A federal judge on Wednesday ordered the release of an Auburn-area man and prominent member of the Proud Boys extremist group, pending his criminal trial on charges related to his alleged planning and participation in the deadly siege on the U.S. Capitol in January.
Judge Beryl Howell, the chief judge for the U.S. District Court for the District of Columbia, granted Ethan Nordean’s request for release despite prosecutors’ new allegations about the key role he played as the Proud Boys’ de facto leader and an organizer of the Capitol mayhem.
Though she called evidence of Nordean’s alleged role “troubling,” Howell ruled the government had “not met its burden by clear and convincing evidence that the defendant poses a danger to the community, or by a preponderance that he will flee” before trial.
Under the ruling, Nordean, 30, who is known in far-right circles by his alias, “Rufio Panman,” will be restricted to home detention, must generally stay in King County and must remove all firearms in his home, among other conditions.
It was Nordean’s second attempt to win his release pending trial on four criminal counts related to the Jan. 6 riot. Last month, U.S. Magistrate Judge Brian Tsuchida also ordered Nordean to be released during a detention hearing in Seattle. But after prosecutors appealed to the D.C. federal court, Howell blocked the release and instead ordered Nordean to be transported back to the nation’s capital to face further proceedings.
Due to delays caused by weather, a transport backlog and other complications, Howell said Nordean has remained held at the Federal Detention Center in SeaTac, however.
Earlier Wednesday, a federal grand jury handed up an indictment against Nordean that essentially charged him with the same criminal counts that prosecutors had charged him with last month.
Nordean is charged with aiding and abetting an injury or depredation against government property; obstructing or impeding an official proceeding; knowingly entering or remaining in any restricted building or grounds without lawful authority; and violent entry and disorderly conduct on Capitol grounds. If convicted of all charges, he faces more than 30 years in prison.
Nordean, a bodybuilder who lived with his wife on the same street as his parents east of Auburn, has been detained since federal agents arrested him at his home on Feb. 3.
Howell’s order releasing Nordean came after a lengthy hearing held by video- and tele-conference that was racked by technical glitches and began with an announcement that an unspecified emergency at the SeaTac facility prevented Nordean’s attendance. His defense attorneys requested the hearing take place in his absence.
At issue during the Wednesday hearing was whether the property depredation felony charge that the government relied upon as its basis for holding Nordean was supported by probable cause.
Federal prosecutors laid out new details this week in a 24-page brief for why Nordean should remain in custody, contending the “weight of the evidence against (Nordean) is overwhelming” in video footage, photos of Nordean and his own social media posts that he led and ordered a group of Proud Boys to breach the Capitol.
Nicholas Smith, one of Nordean’s attorneys, countered Wednesday the government hadn’t shown any evidence that Nordean gave specific orders to others and said he wasn’t responsible for any crimes they committed.
“The government said today that because he was marching with a group of people toward the Capitol, he aided and abetted all the criminal engagement by this group,” Smith said. “That’s frivolous.”
Assistant U.S. Attorney Jason McCullough countered: “There was a plan to disrupt the Electoral College vote corruptly; this was not simply a march.”
Prosecutors alleged Nordean “was nominated from within to have ‘war powers’ and to take ultimate leadership” of the Proud Boys at the so-called “Stop the Steal” rally on Jan. 6 because the group’s national chairman, Henry “Enrique” Tarrio, had been arrested two days earlier and was prohibited from entering Washington, D.C.
Nordean and other Proud Boys leaders used their social media accounts to “cast doubt on the legitimacy of the 2020 Presidential election” and encourage others to join the group in protesting results of the election and preventing its certification, they contended. By mid-December, Nordean allegedly started soliciting donations from his social media followers for money and tactical equipment to use during the forthcoming Stop the Steal rally, they say.
The night before the rally, members of the extremist group sent encrypted messages with tactical plans for Proud Boys to meet at the Washington Monument at 10 a.m., the brief alleges. Members were told to go incognito by wearing “no colors,” and were outfitted with Baofeng radios — specialized walkie-talkies that can be programmed for communications on more than 1,000 different frequencies, the brief states.
On the morning of the rally, Nordean, equipped with a bullhorn and wearing all-black clothing, his trademark sunglasses and a tactical vest, led the group of assembled Proud Boys to the Capitol, with “specific plans to: split up into groups, attempt to break into the Capitol building from as many different points as possible, and prevent the Joint Session of Congress from Certifying the Electoral College results,” the brief states.
But Smith argued Nordean’s social media posts before the Jan. 6 rally had been twisted by prosecutors, claiming they simply show Nordean sought protective gear and communications equipment, not to attack the Capitol, but because, as Nordean wrote in one post, “things have gotten out of hand for us this past year.”
Smith added in a filing Wednesday that a Baofeng radio seized from Nordean’s home was purchased after the Washington, D.C. rally, and wasn’t used by Nordean to coordinate the Capitol attack as prosecutors initially had contended.
“The government’s problem is that an Amazon receipt, as well as a sworn statement from Nordean’s wife, show that the defendant did not come into possession of the radio until after the January 6 incident,” the defense wrote in filing Wednesday. “The government’s leadership-by-radio claim was therefore false.”
According to the prosecutors’ brief, Nordean and the group arrived at the east side of the Capitol before noon, and later led a throng of Proud Boys to a pedestrian entrance then secured “by a small number of Capitol Police” standing behind a barrier.
At the time, former President Donald Trump was still speaking to a crowd of protesters on the Ellipse, but Nordean and the group he was leading “were not present for any part of the speech, because hearing the speech was not in their plan,” the brief states.
A large mob that included members of Nordean’s group forced its way past the first police barrier about 12:53 p.m., the brief states.
Nordean “led the way as rioters stormed into the west plaza of the Capitol where additional metal barricades and law enforcement were deployed to protect the Capitol and its occupants from the advancing mob,” the brief states. “Defendant positioned himself at the front of the crowd, directly in front of Capitol Police, where he stalked the front line in an apparent effort to intimidate law enforcement and encourage the crowd.”
A day after the riot, Nordean allegedly exchanged encrypted messages in which he acknowledged he “stormed the capitol,” and stole a flag from inside the building, according to prosecutors.
Prosecutors also contended that Nordean, despite no criminal history, poses a danger to the community due to his extremist views endorsing the violent overthrow of government and a “serious risk of flight.”
When agents arrested Nordean at his home last month, prosecutors say they discovered valid passports for Nordean’s wife and a man who looks like Nordean on top of a dresser in the couple’s bedroom. Nordean’s account that his wife simply kept her ex-boyfriend’s passport as a keepsake is “absurd,” the brief states.
Smith countered Wednesday that prosecutors misrepresented the ex-boyfriend’s passport, contending its photo “bears no physical resemblance to Nordean” and that his wife kept it in a closed jewelry box, not atop the dresser.
Before ruling, Howell noted evidence clearly shows Nordean was heavily involved in organizing the Proud Boys on Jan. 6.
But, “there’s no allegation that the defendant caused injury to any person or that he personally caused damage to any property,” the judge said. “This is unlike other cases I’ve seen where people have actually done damage inside the Capitol, and the government has not sought pre-trial detention.”