WASHINGTON — A federal judge allowed the seditious conspiracy trial of five Proud Boys to continue this week after prosecutors denied ever receiving information relevant to the case from a confidential human source the defense intends to call as a witness.
The trial of former Proud Boys chairman Enrique Tarrio and four co-defendants came to an abrupt, albeit temporary, halt Wednesday after Tarrio’s attorneys learned a witness they intended to call the following day had worked as a government informant since April 2021. Defense attorneys asked U.S. District Judge Timothy Kelly to hold an emergency hearing – noting in a filing Wednesday that the witness/informant had been in communication with multiple defendants and defense counsel and had even participated in prayer circles with defendants’ families. The witness was not identified in the defense filing.
On Thursday, prosecutors responded. In a three-page filing and an attached sworn affidavit from an FBI agent, the government said the confidential human source (CHS) had never been asked about Tarrio or any other defendants in the case and had provided no information about them to the FBI.
“CHS-SA was never tasked to communicate with the defendants or their counsel in this matter, or to gather any information about the defendants or their counsel,” FBI Special Agent Kristina Spindel wrote in an affidavit. “The FBI was never provided information about any contact or communications that the CHS-SA may have had with the defendants or their counsel in this matter. Nor was the FBI provided with any specific information regarding any contact the CHS had with any family members of the defendants other than generalized knowledge about assisting in fundraising efforts and petitioning against their conditions of confinement.”
According to prosecutors, they were not aware the CHS had been in communication with counsel for the defense or defendants’ families until Tarrio’s attorneys informed them Wednesday. Prosecutors said they informed Tarrio’s attorneys of the witness’ role as a CHS after they indicated their intention to call them to testify earlier in the week. They also said Thursday they had provided the defense with multiple CHS reports — the last of which occurred, they said, in September 2022 — and a record of the one payment the CHS received.
Attorneys for multiple defendants expressed their lack of satisfaction with the government’s response during a hearing Thursday afternoon. Attorneys for Dominic Pezzola, the New York Proud Boy who broke a window and created the first breach of the U.S. Capitol Building, said they believed the CHS may had proposed witnesses they intended to call later in the trial. Attorney Norm Pattis, who represents Proud Boy and former Infowars employee Joe Biggs, said he believed the CHS may have had extensive conversations with Biggs about their attorney-client relationship.
“Now I’ve got somebody with their nose in my tent talking to my client,” Pattis said.
Attorney Nicholas Smith, who represents Ethan Nordean, said he had information showing the CHS had provided information about Jan. 6 matters and also said the CHS had begun contacting him unprompted about the case beginning in April 2022.
Kelly, who served as an assistant U.S. attorney and as senior legal counsel for U.S. Senator Chuck Grassley prior to being appointed to the federal bench by former President Donald Trump in 2017, said he understood the defense’s reaction to the CHS disclosure. But, he said, there wasn’t enough evidence before him to delay the trial or convince him any wrongdoing had occurred.
“There are two questions,” Kelly said. “One: Whether anything untoward happened. And we will get to the bottom of that. Two: Whether this person’s status as a CHS would have been discoverable had you not decided to call them as a witness.”
Over the opposition of several defense attorneys, Kelly said the trial would proceed Friday with a different witness from Tarrio’s team – although they indicated they still planned to call the CHS at a later point. Attorneys would told to be prepared to take up the issue of the CHS again Friday afternoon once the jury had ben excused for the day.
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