Feds Seek to Drop First Capitol Riot Case Due to Lack of Evidence

Federal prosecutors told a federal judge Tuesday that they intend to drop a case against a New York man accused of being inside the Capitol during the Jan. 6 siege – marking the first of the nearly 500 Capitol riot cases to collapse for lack of evidence.

The man, Christopher Kelly, of New York City, was charged after a confidential informant told the FBI that Kelly was posting on Facebook about the riot, which the FBI said was evidence that he was in the building. 

However, the only known photos of Kelly that day showed him outside the building, including one of him posing shirtless with a United States flag as a crowd is seen gathered in front of the U.S. Capitol. There’s nothing to prove he was inside.

"The government and defense counsel have discussed the merits of the case, and upon reflection of the facts currently known to the government, the government believes that dismissal without prejudice at this time serves the interests of justice," the motion to dismiss reads.

Kelly's lawyer, Edward MacMahon, Jr. of Middleburg, Virginia, had no comment on the development. The FBI and Justice Department didn't return requests for comments.

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Kelly was initially arrested on federal charges weeks after the siege at his home in New City, New York, law enforcement sources previously said. The court papers alleged that Kelly traveled to Washington, D.C., with his brother, a retired NYPD officer, and a group of Proud Boys.

A confidential source provided law enforcement with screenshots of Facebook messages allegedly related to the events of Jan. 6 and photos of Kelly apparently inside the Capitol building, court documents show.

Due to these messages and photos, a search warrant was issued for Kelly's Facebook account. According to the criminal complaint, a review of IP log history from his Facebook account showed IP addresses which document locations consistent with travel from New City, New York, to Silver Spring, Maryland, on Jan. 6, and back to the New York area in the days after.

One of the photographs Kelly allegedly sent in a Facebook message apparently is of rioters inside the U.S. Capitol with the message "Inside Capitol." However, upon further inspection, it seems that the photos from inside the Capitol were taken by others and reposted by Kelly.

In additional messages shared on a group chat with several participants, the initial complaint says, Kelly allegedly wrote on Jan. 6 shortly after 2:20 p.m.: “We’re in!” and posted the same photo of inside the Capitol building. A chat participant then asked, “You're there, Chris Kelly? What's really going on?” to which Kelly allegedly responded, “MAGA is here full on. Capitol building is breached." He followed that message with “Tear gas, police, stopped the hearing, they are all headed to the basement,” and, “F--- these snakes. Out of OUR HOUSE!”

In yet another online conversation on Jan. 6, Kelly is allegedly asked “Are you inside?!” and,” Want me to share? I won’t tag you unless you want me to” in reference to the above photo. Kelly responded, “Sure spread the word, Taking this back by force now, no more bs.”

On the day of the siege and days after, Kelly allegedly flaunted being in Washington, D.C., during the time of the riot and sent a photograph multiple times to multiple people in which he is seen with an American flag with the U.S. Capitol building in the background, according to court documents. Other photos showed him bare-chested outside the Capitol.

Other riot cases have included data from cell phone service providers, indicating that a defendant's phone was inside the building. This case did not. Nor did it include any photos of Kelly himself inside the Capitol or offer any direct proof that he was among the rioters. 

Kelly was facing charges of obstruction of a congressional proceeding, unlawful entry, and violent entry or disorderly conduct, according to the criminal complaint.

Although the charges were dismissed, they were done so without prejudice, meaning it allows federal prosecutors to possibly bring another suit based on the same grounds.

This latest development marks the first case related to fall apart due to a lack of evidence. It also follows a myriad of arrests and charges against a number of tri-state residents in connection to the violent events that unfolded early January when a mob of former President Donald Trump supporters stormed the U.S. Capitol.