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It took federal prosecutors just over a year to get inside ex-Proud Boys leader Enrique Tarrio's seized cell phone, with red tape, not encryption problems, keeping key Capitol attack evidence locked away, a new court filing reveals.
Unspecified access issues — involving a search warrant and a "filter team" that was assigned to cull evidence from the phone — were to blame, the feds said in papers filed Thursday.
Only after the phone's data was finally available — in mid-January of this year — could prosecutors see Tarrio's central involvement in the Jan. 6, 2021 breach of the Capitol, according to the papers, filed in US District Court in DC.
"I'm not playing games," Tarrio had messaged members of the hate group in the run-up to the attack, the feds allege his phone shows. "You want to storm the Capitol," he allegedly responded when another chat among Proud Boy leaders singled out the House of Representatives as a target.
It is just this kind of long and perplexing delay that is the subject of a heated back-and-forth on speedy trial and pre-trial detention issues between the feds and the lawyers for a half-dozen Proud Boys, Tarrio included.
The six are charged together with conspiring to obstruct Congress in its certification of Joe Biden's presidency; they are being held without bail.
They are among some 60 other defendants being held pre-trial in the Department of Justice's 775-defendant prosecution of the Capitol breach.
These jailed "J6ers" comprise fewer than one in ten of all defendants in the massive case, but their often lengthy pre-trial detentions are fueling alt-right crusades to free the "political prisoners" from a tyrannical federal government, experts who monitor extremism have told Insider.
Lawyers for the six Proud Boys want the current May 18 trial date delayed and their clients released in the interim. Some are asking their clients be tried separately from others in the group.
In Thursday's filing, prosecutors asked the DC judge who would preside at the conspiracy trial, US District Court Judge Timothy J. Kelly, to stick to the May 18 date.
The feds described the phone-access issues in explaining why Tarrio — who was off-site during the attack — could only be linked to the conspiracy and arrested earlier this month.
That's one year and two weeks after authorities took his phone.
Local police had seized the device on Jan. 4, 2021, when they arrested him for admittedly having burned a Black Lives Matter flag outside a DC church on December 12.
The phone seizure came just two days before the Capitol breach, and was occasion for some scrambling by Proud Boys who had been messaging with Tarrio in planning the attack, and who were still at liberty, the feds said.
"Everything is compromised and we can be looking at Gang charges," co-defendant Charles Donohue allegedly worried.
Whatever happened to delay prosecutors' access to the phone, it wasn't a lack of "diligence," Thursday's filing said.
"The government promptly sought a search warrant for that device in this investigation," it said.
"Despite diligence, the government was not able to obtain access to Tarrio's phone until December 2021. Thereafter, a filter team was utilized" to ensure that only admissible evidence would be culled.
"The investigative team did not gain access to the materials on the phone until mid-January 2022, and it has worked expeditiously since that time to review these materials," the filing said.
The parties are back in court on April 5 for a status conference; Tarrio's arraignment is also scheduled for that date, his lawyers did not immediately respond to a request for comment.
