WASHINGTON — A Maryland judge batted away a volley of motions Tuesday aimed at undermining the case against a former Canadian Forces reservist who allegedly hoped to trigger a race war in the United States.
Only two of the motions filed on behalf of alleged neo-Nazi Patrik Mathews — one to dismiss two of the four charges he faces, the other to suppress his statements — survived the day.
His lawyer, Joseph Balter, had hoped the court would agree to suppress a raft of wiretap, email and video evidence on the basis that investigators lacked sufficient probable cause to collect it.
Balter also argued that much of the "odious" hate-filled, anti-Semitic rhetoric Mathews can be heard using on various videos, recordings and online chats is protected by his right to free speech.
District Court Judge Theodore Chuang, however, disagreed.
"The primary argument offered by Mr. Mathews is that these discussions of racist views and ideology are protected by the First Amendment and should have been minimized," Chuang said.
"That argument fails ... They provide evidence of intent to engage in hate crime, so those conversations were appropriately captured."
Balter had also asked the court to allow his client to stand trial separately from his alleged co-conspirator, Brian Lemley Jr., on the grounds that some of the evidence against Lemley could be prejudicial against Mathews, and that Balter might want to call him as a witness.
Chuang rejected that request as well, insisting that the two cases are "properly joined" given that the charges the men face are intertwined and that any risk of prejudice can be dealt with at trial.
Mathews, a former combat engineer, vanished from Beausejour, Man., in 2019 following media reports alleging he was a recruiter for a white-supremacist group known as The Base.
He was arrested in January 2020 along with Lemley and William Bilbrough, as part of a broader FBI investigation of the group.
Prosecutors allege the three were part of an elaborate white-supremacist plot to touch off a U.S. race war. They accuse Mathews of advocating for killing people, poisoning water supplies and derailing trains to incite a civil war in the name of creating a white "ethno-state," and of planning to violently disrupt a pro-gun rally in Virginia.
Mathews is facing four charges, including two counts of being an alien in possession of a firearm and two counts of transporting a firearm across state lines with intent to commit a felony.
Balter wants two of those charges dropped on the grounds that they are "multiplicious," meaning Mathews has effectively been charged twice for the same alleged offence, he argued.
Chuang opted to reserve judgment on that motion, and said he would address whether to suppress certain statements — they violate Mathews's right against self-incrimination, Balter argued — during the next evidentiary hearing.
During his arguments, Balter also insisted that in their zeal to target members of The Base for a hate crime, investigators overstepped their bounds and violated his client's right to free speech.
The "odious" nature of the discussions documented by investigators clearly merited investigation, Balter said — but they stopped short of being criminal.
"The type of statements that were being made, the beliefs that were being espoused, the advocacy of violence ... would cause many, many people to be very concerned," Balter admitted.
"And there certainly was reason for the agent to be concerned and perhaps conduct an investigation as to whether or not there was more to the bluster ... but that's really as far as it went."
Lemley's lawyer, Ned Smock, made a similar argument, noting that a surreptitious camera and microphones shouldn't have been necessary, considering how easily the group had been infiltrated by an undercover agent.
U.S. law only permits going to such extraordinary lengths to gather evidence when all other avenues have been pursued and no other reasonable options exist.
Even a reporter from the Winnipeg Free Press, whose original work exposed Mathews and prompted a Canadian Forces investigation, was able to get inside the group, Smock noted.
"A member of the Canadian press, who as far as I know didn't have any meaningful training on undercover work, had been accepted into the organization," he said.
"All of this information could have been obtained by continuing down the road that they were going, which is undercover."
The central tenet of the defence's argument is that the various district and magistrate judges who granted the search warrants — all six of them; four in Maryland and two in Delaware — made grievous errors in law, said assistant U.S. Attorney Thomas Windom.
"So six different federal judicial officers were wrong?" Windom said.
"It's not just one judicial officer, two judicial officers — it's six. And I think that the structure of this investigation shows the agents' good faith."
Bilbrough pleaded guilty in December to two charges, including transporting an alien, and admitted in his plea agreement to being a member of The Base. He was sentenced to five years in prison.
This report by The Canadian Press was first published Feb. 16, 2021.
James McCarten, The Canadian Press