Spy Versus Spy Amid the Proud Boys, Again

In the plea hearing for Nicholas Ochs and DeCarlo, Chief Judge Beryl Howell asked prosecutor Alexis Loeb whether the defendants had sat for the interview required by the standard plea deals. Loeb explained that, Ochs had but, for reasons pertaining to the ongoing investigation, FBI did not do such an interview with DeCarlo. I wondered, then, whether DOJ wanted to avoid discovery obligations to other Proud Boy defendants.

It’s something I had in mind as I read the various filings (Zach Rehl, Ethan Nordean, Enrique Tarrio, Joe Biggs, Nordean reply) that — NYT reported the other day — pertain to discovery about informants that the FBI had or developed among the Proud Boys. The gist of the complaints (as noted in the Biggs filing), which treat this as a Brady violation that merits dismissing the case, is that the FBI had records relating to Proud Boys who said they did not know of a plan to attack the Capitol in advance.

Biggs notes here on the open record that the Brady violations the parties continue to dispute — beginning with the dispute triggered by the Government’s late disclosure of a significant cache of Brady materials on August 13, 2021, or fifteen months ago — consistently go to a structural feature in all three of the Department of Justice’s superseding indictments in 21-cr-175. That feature and overarching issue is whether a Proud Boy conspiracy plan to obstruct the Biden-Harris vote certification or to commit sedition ever existed or could have existed. The Brady materials and discussions most at play now and since mid-2021 point up the increasing doubtfulness and high unlikelihood of the existence of a conspiracy. That is troublesome, and glaring. It continues to be the ‘elephant in the room’ of 21-cr-175.

It’s hard to know how seriously to take this. Some of these defense attorneys have been crying wolf from the start, claiming something turned over in timely fashion is exculpatory when it in fact shows really damning information.

In the August instance cited by Biggs, which NYT also wrote about, the informant was low-level and claimed to have shown up to insurrection late. Except Statements of Offense from members of the Kansas City suggest that the informant falsely told the FBI that violence had not come up in a meeting the night before the attack.

In the evening on January 5, 2021, defendant attended a meeting with co-defendants William Chrestman, Kuehne, and Ashlock, and others during which group safety was discussed. At some point during the meeting, another individual said that he did not come to Washington, D.C., to just march around and asked, “do we have patriots here willing to take it by force?” Defendant was shocked by this and understood that the individual was referring to using force against the government. Co-defendant Kuehne responded to the question by saying that he had his guns with him and, in essence, that he was ready to go. The individual who posed the question said that they should “go in there and take over.” [my emphasis]

That said, the statements of offense making such claims — here from Enrique Colon — come from defendants receiving really sweet plea deals in hte process, in multiple cases avoiding weapons charges or enhancements as well.

In the case of the two Nicks, they definitely coordinated with each other and premeditated a plan to stop the vote certification. But they appear not to have been part of any larger plan (they even attended Trump’s rally, which most Proud Boys did not). In other words, one thing that may be going on is that Biggs and Nordean implemented a plan developed along with Tarrio and some senior Proud Boys who weren’t in DC (such as the cooperating Jeremy Bertino), but didn’t tell the greater number of Proud Boys what that plan is in advance, something that makes the testimony of others appear exculpatory only because the Proud Boy leaders had kept a close hold on their plans.

According to Nordean’s reply to DOJ’s entirely sealed 21-page response, the government believes it was justified in withholding the documents under Rule 16(a)(2), which only requires sharing the documents if the pertinent witnesses testify.

The government argues that the sensitive materials were exempt from its discovery obligations under Rule 16(a)(2). ECF No. 538, p. 11. That is false because (1) the records at issue were not made by a government agent or attorney for the government in connection with investigating or prosecuting “the case,” i.e., United States v. Nordean, 21-cr-175, and (2) it is not just “internal government documents” Nordean seeks but the underlying information merely reproduced in government documents.

Nordean seems to be playing games about the bounds of “this” investigation here, and if the documents genuinely are not exculpatory, that would probably be a reasonable response. It’s a matter of whether this is an investigation into just the Proud Boy leaders, all the Proud Boys, or everyone involved in attacking the Capitol.

Separately, these are the files that (in a recent hearing), the defense attorneys were complaining about the heightened security procedures to access the documents, as Nordean lays out in his original filing.

[T]he government has made the extraordinary argument that these exculpatory materials cannot be produced directly to defense counsel. It has argued, successfully, that counsel must comply with the following procedure in order to access Brady information in this case:

(1) counsel must travel to an FBI office to review the materials in person;

(2) counsel may not receive copies of the materials but must take handwritten notes;

(3) counsel must then move the Court to produce the materials to the defendants, based on summary descriptions of the materials in their handwritten notes; and

(4) counsel must then file additional motions to secure this evidence for trial.

The complaint would be more convincing if the details of the earlier informant had not been published by the NYT, making it easy for investigators (and presumably all the other Proud Boys) to identify the informant. In the Oath Keeper case, too, the government is trying to hunt down which attorney(s), if any, sourced a NYT story about an Oath Keeper informant. (h/t Kyle Cheney)

Meanwhile, all this question about who is informing on whom leads me to return to the question of what happened to

Whallon Wolkind in all this (he’s the one top Proud Boy leader not known to have been charged or flipped), not to mention why Dominic Pezzola, alone among the remaining defendants in this case, didn’t join the challenge to access the informant files.

The usual suspects are wailing about how long this investigation is taking. Meanwhile, cases like this reveal the complexity of trying to prosecute key defendants while processing through a thousand others.

10 replies
  1. harpie says:

    About this part:

    In other words, one thing that may be going on is that Biggs and Nordean implemented a plan developed along with Tarrio and some senior Proud Boys who weren’t in DC (such as the cooperating Jeremy Bertino), but didn’t tell the greater number of Proud Boys what that plan is in advance, something that makes the testimony of others appear exculpatory only because the Proud Boy leaders had kept a close hold on their plans.

    Proud Boys communications on 1/5/21 into 1/6/21 might be of interest: https://www.emptywheel.net/2022/03/14/a-white-board-of-the-sedition-curious/#comment-927149

    [Excerpt from above comment thread]:
    1/5/21 [LG = Leaders Group MG=Members Group]
    9:17 PM BIGGS posts a message on the New MOSD Leaders Group that read, “We just had a meeting woth a lot of guys. Info should be coming out” and then posted “Just spoke with Enrique.”
    9:20 PM [BERTINO] adds TARRIO to NMOSD-LG
    9:20 PM BIGGS on NMOSD-LG: “We have a plan. I’m with rufio [NORDEAN].”
    DONOHOE responds: “What’s the plan so I can pass it to the MOSD guys.”
    BIGGS responds: “I gave Enrique a plan. The one I told the guys and he said he had one.”
    12:01 AM 1/6/21 TARRIO posts on NMOSD-LG
    12:03 AM DONOHOE posts: “Standby”, and then reposts [8:27 and 8:28 PM messages]: “Everyone needs to meet at the Washington Monument at 10am tomorrow morning! Do not be late! Do not wear colors! Details will be laid out at the pre meeting! Come out as patriot!”


    • subtropolis says:

      I’ve long been convinced that not all of them understood what was going on that day. Just as the ‘normies’ were fed nonsense about ‘anteeefah’ like so much chum in the water, so too were many of the foot-soldiers among the PBs and OKs, imho. For operational security reasons, if nothing else. It would have been utterly stupid, in fact, for the leadership in the know to tell everyone before the fact.

      It is the primary concern that i have regarding the prosecution of the members of these groups. Yes, i know that one needn’t be fully informed about a conspiracy that one is charged with participating in. But i imagine that prosecutors could damage their case should they tar with too wide a brush, so to speak. That is, i think that they do need to be always mindful that there are different levels of participation. For the most part, my impression is that the prosecutors have recognised this, but IANAL.

  2. greengiant says:

    The leadership and no few ex cons in the proud boys know Brady and every meeting they laid a fake trail of innocent intentions. Does the DOJ need to provide each and every recording or interview revealing these posturings?

  3. Quake says:

    Minor typo:
    return to the question of what happened to
    Whallon Wolkind

    There is an unnecessary line feed at the place marked by ***

    • harpie says:

      9:14 AM · Nov 18, 2022

      Rakoczy: The evidence has shown they meant to use any means necessary, up to force, to stop the transfer of power. That is a conspiracy.
      A conspiracy is simply an agreement between 2 or more persons to join together to accomplish some unlawful purpose.

      How do you know this is what defendants engage in?
      They are NOT charged w/entering into agreement BEFORE 1/6 to storm Capitol. That isnt the allegation.
      What they are charged with is using the opportunity to attack the Capitol to further their end of stopping transfer of power

      The attack on the Capitol was a means to an end, Rakoczy says, that end being to use any means necessary up to and including force to stop the lawful transfer of power

    • harpie says:

      9:14 AM · Nov 18, 2022

      what was the goal and deswign of oepration? evidence has shown that they agreed to use any means nec, up to and including use of force, to stop the lawful transfer of presidential power. that is a conspiracy. … an agreement by 2 or more persons to join together to achieve an unlawful purpose.

      … doing that violated 3 separate conspiracy laws. how do you know they did that? here’s what they’re not charged with doing. not charged with agreeing with beforehand to storm Capitol.

      the attack on the capitol was a means to an end. that end being to use any means nec, up to and including force, to stop the transfer of power.

      you know this was the agreement thru defs words & thru their conduct. preparations, actual use of power on J6, and continued plotting after J6.

  4. harpie says:

    9:30 AM · Nov 18, 2022

    […] Dec 14 majority of electoral votes were cast for Biden,. then defs began to focus on J6. what R called a hard deadline. […]

    9:31 AM · Nov 18, 2022

    [AUSA Rakoczy]: In December, it seemed increasingly unlikely that Trump would be able to stay in the White House; his legal efforts were failing. And that is when the defendants started to focus on Jan. 6. What Rhodes called a “deadline, a date of finalization”

    11/18/20 DATE of CHESEBRO to TROUPIS memo: “2020-11-18 Chesebro memo on real deadlines.pdf” [EASTMAN forwards this memo to TRUMP campaign on 12/7/20, to explain why 1/6 was the “Hard Deadline” that was “critical to the result of this election” for the Trump Campaign.

Comments are closed.