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SUBSCRIBER EXCLUSIVE | SEPTEMBER 09, 2023

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This 22-Year Sentence for a January 6 Defendant May Lead to a Monumental Appeal

News of the sentence rumbled across the District of Columbia like a thunderclap.

Henry “Enrique” Tarrio Jr., 39, of Miami, was given an eye-popping 22-year prison sentence on Sept. 5 for seditious conspiracy and five other Jan. 6 crimes by U.S. District Judge Timothy Kelly.

What made the former Proud Boys chairman’s sentence unusual is that he wasn’t even in Washington on Jan. 6. He didn’t enter the Capitol. He didn’t strike a police officer, break a window, deploy bear spray, or rifle through a senator’s desk.

Proud Boys leader Enrique Tarrio smiles during a march in Portland, Ore., on Aug. 17, 2019. (John Rudoff/AFP via Getty Images)

Mr. Tarrio’s fate, handed down by Judge Kelly at the end of a nearly four-hour sentencing hearing, became the crown jewel in the Department of Justice’s unprecedented, sweeping criminal prosecution of nearly 1,150 Jan. 6 defendants.

On Jan. 6 and shortly after, Mr. Tarrio applauded the actions of the Proud Boys on the ground at the U.S. Capitol.

He likened Dominic Pezzola’s smashing of a Senate Wing window at 2:13 p.m. to the 1776 revolutionary spirit of George Washington. That drew the ire of Judge Kelly, who admonished Mr. Tarrio to “leave George Washington out of it.”

Over the course of a few days, Judge Kelly—appointed to the bench by President Donald J. Trump—handed down five of the top six Jan. 6-related prison sentences to top Proud Boys leaders.

Ethan Nordean was sentenced to 18 years in prison. Joseph Randall Biggs received a 17-year term. Zachary Rehl and Mr. Pezzola will serve 15 and 10 years, respectively.

The judge ruled that shaking and toppling a fence at the Capitol was an act of terrorism. He applied sentence enhancers for terrorism while also expressing doubts that the flattening of a fence truly met the definition of a terrorist act. The judge ruled that Tarrio, who was an hour away in Baltimore, was just as guilty of the fence leveling as his men.

Proud Boys organizer Joseph Biggs walks from the George C. Young Federal Annex Courthouse in Orlando, Fla., on Jan. 20, 2021. (Sam Thomas/Orlando Sentinel via AP)

Mr. Tarrio and his cohorts were not allowed to probe very deeply or learn much about what could have been dozens of federal informants embedded in the Proud Boys on Jan. 6. One defense attorney said there were more than 50 “confidential human sources” spying on the group.

Much like the prosecution of nearly two dozen members of the Oath Keepers, the Proud Boys’ nearly four-month trial tilled potentially fertile ground for precedent-setting action by the U.S. Court of Appeals and the U.S. Supreme Court.

The backbone of the prosecution of the Proud Boys and Oath Keepers is the Civil War-era seditious conspiracy law.

Section 18 U.S. Code §2384 states that seditious conspiracy exists when two or more people “conspire to overthrow, put down, or to destroy by force the government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States…”

The federal statute might well be used against former President Trump in a superseding indictment to charges brought against him by DOJ Special Prosecutor Jack Smith.

Defending against seditious conspiracy in a D.C. federal court looks a bit like trying to nail Jell-O to the wall. Such a charge could pose a danger to President Trump in the overwhelmingly Democratic District of Columbia.

Another prominent felony charge used against the Proud Boys and Oath Keepers is obstruction of an official proceeding. The federal statute has never been employed in such a manner, and the controversy surrounding it has pushed one Jan. 6 case to the U.S. Supreme Court.

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The motorcade with former President and 2024 Presidential hopeful Donald Trump leaves the Fulton County Jail in Atlanta, Ga., on Aug. 24, 2023. (CHANDAN KHANNA/AFP via Getty Images)

According to the DOJ, “more than 317 defendants have been charged with corruptly obstructing, influencing, or impeding an official proceeding, or attempting to do so.” The official proceeding at issue in the Jan. 6 cases is the counting of Electoral College votes from the 2020 presidential election by a joint session of Congress.

The obstruction charge is based on 18 U.S. Code §1512(c)(2), a law enacted to prevent tampering with evidence in an “official proceeding.”

In his petition to the U.S. Supreme Court, defense attorney Norman A. Pattis said the question posed is whether a statute “crafted to prevent tampering with evidence in ‘official proceedings’ can be used to prosecute acts of violence against police officers in the context of a public demonstration that turned into a riot.”

In other recent Jan. 6 developments:

• Sean Michael McHugh, 36, an Auburn, Calif., construction contractor, was sentenced by U.S. District Judge John Bates to 6.5 years in federal prison for assaulting police on the west plaza of the Capitol on Jan. 6. Prosecutors sought a 10.25-year prison term, while Mr. McHugh asked for 24 months.
• The number of Jan. 6-related arrests by the FBI crossed the 1,146 mark, according to a Sept. 6 announcement from the Department of Justice. Nearly 400 defendants have been charged with assaulting, resisting or impeding police officers. Nearly 660 defendants have pleaded guilty to criminal charges: 198 for felonies and 459 for misdemeanors. The cases of nearly 625 defendants have been adjudicated with sentences handed down.
• Joseph Cattani, 40, of Colgate, Wis., was arrested by the FBI on Sept. 7 and charged with civil disorder and assaulting, resisting or impeding certain officers at the Capitol on Jan. 6. Both charges are felonies.
• Two Chicago brothers were sentenced by U.S. District Judge Trevor McFadden for one count each of assaulting, resisting or impeding law enforcement officers. Daniel Leyden, 55, of Chicago, was sentenced to 38 months in prison. Joseph Leyden, 56, of La Grange, Ill., was given a six-month prison sentence.
• Kevin Louis Galetto, 63, of Merritt Island, Fla., was sentenced by U.S. District Judge Colleen Kollar-Kotelly to 27 months in prison on felony convictions for civil disorder and assault of a federal officer.

To dig deeper into the subject, read the following original reporting by our journalists:

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