Taken together, these developments clarify key facts about the day before Sicknick’s death, which has emerged as one of the most well-known incidents from the insurrection.
Khater and Tanios have pleaded not guilty and maintain that they’re not a danger to the public. They’re seeking to be released from jail and will be before a federal judge again next week.
Past testimony from Khater and the manager of a gun shop had already established that Tanios bought canisters of bear spray and pepper spray shortly before January 6. Prosecutor Gilead Light said Tuesday that it was the pepper spray that Khater allegedly used on Capitol grounds.
A “smaller can of a different chemical spray” was used, but “the bear spray is relevant because it goes to the planning,” Light said, arguing that the defendants had geared up for violence and were ready to use the repellant. “It’s an uncontested fact that there are no bears in downtown DC.”
At Tanios’ detention hearing in West Virginia, the phrase “bear spray” was brought up 20 times, according to a transcript. An FBI agent who testified at that hearing danced around the question of whether it had been deployed, saying the investigation was “ongoing” and that the canisters hadn’t been submitted for forensic analysis. But prosecutors did say the cans “appeared to be intact.”
Khater’s attorney Joseph Tacopina needled prosecutors at Tuesday’s hearing by saying the bear spray “turned out not to be bear spray,” and argued that it was a “defensive” pepper spray.
Will they be released?
The muddled narrative has played out while Khater and Tanios fight for their release from jail.
Attorneys for Khater propose that he be released under a $15 million bond and put under house arrest because he has no history of violence, no engagement with extremist groups and didn’t go inside the Capitol. (He was still charged with entering restricted grounds because he was in an area that had been blocked off ahead of time and wasn’t open to the public on January 6.)
Tanios’ lawyer brought in two witnesses who testified Tuesday in favor of his release. A 20-year veteran of the West Virginia National Guard called Tanios “a big teddy bear,” and one of Tanios’ cousins said he would “never see (Tanios) as a threat to leave his country” and flee before trial.
“He’s looking forward to going to court and proving his innocence,” the cousin said.
Prosecutors say the man planned for violence, helped the Capitol fall to the mob and still poses a threat. Judge Thomas Hogan will hear more arguments next week and issue a ruling.
Murder probe fizzles
Khater and Tanios’ case may be the only charges ever brought involving the Sicknick incident.
“This, in fact, all but assures prosecutors won’t charge anyone with homicide related to Officer Sicknick’s death,” former US Attorney Preet Bharara told CNN. “The report appears conclusive that he died of natural causes, and it could look like overcharging if prosecutors went that route.”
When the autopsy results were released last week, indicating that Sicknick had died of natural causes, the Capitol Police said it “accepts” the findings but that he “died in the Line of Duty.”
In court filings and arguments, prosecutors have never connected the chemical spray assault to Sicknick’s death. Khater and Tanios are charged in a 10-count indictment with conspiring to injure an officer, assaulting an officer with a dangerous weapon, civil disorder and other crimes.
Former federal prosecutor Elie Honig, a CNN legal analyst, said there are still options for prosecutors to hold people responsible for Sicknick’s death, though it’s unlikely to happen.
“Under federal law, there is a felony murder law,” Honig said. “It means you’re liable for any death that occurs in the course of certain felonies, though it’s tough to find one that matches this set of circumstances. The only one that comes close — but is still a stretch — is burglary.”
CNN’s Zachary Cohen contributed to this report.