By Mark Gutglueck
Federal prosecutors are seeking to utilize former Fontana Assistant Police Chief Alan Hostetter’s own words both before and during the January 6, 2021 U.S. Capitol insurrection and his statements in defending himself at trial against charges that he played a major role in leading the thwarted effort to prevent Joseph Biden from assuming the presidency in 2021 to convince the judge who convicted him of four felonies relating to that massive show of unrest to sentence him to 12 years and seven months in prison.
Hostetter served in the Army, went to work for the Orange County Sheriff’s Department in the mid-1980s, transferred to the Fontana Police Department in 1989, worked his way up the ranks to become the Fontana Unified School District’s police chief, then a captain with Fontana PD and then assistant Fontana Popolice chief before capping his law enforcment career as La Habra’s police chief. While in retirement, with the advent of the COVID-19 crisis in 2020, Hostetter took an active role in protesting first California’s masking and social distancing mandates, then alleged a vast governmental conspiracy relating to the vaccine developed in response to the disease’s onset before becoming convinced that Donald Trump’s victory in 2020 represented the United States’ and mankind’s last hope to stave off a national and worldwide plunge into the domination of communism. When Trump was defeated at the polls in Novermber 2020, Hostetter grew into a key co-progenitor of the movement that alleged the 2020 presidential election had been stolen from Trump by communists and traitors he insisted were aligned with the Democrats.
Having co-founded with wealthy Orange County businessman Russell Taylor the American Phoenix Project as a bulwark against what he characterized as California Governor Gavin Newsom’s fascistic efforts to arrest the spread of COVID-19, he formed an alliance with another wealthy Orange County figure, Morton Irvine Smith, and a support network consisting of Erik Scott Warner, Felipe Antonio “Tony” Martinez, Derek Kinnison, and Ronald Mele to resist those state mandates throughout California but primarily in Orange County in early and mid-2020. Initially, Hostetter organized rallies at various locations throughout the Southland, often serving as a mouthpiece for the movement. On May 21, 2020, Hostetter was arrested along with seven others for leading a protest against the closure of the parking lot at the public beach in San Clemente when he chained himself to a barrier fence erected by government officials. As the 2020 election season progressed closer and closer to the November 3 Election, Hostetter became progressively more fixated on reelecting Trump, whom he described as “the greatest president this country ever had.” Hostetter participated as a speaker at multiple Trump rallies in the months and weeks before the election.
When Trump lost on November 3 and suggested through multiple media postings that the election had been stolen from him, Hostetter, in conjunction with Taylor, Smith,
Warner, Martinez, Kinnison, and Mele began an effort to effectively protest and then block the certification of the election, primarily by massive scale protests that were to take place and did take place in the nation’s capital on, first, November 14, 2020, and then in early January 2021 in the days leading up to and including the January 6, 2021 certification of the election.
On January 5, Hostetter gave an incendiary speech in the area near the Supreme Court, calling for the prevention of the election’s certification.
On January 6, Hostetter, Taylor, Warner, Martinez, Kinnison, and Mele were present on the Capitol grounds when the insurrection riot broke out. At one point, when elements of the crowd broke into the Capitol building, Warner joined those who went inside. Hostetter and Taylor remained outside the Capitol building, at one point going up onto the West Terrace, from which vantage he used a bullhorn to incite the crowd.
In June 2021, Hostetter, Taylor, Warner, Martinez, Kinnison, and Mele were indicted and arrested for taking part in a conspiracy to obstruct the election process. Morton Irvine Smith, who was credited with being a fellow director of Hostetter’s nonprofit American Phoenix Project, was not indicted.
Initially, Hostetter, Taylor, Warner, Martinez, Kinnison, and Mele appeared to be following the advice or a previous American revolutionary, Ben Franklin, who famously said, “We must all hang together, or, certainly, we will all hang separately.” All six maintained their innocence and seemed to be working through established and logical channels to use attorneys to represent them in their legal defenses.
In October 2021, however, Hostetter fired his attorneys and made a motion before the court to represent himself, one that was granted by the judge on the case, Federal Judge Royce Lamberth, sitting in Washington, D.C., where the case against Hostetter and his co-defendants was to be heard, only after Judge Lamberth made clear to Hostetter that such a move was ill-advised.
Shortly after Hostetter became his own attorney, he broke with his co-defendants, alleging in motions he authored himself that Taylor, Warner, Martinez, Kinnison, Mele and Smith were actually agents of the government working in conjunction with the FBI, Democrats, communists, liberals, the Illuminati, “secret societies” such as the Freemasons and the Skull and Bones fraternity at Yale University and religious “cults” such as Scientologists and the Church of Jesus Christ of Latter-day Saints, the “swamp” of “Deep State” actors in Washington, D.C. and the Joseph Biden-controlled Justice Department to discredit him. The motive for going after him, Hostetter claimed in the motion to the court, was his having taken a stand in opposition to “COVID-19 lockdowns and stay-at-home orders” instituted during the coronavirus pandemic and his effectiveness in leading that movement. His motion sought the dismissal of all of the charges against him. Judge Lamberth denied the motion. Nevertheless, Hostetter’s tactics forced the court to separate his case from that of his fellow defendants.
Earlier this year, Taylor entered a guilty plea and agreed to turn state’s evidence and testify against the others, including Hostetter. Momentarily, this heartened Hostetter, who thought he might use Taylor’s capitulation to reapply and make more convincing his assertion that the federal government was plotting against him.
Hostetter, conscious that Judge Lamberth was a Ronald Reagan appointee, a Republican and sympathetic to a public and political orientation that held law-and-order in high regard, believed he could use his status as an Army veteran and career law enforcement professional who had acceded to the posts of assistant Fontana police chief and La Habra police chief to forge a rapport with Judge Lamberth. He agreed to forego a jury trial and instead be tried in a bench trial with Lamberth serving as both judge and jury.
Taylor’s defection proved less than helpful to Hostetter during his July trial, as he testified about the preparations the group in which they were a part engaged in prior to the actions in the nation’s capital, extending to arming themselves with weapons, including axes they both carried with them in their backpacks in their sojourn to the Capitol grounds on January 6.
After the trial, Judge Lamberth found Hostetter guilty on all four felony counts lodged against him – conspiracy to obstruct an official proceeding; obstruction of an official proceeding, including aiding and abetting others engaged in that obstruction and interference; entering and remaining in a restricted building or grounds with a deadly or dangerous weapon; and disorderly and disruptive conduct in a restricted building and grounds with a deadly or dangerous weapon.
“Even if Mr. Hostetter sincerely believed – which it appears he did – that the election was fraudulent, that President Trump was the rightful winner, and that public officials committed treason, as a former police chief he still must have known it was unlawful to vindicate that perceived injustice by engaging in mob violence to obstruct Congress,” Judge Lamberth said in pronouncing his verdicts.
The U.S. Attorney’s Office sought to have Hostetter immediately incarcerated upon conviction pending his sentencing, but Judge Lamberth denied that motion, holding off on sentencing until the remaining four defendants – Warner, Martinez, Kinnison and Mele – were to go to trial in October. In October, however, their trial was postponed until November. At a jury trial in November, again with Taylor testifying, all four were convicted on November 8, 2023 of conspiracy to obstruct an official proceeding, among other offenses.
The way is now clear for Hostetter’s sentencing to take place.
In a sentencing memorandum filed November 29, 2023, submitted ahead of Hostetter’s anticipated December 7 sentencing, United States Attorney Matthew M. Graves and assistant U.S. attorneys Anthony Mariano and Jason Manning asserted that Hostetter’s criminal activity in furtherance of the January 6 insurrection merits him 151 months in federal prison.
According to Graves’, Mariano’s and Manning’s memo, “Alan Hostetter planned for the January 6, 2021 riot for weeks. He conspired with others, he collected weapons, and he traveled across the country for the riot, with the goal of using the threat of violence to disrupt the peaceful transfer of power. On January 6, 2021, armed with a hatchet and other weapons, he joined his co-conspirators and a mob of other rioters in surrounding the U.S. Capitol building, where he remained for hours, in defiance of police commands and at risk to the safety of the government officials in the building. The United States requests that this court sentence Hostetter to 151 months of incarceration, 36 months of supervised release, $2,000 in restitution, and a special assessment of $400.”
Graves, Mariano and Manning acknowledged that the sentence they are seeking is more than the straight-across and standard basic punishment that would normally be meted out for the crimes Hostetter was convicted of, but they argued that the way he approached his action and the pernicious motivation behind his sedition placed him in a special category of offenders.
“The United States recommends this upward departure from the government’s calculated advisory guidelines range of 108–135 months, to reflect the gravity of Hostetter’s conspiratorial conduct, including his planning and preparations with Russell Taylor for the attack on the U.S. Capitol on January 6th – an attack that was clearly calculated to influence and affect the conduct of the United States government and to disrupt the peaceful transfer of power,” the prosecutors wrote.
“When Trump lost, Hostetter and Taylor turned to each other to figure out how to take action to help change the results,” according to Graves, Mariano and Manning, who reasoned that “Hostetter had a clear view of what was coming.” They quoted him as stating, “If this doesn’t turn around, we will eventually ‘occupy’ every state capitol and DC with millions of people!”
The prosecutors noted that “[E]ven before the election, Hostetter was promoting a violent and revolutionary ideology – just in case the election did not go his way. For example, at an October 2020 conference focused on the QAnon conspiracy theory in Scottsdale, Arizona, Hostetter was a featured speaker, on behalf of his organization, the American Phoenix Project. Hostetter told the crowd, ‘Nobody wants violence. Nobody wants violence.’ But Hostetter’s message that day was not a nonviolent one,”according to the prosecutors, who quoted him verbatim as saying, “We are taught from the time we are children in this country to always think that violence is a horrible, horrible thing. Until we go back and reflect on our revolutionary war. They picked up guns at some point and said, ‘Enough.’ Until we reflect on the Civil War, when we ended slavery by picking up guns and dealing with it that way. We don’t want that to have to happen, but it always has to be something in the back of your mind. We’ve never been as close to it as we are today since the Civil War. And you have to be thinking like that. I’m all about peace, until somebody comes after my kids and my grandkids and says, ‘No, they’re gonna live under communist rule. We’re gonna have Marxist school systems.’”
According to Graves, Mariano and Manning, “Hostetter made it clear that he did not view violence as necessary at that time, but only for one reason: he thought Trump would win. He explained, ‘There comes a time when people end
up picking up guns. I’m not advocating that. I think through the ballot box on November 3rd, it’s gonna be such a huge victory that we will avoid violence by a landslide election.’ Hostetter told the crowd that he would abstain from violence – if Trump won. Then Trump lost.”
The prosecutors’ brief continues, “In November 2020, Hostetter traveled to Washington, D.C., for the ‘Million MAGA [Make America Great Again] March’ – a rally to protest the 2020 election results. Hostetter drove to Washington, D.C. for that event, so that he could bring weapons for himself and for Taylor, who flew in for the event. As he drove across the country, Hostetter recorded a video, where he called for the execution of political officials he viewed of as traitors.”
Graves, Mariano and Manning quoted Hostetter as having recorded “Some people, at the highest levels, need to be made an example of, with an execution or two or three. Tyrants, and traitors, need to be executed as an example, so nobody pulls this shit again in our lifetime, and the lifetime of our children, and our grandchildren, and their children’s children.”
Graves, Mariano and Manning added that “Hostetter explained how he wanted this violence to send a message: ‘People should never forget who did this to us, what they did, and what the ultimate punishment ended up being. That’s how you stop this nonsense.’ Hostetter didn’t merely make these remarks in private. Instead, he intentionally put them on YouTube to promote his violent message.”
Moreover, Graves, Mariano and Manning wrote, “In the same video, Hostetter explained the purpose of his trip. He was not going just to protest. He wanted to send a message to members of Congress that if he did not get his way, he
would come back for those members of Congress.” They quote Hostetter as saying, “I’m going to D.C. I’m going to be there on Saturday for this march. I hope there are a million patriots there. Between that – that’s gonna be a shot across bow to the deep state when they see a million patriots surrounding that shithole of a city, the swamp. Because its gonna make all those swamp creatures know that at any time we want, we’ll come back with a million patriots, and we’ll surround that city, and we’ll starve those motherfuckers out until they come out of their hiding and we’ll replace them with actual patriots. I’m telling the swamp right now that we will be back if this doesn’t get resolved peacefully and soon.”
Graves, Mariano and Manning stated in the sentencing memorandum, “In other written, planned remarks from December 5, 2020, Hostetter repeated his calls for executions of political officials he disagreed with,” and then quoted him as saying “As long as people like the Clintons, Brennan, Clapper, the dirty cops of the FBI, the treacherous agents of the CIA remain free, as long as they remain free, we have no justice in this system until all the traitors and coup plotters – and, yes, that includes Barack Hussein Obama himself – until these criminals and traitors are behind bars or swinging from the gallows, there is no justice in this country. And as long as there is no justice in this country, there can be no renaissance. There can be no peace.”
Violence toward government officials Hostetter perceived as responsible for stealing the election from Donald Trump intensified as the certification of the election approached, according to Graves, Mariano and Manning, who included a reference to his willingness to obstruct the certification from occurring.
“On December 12, 2020, Hostetter gave another speech calling for the execution of his perceived political enemies,” the prosecutors wrote. “Speaking to a crowd of supporters, flanked by his co-conspirator Russell Taylor to his left and a former U.S. Representative to his right, Hostetter rallied the crowd: ‘There must – absolutely must – be a reckoning. There must be justice. President Trump must be inaugurated on January 20th, and he must be allowed to finish this historic job of cleaning out the corruption in the cesspool known as Washington, D.C. The enemies and traitors of America, both foreign and domestic, must be held accountable. And they will. There must be long prison terms, while execution is the just punishment for the ringleaders of this coup.”
The sentencing memo alleges Hostetter was himself a ringleader working the other side of the equation. It states that “On December 19, 2020, then-President Trump shared a Tweet, writing, ‘Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!’ For many January 6 rioters, this Tweet provided the impetus to get to Washington, D.C. and provided January 6 as the focal point. Not for Hostetter. Hostetter was already well aware of the congressional proceeding on January 6, and he knew why it was so important. On December 16, 2020, Hostetter directed an American Phoenix Project colleague to contact Ali Alexander, an organizer of the Stop the Steal campaign, to suggest a January 6 rally. ‘Can you try to raise him and see if they are planning any rallies in DC on 1/6/2020 (sic) during the joint session of Congress where the electoral results will either be accepted or objected to? If ever a million patriots needed to be in DC it be on this day to put the fear of God in those traitors and RINO bastards! “Death to Traitors” will be my preferred chant for that day!’”
According to the prosecutors, “That same day, December 16, Hostetter made an Instagram post – from the account of the American Phoenix Project – writing, ‘The time has come when good people may have to act badly…but not wrongly.’ The post featured Hostetter holding a hatchet, which Russell Taylor had given him. When then-President Trump sent out the ‘wild protest’ Tweet related to January 6, Hostetter knew what it meant.”
According to Graves, Mariano and Manning, communication between those in Washington, D.C. and Trump supporters on the West Coast, including Hostetter and Taylor, demonstrate the key role Hostetter played in helping the insurrection to manifest. They quoted Hostetter as reacting by stating, “We asked for it…we got it!”
Graves, Mariano and Manning wrote that “When that happened, Taylor testified, ‘[We] immediately started planning to come to DC ourselves and starting to kind of organize individuals to come with us.’ On December 19, 2020, shortly after then-President Trump sent out his call for a ‘wild protest,’ Hostetter began to amplify that call. He posted on Instagram about and explained why January 6 was so important.”
Within the body of the memo, Graves, Mariano and Manning reproduced photos of some of the exhibits produced at trial, including several of Hostetter’s more inflammatory tweets or postings, as well as a photo one of the accused took of the weapons that were brought to the January 6 rally, including the axes, laid out on a bed.
One of Hostetter’s reproduced Instagram posts states, “Fight For Trump! Late last night President Trump tweeted that all patriots should descend on Washington DC on Wednesday, 1/6/2021. This is the date of the Joint Session of Congress in which they will either accept or reject the fake/phony/stolen electoral college votes. I will be there, bullhorns on fire, to let the swamp dwellers know we will not let them steal our country from us. I hope you can join me!! #fightfortrump #stopthesteal #savetherepublic”
According to the memo, “The same day, December 19, Hostetter took to the stage at a rally to pass along the message: ‘The most important thing that we saw happen in the last 48 hours – did you see President Trump’s Tweet last night, where he asked all patriots to descend on Washington, D.C. on January 6th? Did you see that Tweet last night? January 6th is going to be one of the most important days in the history of this country. We’re gonna have an opportunity on January 6th for millions of patriots to show up in Washington, D.C., and have an impact on what happens in that joint session of Congress. That’s going to be the last opportunity that we solve this problem constitutionally before we move into the Insurrection Act. One way or another, this problem is going to be solved.’ Hostetter told the crowd what he wanted to accomplish on January 6, when Congress was in session: ‘Choke that city off, fill it with patriots, and then those people behind the walls of the Senate and the House are gonna be listening to us chanting outside those walls. . . And they’re gonna realize, we have one choice. We either fix this mess and keep America America, or we become traitors, and those five million people outside the walls are gonna drag us out by our hair and tie us to a fucking lamp post. That’s their option.’ He encouraged his supporters to take off work and find any way to get to Washington, D.C. for January 6. He compared the planned event to ‘the Boston Tea Party.’”
According to Graves, Mariano and Manning, “Hostetter drove to Washington, D.C. for January 6. He chose not to fly, so that he could load his car with weapons for himself and Russell Taylor. Hostetter brought tactical gear, a helmet, hatchets, knives, stun batons, pepper spray, and other gear for himself, Taylor, and others.”
The prosecutors maintain, “Indeed, it was Hostetter’s idea that they bring hatchets to Washington, D.C.”
They quoted him as posting, “I can take your hatchets again!”
The sentencing brief states, “On December 29, 2020, he wrote to Taylor, ‘I’ll be heading to DC on 12/31. Let’s hook up on 12/30 so you can give me your backpack.’”
It was possible, Graves, Mariano and Manning suggested in the memo, that Hostetter and his co-defendants were armed with guns, as well.
According to the memo, “Taylor asked, ‘Alan are you bringing firearms?’ Hostetter responded sarcastically, ‘NO NEVER (Instagram now monitors all text messages … this has been a public service announcement).’ He indicated that they should ‘stick to’ hatchets.”
Graves’, Mariano’s and Manning’s narrative continues, “On January 5, Hostetter gave a speech to a large crowd outside the U.S. Supreme Court. The crowd had assembled for a rally co-hosted by the Virginia Women for Trump and the American Phoenix Project and featured not only Alan Hostetter and Russell Taylor as speakers, but other well-known political figures as well. Hostetter bragged about his prior arrest for what he called ‘civil disobedience’ – and the fact that his arrest ‘went viral.’He then turned to promoting conspiracy theories regarding the 2020 election results: ‘That’s who beat Donald Trump. Dominion and all the fakes and frauds, led by these vipers behind you in the people’s house. They’re gonna hear our voice tomorrow. They’re gonna hear us loud and clear. We are at war in this country! We are at war.’ He continued, ‘Our voices tomorrow are going to put the fear of God in the cowards and the traitors, the RINOs and the communists of the Democrat Party. They need to know we as a people, 100 million strong, are coming for them if they do the wrong thing!’ Hostetter concluded, “I will see all tomorrow at the front lines. We are taking our country back!’”
According to Graves, Mariano and Manning, “Hostetter and Taylor knew that they could not bring the weapons they had collected and were carrying to the Ellipse or to the U.S. Capitol. As they headed to the Ellipse, Hostetter recorded an Instagram video, stating, ‘Patriots are on the march now.’ He noted that he, Taylor, and others, ‘are not actually going to be going into the Ellipse, because we have some personal protective gear.’ Accordingly, rather than leaving their weapons behind, Hostetter and Taylor observed the speeches from outside of the secured area, to avoid going through a security screening. Hostetter and Taylor listened to the speeches from the Ellipse, including the speech by then-President Trump, in which he stated that then-Vice President Mike Pence would be at the U.S. Capitol building that day. As they entered Capitol grounds, Hostetter and Taylor approached the police line on the west plaza area of the Lower West Terrace. As they approached the building, they observed not just the police line, but also ‘chemical agents like tear gas’ being deployed. They heard flash bang grenades and saw rioters scaling the walls of the Capitol.’ But Hostetter and Taylor didn’t stop. From the west plaza, Hostetter and Taylor climbed into scaffolding covering a northwest set of stairs leading to the inaugural stage. As they climbed through the scaffolding, Hostetter and Taylor emerged from a hole in the scaffolding and continued climbing toward the inaugural stage. As he came out from the scaffolding, Hostetter carried a bullhorn and looked down over the west plaza, where rioters were battling with the police line they had passed earlier. From his highly visible perch, and with his bullhorn directed to the crowd and his American flag waving above the chaotic scene, Hostetter encouraged the rioters below, who were overrunning the police line,” Graves, Mariano and Manning wrote, which ultimately, they asserted, contributed to the collapse of the police line holding the crowd back from the inaugural stage.
Graves, Mariano and Manning maintain that thereafter, “Hostetter and Taylor descended from the bleachers overlooking the inaugural stage and walked up to the Upper West Terrace door, where they saw other rioters entering the building. They reached the steps leading up to the door, before stopping and turning away, as police began visibly converging on the door from south and north of the door. Hostetter and Taylor decided to stay outside of the building, to decrease their risk of being arrested, given the sheer number of rioters outside the building, compared to the number of police officers. Hostetter and Taylor remained on the Upper West Terrace for hours. While there, Hostetter carried his bullhorn and used it to encourage the crowd.”
In the immediate aftermath of the storming of the Capitol, Graves, Mariano and Manning stated that Hostetter posted, “Patriots broke into Capitol Hill! I was one of them! Don’t listen to the FAUX News. This was the shot heard round the world!”
This contradicted what Hostetter sought to assert after he was criminally charged. In the run-up to his trial and at his trial, Hostetter characterized the riot on January 6 as a “false flag” operation in which liberals, Democrats, communists and government agents masqueraded as pro-Donald Trump forces and acted illegally to discredit people such as himself who were present to peacefully demonstrate against the theft of the election.
In their sentencing memo, Graves, Mariano and Manning pointed out the contradiction between what Hostetter claimed while making his legal defense and what he had posted shortly after the clash on January 6.
The prosecutors’ memo states, “To another friend, Hostetter wrote, ‘I did not see what I believed to be ANTIFA.’ He added, ‘people I saw and spoke with were clearly pissed off patriots who felt there was no alternative after word went out that Pence was about to certify those electors and our country would be doomed.’”
On May 10, 2023, a federal grand jury returned a second superseding indictment against Hostetter. In early July, his bench trial before Judge Lamberth began. On July 13, 2023, Hostetter was convicted on all counts. According to a pre-sentencing report issued by the U.S. Probation Office, Hostetter faces a maximum sentence of 20 years’ imprisonment, 3 years’ supervised release, and a fine of $250,000 for each of counts One and Two; and a maximum sentence of 10 years’ imprisonment, 3 years’ supervised release, and a fine of $250,000 for each of counts Three and Four.
Graves, Mariano and Manning acknowledged that “Hostetter did not personally engage in violence.” Nevertheless, they asserted, “Regardless of the use of immediate violence, Hostetter’s conduct—and the conspiracy he helped form and lead—displayed a clear intent, shared with Taylor and others, to stop Congress from certifying the results of the election, including through the threatened used of force. That conduct—calculated to stop the peaceful transfer of presidential power for the first time in the nation’s history – is a quintessential example of an intent to influence government conduct through intimidation or coercion and warrants an upward departure” in the sentence he is to be given.
Graves, Mariano and Manning noted that Hostetter, as a former law enforcement officer steeped in the ways of the justice system, was disrespectful of the culture and the establishment he had functioned within throughout his professional life when he was himself being processed by the justice system, which they suggested reflected poorly on him and his temperament.
“Hostetter’s character was on full display as he belligerently cross-examined a U.S. Capitol police captain about why she had not proposed the erection of ‘unscalable’ fencing around the U.S. Capitol before January 6 – to help keep our rioters like him,” Graves, Mariano and Manning wrote. “His character was further on display in his self-indulgent court filings, where he ignored the issues relevant to the case and talked about the assassination of President John F. Kennedy; the firing of Tucker Carlson; the collapse of the World Trade Center on September 11, 2001; occult symbols in the Wizard of Oz; the secret society Skull and Bones; and the censoring of Facebook, Instagram, and Twitter accounts. The seriousness with which he took the proceedings was shown by his bragging that his filings were ‘as much for public consumption’ as they were ‘for the court.’ It was shown further in his opening statement, when he told the court his lengthy witness list of government officials, such as Nancy Pelosi and Lindsay Graham, was ‘submitted I guess more for shock value.’ Hostetter has never taken the proceeding seriously.”
Hostetter committed perjury at trial, according to Graves, Mariano and Manning.
“The court also saw that Hostetter, when backed into a corner, was willing to lie,” the prosecutors wrote. “For instance, when asked if he was ‘calling for executions in public speeches,’ Hostetter responded: ‘Calling for a lawful process to take place before they’re – I’m not calling for people to go out with a gallows and drag it somewhere, like the staged gallows that just happened to show up on January 6th for a photo op that everybody got shocked about in the Main Street media. No. There’s a lawful process. In fact, you, Mr. Prosecutor, if an act of treason were committed, and if you-all were really digging deep into what happened on January 6th, you might find that treason. You would go to the U.S. Code, find the definition of treason, use that to prosecute those traitors, and my guess is you might even recommend the penalty in that code, which is the death penalty.’”
Graves, Mariano and Manning then observed, “But, of course, Hostetter never, even obliquely, referred to the U.S. Code or pursuit of a formal legal process in his many public remarks calling for revolutionary violence. That story was cooked up for trial, for the benefit of the court. But Hostetter cannot walk away from his own words.”
Graves, Mariano and Manning noted Hostetter made assertions in motions and at trial, such as that he was not in possession of the ax while he was at the Ellipse and on the Capitol grounds, which Judge Lamberth concluded were not true. Accordingly, they maintained Hostetter engaged in “obstruction.” The obstruction, they maintained, was linked with other aggravating factors, including causing or threatening injury and damage, substantial interference with justice, extensive planning and preparation of the activity he and others engaged in, trespassing on governmental property, possessing a dangerous weapon and conspiring to commit a felony.
“On the basis of Hostetter’s false testimony at trial, the court should apply a two-level enhancement for obstruction of justice,” Graves, Mariano and Manning wrote in the memo.
While Hostetter had a negligible criminal history prior to the acts for which he was convicted, which Graves, Mariano and Manning conceded should otherwise qualify him for punishment at the lower end of the sentencing scale, other aggravating factors, they said, should apply to the formula relating to determining his prison sentence, creating a need to increase the time he should be incarcerated.
“A two-level upward departure pursuant to U.S. Sentencing Guidlines § 3A1.4, application note 4, is appropriate here because Hostetter’s conduct was ‘calculated to influence or affect the conduct of government [by] intimidation or coercion, or to retaliate against government conduct.’ Such an enhancement would bring the advisory guidelines range to 135–168 months imprisonment. This guidelines range more appropriately reflects the defendants’ culpability, and a sentence at the midpoint of that guidelines range – 151 months – is appropriate.”
Graves, Mariano and Manning discounted Hostetter’s claim that when he spoke about holding governmental officials to account for stealing the election and having them executed for doing so that he meant those executions would come after a lengthy prosecution and trial process in which they would be found guilty.
“Hostetter was never talking about a judicial process,” Graves, Mariano and Manning wrote. “His intent was to make members of Congress afraid they might be murdered. Because his preferred candidate lost an election. Hostetter likes to wrap himself in the American flag and take on the role of freedom fighter, but there is nothing patriotic or American about calling for violence – or threatening violence, to achieve your political aims. That is not patriotism. That is terrorism. Hostetter has shown himself to be a man eager to stoke the fires of revolution, and to assume the role of a leader of the revolution he fantasizes is coming. Hostetter talked repeatedly in advance of January 6 in the language of ‘war’ and ‘revolution.’ He discussed the ‘tyrants and traitors’ and the need for ‘executions’ of his political enemies. His delusions of grandeur – to see himself as the main player in a grand conspiracy centered on January 6, 2021 – further demonstrate the danger Hostetter poses to the community in the future.
Hostetter’s felonious conduct on January 6, 2021 was part of a massive riot that almost succeeded in preventing the certification vote from being carried out, frustrating the peaceful transition of presidential power, and throwing the United States into a Constitutional crisis. Hostetter planned with others for weeks to obstruct the official proceeding, including through the threatened and actual use of force, as described above. The nature and circumstances of Hostetter’s offenses were of the utmost seriousness, and fully support the government’s recommended sentence of 151 months’ imprisonment. This defendant epitomizes disrespect for the law and disrespect for our constitutional order. [There is a] need for the sentence imposed to reflect the seriousness of the offense and promote respect for the law.”
Hostetter has not, as of press time, generated a sentencing brief of his own.
By Mark Gutglueck