U.S. Magistrate Judge Michael John Aloi cited prosecution arguments about the danger to the community posed by Tanios, of Morgantown, W.Va., who is charged with assault with a dangerous weapon against Sicknick and two other officers. Sicknick died a day after the riot, and the cause of death remains undetermined.
Aloi said he could not accept anyone who would not respond peacefully to police protecting a joint session of Congress to certify presidential election results.
“Why anyone thought they could be there to interrupt even in any small way, it’s just not healthy thinking for our society. To the extent anyone would accept that cause as normal, it needs to stop,” Aloi said.
Tanios, who is not charged in Sicknick’s death, is also charged with civil disorder and obstruction of a congressional proceeding.
“Why would you not just turn the other way and go home? The fact that all of them weren’t thinking that is just frightening to me. There were choices all along the way,” the judge said.
Tanios was taken into custody March 14, as was Julian Elie Khater, 32, of State College, Pa. Authorities said they grew up together in New Jersey.
U.S. prosecutors alleged that the men traveled and lodged together as they headed to the Capitol, where Khater said, “Give me that bear s---,” to Tanios on video recorded at 2:14 p.m. at the Lower West Terrace of the Capitol, where Sicknick and other officers were standing behind metal bicycle racks.
“Hold on, hold on, not yet, not yet . . . it’s still early,” Tanios allegedly replied, which the FBI said showed the two were “working in concert and had a plan to use the toxic spray against law enforcement.”
Khater allegedly deployed a canister of an unknown substance at the officers nine minutes later after he said he had been sprayed, and as the mob tried to pry the racks from police using their hands and ropes.
At Monday’s hearing in federal court in Clarksburg, W.Va., Assistant U.S. Attorney Sarah E. Wagner said a search turned up an empty canister of chemical spray at Khater’s house and two canisters of Frontiersman bear spray found at Tanios’s house. Prosecutors also said they found a keychain chemical spray can resembling the spent one at Khater’s home and the one he allegedly used on the video.
Wagner said the gun store manager produced a receipt and recalled selling two cans of Frontiersman spray and two keychain sprays to Tanios before the rally. The manager recalled that Tanios was on the phone and speaking to someone with whom he planned to go to D.C., which phone records associated with Khater and the store receipt corroborated took place about 5 p.m. on Jan. 5, Wagner said.
The prosecutor added that the manager said Tanios first asked if he could legally bring a firearm or pepperball pistol into the city, to which the manager replied no.
In an interview after being told his rights against self-incrimination, Khater allegedly told the FBI that Tanios bought bear spray, that Khater knew it was not intended for use against people, and that the two shared a backpack that Tanios carried, Wagner said.
Prosecutors filed charges in the Sicknick case after the FBI said tipsters contacted the agency and identified Khater and Tanios from images captured in surveillance video and officer-worn body-camera footage.
It remains unclear what role, if any, the video-recorded assault on Sicknick played in his death.
Then-acting U.S. attorney general Jeffrey A. Rosen said in a statement shortly after the death that Sicknick died of “the injuries he suffered defending the U.S. Capitol.” Capitol Police concurred, adding that Sicknick collapsed after he returned to his office following the riot.
However, autopsy results remain pending. Absent a determination on the cause of Sicknick’s death, the case is not a homicide. That could change, however, “if evidence directly relates that chemical [Sicknick was allegedly was sprayed with] to his death,” Michael R. Sherwin, the former interim U.S. attorney for D.C., told “60 Minutes” in an interview aired Sunday, two days after he left the investigation.
First Assistant Federal Defender L. Richard Walker blasted prosecutors’ argument for Tanios’s detention, calling it a “narrative” that ignored that there was no evidence showing Tanios posed a danger, agreed with Khater or intended to spray officers.
Walker described Tanios as a family man who has lived 10 years with the mother of their three young children; the owner of Sandwich University, a business operating several online eateries in Morgantown, home to West Virginia University; and someone with a negligible criminal record.
Tanios’s mother, sister, partner and other character witnesses testified on his behalf, calling him fun-loving and a tough but good boss devoted to his children.
Walker said he would appeal the decision to hold Tanios, telling the court that given coronavirus pandemic backlogs, “We won’t have a trial for at least a year, judge. That’s why we’re going to fight, and we’re going to leave no stone unturned to fight for his release. This is going to be hard time for him if he’s not released.”
Aloi acknowledged the defense arguments and allowed Walker to question the FBI special agent in the case via video teleconference. But the judge said it was hard for him “to look at this as anything other than an assault on our nation’s home, and everything important to us as a people.”
Aloi concluded: “I struggle, because I don’t know if that represents who you are, Mr. Tanios. I don’t think it represents who a lot of people were on that day. But what is it that causes that behavior? And all I can think of is, there’s something that causes such hate — such irrational behavior, such a desire to show up to attack our country and officers in such a way — that gives me no confidence whether it will stop.”
Separately on Monday, U.S. Magistrate Judge Zia M. Faruqui ordered Mark Ponder of Washington detained until trial April 1.
Ponder allegedly assaulted three officers and shattered a riot shield with a flagpole, which the magistrate said “could have caused serious if not fatal injuries.” The judge noted that Ponder’s record included a bank robbery and domestic assault, although police released him back into the crowd on Jan. 6 because they were overwhelmed and could not transport him.
Also Monday, a bond hearing was postponed for Jeffrey McKellop, 55, a former Army Special Forces soldier of Augusta County, Va., charged with assaulting four D.C. police officers, including allegedly by throwing a flagpole like a spear at a captain. A hearing was underway but continued to Tuesday after McKellop had a medical emergency while participating by videoconference from jail.