Federal prosecutors told a federal judge Tuesday that they intend to drop a Capitol riot case against a New York man accused of having been inside the Capitol during the siege in January.
It is the first of the nearly 500 Capitol riot cases to collapse for lack of evidence.
The man, Christopher Kelly of New York City, was arrested Jan. 20 after the FBI said a paid confidential informant told agents that Kelly was posting material on a Facebook Messenger app about the riot and his plans to be in Washington on Jan. 6. The informant said a photo taken inside the Capitol was also posted, according to the FBI.
In the charging documents filed in court, an FBI agent said, “I believe the messages and image … reflect that Chris Kelly was using this account to inform associates that he had breached the Capitol and was inside.”
The court document accompanying the charges included photos that the FBI said showed Kelly on the Capitol grounds, but they did not include any further indication that he entered the building.
Other riot cases have included data from cellphone service providers indicating that defendants’ phones were 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.
In seeking to drop the case Tuesday, a prosecutor wrote that, “upon reflection of the facts currently known to the government, the government believes dismissal … serves the interest of justice.” The motion to dismiss said the government and defense counsel “have discussed the merits of the case.”
Kelly’s attorney, Edward MacMahon Jr. of Middleburg, Virginia, had no comment.