MD man pardoned after Jan. 6 riot to be released, despite separate gun conviction

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A Nottingham man who was pardoned for his conduct at the Jan. 6, 2021, insurrection and pleaded guilty to an unrelated firearms charge will go free after the U.S. Department of Justice revised its request to drop charges.

Last month, Maryland U.S. District Court Chief Judge James Bredar ruled that Elias Nick Costianes Jr. could not be set free under President Donald Trump‘s mass pardon for insurrectionists, because the pardon did not apply to his firearms conviction.

On Tuesday, after a hearing, Bredar ordered him to be released.

Costianes’s charges related to the insurrection were pending in Washington, D.C., federal court when he was pardoned. In the Maryland firearms case, he was sentenced in September to a year and a day for possession of a firearm by an unlawful user of or addict to a controlled substance. He appealed, then reported to prison in February. His appeal is paused pending the resolution of the pardon issue.

The DOJ had moved to drop the charges under Rule 48 of the Federal Rules of Criminal Procedure, which generally require a judge to grant the motion “absent a finding of bad faith or disservice to the public interest.”

Bredar found that prosecutors had acted in bad faith in relying on the pardon to seek dismissal of the unrelated charges.

“The President did not pardon Costianes for the instant offense,” he wrote. “Any contention otherwise is now bad faith because it is not just incorrect, it is — as the Court has concluded above — unreasonable. Thus, as the record currently stands, the Court is unable to conclude that the Government is not acting in bad faith, and the parties will be directed to provide additional briefing.”

In response, the DOJ argued there was a “genuine interpretive disagreement” over whether pardon should still apply, because the crime was discovered during the investigation into Costianes’ participation in the insurrection.

“The Department has determined that its resources should not be devoted to investigating and prosecuting certain in-home offenses (like Mr. Costianes’s) that would not have been discovered if the government had not investigated and prosecuted people for their conduct related to the events at or near the United States Capitol on January 6, 2021,” Assistant U.S. Attorney David Bornstein wrote in a June 4 brief.

“And because the Department would not investigate or prosecute someone in Mr. Costianes’s shoes today, the Department has further determined that the interests of justice require treating Mr. Costianes similarly. These determinations are wholly discretionary and are based on the Department’s decisions on where its resources are best spent.”

This time, Bredar wrote that he was required to grant the request, although he expressed displeasure with the DOJ’s insistence that the pardon — which applied “only to convictions for offenses related to events that occurred at or near the United States Capitol on January 6, 2021” — applied to the firearm charge.

“The Court cannot conclude that the Government has proffered this new and separate explanation in bad faith, and as such, must grant the Rule 48 Motion,” Bredar wrote.

“The Court is, frankly, disappointed that the Government persists in its attempt to contort the plain language of the Pardon,” he added. “As the Court previously made clear, it will not collaborate in the strained and distorted reading of the Pardon.”

While Bredar granted the DOJ’s request, he stayed his ruling for 45 days, requiring Costianes to remain incarcerated for a month and a half. On Tuesday, though, Costianes, who is represented by Florida attorney Carolyn Stewart, filed an emergency motion for immediate release, arguing he was not a flight risk. Bredar held a hearing and ordered that he be released under certain conditions.