Capitol riot spurred conspiracy charge against 31 suspects, but how hard is it to prove?

WASHINGTON – Nearly two months earlier than the Jan. 6 Capitol riot, Jessica Watkins, an Oath Keepers member and self-described commanding officer of the Ohio State Regular Militia, warned potential recruits that if Joe Biden turned president “our way of life as we know it is over.”

Watkins wrote in a text message that she needed the recruits to be “preventing match” by Inauguration Day, according to court documents.

“It is our responsibility as Americans, to combat, kill and die for our rights,” she mentioned.

Jessica Watkins

Prosecutors alleged that Watkins promoted “military style” basic training for recruits run by a former Marine drill sergeant while organizing logistics for them to travel to Washington and giving them advice on what weapons are legal in the city and what to wear.

Watkins has since told a judge that she renounces the Oath Keepers, an extremist group that mostly recruits people who served in the military, law enforcement or as first responders, and are concerned a cabal of elites is trying to strip Americans of their rights.

“We’re done with that lifestyle,” Watkins said. 

The bar owner and veteran of the war in Afghanistan is one of 31 people charged with conspiracy in the Jan. 6 Capitol riot. Conspiracy is a loaded word for the public, but for courts, conspiracy depends on suspects agreeing to take criminal action. 

'Military style' training, encrypted apps for planning

More than 430 people have been charged in the riot, which authorities continue to investigate. A USA TODAY review found the 31 alleged conspirators were charged in seven cases, ranging from as few as two defendants to as many as 12. The alleged conspiracies weave together charges, including obstruction of government and police, destruction of property and, in the most violent cases, assault against police officers.

The conspiracy charges link defendants in groups that planned and participated in operations to interfere with Congress counting Electoral College votes that formalized President Joe Biden’s victory, as rioters stormed past barricades, smashed windows and rammed doors to enter the Capitol.

Indictments and FBI affidavits describe members of the Oath Keepers attending or scheduling paramilitary training in combat tactics. They brought and wore paramilitary supplies, including camouflaged outfits, tactical vests, helmets and radios. Oath Keepers and Proud Boys, an extremist group whose members describe themselves as “Western Chauvinists,” allegedly used social media, text messaging and encrypted applications to recruit participants from across the country.

The Office of the Director of National Intelligence reported in March that domestic violent extremists “who are motivated by a range of ideologies and galvanized by recent political and societal events in the United States, pose an elevated threat to the homeland in 2021.” The report said ethnically motivated violent extremists and militia violent extremists represented the most lethal threats. The extremists exploit social media and encrypted chat applications to recruit, plan and rally support for in-person actions, it said.

Authorities are still investigating conspiracies from Jan. 6 to determine who organized and led the insurrection. More charges are possible as more suspects are identified and if those already charged begin seeking plea agreements to reduce their sentences in exchange for information, according to legal experts.

Insurrection: Oath Keeper enters first guilty plea in Capitol attack

“Any good law enforcement organization will want to exhaust all their investigative resources to find out if there is a wizard behind the curtain and who is he,” mentioned Kevin Davis, a former Baltimore police commissioner who is now director of consulting companies for safety agency GardaWorld. “They’re not going to take anything at face value. They’re going to see where it goes.”

Conspiracy suspects are nearly all Proud Boys, Oath Keepers

All but a pair of the conspiracy fees to this point are against members of the Proud Boys or Oath Keepers, or against individuals who acted with them.

Among the alleged conspirators:

  • 31 face charges of obstructing an official proceeding.
  • 31 for entering a restricted building or grounds.
  • 21 for destruction of property.
  • 3 for assaulting police officers.
  • 1 for threatening a police officer.
  • 1 for robbery of an officer’s shield.
Dominic Pezzola, who the FBI says is a member of the Proud Boys, is shown during the Capitol riot on Jan. 6, wearing an ear piece and using a riot shield belonging to the U.S. Capitol Police to break open a window, according to the FBI.

Dominic Pezzola, 43, of Rochester, New York, a Marine veteran and member of the Proud Boys, was charged with assaulting a Capitol Police officer for allegedly ripping away his riot shield and breaking a window with it, according to court documents. 

Another member of the Proud Boys, William Chrestman, 47, of Johnson County, Kansas, who was charged with threatening a federal officer, carried a wooden club or axe handle wrapped with a flag, according to court records.

Two defendants who weren’t linked to either extremist group, Julian Khater, 32, and George Tanios, 37, had been charged with conspiring to injure Capitol Police Officer Brian Sicknick and assaulting him by spraying him with chemical spray. He died of natural causes at age 42 the following day, in accordance to the medical expert.

All of the defendants have pleaded not responsible.

Khater was charged with three counts of assault on an officer with a dangerous weapon and conspiracy to injure an officer, related to the death of Capitol Police officer Brian Sicknick during the Jan. 6 Capitol riot.
What makes it a conspiracy?

Conspiracies pose a unique danger because they reflect people planning criminal actions, said former federal prosecutor Jimmy Gurulé.

“They come together and work in concert for a criminal purpose,” Gurulé said. “It is a serious offense.”

Jimmy Gurulé, Notre Dame law professor
[In conspiracy] they come together and work in concert for a criminal purpose. It is a serious offense.

Conspiracy depends on agreeing to take criminal action, even if it’s not successful.

“It doesn’t have to be a sophisticated plan. It doesn’t even have to be a good plan in order to support a conspiracy charge,” said Gurulé, a University of Notre Dame law professor. “In fact, most criminal conspiracies are not. … That’s why they end up getting caught and successfully prosecuted. They’re not that smart.”

David Sklansky, a Stanford law professor and co-director of the Stanford Criminal Justice Center, noted that insurrectionists stormed the Capitol in an effort to block certification of the results from the presidential election.

“I think it’s worth underscoring that things could have been much worse. There could have been a lot more damage. A lot more people could have been hurt a lot more seriously if law enforcement hadn’t been able to intervene to the extent that they did,” Sklansky said.

How authorities construct a conspiracy case

Legal experts say prosecutors will have to prove conspirators agreed to pursue criminal activity and then at least some of them took further steps toward the goal.

“The word conspiracy is a sensational word,” Davis said. “We think the charge of conspiracy involves a sophisticated plot and it doesn’t always.”

He said the key is being able to prove elements such as defendants planning, coordinating and recruiting for a criminal activity. Surveillance video, social media, text messages and phone calls help authorities build a case.

“Sometimes these events look spontaneous, but they’re not,” Davis said. “Sometimes they are spontaneous.”

Members of the Oath Keepers, for example, moved into the Capitol in a military formation called a “stack,” where each person holds the shoulder of the person ahead, according to court records. 

Members of the Oath Keepers crowded into the Capitol one Jan 6, 2021

Members of the Oath Keepers crowded into the Capitol one Jan 6, 2021
U.S. Department of Justice

Gurulé mentioned encrypted communications and transferring in unison in formation could be proof of a conspiracy.

“That’s compelling evidence of a concerted activity from which one could infer conspiratorial agreement,” he said.

As described in indictments and FBI affidavits, alleged conspirators recruited others through social media, such as Parler and Facebook. They communicated through encrypted apps such as Signal and Telegram, which prosecutors said is similar to Twitter, but has a reputation for not cooperating with law enforcement. And they used Zello, an app that adapts cellphones to work like walkie-talkies.

Oath Keepers' alleged preparations: Mace, gas masks, Tasers, nightsticks

Several of the alleged conspirators talked about training for actions in Washington. 

Watkins, 38, of Champaign County, Ohio, described training in “military style basic, here in Ohio, with a Marine Drill Sergeant running it,” in accordance to courtroom information.

Another defendant from the identical county in Ohio, Donovan Crowl, 50, attended a coaching camp in December in North Carolina, in accordance to courtroom information.

Graydon Young, 54, of Englewood, Florida, wrote an electronic mail Dec. 26 that mentioned he skilled on firearms and fight with a Florida firm and “recommended your training to the team.”

Kelly Meggs, 52, of Dunnellon, Florida, wrote on Facebook on Dec. 25: “Dc is no guns. So mace and gas masks, some batons. If you have armor, that’s good.”

When a recruit texted questions on a march on Nov. 14, Watkins mentioned they couldn’t take firearms into town, “Just mace, tasers and nightsticks.”

Kenneth Harrelson, 40, of Titusville, Florida, organized 30 on-line conferences underneath the names “gator 6” or “hotel 26” or “kenneth harrelson,” in accordance to courtroom information. A gathering Jan. three by the web assembly website Go to Meeting was titled “dc planning call,” in accordance to courtroom information.

'This comes from the top': Proud Boys' alleged preparations

Zachary Rehl, 35, of Philadelphia, who was president of a neighborhood Proud Boys chapter, posted a fundraising hyperlink that generated $5,500 from Dec. 30 to Jan. Four for “Travel Expenses for upcoming Patriot Events,” in accordance to courtroom information.

Proud Boys worldwide chair Enrique Tarrio posted a Parler message Dec. 29 saying members of the group wouldn’t put on conventional black and yellow shirts, but journey incognito.

After Tarrio was arrested Jan. 4, Charles Donohoe, 33, of Kernersville, North Carolina, created new safe channels for encrypted messaging, in accordance to courtroom information.

Philadelphia Proud Boys leader Zachary Rehl, left, and Seattle Proud Boys leader Ethan Nordean, right, walk toward the U.S. Capitol on Jan. 6, 2021. Both have been charged in the insurrection.

Philadelphia Proud Boys chief Zachary Rehl, left, and Seattle Proud Boys chief Ethan Nordean, proper, stroll towards the U.S. Capitol on Jan. 6, 2021. Both have been charged within the revolt.
Carolyn Kaster, AP

“Everything is compromised and we can be looking at Gang charges,” Donohoe wrote, in accordance to courtroom information. “Stop everything immediately.”

“This comes from the top,” he added.

An encrypted messaging channel for Proud Boys members in Washington known as “Boots on the Ground” was created Jan. 5 and greater than 60 customers participated, in accordance to courtroom information.

Actions at the scene

Members of Proud Boys carried rolls of fluorescent orange tape reasonably than their conventional black and yellow shirts, in accordance to courtroom information. Some members wore tactical gear together with helmets and gloves. Some members of Oath Keepers wore helmets, bolstered vests and camouflage clothes.  

Rehl mentioned he was bringing a number of radios for Proud Boys assembly on the Washington Monument at 10 a.m., in accordance to courtroom information. Another Proud Boys member, Joseph Biggs, 37, of Ormond Beach, Florida, was photographed with a walkie-talkie on his chest.

William Chrestman of Olathe, Kansas is among those charged with participating in the U.S. Capitol riot.

William Chrestman of Olathe, Kansas is amongst these charged with collaborating within the U.S. Capitol riot.
U.S. Department of Justice

As rioters battled with police, Chrestman allegedly yelled, “You shoot and I’ll take your f—— ass out,” in accordance to courtroom information.

Nicholas DeCarlo of Burleson and Fort Worth, Texas, and Nicholas Ochs of Waikiki, Hawaii, who has “Proud Boy” tattooed on his arm, entered the Capitol quickly after the breach, in accordance to courtroom information. They allegedly defaced the Memorial Door to the Capitol by inscribing “MURDER THE MEDIA,” in accordance to their indictment.

Thomas Caldwell, 65, of Clarke County, Virginia, used Zello to create a channel known as “Stop the Steal J6,” in accordance to courtroom information. Caldwell allegedly offered logistical assist to monitor the Capitol from a distance.

“We are surging forward,” he wrote to Facebook contacts at 2:48 p.m. Jan. 6. “Doors breached.”

“All members are in the tunnels under the capital seal them in,” mentioned a Facebook put up Jan. 6 to Caldwell, in accordance to courtroom information. “Turn on gas.”

How far did they go?

Several of the defendants argued at detention hearings that they hadn’t entered the Capitol and shouldn’t be blamed for what occurred inside.

Caldwell, a retired Navy lieutenant commander, was released March 12 to home confinement pending trial after District Judge Amit Mehta discovered he was “differently situated” from co-conspirators the day of the riot as a result of he didn’t enter the constructing.

Caldwell’s lawyer, David Fischer, mentioned the “government has produced absolutely no evidence” of a plan to invade the Capitol. Fischer mentioned Caldwell was targeted on organizing a quick-reaction drive to take care of doable violence from Trump’s opponents.

Thomas Caldwell is one of those charged with conspiracy related to the Capitol riot on Jan. 6, 2021.

Thomas Caldwell is a type of charged with conspiracy associated to the Capitol riot on Jan. 6, 2021.
U.S. Department of Justice

“They were not planning to go into the Capitol,” Fischer mentioned.

In Donohoe’s case, prosecutors argued that he “played a direct role in unleashing violence on the Capitol.” Donohoe declared in Telegram messages that Jan. 6 made him “feel like a complete warrior” and that “We stormed the capitol unarmed… and we took it over unarmed,’ according to court records.

Donohoe’s lawyer, Lisa Costner, argued during a detention hearing that he never entered the Capitol. She said any celebratory comments about the riot resulted from braggadocio while drinking beers with friends afterward.

“This is not a man who was marshaling a large group of Proud Boys,” Costner mentioned. “I think that’s a pretty far stretch.”

But Assistant U.S. Attorney Jason McCullough mentioned Donohoe helped recruit and manage a bunch of males who traveled throughout the nation to disrupt the peaceable switch of energy of U.S. authorities.

David Sklansky, Stanford Criminal Justice Center
This is effectively past the naked minimal that may be required for a conspiracy charge.

“The danger is that he has the resources and capabilities to organize and mobilize – including travel to a location across the country,” McCullough mentioned. “There is a continuing threat that Donohoe represents.”

Legal consultants mentioned it doesn’t matter whether or not conspirators entered the Capitol.

“The allegations in these indictments go well beyond charging that there was an agreement to commit a crime,” Sklansky mentioned. “This is well beyond the bare minimum that would be required for a conspiracy charge.”

Some alleged conspirators still in jail
Proud Boys organizer Joseph Biggs.

Proud Boys organizer Joseph Biggs.
U.S. Department of Justice

The fees are critical sufficient that a number of defendants stay jailed pending trial.

District Judge Timothy Kelly ordered April 19 that Proud Boys members Ethan Nordean, 30, of Auburn, Washington, and Biggs to be taken into custody after they had been initially launched to house confinement. Prosecutors mentioned new proof from Telegram messages confirmed the 2 had been concerned in planning the obstruction of Congress and legislation enforcement.

Watkins told Mehta she disbanded her militia, but Mehta known as her an energetic participant and organizer, with supplies discovered at her house that recommended the potential for additional violence. According to courtroom information, a search of Watkins’ home Jan. 17 discovered:

  • battle gear.
  • radio.
  • mini drone.
  • pepper spray.
  • quite a few firearms.
  • paintball gun with rubber-steel balls.
  • pool cues reduce down to batons.
  • zip ties.
  • recipe for a harmful machine.

“You are an active participant, organizer, leader of others in engaging in this kind of conduct,” Mehta mentioned.

Attempts to hide alleged conspiracy

Participants allegedly scrubbed their social media of posts in regards to the riot. Young deleted his Facebook account and Caldwell deleted footage from Facebook, in accordance to courtroom information.

Prosecutors mentioned Donohoe tried to “nuke” messages on Telegram discussing the riot, but was unsuccessful.

“He is not some master Telegram administrator,” mentioned Costner, Donohoe’s lawyer.

But Sklansky mentioned utilizing encrypted messaging and erasing social media posts after the riot might be proof of a responsible frame of mind.

“It’s evidence that these individuals thought it was important to disguise their communications from law enforcement,” Sklansky mentioned.

Donald Trump's influence on the Capitol riot

The alleged conspirators aren’t charged with speaking with congressional Republicans or Trump’s staff. But members of the extremist teams evidently drew inspiration from the previous president, who baselessly claimed widespread election fraud.

“It is CRITICAL that all patriots who can be in DC get to DC to stand tall in support of President Trump’s fight to defeat the enemies foreign and domestic who are attempting a coup, through the massive vote fraud and related attacks on our Republic,” Stewart Rhodes, founder the Oath Keepers who hasn’t been charged within the riot, posted on the group’s web site Jan. 4, in accordance to courtroom information.

President Donald Trump speaks during the Jan. 6, 2021 rally in Washington, D.C., that preceded the Capitol attack.

President Donald Trump speaks in the course of the Jan. 6, 2021 rally in Washington, D.C., that preceded the Capitol assault.

Trump tweeted Dec. 19 an invitation to a “big protest in D.C.” on Jan. 6. “Be there, will be wild!”

Meggs, who was indicted with Watkins, seen. 

“Trump said It’s gonna be wild!!!!!!!” Meggs wrote Dec. 22 on Facebook. “He wants us to make it WILD that’s what he’s saying. He called us all to the Capitol and wants us to make it wild!!! Sir Yes Sir!!!”

When Trump started talking prior to the riot on Jan. 6, text analysis of Parler posts by USA TODAY confirmed that customers’ requires civil struggle intensified.

Ten Democratic lawmakers and the NAACP have sued Trump, accusing him of incitement.

Pursuing other suspects

Investigators would possibly leverage early fees to check whether or not defendants will cooperate, maybe disclosing who else was concerned in trade for a plea cut price with much less punishment.

Davis, who led Baltimore police investigating riots, looting and arson after the 2015 dying of Freddie Gray, mentioned detectives will trade statements from lower-level defendants with lesser punishments, so as to discover out who was finally accountable.

“Detectives are always ready to trade a six-pack for a 12-pack, and then they look to trade that 12-pack for a case of beer,” Davis mentioned.

One defendant within the Capitol riot, Jon Ryan Schaffer, 53, of Columbus, Indiana, a member of Oath Keepers who was not charged with conspiracy, pleaded guilty and agreed to cooperate with investigators. He was charged with being one of many first to breach the Capitol and with spraying police with bear spray. Schaffer pleaded responsible to obstruction of an official continuing and getting into a restricted constructing with a harmful weapon.

“This thing is probably look differently a year from now than it does today,” Davis mentioned. “We’ll have much better visibility by April 2022.”

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