An Auburn-area member of the extremist Proud Boys group and his co-defendant made new appeals to a federal judge Monday that they should be released from custody pending their trial on federal terrorism charges related to January’s attack on the U.S. Capitol.
Lawyers for Ethan Nordean, 31, and co-defendant, Joseph Biggs, 37, of Florida, told Judge Timothy J. Kelly that new evidence and additional factors warrant their release from federal detention while each defendant awaits trial next year on six counts filed against them in the U.S. District Court for the District of Columbia.
Nicholas Smith, an attorney for Nordean, argued the government hasn’t met its burden to prove Nordean represents a danger to the community or a flight risk.
“We think there’s not a single factor … that supports the government’s argument for detention,” Smith said.
Nordean’s father, a Des Moines restaurateur, has agreed to post bond of $1 million from his “life savings” on his son’s behalf, and Nordean’s home near Auburn is actively monitored by surveillance video to ensure he won’t violate conditions for release, Smith told the judge. The leader of the Seattle-area Proud Boys chapter has also given a sworn statement saying Nordean no longer is a leader in the group, Smith said.
Federal prosecutors contend Nordean, Biggs and two others — Zachary Rehl of Pennsylvania and Charles Donohoe of North Carolina — were the ringleaders of a conspiracy among members of the far-right, male-only extremist group to breach the U.S. Capitol on Jan. 6 and interrupt Congress’ certification of Joe Biden’s presidential victory.
All four defendants are charged with six federal criminal counts: 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.
Smith and John D. Hull, a lawyer representing Biggs, also cited clips from a video shot and narrated by fellow Proud Boys member Eddie Block of the group’s activities in Washington, D.C., on Jan. 6 that they contend undermine the government’s alleged conspiracy plot. The video clips capture Block telling a journalist and making other statements that indicate the group only planned to march to the Capitol to make a showing, then return to a protest rally blocks away, the lawyers said.
“There’s no conspiracy,” Hull said. ” … So, [with] no conspiracy, about 80% of the whole case falls apart.”
Both attorneys told Kelly that confinement of their clients is infringing on their rights to prepare a legal defense. Restrictions now in place at federal detention facilities due to the COVID-19 pandemic and other factors are impeding the men’s access to computers, telephones and in-person or teleconference meetings about the case, the lawyers said.
Assistant U.S. Attorney Jason McCullough countered that the men’s legal access issues can be “addressed within the context of their confinement.”
He added the video clips with Block’s statements don’t weaken an array of other evidence, including other footage showing Nordean and Biggs tearing down a police barrier and messages they shared with others over an encrypted messaging app to prepare for the Jan. 6 insurrection. The men’s texts and social media statements before and after the Capitol attack also show they intended to lead and organize future events, McCullough said.
Should the defendants be released, “there’s no way to police” the men’s potential planning with other Proud Boy members on electronic devices, McCullough said,
“That’s a significant, prospective danger to the community,” he said.
The Jan. 6 siege — which left the Capitol ransacked, prompted lawmakers to flee for their safety, injured dozens of federal police officers, and led to or contributed to the deaths of several people, including a Capitol officer — has resulted in charges against hundreds of people, including scores of Proud Boys, Oath Keepers and others with ties to extremist groups.
Kelly did not immediately rule on the defendants’ release motions Monday before closing the hearing to the public to consider arguments over sealed evidence in the case.