In the first of likely to be many more similar cases, a prosecutor has moved to dismiss a case against an alleged Jan. 6th Capitol rioter for lack of evidence. Christopher Kelly of New York City was arrested on Jan. 20th after FBI agents were informed that Kelly posted on Facebook about plans to attend the protest and an informant claimed Kelly posted a photo appearing to be inside the Capitol building.

According to NBC News:

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.”

So far there are approximately 500 pending cases involving the Capitol riot and many are likely to crumble over lack of evidence.