Left: Alan Hostetter outside of the U.S. Supreme Court for the Virginia Women for Trump and American Phoenix Project Rally, Jan. 5, 2021 (American Phoenix Project/Instagram). Right: Weapons prepared by Hostetter for Jan. 6, 2021. (Justice Department).
A Jan. 6 rioter and member of the militia group known as the Three Percenters who brought a hatchet with him to the U.S. Capitol will not be released from prison pending appeal following the Supreme Court‘s ruling that narrowed an obstruction charge used against him and many others.
The Supreme Court’s ruling in Fischer v. United States has prompted a rush of activity from federal prosecutors including dropped charges and plea deals, as Law&Crime reported Thursday.
Alan Hostetter, once a police chief in La Habra, California, saw his request for release denied in a 5-page order entered Thursday by Senior U.S. District Judge Royce Lamberth, an appointee of former President Ronald Reagan.
As Law&Crime reported in December, Hostetter was sentenced to 11 years in prison after a bench trial before Lamberth last July. A trio of Hostetter’s co-defendants — all fellow Three Percenters — opted to be tried by a jury. Hostetter was found guilty of conspiring to obstruct an official proceeding, obstruction of an official proceeding, entering and remaining in a restricted building or grounds with a deadly or dangerous weapon, and disorderly conduct. His co-defendants were also found guilty and convicted on those and other charges.
In denying his motion for release, Lamberth noted how Hostetter joined a violent mob, broke down barricades and did so with the intent to stop the lawful certification of the 2020 election. Although he did not “engage in any physical altercations” with police, Lamberth highlighted that Hostetter “accompanied the vanguard of rioters who were violently fighting with the police and urged them on by waving a flag and sounding a bullhorn that he brought with him.”
In the run-up to Jan. 6, a group Hostetter formed known as the American Phoenix Project called for the execution of those he perceived to be “traitors” to Donald Trump and the “Stop the Steal” movement, the Huffington Post reported in 2021.
After Jan. 6, he likened the Capitol riot to the “beginning of a revolution” and recorded videos on social media calling for the execution of various public officials.
“At trial and sentencing, Mr. Hostetter exhibited no remorse for his actions, and even after receiving the verdict, he continued to push his conspiracy theories before the Court at sentencing,” Lamberth wrote.
As Law&Crime reported, when the former California police chief was sentenced, he insisted that Ashli Babbitt, a woman shot and killed after she stormed the Capitol and tried jumping through the smashed window of a barricaded door as she was given orders to stand down repeatedly, was still alive.
Babbitt’s mother was at that hearing and as the proceedings ended, she addressed Hostetter in court, telling him, “I assure you she is dead” to which Hostetter only asked if Babbitt had been cremated.
Hostetter insisted baselessly at sentencing that most people at the Capitol on Jan. 6 were crisis actors and that violence was staged. He blamed the events on “Antifa” and insisted the throngs of those rioting were all government informants. He has called Jan. 6 a false flag operation.
He filed his notice to appeal a week after his sentencing.
In order to be released from custody while appealing his case, Lamberth told Hostetter he must be able to satisfy three conditions: that he is not likely to flee or pose a danger if released, that his appeal is not for the purpose of delay and that the appeal raises such a significant question of the law or fact that it would likely result in the reversal of his conviction, a new trial or a reduced sentence.
Though Hostetter pointed to the Supreme Court’s ruling in Fischer v. United States to bolster his request, Lamberth said he did not need to consider it because Hostetter has already failed to clear the first hurdle: he offers no evidence that if released, he would not be dangerous.
Hostetter had already “revealed his capacity for violence” on Jan. 6 and “by the time of sentencing he had not abandoned the theories that motivated his illicit conduct”; namely, that the election was stolen and that, even years later, he still “truly” believed it was, Lamberth said.
“Mr. Hostetter saw and continues to see it as his affirmative duty to act as he did that day, which raises the substantial risk that he would be willing to replicate this behavior, particularly considering the next election is just a few months away,” Lamberth wrote before recalling what Hostetter said at sentencing.
“I’ll double down on what I did, why I was there and that it was my oath to the country that drove me there,” Hostetter said in December.
When asking for release on appeal, Hostetter argued that he’s been compliant with pretrial release conditions and had a “stable life” without criminal run-ins. Lamberth acknowledged this in his order Thursday, saying this was why he allowed Hostetter to self-surrender rather than go straight into custody immediately after sentencing.
But, the judge wrote, “the severity of Mr. Hostetter’s offenses, viewed in light of his conduct during sentencing and coupled with the looming election, persuade this court that the present risk of releasing Mr. Hostetter is too grave.” [Emphasis original]
Citing Fischer, the former police chief called for a reduced sentence of six to 12 months if his obstruction charge is wiped away. That has not formally occurred yet.
Though the Supreme Court’s decision in Fischer may ultimately change the sentencing recommendations for Hostetter, the judge emphasized that “Fischer does not dictate the Court’s application of 18 U.S.C. 3553(a) factors to Mr. Hostetter’s remaining convictions.”
His conduct on Jan. 6 can still be viewed in its entirety, Lamberth noted.
To reduce the sentence from 11 years to 12 months would mean the judge would have to take a “drastically different view” of what Hostetter did on Jan. 6 and even an appeal, he wrote, wouldn’t change that.
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