IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v No 1 21-cr-28 APM KENNETH HARRELSON Defendant GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION FOR RECONSIDERATION OF CONDITIONS OF RELEASE Defendant Kenneth Harrelson should remain detained pending trial Like his co-defendant Kelly Meggs as “Gator 1” Defendant Harrelson as “Gator 6” was one of the leaders of the group of Oath Keepers who organized and plotted with coconspirators to stop the certification of the Electoral College vote prepared to use violence if necessary and stormed the Capitol Afterwards he attempted to delete incriminating evidence and falsely distance himself from the Oath Keepers and then he perjured himself at his detention hearing For these reasons the Court should maintain the order that the defendant be detained pending trial and deny the defendant’s motion ECF 143 I Background Video recorded on January 6 2021 captured the defendant among a “stack” of more than a dozen individuals dressed in camouflaged para-military gear moving in a deliberate and organized manner toward the Capitol building An additional recording shows the stack moments later embedded near the front of a violent mob that is attempting to break open the doors of the Capitol building The video depicts the doors later opening and the subsequent flow of people into the building to include the defendant and members of the stack Selfies and surveillance video taken inside of the Capitol Rotunda further evince Defendant Harrelson’s and his coconspirators’ presence inside Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 1 of 33 2 Co-defendant Jessica Watkins characterized their insurgent effort to breach the Capitol building as “forcing entry into the Capitol building” and said that it was “ f orced Like Rugby ” On the afternoon and evening of January 6 co-defendant Graydon Young wrote on Facebook that “ w e stormed and got inside ” Co-defendant Kelly Meggs wrote in a Signal chat “Ok who gives a damn who went in there… We are now the enemy of the State ” An hour later Kelly Meggs wrote to the same Signal chat “We aren’t quitting We are reloading ” Based on his actions described above on March 10 2021 Defendant Harrelson was arrested on a complaint charging him with conspiracy in violation of 18 U S C § 371 a felony destruction of government property in violation of 18 U S C § 1361 a felony obstruction of an official proceeding in violation of 18 U S C § 1512 c 2 a felony entering a restricted building without lawful authority in violation of 18 U S C § 1752 a a misdemeanor Defendant Harrelson made his initial appearance in the Middle District of Florida the following day and was detained pending a hearing pursuant to 18 U S C § 3142 f On March 12 2021 a federal grand jury in Washington D C indicted Defendant Harrelson along with nine co-defendants on the same four counts from the complaint 1 On March 15 2021 Magistrate Judge Embry J Kidd of the Middle District of Florida conducted a detention hearing and ordered that Defendant Harrelson be detained pending trial ECF 7 Case 6 21-mj-01221-EJK M D Fla Defendant Harrelson testified at the detention hearing 2 He admitted that he shot his neighbor’s dog in August 2004 was arrested for drug possession in 2003 and was arrested for 1 On March 31 2021 the grand jury handed up a third superseding indictment adding defendants 11 and 12 but leaving the charges as to Defendant Harrelson unchanged 2 A copy of the transcript is attached as Exhibit 1 Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 2 of 33 3 battery in 2001 3 15 21 Tr at 24 He denied taking any photos or videos while inside the Capitol on January 6 2021 3 15 21 Tr at 25-26 Judge Kidd found that the presumption of detention in Section 3142 e applied and that evaluating the factors under Section 3142 g led to the conclusion that Defendant Harrelson would be a danger to the community if released Id at 51 Judge Kidd found that the evidence was Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 3 of 33 4 strong that Defendant Harrelson has strong community ties that the arrest for battery is “really concerning” but did not result in a conviction that there is no indication of failing to appear for court and that there is some indication of drug and alcohol abuse Id at 49-50 Judge Kidd also found that the charges against Defendant Harrelson – for which the grand jury has found probable cause – show that Defendant Harrelson has “an absolute disregard for the validity of official proceedings that are being held by the United States government So that to me is very troublesome ” Id at 51 On April 6 2021 Defendant Harrelson filed the instant motion ECF 143 II Legal Standard a Detention Hearing Defendant Harrelson is apparently moving for “revocation or amendment” of Magistrate Judge Kidd’s detention order under Section 3145 b As the defendant indicates in his motion the court’s review is de novo ECF 143 at 2 see also United States v Munchel No 21-3010 2021 WL 1149196 at 5 n 3 D C Cir Mar 26 2021 noting that Chief Judge Howell conducted a de novo review of a release order under Section 3145 a and that district courts have “broad discretion” to review magistrate judges’ detention decisions citation omitted Upon holding a detention hearing the Court “shall order” a defendant detained if it “finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community ” 18 U S C § 3142 e Here there are no conditions that could assure the latter in other words releasing the defendant would present a “danger to the community ” United States v Vasquez-Benitez 919 F 3d 546 550 D C Cir 2019 “When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community ” the Supreme Court has Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 4 of 33 5 explained “a court may disable the arrestee from executing that threat ” United States v Salerno 481 U S 739 751 1987 Notably “the threat need not be of physical violence and may extend to ‘non-physical harms such as corrupting a union ’” Munchel 2021 WL 1149196 at 7 quoting United States v King 849 F 2d 485 487 n 2 11th Cir 1988 “In assessing whether pretrial detention is warranted for dangerousness the district court considers four statutory factors 1 ‘the nature and circumstances of the offense charged ’ 2 ‘the weight of the evidence against the person ’ 3 ‘the history and characteristics of the person ’ and 4 ‘the nature and seriousness of the danger to any person or the community that would be posed by the persons’ release ’” Id at 4 quoting 18 U S C § 3142 g At a detention hearing the government may present evidence by way of a proffer United States v Smith 79 F 3d 1208 1209-10 D C Cir 1996 b Application of Presumption and Factors To Be Considered Defendant Harrelson is wrong to contend that the presumption of detention in Section 3142 e does not apply Under Section 3142 e 3 C the presumption arises if the offense – here felony destruction of property under Section 1361 – is “listed in S ection 2332b g 5 B ” and carries “a maximum term of imprisonment of 10 years or more ” Nothing more Section 3142 e 3 C does not reference Section 2332b g 5 A and thus to obtain the presumption the government has no obligation to show that the “offense was calculated to influence or affect the conduct of government by intimidation or coercion ”3 3 However to show that the offense is a “ f ederal crime of terrorism” to be considered as part of the “nature and circumstances of the offense” under Section 3142 g 1 the government must meet both of Section 2332b g 5 ’s prongs A purpose of offense and B enumeration of offense The conduct of Defendant Harrelson and his coconspirators – invading and temporarily taking over the national legislature while it was convening pursuant to federal law to formally count the ballots for the presidential election – was clearly “calculated to influence or affect the conduct of Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 5 of 33 6 Regardless the government submits that here it has shown that the offense of felony destruction of property with which Defendant Harrelson has been indicted is a federal crime of terrorism that carries a maximum term of imprisonment of 10 years or more and that was calculated to influence or affect the conduct of government by intimidation or coercion In other words the offense of felony destruction of property both gives rise to the presumption of detention under Section 3142 e 3 C and constitutes a federal crime of terrorism as part of the nature and circumstances of the offense to be considered under Section 3142 g 1 Here the government is not relying on the strength of the evidence as to the Section 1361 violation to support Defendant Harrelson’s detention In fact once the grand jury has found probable cause that Defendant Harrelson violated Section 1361 felony – and here it has – then under the guidance of United States v Singleton 182 F 3d 7 12 D C Cir 1999 the government has satisfied its burden under Section 3142 f 4 to trigger a detention analysis under Section 3142 g III Argument Defendant Harrelson cannot rebut the presumption of detention under Section 3142 e 3 C And the factors to be considered under Section 3142 g support Defendant Harrelson’s continued detention a Preparation Defendant Harrelson’s Actions Prior to Storming the Capitol Defendant Harrelson was a leader of this group of Oath Keepers who came to Washington D C prepared to do violence and then stormed the Capitol government by intimidation or coercion” under Section 2332b g 5 A And because the offense is enumerated in Section 2332b g 5 B the definition of “ f ederal crime of terrorism” has been satisfied 4 The same rationale would apply to the detention analysis under Section 3142 e 3 C Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 6 of 33 7 i Training and Access to High-Powered Firearms In the fall of 2020 Defendant Harrelson wearing Oath Keepers garb and along with co defendants Kelly and Connie Meggs and others participated in a “gunfight oriented training” with an AR-platform firearm See ECF 106 Indeed on March 10 2021 the FBI located an AR-15- style rifle inside a gun safe at Defendant Harrelson’s house ii Leadership Role 1 GoToMeeting Between September 30 2020 and January 3 2021 Defendant Harrelson using the names “gator 6 ” “hotel 26 ”5 or “kenneth harrelson ” attended or organized approximately 30 meetings on Go To Meeting that appear to be related to the Oath Keepers 5 The government identified Defendant Harrelson as “gator 6” and “hotel 26” in part from his IP address and in part from communications recovered from his phone in which he refers to himself as “Gator 6” and also tells others that his email address contains the words “hoteltwosix ” Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 7 of 33 8 Tellingly prior to the presidential election on November 3 2020 Defendant Harrelson often logged in using his own name and twice with the name “hotel 26” and always participated as an “attendee ” But following the election he never logged in under his own name he most frequently used the moniker “gator 6” but occasionally “hotel 26” and starting in December 2020 was far more frequently an “organizer” rather than an “attendee ” Notably for the meeting titled “dc planning call” on January 3 Defendant Harrelson as “gator 6” was one of the three “organizers” a second organizer was co-defendant Kelly Meggs as “gator 1” 2 Signal Several members of the conspiracy – as well as other members and affiliates of the Oath Keepers – participated in at least two Signal chats titled “DC OP Jan 6 21” hereinafter “National Signal Chat” and “OK FL DC OP Jan 6” hereinafter “Florida Signal Chat” The chats show that the participants were planning and anticipating to use force on January 6 Notably Defendant Harrelson was a member of both chats as “Gator 6” as were co-defendants Jessica Watkins and Kelly Meggs as “OK Gator 1” Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 8 of 33 9 In the Florida Signal Chat co-defendant Kelly Meggs told others that Defendant Harrelson would be “run ning the ground team” and coordinating and managing the others state teams Per the explicit instructions from Kelly Meggs Defendant Harrelson would be “assisted” by others but would both be in charge and would tell the other state team leaders how to “handle” their own teams The only two people with “admin” privileges who added other users on the Florida Signal Chat appear to be Defendant Harrelson and co-defendant Kelly Meggs again suggesting Defendant Harrelson’s leadership role iii Quick Reaction Force QRF and Stashing Firearms The evidence suggests that Defendant Harrelson was both aware of the presence of an armed Quick Reaction Force and likely contributed weapons to it This evidence is drawn primarily from the communications in the Florida Signal Chat Defendant Harrelson’s cell site location information CSLI hotel surveillance video and information about Person Three Person Three who was a member of the National Signal Chat stayed at the Comfort Inn Ballston as confirmed by surveillance video there and the fact that Person Three paid for one of the rooms at the hotel 6 As recounted in the third superseding indictment on December 30 2020 co-defendant Caldwell wrote to co-defendant Watkins “Talked to Person Three … H e is trying 6 As recounted in the third superseding indictment Kelly Meggs paid for two other rooms at the Comfort Inn that had been reserved in Person Three’s name ECF 127 at ¶ 45 Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 9 of 33 10 to book a room at Comfort Inn Ballston Arlington because of its close-in location and easy access to downtown because he feels 1 he’s too broken down to be on the ground all day and 2 he is committed to being the quick reaction force an d bringing the tools if something goes to hell ” ECF 127 at ¶ 45 On January 4 in the Florida Signal Chat co-defendant Watkins asked the group “Where can we drop off weapons to the QRF team I’d like to have the weapons secured prior to the Op tomorrow ” On the morning on January 5 in the Florida Signal Chat Defendant Harrelson asked the group for the location of the “QRF hotel ” and co-defendant Kelly Meggs responded by asking for a direct message7 Defendant Harrelson’s CSLI shows that on January 4 he drove from Florida to North Carolina where he stayed the night on or near the property of Person Five a known leader of the North Carolina Oath Keepers and that he left North Carolina early on the morning of January 5 to drive to the Washington D C area About three hours after sending the above message Defendant Harrelson arrived in the area of the Comfort Inn Ballston where he remained for about an hour before driving into Washington D C It is reasonable to believe that during this hour Defendant Harrelson was dropping off his weapons with Person Three and the QRF 7 Note that that Defendant Harrelson and co-defendant Kelly Meggs treated the location of the QRF with some level of additional secrecy insisting on a “direct message” for its address rather than putting the address in the Florida Signal Chat which was itself an encrypted app requiring an invitation to join Moreover while the government was able to extract data from the cell phones of both Defendant Harrelson and co-defendant Kelly Meggs the government has not located the “direct message” between the two men suggesting that both deleted it Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 10 of 33 11 Defendant Harrelson’s CSLI shows that after he left the area of the Comfort Inn Ballston at around 12 30 p m he spent the remainder of January 5 all day on January 6 and the early morning of January 7 in downtown Washington D C Given that co-defendant Kelly Meggs and other known Oath Keepers paid for multiple rooms at the Hilton Garden Inn in Washington D C and that Defendant Harrelson’s CSLI places him in that area overnight of January 5 and 6 it is reasonable to believe that Defendant Harrelson similarly stayed at the Hilton Garden Inn while he was in the Washington D C area On the morning of January 7 in response to Defendant Harrelson asking about the location of his “shit ” another member the Florida Signal Chat asked if he had left it at the Comfort Inn Defendant Harrelson’s CSLI shows that he was in the area of the Comfort Inn about twenty minutes later from 9 08 am through 9 48 am before starting his drive southward Indeed surveillance video from the Comfort Inn shows what appears to be Defendant Harrelson rolling what appears to be at least one rifle case down a hallway and towards the elevator Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 11 of 33 12 In other words it is reasonable that Defendant Harrelson dropped his weapons off with the QRF at the Comfort Inn Ballston on January 5 and then retrieved those weapons on the morning of January 7 as he left the Washington D C area Defendant Harrelson’s reference to needing to locate his “shit” on the morning on January 7 is most naturally read as a reference to his weapons given that his clothing and other personal effects would have been with him at the Hilton Garden Inn where he appears to have spent the nights of January 5 and 6 Especially in light of the fact that co-defendant Kelly Meggs had previously advised that “Dc is no guns ” ECF 127 at ¶ 39 the most logical inference is that Defendant Harrelson left the guns with his comrades just over the border in Virginia in anticipation of an opportunity to use them later in the nation’s capital b Obstructing the Certification Defendant Harrelson’s Actions on January 6 In the National Signal Chat in which Defendant Harrelson was also a member on January 6 at approximately 1 38 p m Person One wrote to the group “All I see is Trump doing is complaining I see no intent by him to do anything So the patriots are taking it into their own hands They’ve had enough ” At 2 14 p m an individual leading the coordination of the security details run by the Oath Keepers on January 5-6 stated in the National Signal Chat “The have taken ground at the capital We need to regroup any members who are not on mission ” Person One then reposts that message and instructs the group “Come to South Side of Capitol on steps” and then sends a photograph showing the southeast side of the Capitol At 2 41 p m Person One posted another photograph in the National Signal Chat showing the southeast side of the Capitol with the caption “South side of US Capitol Patriots pounding on doors ” At around the same time Defendant Harrelson – with several of his coconspirators – was breaching the Capitol itself Defendant Harrelson arrived at the Capitol by 2 00 p m on January 6 At that time he Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 12 of 33 13 recorded a video IMG_1396 8 outside the Capitol At around 5 seconds a man is heard stating “They’re storming the fucking Capitol building ” At around 23 seconds a man is heard stating “I think we should go ” When the video pans to the east side steps of the Capitol it is clear that the rioters have not yet ascended the steps and that the Capitol Police have been able to hold the line Defendant Harrelson likely recorded another video and then deleted it because the next video is IMG_1398 In IMG_1398 recorded at 2 21 p m Defendant Harrelson is on the top of the steps on the east side of the Capitol The video shows that the steps and veranda have been overrun over the prior 20 minutes with rioters At around the same time 2 20 p m the U S Capitol Police locked down the Senate chamber to protect Vice President Pence the senators and staffers from the rioters that had begun to storm the Capitol and from the mob that was enveloping the building At around 2 30 p m law enforcement began to evacuate Vice President Pence and senators from the Senate chamber Over the prior ten minutes Defendant Harrelson had assumed a position with an optimal vantage point Defendant Harrelson stood on the top of the steps on the east side of the Capitol facing away from the Capitol and towards the growing crowd Defendant Harrelson then signaled to and waved at the stack of Oath Keepers to join him at the top of the steps A New York Times article “Tracking the Oath Keepers Who Attacked the Capitol”9 shows Defendant Harrelson red arrow facing the military-style “stack” formation of individuals moving up through the crowd towards the door of the Capitol 8 Three pertinent video files from Defendant Harrelson’s phone – IMG_1396 IMG_1398 and IMG_1399 – are described below and are being provided to the Court on a disc as Exhibit 2 9 https www nytimes com interactive 2021 01 29 us oath-keepers-capitol-riot html Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 13 of 33 14 And video footage from AP News10 shows Defendant Harrelson red circle interacting with these stack members as they move towards his position of prominence 10 See https apnews com article ex-military-cops-us-capitol-riot-a1cb17201dfddc98291edead5 badc257 gallery 0ecd1781c66d437f92c61b3f4848a74e at slide 10 Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 14 of 33 15 Towards the top of the stops Defendant Harrelson joined the co-conspirators in the “stack” formation with hands on each other’s backs or flak jackets some with obvious Oath Keeper insignias visible on their clothing The group as captured on video moved further up through the crowd onto the veranda towards the doors of the Capitol 11 These individuals who are wearing helmets reinforced vests and clothing with Oath Keeper logos and insignia can be seen moving in an organized and practiced fashion and forcing their way to the front of the crowd gathered around a set of doors A close-up view of the badges on the vest of one of these individuals seen just under the Oath Keepers emblem on his shirt displays the Oath Keepers motto “Not On Our Watch ” The badge also says “I don’t believe in anything I’m just here for the violence ” 11 The video is available at the following link at slide 10 https apnews com article ex-military cops-us-capitol-riot-a1cb17201dfddc98291edead5badc257 Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 15 of 33 16 Defendant Harrelson started recording an almost-three-minute-long video IMG_1399 at 2 39 p m as he and his coconspirators actually forcibly breached the Capitol 12 The blaring alarms should have made it be obvious to Defendant Harrelson that the Capitol was under attack and the rioters were not welcome to enter At around 2 40 p m as captured by surveillance video Defendant Harrelson as part of the stack and with seven of his current co-defendants rushed through the Capitol doors and past a police officer trying to keep the crowd at bay A photojournalist captured Defendant Harrelson red oval storming from the just-breached east doors into the Rotunda at the front of a pack of several of his coconspirators13 12 As described in the section below about Defendant Harrelson’s obstructive conduct he later shared this video via text message 13 See http www kentnishimura com january-6-2021-siege-trump-supporters-storming--us capitol-attack Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 16 of 33 17 In the video from Defendant Harrelson’s phone IMG_1399 starting at around 1 21 on the counter the crowd loudly chants “Treason Treason ” At the 1 45 mark a person – it’s unclear if it’s Defendant Harrelson or someone standing near him – yells “This is our fucking house ” At the 2 00 mark tear gas was deployed by the police to repel the rioters Defendant Harrelson did not leave the Capitol At the 2 15 mark Defendant Harrelson interacts with co defendant Watkins and another member the stack at the mouth of a hallway leading north towards the Senate He then moves back into the Rotunda At the 2 27 mark a person – again it’s unclear if it’s Defendant Harrelson or someone standing near him – states “We took the fucking Capitol ” At the 2 47 mark just before Defendant Harrelson stops recording he links up with other members of the stack Defendant Harrelson’s video stops at around 2 42 p m yet he does not exit the Capitol for another 15 minutes Surveillance and public source video shows that with some of his coconspirators once inside the Capitol Defendant Harrelson first attempted to go north towards the Senate Some of the coconspirators were part of a group of rioters who pushed down a hallway connecting the Rotunda to the Senate chamber Thankfully a group of police officers in riot gear was able to Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 17 of 33 18 push the rioters back into the Rotunda and away from the Senate chamber by deploying a chemical irritant Defendant Harrelson with other members of the conspiracy including notably co-defendant Kelly Meggs then moved south back across the Rotunda in the direction of the House of Representatives The coconspirators’ movements and statements are relevant to their intent and their dangerousness While trying to go north towards the Senate the rioters chanted phrases such as “Fuck McConnell ”14 After apparently being sprayed with a chemical irritant one man who is wearing Oath Keepers gear and who appears to have been part of the stack waves other rioters towards the line of police and yells “the fight’s not over ”15 Then when Defendant Harrelson moved south in the direction of the House chamber it is reasonable to infer that he and his coconspirators may have been going to look for Speaker Nancy Pelosi Indeed on the evening of January 6 co-defendant Caldwell who remained outside the Capitol but apparently was in communication with coconspirators inside wrote “Proud boys scuffled with cops and drove them inside to hide Breached the doors One guy made it all the way to the house floor another to Pelosi’s office A good time ” And co-defendant Kelly Meggs 16 with whom Defendant Harrelson appears to have been travelling while inside the Capitol had the following exchange with another person on the night of January 6 on Signal about having sought out Speaker Pelosi 14 See https www liveleak com view t 9ZobJ_1610107203 15 See the broadcast of the French news show Quotidien at around the 5 02 mark on the clip available at https www tf1 fr embedplayer 13760032 startAt 0 16 In the extraction from his cell phone co-defendant Kelly Meggs’s name appears as “Kelly Dad ” Also the time zone is UTC which in January was five hours ahead of Eastern Time Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 18 of 33 19 Defendant Harrelson remained inside the Capitol for about 17 minutes in total until finally leaving with several of his coconspirators at around 2 57 p m Near the doors prior to leaving Defendant Harrelson had what appears to be verbal exchange with a Capitol Police officer in riot gear with Defendant Harrelson initially facing the officer and then the officer raising his riot shield and placing it between himself and Defendant Harrelson While Defendant Harrelson eventually left the Capitol he did not leave the area At around 4 00 p m a large group – including Defendant Harrelson and co-defendants Kelly Meggs Connie Meggs Graydon Young and Laura Steele other members of the stack and other individuals Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 19 of 33 20 wearing “Oath Keepers” clothing and insignia who stormed the Capitol – gathered around Person One and stood around waiting for at least ten minutes in that location c Future Dangerousness Defendant Harrelson’s Actions After the Attack Evidence collected from Defendant Harrelson’s iPhone and premises demonstrate his risk of future dangerousness Specifically Defendant Harrelson has gone to great lengths to evade law enforcement detection – including deleting potentially inculpatory information and distancing himself from the Oath Keepers organization Evidence recovered from his premises also strongly suggests Defendant Harrelson was prepared if necessary to evade detection even further as he had a “go bag” a bag designed for quick escape filled with a flip phone gun ammunition and survival books Taken together this evidence counsels in favor of detention and undermines any assurances that he would comply with conditions of release necessary to assure the safety of the community i Access to Firearms and a “Go Bag” On March 15 2021 the FBI located three firearms inside Defendant Harrelson’s house An AR-15-style rifle17 and a revolver were inside the large gun safe and a semi-automatic handgun with two magazines was inside what appears to have been a “go bag ” The gun safe shown below also contained seven survival guides including one on “eluding pursuers and evading capture” 17 A photo of the rifle is above in Section III a i Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 20 of 33 21 Defendant Harrelson’s “go bag ” in addition to the handgun with a light attachment and two magazines contained a “burner” cell phone i e a flip phone that was not Defendant Harrelson’s usual iPhone an iPad a holster and three books18 18 The titles of the books are The Book of Five Rings The Bushcraft Field Guide to Trapping Gathering and Cooking in the Wild and Technological Slavery The Collected Writing of Theodore J Kaczynski a k a “The Unabomber ” Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 21 of 33 22 These materials are consistent with someone seeking to evade detection ii Deleting Messages Defendant Harrelson’s iPhone shows that he deleted almost all of his text messages and Signal messages through late February 2021 This obstructive conduct suggests additional inculpatory evidence existed – which Defendant Harrelson took steps to remove His deletion of the messages through which he sent video of the breach IMG_1399 is particularly acute Records show that he sent the video of the breach via text message on the evening of January 6 at 6 14 p m and on January 7 3 24 p m Neither of those text messages are present in Defendant Harrelson’s phone suggesting that he deleted them The text message sent on January 6 at 6 14 p m was sent at minimum to co defendant Kelly Meggs The government was able to confirm that fact by reviewing records from Meggs’s cellphone which show this same video with a creation date of January 6 at 6 11 p m residing on Meggs’s phone Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 22 of 33 23 But the message through which this video was sent from Defendant Harrelson to co-defendant Kelly Meggs is missing from both men’s phones suggesting that they both deleted it Moreover Defendant Harrelson re-saved the video twice on his phone on January 12 both times in a “trimmed” smaller file size This means that at minimum Defendant Harrelson accessed the video on January 12 and likely also sent the video in this smaller trimmed format to others Again there is no record of any messages whatsoever on Defendant Harrelson’s phone during this time frame suggesting he deleted these messages along the remainder of his incriminating messages iii Affiliation with the Oath Keepers The evidence also suggests Defendant Harrelson was worried his affiliation with the Oath Keepers would be detected and subsequently took steps to distance himself from the organization These efforts however appear intended to obfuscate his affiliation when in fact he has remained in contact with the leadership of the Oath Keepers In the National Signal Chat on the night of January 6 Defendant Harrelson deleted multiple messages he had previously sent and that the government has not yet recovered and then wrote “Didn’t realize I was in a unsecured chat with Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 23 of 33 24 a bunch of shit bags And blue falcons ”19 Defendant Harrelson made his comments after the following exchange in the National Signal Chat from earlier in the evening on January 6 suggesting that Defendant Harrelson was worried that at least one other member of the group was going to turn on him Person One Look I WAS THERE I WAS RIGHT OUSIDE Patriots stormed in Not Antifa And I don’t blame them They were justifiably pissed off Kelly Meggs Ok who gives a damn who went in there If it’s Obama himself it doesn't matter What matters is where we are now and decisions that have to be mad We are now the enemy of the State Person Eleven As I figured This organization is a huge fuckin joke You Name of Person One are the dumbass I heard you were Good luck getting rich off those Dumb ass PSD donations you fuck stick On January 20 2021 – inauguration day – Defendant Harrelson sent an email to co defendant Kelly Meggs purporting to resign from the Oath Keepers itself as well as from being the “POC” for “EFL” likely the “point of contact for east Florida” 19 A “blue falcon” is likely military jargon for a backstabbing comrade Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 24 of 33 25 Two hours later he sent a similar “resignation” message apparently attempting to distance himself from the “national” organization whose beliefs allegedly did not align with his own and whose members had “malicious intent” But this attempt at distance appears to have been a farce In early March 2021 Defendant Harrelson exchanged phone calls with Person One – the leader of the Oath Keepers – and then he Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 25 of 33 26 sent a message through Signal on March 6 directly to Person One apologizing for not having done a better job of monitoring the job Kelly Meggs was doing20 Person One sent Defendant Harrelson a long message about reforming the organization and asked Defendant Harrelson to transmit it to others Defendant Harrelson both “hearted” the message and agreed to pass it on 20 Kelly Meggs had been arrested a few weeks earlier on February 17 In the Signal messages embedded herein Defendant Harrelson’s comments are on the righthand side in blue Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 26 of 33 27 Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 27 of 33 28 Defendant Harrelson then discussed setting up a “face to face” meeting with another person affiliated with the Oath Keepers and also referenced an allegation about the Proud Boys leader being an “FBI informant ”21 The import of Defendant Harrelson’s statement appears to be that one should be careful around this individual based on his supposed assistance to the FBI On March 7 Defendant Harrelson and Person One exchanged Signal messages about filings made in this very case 21 Kelly Meggs had told others that Meggs had been in contact with the same leader of the Proud Boys in the weeks leading up to January 6 See Gov’t Opp to Meggs’s Motion for Release ECF 98 at 10 Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 28 of 33 29 And the following day Person One and Defendant Harrelson exchanged Signal messages that show Defendant Harrelson’s true power within the organization When Person One started a chat on Rocket Chat it was Defendant Harrelson who received a notification22 At least as of November 2020 oathkeepersnational org hosted a Rocket Chat server that housed chat threads apparently advocating violence and attacks on the media 23 22 Notably Defendant Harrelson references receiving an email but that email was not located on his iPhone suggesting that it went to one of his two known secure encrypted ProtonMail accounts Rocket Chat provides this description of its software “Rocket Chat is a free and open source team chat collaboration platform that allows users to communicate securely in real-time on web desktop or mobile and to customize their interface with a range of plugins themes and integrations with other key software Anyone in the world can download and run a Rocket Chat server at any time ” See https docs rocket chat legal guidelines-for-law-enforcement 23 See https unicornriot ninja 2020 its-time-to-start-killing-the-news-media-live-on-air-oath keepers-private-chats-show-increased-desire-for-post-election-violence Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 29 of 33 30 Defendant Harrelson’s administrative control of an Oath Keepers chat as of just last month – after he purported to “resign” from the organization and tried to disassociate himself from the actions of national leadership – demonstrates that he is a continued threat to the community Moreover Defendant Harrelson had additional Signal communications with another Oath Keeper member in March 2021 regarding supposed government surveillance on Defendant Harrelson’s house the need to be careful about electronic monitoring the need for “face to face meetings ” and hoping that the “Deep State feels this pain ” Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 30 of 33 31 iv Lying at the Detention Hearing As indicated above Defendant Harrelson took the stand at his detention hearing in Orlando on March 15 2021 and testified under oath that he did not take any videos while inside the Capitol 3 15 21 Tr at 25-26 That was a lie He not only took a video but also sent it via message to multiple people on January 6 7 and 12 Moreover Defendant Harrelson sponsored his wife’s testimony at the same detention hearing and she testified that there was never an assault rifle in the house 3 15 21 Tr at 16-17 The FBI’s documentation of a real AR-15-style rifle – not the “AirSoft” rifle that Defendant Harrelson’s wife referenced – belies this statement Perjuring oneself at a detention hearing is an appropriate consideration under Section 3142 g 3 which focuses on the defendant’s characteristics including specifically a defendant’s “record concerning appearance at court proceedings ” If a court should consider a defendant’s appearance at court proceedings the court can surely consider a defendant’s conduct at those proceedings See e g United States v Feldman No 11-20279-CR 2016 WL 8505085 at 2 S D Fla Aug 1 2016 holding that a defendant’s perjury during a court proceeding “demonstrated his total lack of trustworthiness” and “ma de him a flight risk” under Section 3142 f 2 United States v Djoko No CR19-0146-JCC 2019 WL 4849537 at 4 W D Wash Oct 1 2019 holding that a defendant’s “apparent willingness to destroy evidence and lie to authorities creates a serious risk that he may attempt to obstruct justice in some other way” Indeed in United States v Robertson 608 F Supp 2d 89 92 D D C 2009 the court held that the defendants should be detained because their release “would pose an unreasonable risk of obstruction of justice ” based on their prior obstructive conduct Here Defendant Harrelson’s obstructive conduct – evidenced both through planning and entering the Capitol and then lying under oath to the magistrate – makes him unlikely to follow Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 31 of 33 32 any combination of conditions designed to ensure his appearance or the community’s safety “It is ultimately the responsibility of this Court to ensure the integrity of its own judicial proceedings ” Id Indeed since the January 6 attack on the Capitol Person One has ordered Oath Keepers to continue to engage in undetected communications and to disobey laws and orders enforced by an administration deemed illegitimate Defendant Harrelson’s continued participation in the Oath Keepers despite claims to the contrary and willingness to commit obstruction and perjure himself show that he is an adherent of this approach Appellate courts have routinely upheld the obstruction enhancement under U S S G § 3C1 1 for lying to a magistrate judge during a detention hearing in an effort to escape detention See e g United States v Harkness 305 F App’x 578 585-86 11th Cir 2008 United States v Harrison 42 F 3d 427 431 7th Cir 1994 United States v Mafanya 24 F 3d 412 415 2d Cir 1994 If making false statements to a judicial officer during a detention hearing is serious enough to warrant an enhancement under the Guidelines it is surely also serious enough weigh in favor of a defendant’s detention itself Defendant Harrelson’s preparation for a potentially armed escape his multipronged efforts to evade detection and his perjury refute any assures the Court may have that Defendant Harrelson would comply with its release conditions IV CONCLUSION For all these reasons the government submits that Defendant Harrelson has not rebutted the presumption under Section 3142 e 3 C that he be detained pretrial as there are no conditions that will reasonably assure the safety of the community Defendant Harrelson’s motion should therefore be denied Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 32 of 33 33 Respectfully submitted CHANNING D PHILLIPS ACTING UNITED STATES ATTORNEY By Jeffrey S Nestler Assistant United States Attorney D C Bar No 978296 Ahmed M Baset Troy A Edwards Jr Jeffrey S Nestler Kathryn Rakoczy Assistant United States Attorneys U S Attorney’s Office for the District of Columbia 555 4th Street N W Washington D C 20530 s Alexandra Hughes Alexandra Hughes Justin Sher Trial Attorneys National Security Division United States Department of Justice 950 Pennsylvania Avenue NW Washington D C 20004 Case 1 21-cr-00028-APM Document 152 Filed 04 12 21 Page 33 of 33