Does defendant’s January 20, 2025 pardon for being a Jan. 6th Capitol defendant cover his being charged with being a felon in possession in his home when a search warrant for the Jan. 6th case was executed at his house? The government first argued it didn’t; then it argued it did. [That’s the current DoJ for you.] Brief it. United States v. Costianes, 2025 U.S. Dist. LEXIS 69249 (D. Md. Apr. 10, 2025)*:
In the Wilson case, also cited by the Government in Kelley, the Government initially stated that the Pardon did not cover certain firearms convictions, only to change its position a couple weeks later. On February 6, 2025, the Government explained that “Nile convictions for 18 U.S.C. § 922(g) & 924(a)(2) (possession of a firearm by a prohibited person) and 18 U.S.C. § 5841, 5861(d), and 5871 (possession of an unregistered firearm) . . . did not occur at the United States Capitol on January 6, 2021, and thus, by the plain language of the certificate, the pardon does not extend to these convictions.” United States v. Wilson, Crim. No. 23-00427-DLF, ECF No. 103 (D.D.C. Feb. 6, 2025). The Government then reversed course and, on February 25, 2025, explained that “[t]he basis of these convictions were firearms recovered pursuant to a search warrant executed at the defendant’s residence in Kentucky, based on his conduct on January 6, 2021, at the United States Capitol,” and that “the Presidential Pardon includes a pardon for the firearm convictions to which the defendant pled, similar to other defendants in which the government has made comparable motions.” United States v. Wilson, Crim. No. 23-00427-DLF, ECF No. 108 (D.D.C. Feb. 25, 2025).
This is not meant to be an exhaustive list, but rather to provide examples of the inconsistency of the Government’s position in relation to the January 20 Pardon. And, although the Court is not aware of any Fourth Circuit precedent addressing inconsistent positions with respect to a Rule 48 bad faith inquiry, in other contexts, “misleading and inconsistent assertions sometimes reveal bad faith.” United States ex rel. Nicholson v. MedCom Carolinas, Inc., 42 F.4th 185, 200 (4th Cir. 2022) (citation and internal quotation marks omitted); see also id. (“So at best for [appellant], the statements were merely misleading instead of both misleading and inconsistent, which is not exactly a neon sign of good-faith lawyering.”).
Perhaps there is some good faith reason for these seemingly inconsistent positions. And perhaps taking such inconsistent positions does not rise to the level of “bad faith” meriting denial of a Rule 48 motion. Further, to the extent that this Court rules that the January 20 Pardon does not apply to Costianes’ conviction, it is not clear whether interpretation of the Pardon could form the basis of a Rule 48 motion. As noted above, the Court cannot simply act as a rubber stamp, and—although the Court’s discretion is tightly limited in this context—the “leave of court” requirement in Rule 48(a) provides the Court with “a discretion broad enough to protect the public interest in the fair administration of criminal justice.” Manbeck, 744 F.2d at 371 (citation and internal quotation marks omitted).
Given the foregoing, the Court concludes pursuant to Federal Rule of Criminal Procedure 37(a)(3) that the Rule 48 Motion raises a substantial question.
