Lawyers for the Morgantown man accused of cooperating in the pepper-spraying of police not only contend that wasn’t his intention but that he can be heard on video arguing against it.
“Don’t do it, don’t do it, Julian,” lawyers for George Tanios say he can be heard saying to his co-defendant, Julian Khater.
Tanios is trying to be released from jail while awaiting trial. Federal judges have concluded he should continue to be detained, so Tanios is asking for their conclusions to be overturned by the U.S. Court Of Appeals for the D.C. Circuit.
“Tanios is not dangerous and he did not commit violent acts at the Capitol on January 6. Specifically, Tanios did not aid and abet his co defendant, Julian Khater,” lawyers for the Morgantown sandwich shop owner wrote in a new brief to appeals judges.
Tanios is accused of obtaining and carrying extremely strong pepper spray, and Khater is accused of spraying it at officers, causing them to be injured and resulting in a distraction that enabled others to breach a bike rack barrier outside the Capitol. One of the officers, Brian Sicknick, later died but a medical examiner ruled the chemical spray was not the direct cause.
Tanios and Khater have been held in jail while awaiting trial, which could be months and months considering the many cases. U.S. District Judge Thomas Hogan in D.C. and U.S. Magistrate Judge Michael Aloi in West Virginia each have rejected requests to release the two from jail.
Khater’s appeal was denied earlier this week, but appeals judges are still considering Tanios’s request.
In a brief filed Wednesday, lawyers for Tanios acknowledged that he bought pepper spray at a Morgantown area supply shop but said he obtained it for self defense.
“At the time of the purchase, on January 5, Tanios could not fully appreciate the actual level of danger in DC on January 6,” his lawyers wrote. “However, Tanios knew this would be a major rally, which could have suggested an increased level of danger.”
Although Khater called Tanios while he was making the pepper spray purchase, lawyers for Tanios say there is no evidence they discussed what he was buying.
“This telephone call does not suggest any criminal intent,” wrote lawyers for Tanios. “There is no evidence that during the call Tanios told Khater he was at ATR Performance in Morgantown, which sold chemical spray, or that Tanios planned to purchase chemical spray to harm law enforcement officers.”
As the rally turned chaotic, video evidence shows that Khater wanted the spray from the backpack that Tanios was carrying. He referred to bear spray, which was among the purchases, but wound up obtaining a smaller canister of pepper spray.
Lawyers for Tanios say a full conversation by the two men captured on video shows that he rejected Khater’s demand. “What’s more, Tanios argued against the use of spray on law enforcement,” his lawyers wrote.
Lawyers for Tanios say the full conversation, which included strong language, was this:
Khater: “Give me that bear shit.”
Tanios: “Oh my God…focus, focus.”
“Don’t do it, don’t do it, Julian.”
“Hold on, hold on, not yet, it’s still early”
Khater: “Gimme that. Give it to me”
Tanios: “Listen, listen.”
Khater: “They just fucking sprayed me!”
Tanios: “No, it’s not about [that]”
The lawyers for Tanios acknowledge the exact words are hard to hear, but they pieced the transcript together with multiple reviewers and high-end headphones.
“Clearly, based on the totality of the recorded conversation, there is no agreement between Tanios and Khater,” wrote lawyers for Tanios. “Tanios did not join Khater’s plan to use spray against others on Capitol grounds. Tanios disagreed with Khater. What’s more, the evidence suggests that Tanios and Khater argued about this for quite some time.
“Obviously, if the men had a plan to assault police officers, Tanios would have quickly handed the spray to Khater.”
Federal prosecutors disagree with all those points and argued in an earlier filing that the decision to keep Tanios in jail should stand.
“Appellant’s conversation with Khater before buying the sprays, his purchase of multiple sprays, his travel with Khater together with the sprays, and Khater’s access to the sprays at the Capitol showed appellant’s intent to share use of the sprays with Khater,” prosecutors wrote.
“The evidence that appellant and Khater talked together for several minutes as the crowd became excited and attacked police, coupled with appellant’s statement that it was ‘too early’ for the bear spray and that Khater should ‘hold on’ regarding using it, showed appellant’s intent that the chemical spray be used against police.”
Finally, prosecutors wrote, “Although Tanios claims he intended just to use the sprays for self-defense, there was no evidence of counter-protestors or others potential attackers for whom appellant would have been reserving the spray: the only imminent violence was between the crowd and police.”
Tanios and Khater are charged with nine counts including assaulting three officers with a deadly weapon. The charges are punishable by up to 20 years in prison.
Tanios has pleaded not guilty.
While awaiting trial, Tanios has proposed abiding by several conditions including home detention with electronic monitoring, 24-hour video surveillance, a restricted list of visitors, designated visiting hours, abstaining from use of smart phones or social media sites and reporting daily to pretrial services.
The mob storming the U.S. Capitol disrupted the constitutional duty of counting Electoral College votes and prompted the evacuations of representatives, senators and Vice President Mike Pence. One woman was fatally shot while trying to climb into the chambers, three others died from “medical emergencies” and more than 100 police officers were injured.
Of the thousands of protesters in Washington, D.C., that day, about 800 went into the Capitol, police have said. More than 400 people have been charged so far.
West Virginians facing federal charges of entering the Capitol that day are former Parkersburg Councilman Eric Barber, former state Delegate Derrick Evans of Wayne County, who resigned after being charged, and college senior Gracyn Courtright of Hurricane.
Tanios is the president of Morgantown’s Sandwich University, which advertises over-the-top foods. The photos that investigators used to identify him at the U.S. Capitol showed him wearing clothing with the logo for Sandwich University.