“What’s critical for you to understand, and for the public to understand, is that without conduct like yours, without people on the front lines pushing, the barricades wouldn’t have fallen, the Capitol would not have been overrun, people would not have been killed, and others would not have suffered serious physical and mental injuries,” US District Judge James E. Boasberg said.
Boasberg said he did not know what sucked Mostofsky “down this hole of a stolen-election fantasy,” but added, “I hope you’ll leave some of the fantasy world behind at this point because I hope you understand your indulgence in that fantasy led to this tragic situation — tragic for the country as to what happened that day, and tragic for you and what you did … and the effect it will have on your life.”
Mostofsky’s family asked that he serve his term at a minimum security branch of the Federal Correctional Institution in Otisville, NY, which the judge agreed to recommend and gave the defendant 30 days to report.
Mostofsky told a friend his costume was meant to announce that even a “cave man” would know the 2020 presidential election was stolen.
Addressing the court, Mostofsky asked for mercy and explained what he said were a series of “bad decisions that day,” where he witnessed police using crowd-dispersal munitions such as tear gas, pepper spray, stun grenades and rubber bullets.
“I should have walked away, but I walked toward the barriers. I pushed back, I should not have done that,” Mostofsky said.
Mostofsky said he should not have entered the Capitol and did not intend to cause harm or interfere.
“I am ashamed of my contribution to the chaos of that day, and I apologize to members of Congress, all of their employees, and to the Capitol police officers that were in attendance,” he said.
Mostofsky was the first Jan. 6 defendant to be sentenced on a felony rioting charge, which is punishable by up to five years in prison, and his sentence will help set a benchmark for about 200 others facing similar counts if they are convicted.
He pleaded guilty on Feb. 2 to that count and two misdemeanor charges of theft of government property and trespassing on restricted grounds, each punishable by up to a year in jail.
Boasberg’s sentence roughly split the difference between a 15-month prison term sought by prosecutors and home detention requested by his defense. Prosecutors dropped charges of assaulting police and obstructing Congress’s certification of Joe Biden’s election victory.
Photographs and video showed Mostofsky among the first wave of rioters who pushed through bike racks and a handful of police officers at Peace Monument Circle on the northwest Capitol grounds to overrun a police line at the Lower West Terrace, to enter the building, and to pursue US Capitol Police Officer Eugene Goodman up a staircase toward the entrance to US Senate chambers, Justice Department trial attorney Michael J. Romano said.
Just outside the Senate, Mostofsky was photographed and interviewed by a New York Post reporter, where he indicated that he believed his views justified his crimes and encouraged others to follow suit, Romano said.
Defense attorney Nicholas Smith said his New York client was remorseful, “quirky even by the standards of his home city,” and a man who many in letters to the court attested was kind, gentle and generous. He baked cookies for care packages given to city workers, first responders and homeless shelters.
“In nonmedical Yiddish, this type of character is summarized as a airman, a man whose head is in the clouds,” Smith wrote of Mostofsky, who was born to an Orthodox Jewish family and whose mother died when he was infant. Smith said the charges and felony conviction brought “profound and lasting shame on Mostofsky and his family” and together with his conviction were punishment enough when combined with home confinement and probation.
Boasberg agreed, to a point, saying in court “I would have given you more [jail time] had I not discounted a number of months for all of the good that I have read about you,” including undisclosed findings of what the judge called a “narrow psychiatric exam.”
But the judge said the core of democracy in the United States is the peaceful transition of power after free and fair elections to those elected, “not those installed by violence or insurrection.”
Alluding to the Russian invasion of Ukraine, Boasberg warned, “We are reminded by events in Europe, if our system enshrines violence and not the ballot box” as an appropriate means to power, “who are we to object to others who seek to impose their will by might?”