PHILADELPHIA - A Philadelphia judge declined Thursday to dismiss election-related charges against two Virginia men accused of driving with guns and a lockpicking tool to a site where Philadelphia votes were being counted in early November.
Lawyers for the two men, Joshua Macias, 42, and Antonio LaMotta, 61, both of Chesapeake, Virginia, had argued that there was no evidence they interfered or tried to interfere with election-related activities and that it appeared they were being punished for their beliefs, including support for false theories that the presidential election was fraudulent.
Both men were originally arrested on weapons charges early Nov. 5 after Philadelphia police officers, acting on a tip from the FBI, stopped the two men near the Pennsylvania Convention Center, where votes were being counted.
Authorities said they parked a Hummer a few blocks away that was adorned with QAnon stickers and contained an AR-style rifle and ammunition. LaMotta was carrying an unlicensed firearm, and Macias was carrying a firearm licensed in Virginia, authorities said.
In the motion to drop the charges of attempted interference with primaries and elections and of conspiracy, LaMotta's attorney Lauren Wimmer argued that prosecutors had not proved the men had made a substantial step toward interfering with an election-related duty.
"I think we're really punishing them for their thoughts, and that's what this comes down to," she said during a virtual court hearing Thursday. "There's no evidence of them scouting out where the fraudulent ballots are. They didn't tap on doors and windows, asking where is the truck full of ballots."
Macias' attorney William Brennan likened text messages between the two men and their drive to Pennsylvania to cases of Philadelphia Eagles fans threatening to kill the Dallas Cowboys.
"It’s delusions of grandeur ... but they go down and tailgate, and drink their beer and then they go home," he said.
Macias "purports to hold a certain set of political beliefs and those are beliefs, you know, I might not agree with and I don’t. But, it’s puffery without the action."
Assistant District Attorney Andrew Wellbrock said, however, that police did not have to stop the two in the process of breaking into the Convention Center for their actions to fall under the statute.
"It doesn’t matter whether they succeeded or if their beliefs were false," Wellbrock argued Thursday. "Police found them before that trouble started. ... They didn't succeed, but that's not the standard."
Judge Mark Moore said the state had presented enough evidence based on text messages between the men and their planning the drive to "give a serious picture to what the court believes was these individuals’ intent."
The issues raised by defense attorneys would be better decided by a jury before denying the motion to drop the elections charges, Moore said.
Weapons-related charges against Macias had been dropped because he was licensed to carry the gun in Virginia, but a spokesperson for the prosecutor's office said those charges were reinstated.
DOWNLOAD: FOX 29 NEWS APP