It appears the prospect of former Fontana Assistant Police Chief Alan Hostetter overcoming entirely his four felony convictions growing out of his action in the nation’s capitol on January 6, 2021 will substantially or even infinitely improve by January 20 with Donald Trump’s inauguration to a second as president. At the very least, the anticipated January 16 resignation of the U.S. Attorney for the District of Columbia which Trump’s pending ascendancy is prompting will enhance the viability that Hostetter’s 11-year and three-month prison sentence will be reduced.
Hostetter, who personally – directly or indirectly – had a hand in putting thousands of actual or alleged lawbreakers in jail or prison cells over the course of his 23-year law enforcement career, is now himself doing time in the Oakdale Federal Correctional Institution in Louisiana.
Hostetter’s declension from a straight-laced upholder of the law who achieved the distinction of serving as a police chief to Federal Inmate #49779-509 is an engaging story.
In 1986, after more than three years in the Army, Hostetter was hired by the Orange County Sheriff’s Department. In 1989, he made a lateral transfer to the Fontana Police Department.
He initially worked his way slowly and steadily up from being a patrol officer in Fontana, promoting in 1993 to police corporal. While employed with the department, through correspondence courses offered by  Southern Illinois University at Carbondale, he obtained a Bachelor of Science degree in education. He made sergeant in 1996, by which point he was working toward a Master of Public Administration degree from California State University, San Bernardino.
Aside from working in patrol, he was a member of the special weapons and tactics team, the narcotics unit, detective bureau, internal affairs unit, and administration division. He was a graduate of the 212th session of the Federal Bureau of Investigation National Academy at Quantico, Virginia; Class 38 of the California Police Officers Standards and Training Command College; and Class 105 of the Sherman Block Supervisory and Leadership Institute.
In 2001, he became a lieutenant and from mid-2006 until early 2007 was loaned out to the Fontana School District Police Department to serve as that agency’s police chief. He returned to the Fontana Police Department as a captain in April 2007 and became assistant chief in December 2007.
In the fall of 2009, after applying for the soon-to-open police chief’s position in the 60,000-population Orange County city of La Habra, Hostetter outdistanced the other 19 candidates for the job, and acceded to the police chief post. He began in La Habra in January 2010, but suffered a back injury, remaining in place only until May of that year, going out on leave and then taking a disability retirement officially effective as of August 26, 2010. He was 46 years old.
He moved to San Clemente, where he began as an instructor/facilitator with the University of Phoenix, teaching undergraduate courses in ethics in criminal justice and graduate courses in budgeting, while awaiting the approval of his disability pension, then pegged at $132,907.32 annually, which would kick in the following year. In October of 2011, he founded a company, Public Sector Solutions, which provided investigative services to support private businesses with workplace investigations. He remained as an instructor with the University of Phoenix until 2013.
His back injury having forced him to discontinue the physical fitness regimen he had engaged in as a teenager, soldier and police officer, Hostetter sought an alternate way of remaining in good condition, and took up yoga. He found it useful in his maintaining flexibility, suppleness and muscle tone. He rapidly went from being a novice to a dedicated practitioner to a teacher, creating, in January 2017, Alpha Yoga of Orange County, which catered mostly to senior citizens and the wives of wealthy businessmen in San Clemente, Dana Point and San Juan Capistrano. The type of yoga he advocated was particularly focused on the discipline’s healing and relaxing potential.
To those who knew him in his previous life as a police officer, an existence in which force and aggression were routine, Hostetter’s transformation was profound, as he talked about eliminating everything other than “good vibes” and seeking out spiritual fulfillment, getting in touch with his own soul and how yoga could make such cosmic realizations for others possible. Hostetter made a remarkable physical transformation as well, having gone from the clean-cut military/police officer model he had typified in his 20s, 30s and early 40s to a bearded and long-haired guru hippy type. His yoga studio from time to time was filled with the aroma of burning sage and other herbs, intended to create a “relaxing” environment.
In a very short period of time, shortly after the advent of the COVID-19 crisis, Hostetter made an abrupt retransformation, forsaking his newfound identity as a yogi to take on the persona of a self-styled conservative political activist. In April 2020, he abruptly closed down Alpha Yoga of Orange County. Having the advantage of his annual disability pension, which by that point had grown to $160,495.09, Hostetter co-founded with Russell Taylor the American Phoenix Project, a nonprofit organization, which he said was dedicated to “fighting back against tyranny.” The enemies of the American people, he said, were Democrats across the country, most particularly those in California and Washington, D.C. who were using the COVID crisis as a means of not only killing Americans and wreaking havoc on the American economy, but destroying American primacy in the world by working against the reelection of Donald Trump, who was, Hostetter solemnly stated, “The greatest president this country ever had.”
Hostetter railed against the “so many corrupt institutions at the local level, state level and the national level” which were utilizing lockdowns to destroy businesses and instill in the American public compliance with governmental fiats which were part of a vast international conspiracy.
The American Phoenix Project drew to it a number of participants and supporters, which included Irvine Smith, the scion of the wealthy family that had founded Irvine, together with Erik Scott Warner, Felipe Antonio “Tony” Martinez, Derek Kinnison and Ronald Mele.
Smith bankrolled much of the American Phoenix Project’s activities, which Hostetter, as the organization’s executive director, was masterminding.
Virtually overnight, Hostetter had become the central figure in the resistance to the State of California’s program to limit the spread of the coronavirus. The American Phoenix Project filed an ultimately unsuccessful lawsuit against California Governor Gavin Newsom to take down all ‘shelter-in-place’ orders. Hostetter’s efforts drew to him a sizable contingent of residents either opposed to the government lockdowns from the start or who began to chaff under those restrictions as they continued week after week and month after month. In his role as the messiah of resistance to the Deep State, Hostetter discovered a talent for public speaking he had previously not been known to possess. He was soon giving speeches to multitudes, with hundreds of faithful hanging on his every word.
Utilizing money provided by Smith, he and Taylor organized and Warner, Martinez, Kinnison and Mele helped coordinate protests against mandates that businesses be shuttered and that citizens wear masks out in public. Hostetter led rallies in Orange County against coronavirus restrictions in general throughout the late spring and summer of 2000, protesting beach closures, defying the civil authorities and daring the local police sent to break up the crowds to arrest him and his fellow protesters. His passion for opposition to the government eventually landed him in jail, if only for a short duration, when he got himself arrested by chaining himself to a fence that had been erected to prevent public access to the San Clemente Beach.
Hostetter reacted vitriolically to the government precautions against the spread of COVID-19. His former yoga students related tales of the yoga instructor who less than a year previously had been singularly focused on achieving inner peace and oneness with the universe growing intemperate and profane, cursing when discussing stay-at-home orders or business-closure mandates. One related how he had been terrified during a chance encounter with Hostetter on the street in San Clemente. In compliance with the governor’s mandate, the man said, he had been wearing a mask, which unfortunately, did not obscure his identity from the eagle-eyed Hostetter. At that point, the man said, Hostetter viciously upbraided him for cowardly complying with the requirement that masks be worn in public.
Others have consistently depicted Hostetter as responding virulently, during any discussion he was involved in relating to the lockdown and governmental mandates at that time, to any suggestion that the COVID-19 pandemic represented a legitimate health crisis that was best managed with precautions to limit the spread of the virus and protect those elements of the population most vulnerable to it. The government’s effort to reduce the strain on the healthcare facilities and institutions – hospitals and both acute care and recovery/long term care homes – where those most critically impacted by the disease were to be treated, was an out-and-out ruse to compromise constitutional rights and liberty, he said. Hostetter would dismiss with anger and derision any expression of trust in California’s government or faith that Governor Gavin Newsom was seeking to protect the state’s citizens, insisting his interlocutor had been brainwashed or was a tool of the Democrats and the socialists who had commandeered the State of California and were ruling the roost in Sacramento.
The Democrats in the State of California, Hostetter said, were power-mad tyrants hellbent on lording it over California’s citizens and were using the response to the coronavirus outbreaks to do just that. The Democrats in Washington, D.C., he said, were attempting to use the virus as means of recapturing the White House, he said.
During the run-up to the November 2020 election, he made multiple speeches in support of Donald Trump, including one in which he stated, there was “no pandemic. There’s never been a local health emergency.”
He likened the government’s reaction to the COVID-19 circumstance to the Holocaust, the genocidal extermination of a whole phase of the population that was being purposefully carried out. The vaccines that were being prepared would contain a microchip that would inaugurate the Brave New World, he said. “We’re going to be wearing masks for the rest of our lives,” he said “We are going to be digitally tracked for the rest of our lives. First masks, then vaccines, then vaccine passports. Next thing you know, you’re on the cattle cars.”
After the November 2020 election concluded with Joseph Biden’s victory over Donald Trump, Hostetter signed onto the theory that the election had been stolen and he refused to come off of it, insisting that those who did not see it in that light were either communist traitors or dupes of the first magnitude.
Eleven days after the election, he drove across the country to attend the million-man Make America Great Again March aimed at convincing government officials that a recount of the presidential election votes was in order.
When the million-man MAGA March did not result in reversing the presidential election outcome, Hostetter and Taylor, Smith, Warner, Martinez, Kinnison and Mele heeded President Trump’s call to converge on Washington D.C. during the election certification to stage a protest that would prevent what he said would be an illegitimate transfer of power.
Taylor and Hostetter reacted to that signal from the president in a text exchange in which they resolved to travel to the Capitol in order to “intimidate Congress.”
While yet in Southern California in December 2020, at rallies in Orange County, Hostetter told the gathered crowds that allowing the crooked Democrats who had stolen the election to put their kingpin Joseph Biden in the White House was tantamount to treason, which “patriots” would not stand for. He exhorted those in the crowds he spoke before to travel to Washington, D.C. to be present on “January 6 … one of the most important days in the history of this country” to block the certification of the election in Biden’s favor. He called upon his fellow and sister “patriots” to “Choke that city off” and convince members of Congress and the Senate that they had “one choice” and one last chance to “act constitutionally” to stave off an insurrection by correctly declaring Donald Trump as the winner of the 2020 election or otherwise “become traitors,” in which case the “five million” patriots of which he and those who were to be present in Washington, D.C. that day were a part would “drag [them] out by [their] hair and tie [them] to a fucking lamppost.” Hostetter called for those who opposed Donald Trump’s reinauguration on January 20, 2021 or supported Biden’s inauguration on the same date to be executed and for the imprisonment of Bill and Hillary Clinton, former CIA Director John Brennan, former United States Director of National Intelligence James Clapper and Barack Obama, all of whom he said were the leaders of the coup that had stolen the election from Donald Trump. “[U]ntil these criminals and traitors are behind bars or swinging from the gallows, there is no justice in this country,” he said.
On December 12, 2020 at a Stop the Steal rally in Huntington Beach, Hostetter told a mesmerized crowd, “There must – absolutely must – be a reckoning. There must be long prison terms, while execution is the just punishment for the ringleaders of this coup.”
On December 16, 2020, Hostetter made a post from the American Phoenix Project’s Instagram account, writing, “The time has come when good people may have to act badly…but not wrongly.”
Subsequently, the United States Attorney’s Office would produce in court evidence the FBI had extrapolated from Hostetter’s, Taylor’s, Warner’s, Martinez’s, Kinnison’s and Mele’s communications devices, communications applications and social media accounts, including unencrypted text messages and emails and encrypted messages in which the six shared information regarding progress being made internally in the government toward certifying the election, coordinating their travel to Washington, D.C., promoting events sponsored by the American Phoenix Project, along with the “type of weaponry”… gear… medical kits… radios… multiple cans of bear spray… knives… plates [i.e., bulletproof vests]… goggles… helmets…” and an “18 inch barrel” shotgun they were to have with them. The six, along with American Phoenix Project sponsor Smith, all made it to Washington in early January.
On January 5, at a rally near the U.S. Supreme Court, Hostetter transformed from being a regional or California leader of the Make America Great Again Movement to one of national, indeed international, note and import, when he joined with Roger Stone, one of President Trump’s advisers, as well as other Stop The Steal activists as an invited speaker. He told the rapt crowd, “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 of the people, 100 million strong, are coming for them if they do the wrong thing.” He told those assembled that they should ready themselves for “war tomorrow” to be carried out against the “vipers” in Congress who were refusing to declare the election of Joseph Biden null and void.
At the same rally, Russell Taylor said, “In these streets we will fight and we will bleed before we allow our freedom to be taken from us. We will not return to our peaceful way of life until this election is made right.”
Hostetter, Taylor, Warner, Martinez, Kinnison Mele and Smith were all present at the January 6 rally on the Capitol grounds, though there is no evidence that Smith was ever in the company of the others. Hostetter, Taylor, Warner, Martinez, Kinnison and Mele were wearing black plate-carrier vests. Hostetter and Taylor were carrying backpacks in which Taylor had a hatchet and a stun baton and Hostetter had a hatchet. Taylor was carrying a knife in the front chest pocket of his plate carrier vest.
Hostetter, Taylor, Mele, Martinez, Kinnison and Warner joined rioters on the lower West Terrace. At some point Hostetter and Taylor became separated from Mele, Martinez, Kinnison and Warner.
Subsequently, at 2:13 p.m., Warner entered the Capitol through a broken window. At approximately 2:30 p.m., Taylor and Hostetter joined rioters on the lower West Terrace who were pushing through the line of law enforcement officers seeking to keep the crowd from advancing. During this encounter, Taylor was recorded beckoning the rioters, “Move forward, Americans,” and told the officers seeking to hold the line against the rioters, “Last chance boys. Move back!” Shortly thereafter, according to the U.S. Attorney’s Office, Taylor, closely followed by Hostetter, pushed through the area that the capital police had been blocking, moved up the stairs onto a structure erected for the inauguration and continued moving up onto the upper West Terrace.
Hostetter, Taylor, Smith, Mele, Martinez, Kinnison and Warner managed to make it out of Washington, D.C. after the January 6 uprising. By the end of January, all seven were on the Justice Department’s radar. On January 28, 2021, the FBI served search warrants at Hostetter’s, Taylor’s, Smith’s, Mele’s, Martinez’s, Kinnison’s and Warner’s homes. More than five months later, on June 9, a sealed indictment was handed down by a grand jury in which Hostetter, Taylor, Mele, Martinez, Kinnison and Warner were charged with federal offenses that included conspiracy, obstructing an official proceeding, and unlawful entry on restricted building or grounds. The following day, the indictment was unsealed. Taylor was also charged with obstructing law enforcement during a civil disorder and unlawful possession of a dangerous weapon on Capitol grounds. Warner and Kinnison were charged with tampering with documents. They were prosecuted by the United States Attorney in Washington, D.C., Matthew M. Graves, and assistant U.S. attorneys Anthony Mariano and Jason Manning. Smith was not charged.
Initially, the six co-defendants put on a united front. In October 2021, however, Hostetter undertook a radical change of strategy in his legal defense. On October 14 of that year, Hostetter told Judge Royce Lamberth, who had been assigned to his case and that of his five codefendants, that he wanted to represent himself, stating his rationale for doing so was that there was no truth or substance to the charges, that the federal government knew there was no case against him and was proceeding with the criminal charges in an effort to both discredit him and bankrupt him financially.
Judge Lamberth warned Hostetter of the hazard of representing himself in the legal arena with which he had virtually no expertise and that he had “never seen a pro se defendant actually succeed.” Hostetter, intimating to Judge Lamberth he believed the Justice Department and the courts are corrupt, insisted he wanted to be his own attorney, which Judge Lamberth had no choice but to accept.
Hostetter then made a sharp break with his co-defendants. Asserting he was the target of a “classic FBI counterintelligence program operation” and that he had come to believe that at least some of those among Taylor, Warner, Martinez, Kinnison and Mele and perhaps all were government informants, Hostetter sought to have the charges against him dismissed. Referencing “secret societies,” including 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 and referencing Satanic iconography pervading American culture in which he cited symbology on the American one dollar bill and in cultural landmarks such as the movie The Wizard of Oz, Hostetter in a motion to the court said he was targeted by the government and its Justice Department and the FBI for taking a stand in opposition to “Covid-19 lockdowns and stay-at-home orders” instituted by dark and sinister forces during the coronavirus pandemic.
Hostetter stated he believed that his allies in the fight against government-imposed COVID-19 precautions – Taylor, Warner, Martinez, Kinnison, Mele and Smith – were being directed by the government to insinuate themselves into his orbit in order to entrap him.
“The government attempted to concoct, direct and supervise the enterprise from start to finish,” according Hostetter’s motion. Despite what he said was “their incessant efforts to direct defendant into criminal activity,” Hostetter said, he did not take the bait and had “never engaged in criminal activity.”
Prime candidates for those who were serving as government informants, Hostetter claimed, were Taylor, his ally in the formation of the American Phoenix Project, and Smith.
Judge Lamberth denied Hostetter’s motion.
Hostetter initially declared his intention of insisting on a speedy trial, but the deadline for the government putting on its case against him was tolled when he himself made motions which suspended the trial date countdown.
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 and that his co-defendants were government informants.
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 the judicial officer hearing his case. He agreed to forego a jury trial and instead be tried in a bench trial with Judge Lamberth serving as both judge and jury.
Taylor’s defection proved less than helpful to Hostetter during his July 2023 trial. That Taylor – and the others – had been prosecuted for their actions and ultimately convicted rendered Hostetter’s suggestion that his five co-defendants were government agents plotting against him from the start as less than credible. A crucial element in the case against him that Hostetter sought to contest was that he was armed with a deadly weapon during the riot on the Capitol grounds. Taylor testified about the preparations the group of which they were a part engaged in prior to the actions in the nation’s capital, extending to arming themselves with weapons, including axes both he and Hostetter carried with them in their backpacks in their sojourn to the Capitol grounds on January 6. Hostetter was unable to shake or discredit Taylor in his testimony. Hostetter sought, as well, to suggest that the prosecution could not prove that he was armed with a deadly weapon and claimed that he did not have the ax in his backpack. Judge Lamberth concluded Hostetter did have the ax with him. This allowed Graves, Mariano and Manning in their sentencing memorandum after Lamberth rendered his verdict to assert Hostetter committed perjury at trial when he “falsely” claimed during his trial that he did not have the hatchet in his backpack when he was on the capitol grounds.
“The court… saw that Hostetter, when backed into a corner, was willing to lie,” Graves, Mariano and Manning said in the sentencing memo for Hostetter.
During the trial, Hostetter had further tried to reinforce the conception popular among many Make America Great partisans that the FBI was involved in a massive sting operation in which agents were entrapping law abiding citizens by inviting them to participate in the insurrectionary activity that took place within the nation’s capital on January 6 and that this was coordinated with the Washington, D.C. municipal police who did a poor job of manning and maintaining the barriers that were set up around the Capitol Building, as well as securing its doors and windows which were ultimately breached and broken, and through which some rioters gained entrance. That approach proved problematic for Hostetter, as the prosecution was able to demonstrate that in speech after speech and in text messages, social media postings and other communications before January 6, Hostetter was himself inviting and encouraging others to take part in an insurrection if the Congress and Senate did not reverse the outcome of the presidential 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,” Graves, Mariano and Manning stated in the sentencing memo. “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 intent was to make members of Congress afraid they might be murdered because his preferred candidate lost an election. That is not patriotism. That is terrorism.” Hostetter was, the prosecutors asserted, “a man eager to stoke the fires of revolution, and to assume the role of a leader of the revolution he fantasizes is coming. 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.”
Mariano, who made the closing argument for the prosecution in Hostetter’s trial, said, “There is no ‘the police didn’t stop me in time’ defense.”
Judge Lamberth in July 2023 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.
In December 2023, all other issues pertaining to Hostetter’s prosecution and the prosecutions of his co-defendants that would impact his sentence having been resolved, Judge Lamberth sentenced him to 11 years and 3 months in prison.
It thus seemed that Hostettter was in for a long haul as a federal inmate. Under the best of conditions, assuming there were no appealable issues with regard to his conviction, he was slated to to remain in prison until his currently scheduled June 5, 2033 release date, at which point he would be 69 years old.
In June 2024, however, the U.S. Supreme Court made a ruling with regard to the conviction of Joseph Fischer, who like Hostetter had been convicted of violating 18 U.S.C. § 1512(c)(2) in connection with his participation in the U.S. Capitol grounds demonstration on January 6, 2021. 18 U.S.C. § 1512(c)(2) grew out of the Sarbanes-Oxley Act of 2002 and makes it a crime to “otherwise obstruct, influence, or impede any official proceeding.”
The Sarbanes-Oxley Act of 2002 was passed in reaction to the Enron Scandal.
The Enron Scandal involved allegations of evidence tampering engaged in by the perpetrators of the massive fraud relating to accounting by the Enron Corporation. Fischer’s legal team arguing on behalf of him and two other January 6 defendants, Edward Lang and Garret Miller, asserted that there was no evidence to suggest and that the defendants had not engaged in evidence tampering. In March 2022, District Judge Carl J. Nichols dismissed obstruction charges against the three defendants, including Fischer, ruling prosecutors had improperly separated the portion of the law forbidding obstruction of an official proceeding from its intrinsic evidence-tampering provision regarding actions involving a “document, record, or other object.” Judge Nichols’ ruling was not binding on other judges, though several other defendants attempted to make similar arguments that Sarbanes–Oxley does not apply to them before other judges, most of which did not work. Federal prosecutors appealed Nichols’ rulings in the three cases, including that of Fischer, to the D.C. Court of Appeals, which in April 2023 reversed Nichols in a 2–1 ruling, finding that Sarbanes-Oxley was broad enough to cover the conduct of Fischer and the other two defendants. It held that the statute applied to “all forms of corrupt obstruction of an official proceeding.” It was the D.C. Court of Appeals ruling that was the subject of the Supreme Court review, resulting in the June 28, 2024 6-to-3 decision holding that Judge Nichols’ determination should be reinstated and that unless there was a direct and unequivocal element of document or record tampering, defendants such as Fischer and, by extension, all January 6 defendants, including Hostetter, could not be pursued under Sarbanes-Oxley and/or 18 U.S.C. § 1512(c)(2).
In Hostetter’s case, he was hit with and convicted on four charges, including two relating to 18 U.S.C. § 1512(c)(2). No automatic vacation of the 18 U.S.C. § 1512(c)(2) charges in January 6 cases beyond those of Fischer, Lang and Miller was mandated by the Supreme Court ruling, however. For his convictions on the two 18 U.S.C. § 1512(c)(2)-related charges be erased, either Hostetter, still acting as his own attorney, or an actual attorney working on his behalf would have to file with the court a motion to dismiss, after conviction, the relevant counts against him. That Hostetter, locked up in Oakdale Federal Correctional Institution, would be aware of the Fischer case or its impact on his situation is not a given. Even if it came to his attention, his command of the legal processes by which he could bring the ruling in the Fischer case to bear is somewhat suspect, as attested to by the outcome of his trial. Hostetter did, however, have a legal advisor, Costa Mesa-based attorney Karren Kenney. It is not known whether Kenney has taken up on Hostetter’s behalf an effort to bring the Supreme Court ruling in the Fischer case to bear on Hostetter’s circumstance. Assuming the obstruction counts represents one-half of the 11 year and three month sentence Hostetter received, he could, conceivably if such an effort is made, see his sentence reduced to 5.625 years or five years, seven months and 16 days.
The potential that a motion to vacate the 18 U.S.C. § 1512(c)(2) charge against Hostetter would succeed or go uncontested altogether will be enhanced, perhaps substantially, on January 16. On that date, four days prior to the inauguration of President-elect Trump, U.S. Attorney Graves has announced, he will resign from his position.
As the U.S. Attorney for the District of Columbia, Graves led the prosecution of 1,572 defendants charged with crimes related to their action at the Capitol on January 6, 2021. Over 250 defendants Graves charged or obtained indictments against were impacted by the Supreme Court’s ruling in Fisher v. United States. Since the ruling, his office abandoned 18 U.S.C. § 1512(c)(2)-related charges in 96 pending cases. In 54 other cases in which convictions were obtained and the defendants filed dismissal motions with regard to their 18 U.S.C. § 1512(c)(2) charges, Grave’s office made no opposition. It is not clear whether Hostetter made such a motion. In five of the cases where dismissals of the 18 U.S.C. § 1512(c)(2) charges were sought, the defendants/convicts had their sentences reduced.
Peculiarity, or what might be otherwise considered singularity, in Grave’s prosecutorial approach with regard to many of the January 6 cases seems to apply to the Hostetter case. Graves made in many of the cases uncommonly long sentencing recommendations which influenced the court. Graves justified these longer sentences by asserting, in some cases, that the defendants had an extensive criminal history. In others, however, he recommended longer sentences for certain non-violent January 6 defendants, including some, such as Hostetter, who had no criminal history, than he did for others.
With Graves leaving as U.S. Attorney on January 16, the likelihood that his successor will effectively oppose or oppose at all arguments that may be made on behalf of those who were convicted of non-violent crimes or who had no criminal history whatsoever that they were given excessive sentences diminishes. This could redound in Hostetter’s favor if an attorney takes up his case.
After the January 20 inauguration of Donald Trump, all such questions may become moot. The president elect has indicated he will grant pardons or clemency to all or most of the 1,572 who have already been convicted, as well as the remaining January 6 insurrection defendants awaiting trial.
–Mark Gutglueck