Nordean “was a leader of a march to the Capitol. But once he got there it is not clear what leadership role this individual took at all for the people who went inside,” Howell said. “Evidence that he directed other defendants to break into or enter the Capitol is weak, to say the least.”
Nordean’s release marked a stumble for prosecutors, who have cast him as a key figure based on what Howell agreed were “ominous” communications before Jan. 6 that they said indicated he and other Proud Boys were planning “violent action” to overwhelm police and force entry to the Capitol. The judge’s decision sets back for now the government’s efforts to establish that there was a wider plot to that end.
Howell ruled after a hearing in which prosecutors said they stood by their claim that Nordean led Proud Boys members in a plan to break into the Capitol from as many different points as possible, but withdrew it from the detention argument because it was disputed.
Prosecutors also backpedaled from the assertion that Nordean led the group “through the use of encrypted communications,” clarifying that Baofeng-brand radios members used were not encrypted. They also acknowledged Nordean’s phone — through which he could use encrypted apps — was powered down for much of the day.
“The government has backed down from saying that he directly told them to split into groups and that they had this strategic plan,” Howell remarked.
Howell said that although Nordean’s release was a “close call,” she agreed with the defense that “there’s no allegation that the defendant caused injury to any person, or that he even personally caused damage to any particular property.”
Nordean defense attorney David Benjamin Smith argued that the government failed to allege any evidence of plans or conspiracy to commit any specific crime involving the “depredation” of government property.
Jailing somebody for “simply marching with a group of people who later committed crimes is guilt by association,” Smith said. If “the government could without articulating any criminal offense send someone to prison for just marching to the Capitol, I think Your Honor would concur, that argument goes a little far.”
Howell ordered Nordean to home confinement except for work, health, religious and court-related reasons, to not possess firearms or travel outside the jurisdiction of the U.S. District Court for Western Washington, and to submit to location monitoring.
Nordean, also known as Rufio Panman online, was arrested Feb. 3 on charges of aiding and abetting the destruction of government property, obstructing an official proceeding, trespassing and disorderly conduct on restricted Capitol grounds. Nordean was indicted on those same counts, two felony and two misdemeanor, on Wednesday.
In a filing Monday, Assistant U.S. Attorneys James B. Nelson and Jason B.A. McCullough alleged that Nordean was “nominated from within to have ‘war powers’ ” to lead activities at the Capitol after the group’s chairman, Henry “Enrique” Tarrio, was arrested by D.C. police upon arriving in the city two days earlier.
Prosecutors told the court Wednesday that although they found evidence of the nomination on Nordean’s phone, it was not clear whether the action was taken or what it meant in practice.
Tarrio has pleaded not guilty to damaging a historic Black church’s property in a December pro-Trump demonstration and has been released. Tarrio has denied any plan to breach the Capitol.
The government emphasized that well before and throughout President Donald Trump’s speech at the Ellipse, Nordean led Proud Boys with a bullhorn to the Capitol grounds and positioned members — carrying sophisticated two-way radios and protective tactical gear — at an entrance that was guarded by only a handful of Capitol Police officers.
Many of those members spearheaded the mob’s advance through police lines to the west front of the Capitol and from there into the building, prosecutors said. Earlier, others in the group were recorded on video that morning yelling about taking the Capitol and were told by Nordean and other leaders to keep silent, prosecutors said.