The lawyer for Patrik Mathews is asking a U.S. court to throw out two of the four charges against the former Canadian Forces reservist and alleged neo-Nazi, and to allow his client to stand trial separately from his alleged co-conspirators.
In a series of motions filed Monday in Maryland District Court, lawyer Joseph Balter is also urging the judge to quash a raft of wiretap, email and location evidence that he argues is prejudicial against Mathews and was obtained by way of warrants that violated his constitutional rights.
"The search warrants were issued in violation of the Fourth Amendment of the United States Constitution, because the affidavits underlying the warrants did not establish probable cause to believe evidence of the crimes ... would be found," the documents argue.
A separate motion also seeks to suppress statements Mathews himself gave to investigators, whom the defence accuses of violating his right against self-incrimination, his constitutional right to counsel and his Miranda rights.
Mathews, a former combat engineer, vanished from Beausejour, Man., last year following media reports alleging he was a recruiter for a white-supremacist group known as The Base. He's been in custody since January along with two others, Brian Lemley Jr. and William Bilbrough, after the trio were arrested as part of a broader FBI investigation of the group.
All three have pleaded not guilty.
Prosecutors in Maryland allege the three men 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.
The latter two charges are "multiplicious," Balter argues — the offence they describe is essentially the same as in the other two, meaning that Mathews is being charged twice for the same offence.
He has also moved for his client to be tried separately from the other two on the grounds that Mathews won't be able to get a fair trial as a co-accused.
"The presentation of evidence against the co-defendants in a single trial will be prejudicial to the rights of Mr. Mathews because the vast majority of discovery does not relate to Mr. Mathews' alleged offences," Balter writes.
Because Lemley and Bilbrough face a number of charges that Mathews does not, "the jury will be unable to compartmentalize the evidence as it relates to Mr. Mathews."
The motion also contemplates the likelihood that prosecutors will introduce evidence of statements made by either co-defendant that would implicate Mathews. "Should the co-defendants not testify at trial, Mr. Mathews would be denied his confrontation rights as provided by the Sixth Amendment of the U.S. Constitution."
The flurry of filings is the first public movement in months on the case, which like countless others has been slowed and complicated by the COVID-19 pandemic. The court agreed twice to waive U.S. speedy-trial deadlines owing to the complex nature of the case, the sheer volume of evidence and the extenuating public-health circumstances.
Authorities in Georgia and Wisconsin also arrested four other men in January linked to The Base, a group that has been attracting more scrutiny from law enforcement in recent months.
Officials say it is part of a wider spread of white nationalism and extremist ideology throughout the U.S., following a model similar to that of al-Qaida, the Islamic State group and other violent organizations that rely on the internet and social media to mobilize independent cells or individuals who share their philosophies.
Other motions filed with the court this week make clear that the discovery process is not yet complete; both Lemley and Mathews are seeking the right to file additional motions after Monday's deadline "based upon ongoing investigation and discovery disclosures."
A pre-trial teleconference between prosecutors, defence counsel and District Judge Theodore Chuang has been scheduled for Friday.