant at any time has expressed regret or remorse for what they did or what happened that day.”
Kelly said that while Nordean and Biggs have complied with conditions during their release under home confinement, he noted “two highly troubling things” were reported about Nordean: That he claimed he’d lost his passport and couldn’t turn it over, and that he belatedly reported one of his firearms had been stolen.
When viewed together, the judge said, the lost passport and missing gun “seem highly suspect, raising the prospect they have been stashed somewhere or are being held by someone.”
Kelly added that both defendants’ dedication to the Proud Boys, their public statements about the presidential election being stolen and their lack of remorse for what happened on Jan. 6 “does not inspire confidence” that either man would continue to adhere to release conditions or wouldn’t pose a potential safety risk to the public.
The siege — which left the Capitol ransacked, prompted lawmakers to flee for their safety, injured dozens of federal police officers and led to the deaths of four people — has led to charges against more than 400, including scores of Proud Boys, Oath Keepers and others with ties to extremist groups. Medical examiners on Wednesday concluded the death of Capitol Police Officer Brian Sicknick the day after the riot occurred due to natural causes after the officer suffered two strokes, according to The Washington Post.
Before Monday’s hearing ended, Nordean’s lawyer Nicholas Smith made a last-ditch attempt to keep his client free pending trial. Nordean has offered to give up all electronic devices, allow probation officers to enter his home without a warrant to check on him and put up a $20,000 bond and his house as collateral to guarantee his court appearances, Smith said.
But Kelly wasn’t persuaded.
“The problem with that is, I have no way of knowing what I don’t know,” the judge said. ” … He could be doing all sorts of things that there would be no way of finding out.”