WASHINGTON — Two Proud Boys leaders charged with conspiracy in the Jan. 6 insurrection at the US Capitol are going to jail.
Ethan Nordean and Joseph Biggs had been allowed to go home after they were first arrested in January and February, respectively, and charged with participating in the Capitol riots. But prosecutors went back to a judge to argue that they belonged in jail after a grand jury indicted them last month on a more serious set of felony charges, including conspiracy.
Prosecutors have alleged that as part of the conspiracy, Nordean, Biggs, and two codefendants were involved in encouraging Proud Boys members to attend the “Stop the Steal” rally with former president Donald Trump on Jan. 6; raising money online to finance equipment and travel to DC; bringing “paramilitary gear and supplies”; “scheming” to avoid detection by not wearing Proud Boys colors; using handheld radios and encrypted apps to “communicate and coordinate” the assault on the Capitol; and, ultimately, pushing past law enforcement and entering the Capitol.
US District Judge Timothy Kelly announced Monday that he would grant the government’s request to place Nordean and Biggs in custody as their cases go forward. Kelly said he didn’t believe there were any conditions of pretrial release that would give him full confidence that the two men wouldn’t try to communicate with their associates and pose a danger to the community going forward.
“These defendants are alleged by their leadership and their planning to have facilitated political violence on January 6, even if they themselves did not carry a weapon or strike a blow,” Kelly said.
Kelly’s order marked a rare instance of alleged Capitol rioters being placed back into custody after they were allowed to go home; prosecutors in some cases have successfully challenged release orders before a defendant was actually set free. In one case, one of Kelly’s colleagues in the federal district court in Washington, DC, reversed a release order for Thomas Sibick — charged with attacking a DC police officer — after he’d been allowed to go home. Unlike Nordean and Biggs, however, the reversal in Sibick’s case came days, and not weeks or months, after his release.
The detention order for Nordean and Biggs is a significant win for the US attorney’s office in Washington after prosecutors faced a setback in their efforts to convince judges to keep certain defendants charged in the insurrection behind bars. The US Court of Appeals for the DC Circuit last month set the bar higher for pretrial detention in these cases, especially for defendants who weren’t charged with specific acts of violence at the Capitol or with taking a leadership role; in the weeks after that ruling, prosecutors have lost or conceded detention fights in several high-profile cases.
But Kelly said Nordean and Biggs were charged with the type of advanced planning and leadership roles that fit the DC Circuit’s new criteria. He said the two men posed a threat in that they could draw on their networks to plan large events — attracting not only other Proud Boys and their supporters, but also counterprotesters — and facilitate violence against law enforcement and civilians. Noting that the indictment alleged that Nordean, Biggs, and their coconspirators relied on encrypted messaging platforms, Kelly said that even with severe restrictions on access to computers and phones, there was nothing he could do to stop an associate from visiting and lending them a smartphone.
Kelly said it was true that there was no evidence that Nordean and Biggs had violated any of their pretrial release conditions to date. But as for whether they could find a way to be in touch with other Proud Boys, the judge said, “I simply don't know what I don’t know.” Nordean and Biggs’ lawyers indicated they would consider appealing their clients’ detention, but Kelly refused a request to delay his order in the meantime.
Nordean and Biggs were indicted along with two other men identified as regional Proud Boys leaders, Charles Donohoe and Zachary Rehl. The government has described Nordean as a Proud Boys “elder” and the president of his local chapter in Washington state; Biggs is a Proud Boys organizer who lives in Florida. All four men are facing six counts in the indictment, including four felony charges for conspiracy; obstruction of an official proceeding and aiding and abetting others in the obstruction; obstructing law enforcement during civil disorder and aiding and abetting; and destruction of government property valued at more than $1,000.
Prosecutors shared excerpts from messages sent via encrypted group chats that the Proud Boys allegedly used before Jan. 6 and on the day, as well as social media posts and messages from the defendants as evidence that they were planning for disruption and didn’t regret taking part in the riots afterward. Nordean, according to the government, posted on Parler two days later, “if you feel bad for the police, you are part of the problem,” while Biggs posted, “what a day.”
The night before the insurrection, prosecutors said that an unnamed “unindicted co-conspirator” sent a message to two channels the Proud Boys were using telling members that Nordean — who goes by the nickname “Rufio Panman” — was “in charge.”
“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,” the person messaged.
Biggs was originally arrested on Jan. 20, made his first appearance in federal court in Florida that same day, and was immediately granted release and allowed to go home. The government didn't argue to keep Biggs in jail at the time, explaining in a later court filing that the initial set of charges against him, which were "based on information available to the United States less than two weeks after the attack on the Capitol, did not support such a motion at that time."
Nordean was arrested on Feb. 3 in Washington state, and a federal magistrate judge there ordered him released on Feb. 8 over objection from prosecutors. They appealed to US District Chief Judge Beryl Howell in Washington, DC, and she then ordered him released after hearing a second round of arguments from the government on March 2.