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Left inset: An alleged selfie of Elias Costianes at the U.S. Capitol during the Jan. 6 attack (Justice Department). Center inset: Elias Costianes (Justice Department). Right inset: An alleged photo of Elias Costianes inside the U.S. Capitol during the Jan. 6 attack (Justice Department).
A Jan. 6 defendant who tried using President Donald Trump’s mass pardon to get released early from prison for gun crimes discovered by the FBI during its investigation of the U.S. Capitol attack will be staying in the clink — with a federal judge on Friday choosing to keep the Maryland native behind bars, saying he “simply asks” to be let out “but does not provide a basis for doing so.”
Elias Costianes, formerly of Nottingham, was sentenced to serve 24 months in prison, followed by two years of supervised release, after he entered a guilty plea in September 2023 for possession of firearms and ammunition by an unlawful user of any controlled substance, according to the Justice Department. Authorities caught him with illegal drugs and multiple weapons during a 2021 raid of his home. Costianes joined a litany of other Jan. 6 defendants earlier this month when he filed a consent motion to stay his sentence and ask to be released in response to rulings made in other Jan. 6 cases by judges who have started to throw out cases they say are “related” to Trump’s pardon.
At least three judges have tossed out pending cases for Jan. 6 defendants, including Guy Reffitt, an alleged rioter accused of carrying a gun into the Capitol who was later caught with an illegal silencer in Texas. The DOJ has also started voicing its approval of such dismissals in recent weeks and months, saying it agrees that Trump’s mass pardon covers “related” crimes in at least seven cases across the country, The Washington Post reports.
But some judges have also drawn lines in the legal sand, like U.S. District Judge James Kelleher Bredar, who on Friday told Costianes that his arguments had failed to cross them. In fact, Bredar — a Barack Obama appointee — pointed out how Costianes didn’t really seem to have any arguments.
“Before this Court, the parties now seek a stay of Costianes’s sentence and his release pending disposition by the Fourth Circuit,” Bredar explained. “The parties point to Federal Rule of Appellate Procedure 8(c), Federal Rule of Criminal Procedure 38, and 18 U.S.C. § 3143(b)(1) in support of their argument that he should be released. Federal Rule of Appellate Procedure 8(c) provides that a stay in a criminal case is governed by Rule 38 of the Federal Rules of Criminal Procedure, which in turn provides that … the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment or a reduced sentence.”
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According to Bredar, Costianes failed miserably at proving this, on top of ignoring questions that the U.S. Court of Appeals for the Fourth Circuit had asked him to answer, the judge said, as he’s already appealing his sentence with the Virginia appeals court. For his guilty plea, the former Maryland resident confessed to being in possession of marijuana and four vials containing either testosterone enanthate or testosterone cypionate — both controlled substances — along with a 9 mm pistol; an M&P 15 semiautomatic rifle; a .223 caliber semiautomatic rifle; and a 12-gauge shotgun, as well as “thousands of rounds of ammunition,” according to DOJ investigators, including 9 mm, .22 caliber, .223 caliber, and shotgun cartridges.
“He does not explain why it is likely that his conviction will be vacated on appeal,” Bredar stated. “Indeed, it is not entirely clear on what basis he even seeks a vacatur of his sentence on appeal, given that the currently pending joint motion before the Fourth Circuit simply asks the Fourth Circuit ‘to vacate the defendant’s conviction’ but does not provide a basis for doing so. And, although it cites the pardon, the parties explicitly did not respond to the Fourth Circuit’s questions regarding the pardon.”
Bredar explained in his ruling that Costianes was given the simple task of answering three questions by the Fourth Circuit: “Separate and apart from the issue of mootness,” whether the Court has jurisdiction to consider and whether it is “prudent” for the court to consider Costianes’ motion “in the absence of any ruling” by the district court; whether the court has authority to “review and interpret” Trump’s pardon; and whether the pardon applies in this case as a conviction “related to events that occurred at or near” the U.S. Capitol on Jan. 6.
“Rather than respond to those questions, the parties filed a joint motion to vacate conviction and remand for dismissal,” Bredar said. “The parties again cited the pardon and explained that, ‘[a]fter further considering this case in light of the Court’s questions, the government has determined that the more efficient and prudent course and the one most consistent with President Trump’s instructions is to move to vacate Mr. Costianes’s conviction and dismiss the indictment under Rule 48(a).””
Costianes’s lawyer, Carol Stewart, told The Washington Post in an email earlier this month that the search of his home “was intended to find any indication of any crime and then try to make it part of prosecution of” charges related to the Jan. 6 attack. Stewart claimed that Trump “wrote [the pardon] broadly enough to cover searches conducted under J6 warrants” and that “the courts don’t have authority to interpret a pardon when the POTUS has spoken.”
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Trump’s DOJ has veered away from supporting certain Jan. 6 cases and pardons with more serious charges, most notably for Jan. 6 defendants Edward Kelley and Taylor Taranto, who were each accused of plotting to commit violence. Kelley was arrested in 2022 for allegedly plotting to kill FBI agents who investigated him; Taranto allegedly threatened lawmakers and showed up to Barack Obama‘s home in Washington, D.C., back in 2023 toting guns, ammunition and supplies for an explosive device.
Kelley, who is a Tennessee resident and was charged there, tried claiming that his federal murder plot case and 2024 conviction in the Volunteer State was “related to events that occurred at or near the United States Capitol on Jan. 6, 2021,” according to court documents. He filed a motion to dismiss his indictment and to vacate his jury convictions on Jan. 27, one week after Trump issued his executive order. The DOJ urged U.S. District Judge Thomas Varlan last month to maintain Kelley’s conviction, condemning his claims as “wrong” and Kelley, himself, for having “no authority supporting his position.”
On March 10, Varlan — a George W. Bush appointee — agreed and ruled in favor of rejecting Kelley’s court bid to get his murder plot conviction covered by Trump’s pardon, saying “none of the substantive offenses or charging provisions overlap” in the way Kelley has claimed in filings.
In Taranto’s case, DOJ prosecutors insisted that his actions “were not offenses occurring at the U.S. Capitol on Jan. 6” nor were they related to the 2021 riot after Taranto filed a motion to dismiss weapons charges against him. U.S. District Judge Carl J. Nichols, a Trump appointee, denied Taranto’s request last month. His lawyer, Carmen D. Hernandez, had tried arguing that since the government filed his weapons charges with his other crimes in one big indictment, prosecutors “implicitly determined” that the gun charges were “related” to his Jan. 6 charges.
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