However, Kelly ruled, “these defendants are alleged by their leadership and planning to have facilitated political violence on January 6th, even if they themselves did not carry a weapon or strike a blow.”
Calling the factual allegations “gravely serious,” Kelly said in an unusual two-hour-long reading of his decision from the bench that both defendants are charged with “seeking to steal one of the crown jewels in our country . . . by interfering with the peaceful transfer of power.” Kelly added that nothing short of jail could assure that they did not mobilize others to violate the law or threaten public safety.
Kelly’s decision was a test for U.S. prosecutors’ allegations that members of the right-wing Proud Boys and Oath Keepers groups conspired in advance to disrupt Congress’s certification of Joe Biden’s presidential election win and did not simply join in spontaneous violence by a mob fueled by former president Donald Trump’s baseless claims that the election was stolen from him.
More than 40 members or associates of the two groups have been arrested and charged so far among the roughly 380 federally charged in the Capitol attack.
A three-judge U.S. appeals court panel raised the bar last month for detaining nonviolent Capitol defendants, requiring judges to specify why those detained posed a risk of dangerousness or if they “aided, conspired with, planned, or coordinated such actions.”
At oral arguments on April 6, Kelly said he saw no clear “invocation to violence” by Nordean and Biggs, who have been indicted with two other Proud Boys leaders, Charles Donohoe, 33, of Winston-Salem, N.C., and Zach Rehl, 35, of Philadelphia, both former Marine corporals.
But on Monday, Kelly said that whatever gaps in prosecutors’ case so far, there was abundant evidence that Army veteran Biggs and Nordean with others planned in advance for violence and to cause chaos, coordinated confrontations with police, and conspired to conceal or “nuke” their encrypted messages.
He cited communications obtained by prosecutors among the co-defendants, Proud Boys chairman Henry “Enrique” Tarrio and others to mobilize a large turnout of Proud Boys dressed “incognito” to blend into the crowd, and to obtain ahead of time tactical vests, armored plates, bear spray, and donations for gear and radios.
On encrypted Telegram message groups set up for Jan. 6 in Washington titled “Boots on the Ground” and “New MOSD” — which prosecutors said they believed stands for “ministry of self-defense” — members were allegedly explicitly instructing the wider group on the ground in Washington to disavow “planning of any sorts,” and to hide their tracks to avoid criminal gang charges, according to court filings. One person on the loop also warned against “typing plans to commit felonies into your phone.”
The writer of the last message, whom prosecutors identified only as unindicted co-conspirator 1, or UCC-1, allegedly added the morning of Jan. 6, “I want to see thousands of normies burn that city to ash today,” and, “The state is the enemy of the people.”
Two others allegedly replied, “It’s going to happen. These normiecons have no adrenaline control. … They are like a pack of wild dogs,” referring to ordinary Trump supporters.
Prosecutors said UCC-1 and one of the others in the chat were not at the Capitol but indicated they were monitoring it remotely using live streams and other methods. As members surged forward, UCC-1 allegedly wrote, “Storming the capital building right now!!” and “Push inside,” which the government claimed reflected that leaders understood the plan to include “storming the Capitol grounds.”
Prosecutors said video of the group outside the Capitol before the assault showed members expressing similar intent. One screamed, “Let’s take the . . . Capitol,” to which others replied, “Idiot” and “Don’t say it, do it,” according to court documents.
Prosecutors alleged Proud Boys members led a mob that overwhelmed police barriers to reach the Capitol’s West Front shortly after 1 p.m. and deployed bear-spray gel at a “weak point” in police lines defending a stairway on the northern end of the West Terrace. Another member used a stolen police riot shield to smash through one of the first Capitol windows at 2:13 p.m., according to prosecutors, allowing Biggs and others to rush into the building near Vice President Mike Pence as he was being led to safety, then celebrating afterward.
Prosecutors asked to revoke the pretrial release of Nordean on March 3, alleging that he endorsed violence in online videos, criticized police and mobilized a “1776”-style revolt on encrypted message groups.
They also sought to detain Biggs, who allegedly forcibly entered the Capitol twice and reached the Senate chamber where Pence had been presiding.
Prosecutors have alleged that Nordean has discussed giving up his marriage, family ties and Seattle roots and moving to Tennessee or North Carolina while under prosecution in the belief that he is a “patriot.”
Kelly said he was disturbed by Nordean’s recent claim that he lost his U.S. passport and his belated report that a handgun had been stolen from him, which the judge said raised concern that he was “stashing” them.
He also cited Biggs’s comments predicting “civil war” and continuing violence against political opponents.
Attorneys for the men said both have complied with all pretrial release conditions, and that Biggs is supporting his ex-wife and child, and that Nordean was willing to stake the home where his wife and child were living on his compliance.
They argued that Nordean and Biggs gave no specific direction to commit felonies, that they were prepared only to protect Trump supporters from far-left violence. Their attorneys also argued that Proud Boys members expressed as much surprise as anyone that they were able to breach the Capitol, and prosecutors had not presented any clear evidence of what their plan was.
Kelly was unpersuaded.
“In the end, the evidence is overwhelming that Nordean and Biggs had a plan for that day. The question is, what is the strength of the government’s case that the plan is what the grand jury charged?” Kelly said.
“In my view, the evidence is strong enough,” the judge said, “even if as in most conspiracy cases, we don’t have a document or information that lays out the conspiracy plainly.”