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Prosecutors seek to drop first Capitol riot case

Federal prosecutors told a federal judge Tuesday that they intend to drop one of the Capitol riot cases, against a New York man accused of being inside the Capitol during the siege.

It was the first of the nearly 500 Capitol riot cases to collapse for lack of evidence.

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 Jan. 6. The informant said a photo taken inside the Capitol was also posted, according to the FBI.

An alleged photo of Christopher Kelly holding a flag in front of the U.S. Capitol building around the time of the riot.U.S. Attorney’s Office / 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 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.

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 the case said the government and defense counsel “have discussed the merits of the case.”

Kelly’s lawyer, Edward MacMahon, Jr., of Middleburg, Virginia, had no comment on the development.

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