United States v. Tarrio ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Action No. 21-175 (TJK)
ETHAN NORDEAN et al.,
Defendants.
MEMORANDUM
Over the course of this four-month-long trial, the Court issued a multitude of evidentiary
rulings. The Court detailed the bases for its rulings on the record to the extent practicable given
the need to respect the jury’s time and to move the proceedings along. Given these considerations,
on one occasion relating to so-called “tools” evidence, the Court said that it would detail its
reasoning on the record at a later time. See Trial Tr. 12148. So it will do so now. The Court also
takes the opportunity to clarify the Rule 403 balancing it conducted on evidence about Proud Boys
rallies in the District of Columbia that occurred after the 2020 presidential election, objections to
which the Court resolved piecemeal as disputes arose before and during trial.
* * *
One of the highly contested issues in this trial has been the admissibility of statements and
conduct by so-called “tools” of the charged conspiracies. As the Court explained in a lengthy oral
ruling on about 200 exhibits pulled from the defendants’ various Telegram chat groups, see Trial
Tr. 8578–8619, the “tools” evidence fell into two subcategories. In one subcategory, the
government sought to admit statements by “Proud Boys whom the defendants and their co-
conspirators hand-selected to join the [Ministry of Self-Defense],” the special chapter Defendant
Enrique Tarrio created to be led by himself and codefendants Ethan Nordean, Joseph Biggs, and
Zachary Rehl, along with several uncharged coconspirators. Trial Tr. 8586. In a second
subcategory, the government sought to admit video and other evidence depicting the conduct of
“people whom the defendants . . . or their coconspirators marched toward the Capitol on January
6th and to whom they had some alleged nexus or relationship in the . . . physical effort” to overtake
the barriers and police and enter the Capitol. Trial Tr. 8585–86.
The Court addressed the first subcategory at length in its ruling on the Telegram-related
evidence. Now—as it said it would—the Court further details its rulings as to the second
subcategory. See Trial Tr. 12148.
Before trial, upon the defendants’ objections to relevance and under Rule 403, the Court
set the following parameters on evidence of tools’ conduct on January 6:
For the conduct along these lines to be relevant, it has to bear some connection to
the defendants. So for example, conduct by those in the MOSD leadership or
MOSD membership or Boots on the Ground Telegram chat groups, all of which the
Government says were, sort of, intrinsic to the conspiracy, would be relevant.
Actions by those who the defendants themselves led to the Capitol and then actions
by those who, . . . at the same time . . . and adjacent to the defendants both followed
them to the Capitol and then stormed the Capitol with them, again, I think, are
relevant. A rational juror could find that conduct like that is some evidence of how
these defendants carried out the alleged objective of the charged conspiracies.
But on the other hand, mere evidence that people . . . unaffiliated with the Proud
Boys or perhaps even some Proud Boys who didn’t . . . march with these
defendants . . . committed violent acts without any nexus to the defendants’
planning groups or their conduct that day does push the bounds of relevance and
carries a real risk of unfair prejudice.
ECF No. 594 at 33–34.
At the pretrial conference, the Court also noted it might ultimately require the government
to provide a more specific proffer about the nature of the evidence and its connection to the
defendants. And it ordered just that. Indeed, on March 6, 2023, rather than sit for trial, the Court
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held a day-long motions hearing at which the government proffered the evidence and its
connection to the defendants in response to the defendants’ ongoing relevance and Rule 403
objections. See Hr’g Tr. Mar. 6, 2023.
The government proffered video evidence depicting conduct by twenty-two individuals
who, to varying degrees, interacted with the defendants during their march to the Capitol and
during the breach of the building. They included: William Pepe; Christopher Worrell; Barry
Ramey; Daniel Lyons Scott; Trevor McDonald; Marc Bru; Gilbert Fonticoba; Ronald Loehrke and
James Haffner; Nicholas Ochs; Gabriel Garcia; Paul Rae; Barton Shively; a group that included
A.J. Fischer, Dion Rajewski, Zach Johnson, Brian Boele, and James Brett; and another group that
included Arthur Jackman, Nate and Kevin Tuck, and Eddie George. After considering the
government’s extensive proffer and the parties’ arguments, the Court excluded evidence depicting
Shively and Ramey. Additionally, as to evidence depicting A.J. Fischer’s group, the Court allowed
the government to highlight Fischer’s and Johnson’s conduct, but not that of Rajewski, Boele, and
Brett. Over defendants’ objections, it also allowed evidence related to the other fifteen individuals.
See Trial Tr. 12148–50.
In the Court’s view, for the evidence it admitted, the government proffered a sufficient
nexus between those individuals’ actions on January 6 and the defendants to permit an inference
that their conduct was relevant evidence of the charged conspiracies. Specifically, as to most of
these individuals, the government proffered one or more of the following: they (1) were part of the
defendants’ marching group from the Washington Monument to the Capitol; (2) interacted with
the defendants at the Capitol in a way that suggested coordination or a shared goal; or (3) were
members of relevant Proud Boys chat groups, including the MOSD and the Boots on Ground
group. See generally Hr’g Tr. Mar. 6, 2023.
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The evidence connecting Loehrke and Haffner to the defendants was different, but still
rendered their conduct relevant for the same reasons. There was some dispute over when, if ever,
Loehrke became a member of the Proud Boys. See Hr’g Tr. Mar. 6, 2023 at 60. But he was part
of the defendants’ marching group, and he knew Nordean before January 6. In a text exchange
between Loehrke and Nordean on December 29, 2020, Nordean told Loehrke that he wanted
“[Loehrke] with [him] pretty much the whole time” on January 6, emphasizing that Loehrke would
be “on the front line with [him].” Gov’t Ex. 550-3. Loehrke responds, “Sounds good, man.” Id.
Beyond Loehrke’s participation in the marching group, these messages bolstered the nexus
between him and Nordean.
As for Haffner, the government proffered evidence that he marched with the defendants
and otherwise accompanied Loehrke for most of the day on January 6. There was no evidence that
Haffner was a Proud Boy. Even so, in the same text exchange between Loehrke and Nordean,
Loehrke told Nordean he “ha[d] 3 guys” travelling with him to D.C., calling them “[b]ad mother
fuckers” and “[r]econ guys that aren’t [Proud Boys] but are with [them].” Gov’t Ex. 550-3.
Nordean responded, “Ok. We aren’t wearing colors anyway. If they roll with me they will be
good.” Id. Thus, the record supported a strong inference that Haffner was one of these individuals,
again establishing a relevant nexus between Haffner and Nordean.
The government’s evidence of these individuals’ conduct was relevant to proving the
existence of the charged conspiracies. As the Court has noted throughout this case, sometimes the
best evidence of a conspiracy is the concerted action that in fact results from one. See, e.g., ECF
No. 594 at 33; ECF No. 147 at 52. And a reasonable juror might infer concerted action from
evidence that individuals who participated in the defendants’ chat groups or were led by them to
the Capitol were ultimately on the front lines at several critical breaches of the Capitol. Thus, a
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reasonable juror could rely on this evidence to find that it is more likely the charged conspiracies
existed.
The evidence also satisfied Rule 403’s balancing test. That is, the risk that this evidence
might confuse the jury or otherwise unfairly prejudice the defendants did not substantially
outweigh its high probative value, as explained above. The government painstakingly mapped out
each defendant’s location throughout the march toward the Capitol and the subsequent riot. And
the conduct of these individuals was captured on video. So the relative risk that the jurors would
confuse a purported tool’s conduct for a defendant’s was low. And because each individual bore
some nexus to at least one of the defendants’ own conduct that day, inferences the jury might draw
from this evidence—even considering some of the violence it depicted—were not, in the Court’s
view, unfairly prejudicial.
At the same time, the Court excluded evidence related to Shively, Ramey, Rajewski, Boele,
and Brett on Rule 403 grounds. Considering the government’s proffer and the whole record, these
individuals lacked a sufficiently close nexus to the defendants or their conduct on January 6 to
evidence a conspiracy, and in any event any marginal relevance would be substantially outweighed
by the risk of unfair prejudice. For example, Shively was not a Proud Boy and did not participate
in any of the relevant chat groups. Although he joined the marching group at some point, the
government lacked evidence showing he had been with the group when it first convened at the
Washington Monument. Hr’g Tr. Mar. 6, 2023 at 51–52. Meanwhile, the evidence the
government sought to admit was particularly violent, involving assaults on officers. See id. So
the Court excluded this evidence. The same is true of Ramey, for whom the government offered
no evidence of Proud Boys membership and who may have only joined the marching group well
after it began. Put another way, the government offered little more than his “sheer proximity” to
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the defendants. See Hr’g Tr. Mar. 6, 2023 at 55. And while Fischer and Johnson were in relevant
Telegram chat groups and interacted with the defendants at various points on January 6, the rest
of their group—Rajewski, Boele, and Brett—did not. See generally Hr’g Tr. Mar. 6, 2023 at 109–
21.
* * *
The Court also takes this opportunity to clarify its rulings relating to another category of
evidence: the defendants’ and other Proud Boys’ participation in or reactions to the so-called
“Million MAGA marches” in November and December 2020 in Washington, D.C. See Trial Tr.
2812. On both occasions, former President Trump had “called people [to Washington, D.C.] to
support the fight against what was purported to be the stolen election.” Trial Tr. 2815. At both
events, violence erupted between Proud Boys and others who they believed were Antifa. Although
only Tarrio and Pezzola (who was not yet a member of the Proud Boys) participated in the
November rally, see Trial Tr. 2813, the other defendants praised the Proud Boys’ conduct in
Telegram messages and social media posts. See, e.g., Gov’t Exhs. 601-3; 602-12; 603-13. And
all five defendants attended the December 2020 rally, where violence again broke out, culminating
in the stabbings of coconspirator Jeremy Bertino and three other Proud Boys. Additionally, at the
December 2020 rally, Tarrio stole and set fire to a Black Lives Matter banner from a historically
black church, which led to his arrest on January 4. Defendants objected to evidence about these
rallies at various points both before and during trial on character, relevance, and Rule 403 grounds.
This evidence manifested at trial in various ways—the direct testimony of Nicholas
Quested, Matthew Greene, and Jeremy Bertino; in the defendants’ Parler posts; and throughout
various Proud Boys Telegram chat groups. During Bertino’s testimony, at least counsel for
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Nordean noted a standing objection to such evidence—particularly about the December 2020
rally—under Rule 403. Trial Tr. 9967.
When defendants objected to discrete issues related to the November or December 2020
rallies on Rule 404(b) grounds, the Court detailed its rulings on the record, admitting some
evidence and excluding some. See, e.g., ECF No. 594 at 51; Trial Tr. 2944–45, 6056–58. In
addition, the Court policed the boundaries of unfair prejudice under Rule 403 as the evidence about
these prior rallies took shape at trial. Several times, the Court excluded evidence related to the
November and December 2020 rallies where the risk of unfair prejudice substantially outweighed
the probative value the Court recognized for this category of evidence. See, e.g., ECF No. 594 at
54 (excluding under Rule 403 that the banner Tarrio destroyed at the December 2020 rally was a
Black Lives Matter flag); id. at 52 (limiting evidence of specific acts of violence unconnected to
the defendants at the December 2020 rally); Trial. Tr. 4419 (same); Trial Tr. 19282 (enforcing the
same during the cross of Pezzola); Trial Tr. 6063–64 (excluding exhibit from Rehl’s Parler account
related to November 2020 rally).
To the extent the record is not already clear, unlike the occasions it excluded this type of
prior-rally evidence, when the Court admitted it, it found that the evidence had probative value
that was not substantially outweighed by a danger of unfair prejudice. For example, as the Court
reiterated throughout the pretrial proceedings and trial, evidence about these events was probative
because it showed the “defendants’ relationships of trust with each other, their motivation and
intent in forming the MOSD chapter at the center of [the] charges, and defendants’ and other
[Proud Boys] members’ increasing hostility toward law enforcement.” ECF No. 594 at 51. And
evidence showing the defendants “promot[ing]” violent acts from these rallies was “fair-game
evidence of [defendants’] intent, and specifically what [they] saw as the appropriate response to a
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perceived threat . . . at a rally focused on the election.” Trial Tr. 6063. As the record also reflects,
this probative value was buttressed by these rallies’ closeness in time to the formation of the
alleged conspiracy and to January 6, 2021. See, e.g., ECF No. 594 at 50–52; Trial Tr. 2943.
To the extent that there was any marginal risk that the jury might treat defendants’ presence
at a rally that turned violent as improper character evidence—or draw any other unfair inference—
that risk did not substantially outweigh the probative value of the evidence. This was all the more
so because defendants argued that the violence that happened at the December 2020 rally—
particularly Bertino’s stabbing—and the related need to defend themselves against Antifa was the
very reason the MOSD was formed in the first place. See, e.g., Trial Tr. 3324–35 (Nordean’s
opening statement).
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: May 4, 2023
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