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The Finding Out Part: Proud Boys Face Sentencing

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NOTE: Emptywheel is again supporting Brandi Buchman’s coverage of the Proud Boys hearings live from the courthouse in Washington, D.C. Please consider making a donation to emptywheel as she continues her reporting through the final Proud Boys sentencing hearing for Henry “Enrique” Tarrio scheduled for Sept. 5. If you can and are able, you can also support Brandi’s work as a freelance journalist directly here.

From left to right: Proud Boys Zachary Rehl, Ethan Nordean, Henry Tarrio, Joseph Biggs, Dominic Pezzola

Like moths to a flame, many of the Proud Boys sentenced to prison last week for their roles in the seditious conspiracy to stop the peaceful transfer of presidential power on Jan. 6, 2021, appear unwilling or unable to disabuse themselves of the delusions that have led them to exactly where they are today: inside cells, donning jumpsuits or shackles and ordered kept away from the free world and their families for no less than a decade apiece.

Dominic Pezzola, a New York Proud Boy and former Marine who busted open a Senate wing window allowing some of the first rioters to stream inside the Capitol, and forcibly stole a riot shield from a police officer knocked to the ground who believed he would die at the hands of the mob, strode out of a federal courtroom last week shouting “Trump won!” as he pumped

his fist in the air.

Remarkably, less than an hour before receiving his 10-year sentence – the government wanted 20–, Pezzola had begged the court for mercy through tears and vowed he was done with politics.

Joseph Biggs, a former Marine now disgraced with the conviction of seditious conspiracy and a multitude of other felonies, called into a vigil held outside a jail heavily populated by Jan. 6 defendants in D.C. just a few days after he was sentenced to 17 years in prison. The government wanted 33.

“This is just insanity. There is no way in hell any of this stuff can stick. There’s no way you can give somebody terrorism for shaking a fence,” Biggs, a former contributor to Alex Jones’ far-right conspiracy theory peddling InfoWars, railed. “That’s the most insane fucking thing in the world. First, it starts with shaking a fence and what’s next? You shake a hand or accidentally bump into somebody and that’s terrorism… We gotta stand up and fight. And never give up. 17 years? They can kiss my ass. We’re still fighting all the way to the end.”

Biggs then asked the same lawmakers he terrorized nearly 1,000 days ago with a mob of Trump supporters at his back and roughly 200 Proud Boys in the crowd overall, to “get their heads out of their asses” and help free him.

But Trump didn’t win and Biggs wasn’t sentenced to 17 years for merely shaking a fence in the course of peaceful protected protest.

His efforts to bring that fence down, which was bolted inches deep into the steps leading to the Capitol, were done with force and with the implied intent to stop Congress from certifying the election. That forethought was bolstered by the intent and actions of his co-defendants, including Washington state Proud Boy chapter leader Ethan Nordean.

This was decided not just by a jury able to discern evidence clearly enough to evince distinctions between defendants and therefore reach acquittal on some counts, but it was also a point sustained by U.S District Judge Tim Kelly, a Trump appointee. He and the jury defined the Proud Boys’ efforts as an attempt to directly intimidate or coerce the United States government and its officers from doing their duty and initiating the democratic transfer of power.

For the foreseeable future, the Proud Boys and certainly Joe Biggs have appeared to pin all of their hopes for freedom on a pardon from a reelected Donald Trump in 2024. Notably, during an appearance with Alex Jones on InfoWars, Jones – who helped organize the Stop the Steal rally before the attack and who is currently waiting to learn whether $1.4 billion in damages he owes to victims of Sandy Hook will be discharged in bankruptcy – extended an open invitation to Biggs to return to his show.

Biggs gushed and Jones reassured the jailed insurrectionist he was merely a “patsy.” Perhaps in hopes of inspiring fundraising levels, he urged Biggs to “give me a 1776!!”

“1776 brother!” Biggs laughed.

***

At the E. Barret Prettyman courthouse last week, Pezzola, Biggs, Nordean, and their co-defendant, Philadelphia Proud Boy chapter leader Zachary Rehl, were each sentenced by Judge Kelly following their convictions by a jury trial that lasted four months. The only Proud Boy left for sentencing is the group’s leader, Henry “Enrique” Tarrio. He will be sentenced on Tuesday at 2 p.m. ET. The government seeks 33 years for him.

Prosecutors sought 20 years for Pezzola, he was given 10. They sought 33 years for Biggs, he was given 17. Nordean faced a 27-year recommended sentence but received just 18 years, matching Oath Keeper founder Elmer Stewart Rhodes for the stiffest sentence yet handed down to any of the extremists charged and convicted of seditious conspiracy.

The Justice Department sought 30 years for Rehl, and Kelly sentenced him to 15, noting as he rendered his decision how the son and grandson of Pennsylvania police officers perjured himself blatantly on the stand more than a dozen times as he denied – despite clearly visible footage of him – pepper-spraying police who were battling to keep the Capitol under the control of the U.S. government.

Yet, it seems increasingly unlikely that the judge will venture into those high climbs and may instead deliver a sentence closer to what Nordean and Rhodes received.

Given their tenor at trial and their mostly self-serving apologies that comprised their remarks before learning their fates, it would also seem things are today not very much different than they were for the Proud Boys in the fall of 2020 or that first fateful week of 2021.

Their minds are heavy still with toxic propaganda. Their egos remain front and center and from their mouths, they continue to sputter drivel echoing a lie told by a man that, for whatever reason they appear unable to fully grasp even now, has helped pave the road to their ruin and continued suffering.

***

ETHAN NORDEAN

To his credit, before he was sentenced, Nordean at least correctly called Jan. 6 a “tragedy.” And he at least offered an apology “for my actions that day and to anyone who I directly or indirectly wronged,” he said.

But he also qualified those remarks and others. What he regretted the most, he told the court, was “not being a better leader” on Jan. 6, speaking nothing of all the times in the lead-up to the day that he failed to disavow fellow Proud Boys in private messages of their violent notions or how he actively recruited men to come with him to Washington.

In court, he said it took him time to “humble” himself and to “accept my situation,” as the trial unfolded, he told Judge Kelly.

“I thought of myself merely as an individual, removing blame and accountability for myself… [but] I had to face a sobering truth. I came to Jan. 6 as a leader; I came to keep people out of trouble and keep people safe,” he said.

Still deflecting responsibility, omitting discussion of how he vilified police and effectively couching his crimes in the language and context of a well-intended general who merely lost control of an unforeseeably mutinous troop, he nonetheless maintained that he tried to “deescalate.”

U.S. Capitol Police Officer Shae Cooney testified at trial in February that it was Nordean who screamed at her, calling her a “pig” as he whipped people up into a frenzy and knocked over the metal fencing that allowed the mob to rush past her. She and other officers near her were beaten with “thin blue line” flags, pelted with frozen water bottles, knocked down and nearly trampled, and doused in chemical spray.

“I had ample opportunity and I did nothing. There is no excuse for what I did… adding myself to a chaotic and dangerous situation in the Capitol building was sorely irresponsible,” Nordean said Friday, his voice clear and even.

Unlike all of his co-defendants at sentencing so far, the Jan. 6 ground leader did not appear to cry.

Before he sentenced him, Kelly told Nordean that what disturbed him was not just Nordean’s actions before and on Jan. 6, but afterward, too. Nordean expressed regretting nothing and when there was talk among Proud Boys of going further, of possibly ramping up for another Jan. 6-style takeover in the days after the attack, he didn’t back down. Not before the inauguration. Not after.

In a text message on Jan. 12, 2021, Proud Boy Ethan Nordean defends his efforts “on the ground.” (Source: DOJ Trial exhibit)

 

In a text message from Jan. 20, 2021, Ethan Nordean discusses plans moving forward for Proud Boys in the “fragile time” after Jan. 6. (DOJ trial exhibit)

 

Proud Boy Ethan Nordean (aka Rufio Panman) text message from Jan. 27, 2021, discussing preparing the group for its next move. (DOJ trial exhibit)

Nordean’s attorney Nick Smith argued for leniency and at one point contended that while Jan. 6 was regrettable, the charge of seditious conspiracy didn’t fit because what the defendants did only really amounted to something in the category of a national embarrassment. The subsequent crimes that sprang forth should be deemed more humiliations to a branch of government and nothing more. Kelly entertained Smith briefly but was sharp on the singular point appearing lost on the defense: the Proud Boys’ actions culminated at a crucial, positively critical constitutional moment. Early last week, Kelly denied all requests for acquittal and retrial.

“If we don’t have the peaceful transfer of power in this country, then we don’t have anything,” Kelly said, his voice slightly exasperated.

The novelty of Smith’s arguments aside, Kelly fell back on what Nordean said and did. It was Nordean who suggested Proud Boys “fash the fuck out.” They understood too, he said, that Jan. 6 was “the day that was the last stop on the train to make sure their preferred candidate stayed in power.”

Calling for terrorism enhancements to apply to Nordean’s sentence, Assistant U.S. Attorney Jason McCullough underlined that Nordean was the figure all other Proud Boys turned to in the fray. Witnesses for the prosecution who pleaded guilty to seditious conspiracy testified to this. Evidence and testimony showed how he stepped in when Tarrio, the organization’s founder, could not. (Tarrio was arrested before the raid on the Capitol but watched from afar.)

Nordean marched side by side with Rehl, and Biggs, and it was Nordean, McCullough noted, who recruited and “seduced men like Dominic Pezzola [with the idea] that violence is the answer.”

Judge Kelly would apply a terrorism enhancement to some of the charges at sentencing. The judge said he did not believe the defendants intended to kill anyone on Jan. 6. He also remarked that he would “probably never sentence someone 15 years below the guideline in my entire career.” The recommended sentences, he added, seemed to “overstate” the crime.

When she delivered her victim impact statement ahead of sentencing, U.S. Capitol Police Officer Shae Cooney broke down at the lectern. Through her sobs, she recalled how she lost a friend that day.

“Someone who I worked with for almost three years, I was standing right next to him when we started fighting and later that night he was gone,” Cooney said, referring to fallen Officer Brian Sicknick through choked-back tears. “Every day we have to be reminded he’s not here anymore because the people in this courtroom decided they weren’t happy with how an election went and their best idea was to break into the Capitol, fight police officers, and overturn an election.”

“We understand people were upset and angry. We tried to talk to them as best we could to show we understood they were angry and whatnot, and that this was not going to fix anything… it didn’t matter how much talking we did that day. There were too many people that just wanted to keep going and get through us as much as possible,” Cooney said.

So many people have taken their lives because of what happened to them on Jan. 6, she told the court.

Metropolitan Police Officer Jeffrey Smith killed himself after Jan. 6. Fellow Metro Police Department officers Gunther Hashida and Kyle DeFretag died by suicide. U.S. Capitol Police Officer Howard Liebengood also committed suicide four days after Jan. 6.

Officer Sicknick died after suffering multiple strokes following his confrontation with rioters.

JOSEPH BIGGS

At his sentencing, Biggs told the court that his “curiosity got the better of me” on Jan. 6. All of his violent rhetoric was just that – talk. It was a way for him to cope, he said.

Last week, when cuddling up to Judge Kelly and before he said the Justice Department could “kiss his ass” when speaking to supporters gathered at the D.C. jail, Biggs told the judge he respected the process and outcome though he freely admitted he would appeal.

“I don’t have any grudges toward any of you. I don’t hate the prosecutors. I prayed for all of you. I’m going to leave this situation a better person,” Biggs said, his speech rushed and his emotions high as he spoke.

He continued: “I had time to think about who I am and who I want to be with all my time in solitary confinement… I don’t want to be a person affiliated with any more groups unless it’s my daughter’s PTA.”

Biggs went on to claim that the assault of his daughter by someone he knew had twisted him up in the run-up to the insurrection. He also claimed that after Jan. 6, that was his “last time” with the Proud Boys and he had planned to tell everyone he was “done.”

Crying, Biggs pleaded: “I’m not a terrorist. I don’t hate people.”

But, Kelly told him, he did play a role leading people and riling others up against lawmakers and police. He was instrumental in the Proud Boys’ so-called “Ministry of Self Defense” and Biggs for weeks was key in leading operations for the channel that acted covertly to coordinate efforts for the 6th.

It was Biggs who wanted to find “real men” to “get radical” with and it was Biggs’ overt calls for violence and civil war that littered the group’s private and public correspondence. It was Biggs whom Tarrio turned to and whom Tarrio told members he relied on, along with Nordean, to make decisions. And when it finally came to it, it was Biggs, Kelly said, who helped yank down the fence and wave people inside with an intent to intimidate Congress.

Proud Boy Joe Biggs is seen gesturing to rioters below, indicating where a nearby opening is for those to come inside the Capitol. (DOJ trial exhibit)

Biggs was the only Proud Boy to breach the Capitol twice. He saw officers fighting for their lives and brushed past them at the Columbus doors. He took a selfie once inside and stole an American flag as he marauded through the building.

“You waved people in. You entered the Senate gallery and made comments afterward that justified and celebrated what happened,” Kelly said.

A terrorism enhancement would apply to the charge involving the metal fence, the judge was quick to distinguish, because its removal was integral to rioters advancing and getting inside the Capitol. But he was shy to label Biggs a terrorist in the general sense.

“It’s not my job to label people a terrorist and my sentence today won’t do that. There are sentencing guidelines here that talk about adjustments and departures for conduct and then lay it out and label it terrorism and my job is to apply this. You asked me not to label you a terrorist, that’s for other people to argue about,” Kelly said.

Prosecutors warned the judge in their sentencing memo: “A conviction for serious felonies, and the accompanying substantial prison sentence, might unfortunately only redouble Biggs’s commitment to embracing extreme measures to achieve his political aims. The Court must accordingly impose a sentence long enough to prevent Biggs from leading another violent conspiracy against the government while he is still motivated and equipped to do so.”

In court, McCullough told the judge the Proud Boys, especially with leaders like Biggs at the helm, brought the nation to the “edge of a constitutional crisis” because that was precisely what they set out to do. Buildings may not have been bombed, mass casualties may not have occurred, McCullough argued, but the Proud Boys created an atmosphere on Jan. 6 that has yet to dissipate.

People are afraid to go to polling places or inaugurations for fear of political violence, he said. (In fact, threats and harassment of poll workers are up according to a recent study by the Justice Department.)

The Proud Boys didn’t need weapons of mass destruction, McCullough said.

“It just takes slick propaganda in an environment where you can encourage people to basically say it’s you against them,” he said.

Before Biggs was carted out of the courtroom by a marshal, Kelly told the parties he would have imposed precisely the same sentence had the terrorism guideline not applied.

“I know this is not the outcome you wanted or the government either,” Kelly said. “But I wish you the best of luck in your relationship with your daughter moving forward. I’ll just say that. I think it’s an appropriate sentence but I do wish you the best of luck with your daughter.”

ZACHARY REHL

Of all the Proud Boys to face sentencing last week, it was Rehl who became the most undone after prosecutors laid out their request.

“Zachary Rehl deserves every day of the sentence the government has requested for him here [of 30 years],” Assistant U.S. Attorney Erik Kenerson said Thursday.

Rehl helped “raise an army” of Proud Boys who shared in his belief that the 2020 election was stolen and that the only means of recourse to stop the transfer of power was to put a halt to proceedings on Jan. 6, Kenerson said.

“What is particularly pernicious in this conspiracy is the glorification of violence… the willingness to brawl in support of their cause to achieve results they could not otherwise,” the prosecutor emphasized.

Rehl looked at “vigilante violence” as a means to an end and when he recruited members to the Proud Boys, it was the most violent footage of their ideological or political opponents being brutalized that he tapped. He endorsed violence as just one piece of the strategy to “take back the country” and had been doing so since as far back as 2019 when he first started to associate with the group, Kenerson said.

Though the son and grandson of police officers, Rehl nonetheless encouraged violence against law enforcement when he advanced on the Capitol and then used violence to break a standstill on the Capitol’s West Plaza by assaulting an officer with pepper spray, Kenerson said.

At trial, prosecutors destroyed Rehl’s testimony after a series of questions emerged about his whereabouts on the West Plaza as well as what codefendant he was or wasn’t in contact with as he breached the building.

An intense exchange under cross resulted in Rehl melting down spectacularly and stumbling through a series of denials – to a mind-boggling degree – over footage played in court that depicted a man who looked and dressed identical to Rehl down to every detail spraying an irritant right at an officer.

Kenerson, who unwound Rehl at trial like so much thread from a spool, recalled how the Proud Boy’s testimony was “combative, evasive, and incredible.”

And it was. At one point, Rehl asked a jury to believe that he and others who stormed the Capitol did so because they thought stages were erected on the plaza for them, like at a rock concert. He was even unwilling to concede to prosecutors that the black glasses on the man that appeared to be him were in fact black and not, as Kenerson pointedly asked him during a tense minutes-long volley, pink?

From left to right: DOJ trial exhibits show Proud Boy Zachary Rehl outside the Capitol on Jan. 6, 2021; taking a selfie inside a lawmaker’s office and spraying a chemical irritant at a police officer

Since the trial ended, Rehl continued to mock proceedings and not just that, but lie about them, Kenerson noted to Judge Kelly. That included when Rehl falsely told the Gateway Pundit in a post-trial interview that the trial was under a media blackout.

Last week, as he prepared to receive his sentence and read from his remarks, Rehl’s body was wracked by waves of tears, each of his words punctuated or paused by a sniff or a guttural clearing of his throat. He originally had a 10-page statement written out, he said, but on the advice of his counsel, Norm Pattis, he opted to focus “on what’s important in this room: my daughter and wife.”

Rehl told them he let them down and, that seeing them in court was difficult but the circumstances were his fault.

“A complete lapse in judgment cost me everything,” he sobbed.

Pattis lay a hand on Rehl’s back as his client lamented that his daughter would now lose his military benefits. He worried it may “still be a possibility” that he could lose more people in his life. He apologized to prosecutors for “blaming them” instead of himself for how things turned out.

Crying hard, he sputtered: “I am done peddling lies for people who do not care about me.”

He called Jan. 6 “despicable.”

“I did things I regret,” he said.

Like Nordean, Biggs, and Tarrio, Rehl was convicted of seditious conspiracy, conspiracy to obstruct an official proceeding, obstructing an official proceeding, conspiracy to prevent officials from discharging their duties, impeding officers during a civil disorder, and destruction of property.

In the weeks before Jan. 6, Rehl was involved with Tarrio’s brainchild, the group’s exclusive “Ministry of Self Defense.” After the attack on Congress, Rehl told members “We should have held the Capitol.” He said he was proud of what he accomplished yet frustrated more hadn’t been done. It was Rehl who called for firing squads for people who “stole” the election.

“‘Everyone should have showed up and taken the country back,’” Judge Kelly said in court on Thursday, reciting Rehl’s own words after the insurrection back to him.

“I mean my god!” Kelly exclaimed.

Rehl’s statements were “chilling,” he added.

Pattis urged the court to believe that Rehl was another casualty in the nation’s political discourse and had been swept up in the “crisis of legitimacy in this country.”

Rehl believed Trump when he said the election was stolen and fell for it “hook, line and sinker,” Pattis said.

The defense attorney has argued this point in court yet also wiles away his time on social media sharing things like Trump’s appearance with Tucker Carlson on Twitter late last month or suggesting Trump’s own looming trial dates are politically timed with the coming primaries and election.

DOMINIC PEZZOLA

But for the fact that he was acquitted of the topmost charge of seditious conspiracy and that he failed to play a significant leadership role among the Proud Boys, the 45-year-old Rochester, New York man might have received a sentence closer in line with his co-conspirators. Instead, he was sentenced to 10 years in prison.

Pezzola has already told supporters he thinks he will be out in one.

The image of Pezzola busting open a Capitol window with a stolen police riot shield wielded above his head is one of the most memorable images of Jan. 6.

And Pezzola has always been out front, according to prosecutors.

Tarrio first put Pezzola out front on his social media a week before the insurrection as a “literal poster child” for their organization, McCullough said, stamping an image of a warrior-like Pezzola with the hashtag, #LordsofWar #J6. Pezzola didn’t have a huge social media footprint but would often reply to Tarrio’s posts online rapidly. He also made it to the cover of The Washington Post when attending a pro-Trump rally in November.

Pezzola had proven himself to the Proud Boys at a Stop the Steal rally in D.C. the following month and was taken into the fold in short order thanks to a vote of confidence from Jeremy Bertino, a Proud Boy who would plead guilty to seditious conspiracy in October 2022.

Once inside the Capitol, he celebrated with a victory smoke. And if there were questions over the depth of his involvement in the greater seditious conspiracy, the jury at least found this video damning enough of his involvement in the conspiracy to obstruct,

“I knew we could take this motherfucker over if we just tried hard enough,” Pezzola said in a selfie video he filmed inside the Capito less than 20 minutes after he powered through police, glass, and a crushing mob.

Kenerson told Kelly this was precisely the sort of violent political activity that Pezzola wanted to be a part of when he joined the group in 2020.

When he took the stand, Pezzola was arrogant and combative with prosecutors under cross-examination and offered half-apologies and concessions. He told them he took the riot shield from U.S. Capitol Police Officer Mark Ode out of fear for his own safety. He quibbled over whether he had pulled the shield away from Ode; he suggested at another point that Ode “lost” it in the scuffle. He blamed police for the violence of the day and he made himself out to be a defense and weapons expert.

At sentencing, Pezzola’s attorney Steven Metcalf sought to seek credit for his client’s “accepting of responsibility” for some of his crimes when he was on the stand.

But Kelly was not persuaded.

“And at the end of the day, even before we get to his testimony, well, he did take the stand and he did testify that there was no conspiracy. You’re entitled to that I suppose, but the jury convicted him of conspiracy. Not seditious conspiracy, but conspiracy. It makes it hard to waltz in and say, I should get acceptance of responsibility,” Kelly said. “I don’t think in his trial testimony he took responsibility for robbing or assaulting Officer Ode and he was convicted of those things as well.”

He credited Metcalf for the “creative” argument but rendered Pezzola’s “acceptance” as performative.

Addressing Pezzola, Kelly said: “You really were in some ways, the tip of the spear that allowed people to get into the Capitol.”

“You opened the Capitol like a can opener,” Kelly remarked.

Nonetheless, the judge departed downward on the sentence because he believed, as he did with the other defendants, that the terrorism enhancement overstated the Proud Boys’ conduct. They didn’t mean to cause massive loss of life, he said.

Speaking to the court before he was sentenced, with his mother, daughter, and wife crying behind him, Pezzola was emotional.

“I stand before you a changed and humble man,” he said before promptly ignoring what the court had ruled earlier. “But nonetheless a man who has always taken responsibility for his actions.”

He apologized to his wife for “magnifying” their personal life to the public. He apologized to his daughters for missing milestones. Mercy, he told the judge, would make or break his family. Pezzola’s wife, Lisa Magee, who was unable to speak a word without crying, told the judge she wasn’t making excuses for her husband but she noted, “As I said on the stand, he’s a fucking idiot.”

Her life had been turned upside down because of her husband, she said. Their children were ashamed to show their faces or reveal their names to strangers.

Pezzola’s 19-year-old daughter begged the judge to look at her father, extending her arm to and pointing in his direction across the court where he sat clutching a wad of tissue. Pezzola’s face was flush red, and he wiped tears away. He gave her a good life, she said. She never got in trouble and that was thanks to him, she said. His mother, sobbing through her statement, told the judge “I know my son” and called him “my hero.”

Before he sentenced Pezzola, Kelly repeated to him a speech he delivered to each of the defendants.

“The peaceful transfer of power is one of the most precious things we had as Americans. Notice I said had because our tradition of unbroken peaceful transfers of power – that string has now been broken. We can’t just snap our fingers and get it back.”

Pezzola had his eyes cast down on the table as Kelly spoke.

After he stood to accept his sentence but before he declared “Trump won!” and threw his fist in the air, a wry smile creeping across his face, he turned to his family in the pews to look at them. Whether he realizes it fully or not, it may have been one of the last times, in a very long time, that he sees them without bars or thick glass obstructing his view.

Proud Boy Joe Biggs sentenced to 17 years, Zachary Rehl gets 15

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I will have a full report to come later for emptywheel but at the E. Barrett Prettyman courthouse in Washington, D.C. this afternoon, U.S. District Judge Tim Kelly sentenced Proud Boy and former InfoWars contributor convicted of seditious conspiracy, Joseph Biggs, to 17 years in prison.

Prosecutors called for 33 years for Biggs, so Kelly’s decision came considerably under that total but Kelly did find that Biggs’ tearing down of a metal fence with co-defendant Ethan Nordean that was meant to keep the mob at bay, constituted a terrorism enhancement. It was this deliberate effort, Kelly found, that allowed the Proud Boys to achieve their objective: to stop the certification of the 2020 election by force.

Proud Boy Zachary Rehl’s sentencing hearing began at 2:15 p.m ET. Prosecutors sought 30 years and on Thursday, the court found that because he committed perjury on the stand the guidelines would shift to 30 years to life.

But in the end, Judge Kelly sentenced Rehl to 15 years in prison. Rehl is pictured below pepper-spraying police.

If you want to read through the live-thread I’ve put together for emptywheel, check out the link here.

NOTE: Emptywheel is again supporting Brandi Buchman’s coverage of the Proud Boys hearings live from the courthouse. Please consider making a donation to emptywheel as she continues her reporting through the final Proud Boys sentencing hearing for Henry “Enrique” Tarrio scheduled for Sept. 5. 

Finally: The first Proud Boy on trial for seditious conspiracy testifies

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From emptywheel: Thanks to the generosity of emptywheel readers we have funded Brandi’s coverage for the rest of the trial. If you’d like to show your further appreciation for Brandi’s great work, here’s her PayPal tip jar.

It took more than three months but this week at the Proud Boys seditious conspiracy trial, the first defendant to step forward and testify was the group’s Philadelphia chapter leader Zachary Rehl. 

Rehl took the stand over two days and emphatically denied that there was a plan to stop Congress from certifying the 2020 election on Jan. 6, an argument that shouldn’t surprise any juror that has patiently heard evidence over these last 53 days. 

The violence that consumed the U.S. Capitol was never part of the objective— if there even was an objective Rehl would say, because, after all, there was no plan. He wasn’t in a position to direct what happened, he testified, and at the end of the day, he asked jurors to believe he was just a man who liked to protest and party afterward. 

Rehl has sat at the back of U.S. District Judge Timothy Kelly’s courtroom now for months as the evidence in the case against him and his co-defendants Henry “Enrique” Tarrio, Joseph Biggs, Ethan Nordean, and Dominic Pezzola, has stacked up at a punishingly slow pace. 

When Rehl finally sat in the witness box, with a U.S. Marshal seated behind him barely visible to the jury, his speech was often muddled, his hands rarely still. 

The 37-year-old former U.S. Marine at times seemed overeager to get his side of the story out, occasionally speaking over his attorney, Carmen Hernandez as she conducted her direct examination.

After Donald Trump told them to stand back and stand by at the presidential debates—”let’s be real, the biggest platform in the world mentioned the Proud Boys,” Rehl testified on Tuesday—the influx of new recruits had exploded. This was one of the precursors to Henry Tarrio’s creation of the group’s exclusive Ministry of Self Defense, or MOSD, he said. 

At trial, the defense has worked to throw off the allegation that MOSD was a hub for Proud Boy leaders to coordinate a plot for Jan. 6.

Instead, they argue it was a division for chapter leaders to discuss their “marketing” and “operations” for rallies or other events they would attend, and moreover, to establish protocols for self-defense after the stabbing of North Carolina chapter leader Jeremy Bertino on the night of the “Stop the Steal” rally in December 2020. Bertino has since pleaded guilty to seditious conspiracy. 

Tarrio, Biggs, and Nordean, Rehl testified, led the MOSD “marketing team.”’ Rehl ran “operations” with fellow Proud Boy John Stewart, also known as Johnny Blackbeard. Stewart has pleaded guilty, Tarrio’s attorney Sabino Jauregui let slip in court in October 2022. The only other member of the operations team was a third man that Rehl said he could not recall the name of in court. 

The Seattle Times reported that the third member was Proud Boy Robert Fussell aka Rex Fergus from Washington State. Notably, a web archive shows Fussell’s Parler profile photo was once a selfie with Roger Stone, a key player in Trump’s push to overturn the 2020 election results. There is no public record that Fussell has been charged with any crimes.

It was “clear as day,” Rehl told the jury this week that the Ministry was only about protecting Proud Boys and nothing further. Yet during proceedings this February, prosecutors showed jurors clips from a Dec. 30, 2020 video conference for the Ministry where Rehl, Tarrio, Nordean, Biggs, and other members discussed the 6th.

Conversation did involve concerns over how they would respond to potential threats from “antifa” or leftists at the looming event. But tucked into the roughly 90-minute meeting (which was one of only two pieces of evidence that Joseph Biggs entered before waiving his right to testify; the other was a mostly biographical stipulation heavy on his military service) were several moments where information about the 6th seemed to be gatekept.

In one segment, Tarrio tells someone who asked for details about Jan. 6 that it would be discussed in a separate chat later and on what would amount to a need-to-know basis for people who would “be on the ground.”

Some of the people who would end up on the ground were the men Rehl brought into MOSD himself including Isaiah Giddings, Brian Healion, and Freedom Vy. Rehl told the jury he agreed to bring a “10-man team” to D.C., and that this was an expectation set by Tarrio for other chapter leaders during the Dec. 30 MOSD meeting.

Prosecutors said this was a “fighting force.” Rehl’s attorney has recoiled at the suggestion during trial. Last month before bringing West Virginia Proud Boy Jeff Finley in for testimony on Rehl’s behalf, she argued unsuccessfully that Finley’s charging decision should be entered into evidence to deflect the government’s claims that Rehl brought a “fighting force” into the Capitol. 

Since Finley pleaded guilty to a single misdemeanor charge of entering restricted grounds, and Finley and Rehl had spent time together in and out of the Capitol, this, she argued, should go toward supporting Rehl’s claims of his own peaceful and lawful conduct on Jan. 6. 

On his own time before jurors, Rehl recounted how he drove to D.C. with Healion, Giddings, and Vy. They shared a room at the upscale Darcy hotel on the 5th, “protested” on the 6th, marched and, yes, he admitted, went inside the Capitol. On the stand, Rehl’s attorney didn’t spend much time at all asking Rehl to explain his time inside Senator Jeff Merkley’s office where Proud Boys and rioters congregated and at least one individual smoked marijuana. After he left the Capitol, he said he got drunk with his friends. And when it was all over on Jan. 7, he returned to Pennsylvania, drove his friends home, and spent the afternoon “hungover,” “stressed” and “hungry” he said. 

Rehl’s delivery on this sequence of events sounded confident as he moved through the details rapidly. When they left, the men had purchased beers, a 30-case for each, he said. 

But once off the stand, a source reached out to Empty Wheel to “clarify” that record: the beers were purchased on the way to Washington. So, in effect, it was a pre-game instead of a post-game celebration, a detail that in the grand scheme of the charges he faces wouldn’t seem to matter so much. The “clarification” however, did make Rehl’s testimony seem all the more rehearsed. 

Though Rehl, whose father was a policeman and his grandfather too before him, said he thought the violence of Jan. 6 was a “disgrace” and he testified that he did not and could not have impeded or assaulted officers nor would he condone those who did, a day after the attack on the Capitol, Rehl seemed nonetheless pleased with the role he ultimately played in the greater events of the day. 

“Bad ass pic in DC,” Rehl wrote in a text message sharing this photo on Jan. 7:

His reverential attitude toward law enforcement in court also breaks with what his one-ztime brother in black and yellow, Isaiah Giddings, told authorities about Rehl after Giddings pleaded  guilty to disorderly conduct. Rehl, like Tarrio, Nordean, Biggs, and hundreds of other Proud Boys by mid-December 2020, had turned on police, he said. 

Text messages and videos in evidence have indicated steady animosity from Proud Boys toward police in the run-up to the 6th. And on that morning, video footage shows Nordean, with Rehl and Biggs just nearby, repeatedly stoking fury and zeroing in on law enforcement and their treatment of the group’s head honcho.

“Enrique shows up and gets detained before he gets to D.C. and he’s charged with two felonies, multiple felonies for what?” Nordean shouted through a megaphone to a group gathered around him on Jan. 6. 

Tarrio was arrested in D.C. on Jan. 4 for burning a Black Lives Matter banner that he stole from a historic Black church on Dec. 12. When arrested, he was also charged with possessing two high-capacity firearm magazines. Jurors have seen dozens of text messages where Tarrio’s arrest appeared to throw the defendants and other members, including Rehl, into a tailspin as they worried about whether Tarrio had the wherewithal to delete Proud Boy communications from his phone. 

Later, when Proud Boys in a large marching group passed police on the street who were gearing up, one Proud Boy, Chris Worrell, was heard yelling at officers to “pick a side” and to “honor your oath.” Worrell allegedly attacked police at the Capitol with pepper spray. He’s pleaded not guilty and waived his right to a trial by jury. 

As for Rehl, he wasn’t seen or heard attempting to dissuade Worrell, if he heard him at all, and he wasn’t seen or heard ever attempting to dissuade any Proud Boys from their ugly and often violent rhetoric in their chats. 

When Hernandez asked Rehl about this in court, his tone was particularly pointed and he tapped the desk before him with a single finger to punctuate his words. If he didn’t say anything to someone it didn’t mean anything. He wasn’t there to police the chats, he said. 

“I’m my own person,” the Proud Boy chapter president said. 

Their members were “grown ass men,” he added.

When Hernandez asked him what that meant, he offered testimony that would seem almost too perfect for prosecutors to pass up once they get Rehl under cross-examination next week. 

“It’s someone who takes responsibility for their own actions, conduct, and statements. If a man goes into a chat and says something stupid, that’s on him. Unless a guy is in a chat sitting there and saying he’s going to go attack someone, if he’s got plans—well, it’s just probably bluster anyway.”

Rehl hung a lot of his testimony’s weight on blustering. But prosecutors argue it wasn’t just empty talk but proof of motive and intent. 

That would include a Jan. 7 text stream found in the new MOSD channel that was set up after the old MOSD chat was nuked following Tarrio’s arrest. 

In a stream of those messages shown to jurors this week, one Proud Boy, “E-Geezy” urged members to “have faith… we did our part yesterday.” Another Proud Boy “Joshua Maxstud” responded but his message is missing, something that digital forensic experts have testified indicates they were deleted. 

Rehl replied after the blank text: “I find this hard to believe now. I’m proud as fuck of what we accomplished yesterday. But we need to start planning we are starting planning for a Biden presidency.” 

Rehl told jurors when he said he was proud he was referring to the protest on Jan. 6 generally speaking. 

“What I saw was huge crowds of people waving flags protesting and I was proud to be part of something like that. Like I said, it was a historical moment,” he said. 

And as for his remarks about “planning” for a Biden presidency, Rehl said it was about telling people to “stop with the conspiracies” of a stolen election. 

Just a few weeks before, Rehl seemed more than happy to endorse those conspiracies. And to the point of bloodshed. 

In a Nov. 16 text message, Tarrio voiced his concerns that if Biden “stole” the election, Proud Boys would be “political prisoners.” Nordean, in a text the next day, said the “Spirit of 1776 has resurfaced… good luck to all the traitors…you’re gonna need it.” 

Rehl replied: “Hopefully the firing squads are for the traitors trying to steal this election from the American people.” 

Rehl told the jury he never intended to go inside the Capitol on Jan. 6 but when he finally decided on it, he testified that he had no idea anyone was inside but Capitol Police officers. At one point he said he thought lawmakers had left and Pence had been evacuated. 

At another point, he told the jury: “Well there was a proceeding going inside, I didn’t want to affect anything going on inside. I wanted the legal process to play… this is the process our country was founded on. That’s what was playing out on Jan. 6 and I had no intention to go into that building if members of Congress were going to be in that building and I didn’t go in there until after I knew they weren’t going to be in there,” he said. 

Police officers weren’t barring any door to his entry when he got inside either, he claimed. 

“At the time, they seemed welcoming to people coming in at that time [sic],” Rehl said. 

The scenes were reminiscent of a crowded “baseball game” or a “concert” with so many people crowded into a single area and heading in a single direction. 

He told the jury it was other Trump supporters who were “rowdy” instigators that knocked over barriers and plowed through police lines. It wasn’t him or the Proud Boys.

“I seen some people shaking some gates over there. Honestly, when that was going down, I knew of protests going on at Capitol grounds. I thought people were trying to get there earlier, some of the protests were being advertised to go on at 1 p.m. It was 12:53… when we collided with that crowd of people, that crowd was really rowdy and when they started shaking the gate, I heard it and I went over there to investigate the scene and see what’s going on,” Rehl said.  “The people shaking barriers must have been just trying to get to a stage, he said. 

“You’re giving me this look,” he then remarked to his attorney, “But it’s the honest God’s truth.”

At 2:49 p.m. on Jan. 6, as some of the worst violence exploded inside the Capitol, records show Rehl sent a text to Proud Boys: “They just broke all the doors and windows open. People pouring in.” 

On his first day testifying, Rehl told the jury he didn’t see any violence toward anyone. He told the jury he didn’t see any Proud Boy engaged in any violence.

“I didn’t think anyone had done anything at all,” he said. 

That included his co-defendant Dominic Pezzola, the New York Proud Boy and member of the Ministry of Self Defense who was seen in video footage bashing open a window with a police riot shield he allegedly stole from an officer during an intense scuffle. Prosecutors allege Pezzola’s actions allowed rioters to stream inside the Capitol, ultimately setting off the first major breach of the day. 

On his second day of testimony, Rehl left Pezzola to swing in the wind. 

“He went off on his own,” Rehl said. 

Pezzola, also a former Marine, had discredited MOSD with his actions.

This was what MOSD was “supposed to prevent,” he testified.

“I guess it made us all look bad,” he added. 

This January, when Proud Boy Matthew Greene testified on behalf of the government, he said he and Pezzola were “openly expecting a civil war” and that this was the commonly held belief among the group. 

Rehl wasn’t standing very far from where Pezzola allegedly stole the riot shield from police in a bitter tug-of-war but Rehl testified he couldn’t see anything. Video footage shows Rehl facing in the overall direction of the episode with Pezzola and he can be seen his hands up, gripping a cell phone as he films. Rehl said he couldn’t see anything too far ahead of him in the crowd. 

Rehl denied as well that it was his voice captured by his phone in a video he shot where a man’s voice is heard screaming “fuck them, storm the Capitol!” before an initial breach of police barriers around 10:17 a.m. 

At trial, his wife Amanda testified that she didn’t recognize the voice as Rehl’s. Through a rushed and rambling explanation in court, Rehl said the voice wasn’t his but was from a man just nearby. Prosecutors have tried to draw comparisons for the jury by sharing that footage and another video where Rehl is heard clearly exclaiming that he thinks he can see Trump’s motorcade in the road before he and other Proud Boys finally make it to the Capitol.

Separately, in yet more footage, Rehl can be seen and heard perfectly clearly urging Proud Boys that members of the press or media should be shooed off as they first gather at the Washington Monument on the morning of the 6th. 

He told the jury he didn’t want the press around because he feared being doxxed. Ironically the footage of Rehl saying this is shot by Proud Boy videographer Eddie Block who was live-streaming. 

The defense has argued often that a conspiracy wouldn’t be filmed and conspirators wouldn’t ask media of any kind to follow them or document their activities. 

Jan. 6 was essentially a “photo op,” Tarrio’s attorney Sabino Jauregui has argued.

 Other witnesses for the defense have called it a “meet-and-greet” and that’s what Rehl has chalked it up to as well. 

And yet when Block is filming the Proud Boys on multiple occasions on Jan. 6, trying to capture every moment he can while asking for “likes” and “subscribes” on the live stream, he can be heard remarking at various points that he should give Nordean, Biggs, Rehl and others like Charles Donohoe, space or privacy when they would stop along the route to the Capitol and huddle only with each other. 

Donohoe has pleaded guilty to conspiracy to obstruct an official proceeding as well as assaulting, resisting, or impeding officers. 

Further potentially hampering Rehl’s credibility, text messages extracted from the defendants’ phones show Rehl telling members of MOSD they have to delete their messages person by person after Tarrio was arrested just before the insurrection. 

Donohoe, who originally gave the instruction about deleting messages to MOSD members after Tarrio’s arrest, replied to Rehl: “Well at least they won’t get our boots on ground plans because we are one step ahead of them.”

In that same vein, Rehl’s co-defendant Joe Biggs on Jan. 5 told members in the newly stood-up MOSD chat he had just talked to Tarrio and “we just had a meeting woth [sic] a lot of guys. Info should be coming out.”

“We have a plan. I’m with Rufio,” Biggs wrote, using Nordean’s handle in their chat, Rufio Panman. 

“What’s the plan so I can pass it to the MOSD guys?” Donohoe asked. 

“I gave Enrique a plan. The one I told the guys and he said he has one,” Biggs replied. 

Outside of the presence of jurors this week, Rehl’s attorney let her anxiety about the Justice Department’s impending cross air out. 

They would “savage” her client once given the chance, she told Judge Kelly. 

It was expected that Rehl would finish his testimony early this week and that prosecutors would be crossed by Wednesday with defendant Dominic Pezzola in the wings to testify right afterward. A scheduling issue with a juror abbreviated the week precluding the jury from sitting on Thursday and Friday. 

Perhaps milking an opportunity to let jurors sit with her client’s testimony over a long break or perhaps trying to avoid the inevitable cross of her client, Hernandez spent the bulk of her direct examination of Rehl asking questions at a grindingly slow pace on Wednesday afternoon. Oftentimes, she would flip through her notes at the podium as the court sat in silence for a minute or two at a time. For at least a half hour, she went down the list, charge by charge, even breaking the sentences apart to elicit a yes or no answer from Rehl. 

“Did you aid and abet anyone with throwing a watter bottle at a law enforcement officer?” Hernandez asked. 

“No,” Rehl testified. 

“Did you aid anyone with throwing a water bottle at a law enforcement officer?” she asked.

“No,” Rehl testified. 

“Did you abet anyone with throwing a water bottle at a law enforcement officer?” she asked. 

“No,” Rehl testified. 

It went on and on like this. 

Jurors in this trial have already been subjected to long and near-daily delays due usually to internecine fights over evidence sparked by the defense (with a lot of the issues already litigated pre-trial). Adding to this, late last month CNN reported that several jurors had been approached by members of the public outside of the courthouse. One juror said she felt she was being followed. 

On Thursday, while the jury was out, a hearing that was meant to be sealed from the public and press was not, and in the process, reporters who had gathered in the media room briefly heard proceedings. CNN reported it was during this time that they learned Judge Kelly would deny a motion for mistrial from all of the defendants sparked by the episode with the jury. 

The defense suggested since the jurors had talked to each other about the confrontations, they couldn’t be impartial. Kelly disagreed. 

Next week, Pezzola is on course to testify. 

Though things came yet again to a grinding halt this week, the parties and judge generally seem optimistic that they could finally get into closing arguments within the next week to week and a half. And then it will be left to the jury to deliberate.

 

CORRECTION: The initial report stated that Finley cooperated with the government. He did not. He had a plea agreement but he was subpoenaed for his appearance by Rehl’s attorney.

There Were 60 Proud Boy “Boots on the Ground” on January 6; Around 23 Have Been Arrested

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According to the conspiracy indictment against Ethan Nordean, Joe Biggs, and others, the Proud Boys used two Telegram channels to organize their January 6 insurrection: a “New MOSD” channel that seems to have been used by top leadership, and a “Boots on the Ground” channel for “Proud Boys members in Washington, D.C.” DOJ didn’t say how many people were members of the former, presumably smaller, channel. But the Boots on the Ground channel had over 60 members.

On January 5, 2021, at 1:23 p.m., a new encrypted messaging channel entitled “Boots on the Ground” was created for communications by Proud Boys members in Washington, D.C. In total, over sixty users participated in the Boots on the Ground channel, including NORDEAN, BIGGS, REHL, DONOHOE, and [an unindicted co-conspirator]. Shortly after the channel’s creation, BIGGS posted a message to the channel that read: “We are trying to avoid getting into any shit  tonight. Tomorrow’s the day” and then “I’m here with rufio and a good group[.]”

While this doesn’t say that every subscriber to the channel participated in the insurrection, surely people who subscribed in the less than 24 hours between the channel creation and the insurrection itself were closely tied to those events.

When I finish updates to this post listing all the random Proud Boys who’ve been charged individually in addition to the 14 charged in one of the four Proud Boy conspiracy cases, I’ll have 23 people who either identify as Proud Boys or operated with them on January 6. That’s consistent with GWU’s very useful report on participants, which showed 20 Proud Boys before about 3 more arrests.

That means there may be as many as 40 more Proud Boys who were actively involved in preparations for January 6 who remain at large. That’s consistent with the videos of large mobs of people marching together through DC that day.

If DOJ knows there were over 60, they presumably have names — either real or monikers — for them, possibly with device information as well.

The Three Key Details the Proud Boy Unindicted Co-Conspirator Likely Revealed to Prosecutors

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By March 1, the government had three pieces of evidence that form a key part of a conspiracy indictment accusing Ethan Nordean, Joe Biggs, Zachary Rehl, and Charles Donohoe of conspiring to breach the Capitol and by doing so, delaying the certification of the vote:

  • The Proud Boys used Baofeng radios set to a specific channel (which channel prosecutors knew)
  • After Enrique Tarrio’s arrest, Ethan Nordean got put in charge of the January 6 operation
  • The gang had a plan to split up to optimize the chances of success

A detention motion for Nordean submitted on that day included all three of these details. It described how the Proud Boys distributed Baofeng radios to use in the operation.

Arrangements were made to program and distribute multiple Baofeng radios5 for use by Proud Boys members to communicate during the event. Baofeng is a Chinese communications equipment manufacturer. Baofeng radios can be programmed to communicate on more than 1,000 different frequencies, making them far more difficult to monitor or overhear than common “walkie talkie” type radios. Specific radio frequencies were communicated to the Proud Boys.

5 Law enforcement recovered a Baofeng radio from Defendant’s home during the execution of a search warrant—the Baofeng radio recovered from Defendant’s home was still tuned to frequency that had been communicated to the group.

[snip]

The group led by Defendant arrived at the east side of the Capitol before noon. Several of the men in the group were holding Baofeng radios. Others had them clipped to their belts or jackets.

It described how Nordean was put in charge after Tarrio’s arrest.

Moreover, following the arrest of the Proud Boys’ Chairman on January 4, 2021, Defendant was nominated from within to have “war powers” and to take ultimate leadership of the Proud Boys’ activities on January 6, 2021.

[snip]

On January 4, 2021, Henry “Enrique” Tarrio, the self-proclaimed “Chairman” of the Proud Boys was arrested shortly after arriving in Washington, D.C., pursuant to a warrant issued by D.C. Superior Court. In communications between Proud Boys members following Tarrio’s arrest, it was acknowledged that Defendant would be among those that led the Proud Boys on the ground on January 6, 2021.

And it described a decision to split people up in an effort to increase the likelihood of actually shutting down the certification of the vote.

As noted more fully below, Defendant—dressed all in black, wearing a tactical vest—led the Proud Boys through the use of encrypted communications and military-style equipment, and he led them with the 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.

[snip]

In order to increase the odds that their plan would succeed, Defendant and those Proud Boys following him dressed “incognito” and spread out to many different locations from which they could force entry into the Capitol. Defendant and others responsible for the January 6 Proud Boys event likely knew from experience that their typical tactic of marching in “uniform,” and in unison, would draw a concentrated law enforcement response to their location. By blending in and spreading out, Defendant and those following him on January 6 made it more likely that either a Proud Boy—or a suitably-inspired “normie”—would be able to storm the Capitol and its ground in such a way that would interrupt the Certification of the Electoral College vote

Even after prosecutors shared these damning claims, their bid to keep Nordean in jail failed. Nordean’s wife filed a declaration stating in part that Nordean obtained the radio on January 7 and, to her knowledge, he did not possess such a radio before that date.

An indictment against Nordean obtained on March 3 to comply with the Speedy Trial Act (but not released publicly until after the detention hearing) mentioned none of that.

And at the March 3 detention hearing before Beryl Howell, according to Zoe Tillman, the government withdrew the claim that Nordean had the Proud Boys split into groups as a factor for that detention hearing. In what the WaPo described as, “a remarkable stumble for prosecutors,”Judge Howell released Nordean to home detention, saying there was little evidence that Nordean played that leadership role.

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.

[snip]

“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.”

Prosecutors claimed they had this evidence on March 1. But after failing to present it at that March 3 hearing, Nordean got released.

On March 15, the judge assigned to the case after Nordean got indicted, Timothy Kelly, issued an order delaying the arraignment scheduled for the next day. He offered no explanation.

What didn’t become clear until this week is that, on March 10, the government obtained the superseding indictment against Nordean and others. And then, on March 12, the government asked Judge Kelly to delay Nordean’s arraignment on his original indictment because of the superseding indictment. Prosecutors explained that revealing the indictment ahead of time would risk alerting Rehl and Donohoe before they could be arrested and their houses searched.

On March 10, 2021, a federal grand jury sitting in the District of Columbia returned a Superseding Indictment charging Defendant, and three co-defendants (two of whom were not previously charged), with Conspiracy, in violation of 18 U.S.C. § 371; Obstruction of an Agency Proceeding, in violation of 18 U.S.C. §§ 1512(c)(2), and 2; Obstructing Law Enforcement During a Civil Disorder, in violation of 18 U.S.C. §§ 231(a)(3), and 2; 18 U.S.C. §§ 1361, and 2; Entering and Remaining in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1); and Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2).

The Superseding Indictment is under seal, pending the arrest of newly charged defendants and the execution of search warrants. Law Enforcement anticipates executing the arrests and search warrants of the new defendants in a coordinated operation on Wednesday, March 17, 2021. Once the arrests are executed, the Superseding Indictment will be unsealed.

The evidence the superseding indictment provides to substantiate claims first made on March 1 may explain an even bigger reason why prosecutors didn’t provide their evidence for those three claims in time to keep Nordean in custody: They had an unindicted co-conspirator (presumably someone cooperating with prosecutors) who was, along with the four conspiracy defendants, on an encrypted channel created after Enrique Tarrio’s arrest on January 4 that Proud Boy leaders used to continue planning for January 6. That unindicted co-conspirator was personally involved in all three details included in that detention memo against Nordean. He helped divvy up the Proud Boys to be spread out during the January 6 operation.

39. On after Chairman’s January 4, 2021, shortly after Proud Boys Chairman’s arrest pursuant to a warrant issued by D.C. Superior Court, DONOHOE expressed concern that encrypted communications that involved Proud Boys Chairman would be compromised when law enforcement examined Proud Boys Chairmans’ phone. DONOHOE then created a new channel on the encrypted messaging application, entitled, “New MOSD,” and took steps to destroy or “nuke” the earlier channel. After its creation, the “New MOSD” channel included NORDEAN, BIGGS, REHL, DONOHOE, and a handful of additional members.

40. On January 2021, at 7:15 p.m., DONOHOE posted a message on various encrypted messaging channels, including New MOSD, which read, “Hey have been instructed and listen to me real good! There is no planning of any sorts. I need to be put into whatever new thing is created. Everything is compromised and we can be looking at Gang charges.” DONOHOE then wrote, “Stop everything immediately” and then “This comes from the top.”

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

Note: If “New MOSD” was a channel of State leaders of the Proud Boys, it would likely have included Nicholas Ochs, who heads the Hawaii chapter of the Proud Boys. Ochs was the first senior Proud Boy to be arrested, on January 7, at the airport when he arrived back in Hawaii (and therefore carrying anything he had with him at the insurrection, potentially including his cell phone and any radios he kept). Kathryn Rakoczy, who has since moved onto the team prosecuting the Oath Keepers, was the original prosecutor on Ochs’ case. But now Christopher Berridge, who is on all the other Proud Boy cases but not the Nordean and Biggs one, is prosecuting Ochs. Ochs is charged in a parallel conspiracy indictment, with the very same goal and many of the same means as the Nordean and Biggs one, but which for some reason was not identified as a related case to the other three Proud Boy ones and so was not assigned to Judge Kelly; Judge Howell is presiding over Ochs’ case. Ochs has a superb defense attorney, Edward McMahon. Many of these details, which make the curious treatment of the Ochs-DeCarlo conspiracy indictment clear, are in this post or this expanded table.

Whoever the unindicted co-conspirator is, he’s the one who set the channel of the Baofeng radios the night before the insurrection. And he’s the one who stated that Nordean was in charge.

46. At 9:03 p.m., REHL notified NORDEAN, BIGGS, DONOHOE and others that he had arrived in Washington, D.C. DONOHOE responded by requesting one of the radios that REHL had brought.

47.  At 9:09 p.m., UCC-1 broadcast a message to MOSD and Boots on the Ground channels that read: “Stand by for the shared baofeng channel and shared zello channel, no Colors, be decentralized and use good judgement until further orders” UCC-1 also wrote, Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.” UCC-1 then provided a specific radio frequency of 477.985.

It is highly likely that prosecutors learned the three details included in that detention motion — that Nordean had been put in charge, that the Proud Boys were using Baofeng radios set to frequency 477.985, and that part of the plan was to disperse the men to increase chances of success — from the unindicted co-conspirator and or devices seized from him when he was first arrested.

And it took them less than two months to learn those details of the plot.

Update: The government has moved to detain both Nordean and Biggs now. Those motions cite from the Telegram chats the Proud Boys used to organize the day before the attack, including (I’ve combined them from both motions):

On January 5, between 9:30 – 9:32am [Biggs] stated “What are the teams. I keep hearing team [sic] are picked already.” A few minutes later, [Biggs] stated “Who are we going to be with. I have guys with me in other chats saying teams are being put together.”

On January 5, at 9:32am, a member of a Proud Boys Telegram group stated “It seems like our plan has totally broken down and rufio has taken control as a singke [sic] point of contact.”

On January 5, between 5:22 – 5:25pm, [Biggs] stated “Woth [sic] [coconspirator Ethan Nordean] trying to get numbers so we can make a plan.” Defendant then stated “Just trying to get our numbers. So we can plan accordingly for tonight and go over tomorrow’s plan.”

On January 5, at 5:52pm, [Biggs] stated “We are trying to avoid getting into any shit tonight. Tomorrow’s the day” and “I’m here with [co-conspirator Nordean] and a good group[.]”

On January 5, at 9:07pm, co-conspirator Charles Donohoe asked “Hey who’s boots on ground with a plan RN [ … ] Guys are asking.” A participant in the encrypted chat stated “Supposed to be Rufio.”

Within minutes, an unindicted co-conspirator broadcast a message to those in the group chat, “Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.”

On January 5, between 9:17 and 9:20pm, [Biggs] stated “We just had a meeting woth [sic] a lot of guys. Info should be coming out” and then “I was able to rally everyone here together who came where I said” and then, “We have a plan. I’m with [co-conspirator Nordean].”

On January 5, at 9:34pm [Biggs] told co-conspirator Charles Donohoe to communicate to Proud Boys members a message stating that the group in Washington, D.C. would meet at the Washington Monument at 10am on January 6.

On the morning of January 6, Donohoe stated that he was on his way to the Washington Monument, and “I have the keys until Rufio and [co-conspirator Zachary Rehl] show up.”

Update: As I note in a footnote to this post, Nicholas Ochs can’t be the unindicted co-conspirator. That’s true for two reasons. First, because DOJ does not believe UCC-1 was at the Capitol on January 6 (though doesn’t say where he was). DOJ knows Ochs was inside the Capitol. Also, DOJ has now started treating all the Proud Boy conspiracies as the same conspiracy. So Ochs could not, then, be considered un-indicted in that conspiracy.