The lawyer for former Canadian Forces reservist Patrik Mathews urged a Maryland judge Tuesday to suppress evidence he believes was obtained by violating his client’s constitutional rights.
Joseph Balter also wants District Court Judge Theodore Chuang to throw out two of the four charges against Mathews and to try him separately from his co-accused, Brian Lemley Jr.
U.S. prosecutors and defence counsel for both men took part in a video hearing to argue over a barrage of motions meant to chip away at a mountain of wiretap, email and location evidence.
Mathews, a former combat engineer, vanished from Beausejour, Man., in 2019 following media reports alleging he was a recruiter for a white-supremacist group known as The Base.
He was arrested in January 2020 along with Lemley and William Bilbrough, as part of a broader FBI investigation of the group.
Prosecutors allege the three 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 faces four charges: 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.
Balter wants two of those charges dropped on the grounds that they are “multiplicious,” meaning Mathews has effectively been charged twice for the same alleged offence, he argued.
And he sought Tuesday to convince Chuang that in their zeal to target members of The Base for a hate crime, investigators overstepped their bounds and violated his client’s right to free speech.
The nature of the discussions that investigators documented was certainly “odious” and merited investigation, Balter said.
“The type of statements that were being made, the beliefs that were being espoused, the advocacy of violence … would cause many, many people to be very concerned,” Balter said.
“And there certainly was reason for the agent to be concerned and perhaps conduct an investigation as to whether or not there was more to the bluster … but that’s really as far as it went.”
Lemley’s lawyer, Ned Smock, made a similar argument, saying a surreptitious camera and microphones shouldn’t have been necessary, considering how easily the group was infiltrated by an undercover agent.
Even a reporter from the Winnipeg Free Press, whose original work exposed Mathews and prompted a Canadian Forces investigation, was able to get inside the group, Smock said.
“A member of the Canadian press, who as far as I know didn’t have any meaningful training on undercover work, had been accepted into the organization,” he said.
“All of this information could have been obtained by continuing down the road that they were going, which is undercover.”
Bilbrough pleaded guilty in December to two charges, including transporting an alien, and admitted in his plea agreement to being a member of The Base. He was sentenced to five years in prison.