A new court filing explains why it took prosecutors so long to bring charges against Enrique Tarrio, the national chairman of the Proud Boys, in the conspiracy case against top leadership in the violent nationalist gang who are accused of coordinating the Jan. 6, 2020 assault on the US Capitol.
Tarrio was not arrested until March 8, roughly a year after a quartet of men described by the government as “lieutenants and leaders on the ground on January 6” were charged in the conspiracy. The superseding indictment unveiled with Tarrio’s arrest also added Dominic Pezzola, who was previously charged in a separate indictment with using a stolen police riot shield to bash open a window at the Capitol, to the Proud Boys leadership conspiracy case.
Ethan Nordean and Zachary Rehl, two of Tarrio’s codefendants, have sought to have their cases severed, while complaining about their pretrial detention. In a brief filed late Wednesday, prosecutors argue that the six co-conspirators charged in the most recent superseding indictment should be tried together. Prosecutors also argued that “the government acted expeditiously to secure” the more recent superseding indictment “based on the recently discovered evidence.”
Tarrio was arrested in Washington, DC two days prior to the assault on the US Capitol and charged with destruction of property for his role in burning a Black Lives Matter flag during a previous rally on Dec. 12, 2020 and for possession of two large-capacity magazines. Police seized Tarrio’s phone during his Jan. 4, 2021 arrest, and prosecutors sought a search warrant to look at the contents of the phone.
“Despite diligence, the government was not able to obtain access to Tarrio’s phone until December 2021,” prosecutors wrote in the brief filed on Wednesday. “Thereafter, a filter team was utilized to ensure that only non-privileged materials were provided to the investigative team. The investigative team did not gain access to the materials on the phone until mid-January 2022, and it has worked expeditiously since that time to review these materials.”
The brief goes on to say that the most recent superseding indictment, which charges Tarrio alongside co-defendants Nordean, Rehl, Pezzola and Charles Donohoe with conspiracy, “is based on important, newly discovered evidence recovered from Tarrio’s phone.”
One example cited by prosecutors of evidence discovered on the seized phone is a statement made by Tarrio in response to an unnamed individual who sent a document entitled “1776 Returns” outlining a plan to occupy a few “crucial buildings” in DC on Jan. 6. The individual is alleged to have said after sending the document: “The revolution is [more] important than anything.”
The brief filed on Wednesday cites Tarrio’s response: “That’s what every waking moment consists of… I’m not playing games.”
The review of Tarrio’s phone also uncovered an exchange on the encrypted MOSD Leaders chat on Jan. 3 and 4 in which a leader — who has been identified as John Charles Stewart by LNP/Lancaster Online — recommended that the “operating theater” be in front of the US Capitol building because “that’s where the vote is taking place and all the objections….” Tarrio responded in a voice chat the next morning: “I didn’t hear this voice note until now, you want to storm the Capitol.”
In a footnote in the brief that highlights the significance of Tarrio’s phone, prosecutors point out that his codefendants rebuilt their communications network in response to his arrest, arguing that they were aware that law enforcement seizure of the phone “had the potential to place them in legal jeopardy.”
The brief notes that following Tarrio’s arrest, Donohoe created new encrypted chats for leaders and members, while advising them, “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.”
The government also noted that during a meeting in an underground parking garage with Oath Keepers leader Stewart Rhodes on Jan. 5, Tarrio told another individual that “he had cleared all the messages on his phone before he was arrested” and “no one else would be able to get into his phone because there were ‘two steps’ to get into it.”
The brief filed on Wednesday reiterated a previous statement that the government is still evaluating whether to add additional defendants and charges in a new superseding indictment.
“Were the government to supersede before trial,” prosecutors argued, “any additional charges would overlap substantially with the conspiracy to obstruct an official proceeding charge that has been at the heart of this prosecution since its inception.”
The government has previously stated that any charges against new defendants are likely to be filed by May 20.
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