03-26-21 - UNITED STATES’ UNOPPOSED MOTION TO Exlude Time Under Speedy Trial Act JOHN EARLE SULLIVAN.txt

UNITED STATES DISTRICT COURT  
FOR THE DISTRICT OF COLUMBIA 
UNIT
ED STATES OF AMERICA  : 
: 
v. : Criminal No. 1:21-CR-00078-E GS 
:
 
JOHN EARLE SULLIVAN, : 
: 
Defendant.  : 
UNITED STATES’ UNOPPOSED  MOTION TO  
EXCLUDE TIME  UNDER THE SPEEDY TRIAL ACT  
The parties are scheduled to appear before the Court for a status hearing in  the above -
captioned proceeding on March 30, 2021.  The United States of America an ticipates proceeding 
with the scheduled status hearing, requesting that this Court set the next status date 
approximately  60 days out , and further moving  to exclude the time within which the trial must 
commence under the Speedy Trial Act, 18 U.S.C. § 3161 et  seq., on the basis that the ends of 
justice served by taking such actions  outweigh the best interest of the public and the defendant in 
a speedy trial  pursuant to the factors described in 18 U.S.C. §  3161(h) (7)(A), (B)(i), (ii), a nd (iv). 
In support of its unopposed motion, the government s tates as follows:  
FACTUAL B ACKGROUND 
Defendant is charged via indictment with offenses related to crimes that occurred at the 
United States Capitol on January 6, 2021.   In brief, on that date, as a Joint Session of the United 
S
tates House of Representatives and the United States Senate convened to certify the vote of the 
Elector al College of the 2020 U.S. Presidential Election, members of a large crowd that had 
gathered outside forced entry into the U.S. Capitol, including by breaking windows  and by 
assaulting members of law enforcement , as others in the crowd encouraged and ass is ted those acts.   
Scores of individuals entered the U.S. Capitol without authority to be there.   As a result, the J oint Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 1 of 92 
 Session and the entire official proceeding of the Congress  was halted until the Capitol Police, the 
Metropolitan Police Department, and other law enforcement agencies from the city and 
surrounding region were able to clear the Capitol of hundreds of unlawful occupants and ensure 
the safety of elected officials.  This event in its entirety is hereinafter referred to as the “Capitol 
Attack. ” 
The investigation and prosecution of the Capitol Attack will likely be  one of  the largest in 
American history, both in terms of the number of defendants prosecuted and the nature and volume 
of the evidence .  Over 300 individuals have been charged in connection with the Capitol Attack.  
The investigation continues and the government expects that at least one  hundr ed additional 
individuals  will be charged .  While most of the cases have been brought against individual 
defendants, the government is also investigating conspiratorial activity that occurred prior to and 
on January 6, 2021.  The spectrum of crimes charged  and under investigation in connection with 
the Capitol Attack includes (but is not limited to) trespass, engaging in disruptive or violent conduct in the Capitol or on Capitol grounds, destruction of government property, theft of government property, assa ults on federal and local police officers, firearms offenses, civil disorder, 
obstruction of an official proceeding, possession and use of destructive devices, and conspiracy.  
Defendants charged and under investigation come from throughout the United States , and 
a combined total of over 900 search  warrants have been executed in almost all fifty states and the 
District of Columbia.  Multiple law enforcement agencies were involved in the response to the 
Capitol Attack, which included officers and agents from U.S. Capitol Police, the District of Columbia Metropolitan Police Department, the Federal Bureau of Investigation, the Department of Homeland Security, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the United Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 2 of 93 
 States Secret Service, t he United States Park Police, the Virginia State Police, the Arlington 
County Police Department, the Prince William County Police Department, the Maryland State 
Police, the Montgomery County Police Department, the Prince George’s County Police Department, and the New Jersey State Police.  Documents and evidence  accumulated in the 
Capitol Attack investigation thus far include : (a) more than 15,000 hours of surveillance and body -
worn camera footage from multiple law enforcement agencies ; (b) approximately 1,600 electronic 
devices ; (c) the results of hundreds of searches of electronic communication providers ; (d) over 
210,000 tips , of which a substantial portion include video, photo and social media ; and (e)  over 
80,000 reports and 93,000 attachments related to  law enforcement interviews of suspects and 
witnesses and other investigative steps .  As the Capitol Attack investigation is still on -going, the 
number of defendants charged and the volume of  potentially discoverable materials  will only 
continue to grow.  In short , even in cases involving a single defendant, the volume of discoverable 
materials is likely to be significant.   
The United States is aware of and takes seriously its obligations pursuant to Federal Rule 
of Criminal Procedure 1 6 and Local Criminal Rule 5.1(a) , the provisions of Brady v. Maryland, 
373 U.S. 83, 87 (1963), Giglio v. United States , 405 U.S. 150, 153- 54 (1972), and the Jencks Act, 
18 U.S.C. § 3500.  Accordingly, t he government , in consultation with the Federal Public 
Defender , is developing a comprehensive plan for handling, tracking, processing, review ing and 
produc ing discovery across the Capitol Attack cases .  Under the plan, the discovery most directly  
and immediately  related to pending charges in cases involving detained defendants will be 
provided w ithin the next thirty to sixty days .  Cases that do not involve detained defendants will 
follow thereafter.  Such productions  will also be supplemented on an on- going basis .  In the Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 3 of 94 
 longer term, the plan will include a  system for storing, organizing, searching, producing and/or 
making available voluminous  materials  such as those described above  in a manner that is workable 
for both the government and hundreds of defendants.  This latter portion of the plan will require  
more time  to develop and implement, including further consultation with the Federal Public 
Defender . 
Defendant  in this case is charged with  violations of  18 U.S.C. §§ 231(a)(3) & 2 ( any act to 
obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the 
lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects the performance of any federally protected fu nction) ; 18 U.S.C. §§ 1512(c)(2)  & 2 ( corruptly obstruct ing, influenc ing, or impeding  
any official proceeding, or attempt ing to do so) ; 18 U.S.C. § 1752(a) (1) and (2) (knowingly 
enter ing or remain ing in any restricted building or grounds without lawful aut hority, or knowingly, 
and with intent to impede or disrupt the orderly conduct of Government business or official functions, engaging in disorderly or disruptive conduct ); and 40 U.S.C. § 5104(e)(2) (D) and (G) 
(willfully and knowingly engag ing in disorderl y or disruptive conduct, at any place in the Grounds 
or in any of the Capitol Buildings  with the intent to impede, disrupt, or disturb the orderly conduct 
of a session of Congress or either House of Congress, or the orderly conduct in that building of any deliberations of either House of Congress ).  In this case, t he government has already provided 
defense counsel with preliminary  discovery, including charging documents, screenshots of the 
defendant from relevant video footage, 302s, a video of the defendant’s interview, videos provided by the def endant to the FBI, subpoena productions from some of the defendant’s digital accounts, 
media interviews given by the defendant, open -source articles about the defendant, open- source Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 4 of 95 
 video footage of events relating to the attack on the Speaker’s Lobby door way, law enforcement 
database reports on the defendant, and numerous social media videos and postings from the 
defendant’s accounts on Facebook, Instagram, Youtube, Twitter, and Periscope .   
ARGUMENT  
Pursuant to the Speedy Trial Act, an indictment charging an individual with the 
commission of an offense generally must  be filed within thirty days from the date on which such 
individual was arrested or served with a summons in connection with such charges. 18 U.S.C. §  
3161( a).  Further, as a general matter, in  any case in which a plea of not guilty is entered, a  
defendant charged in an information or indictment with the commission of an offense must  
commence within seventy days from the filing date (and making public) of the information or indictment, or from t he date the defendant has appeared before a judicial officer of the court in 
which such charge is pending, whichever date last occurs.  18 U.S.C. § 3161( c)(1).  
Section 3161(h) of the Speedy Trial Act sets forth certain periods of delay which the  Court 
must exclude from  the computation of time within which  a trial must commence .  As is relevant 
to this motion for a continuance, pursuant to subsection (h)(7)(A), the Court must exclude:  
Any period of delay resulting from a continuance granted by any judge on his own 
motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.  
 
18 U.S.C. § 3161( h)(7)(A).  This provision further requires the Court to set forth its reasons for 
finding that that any ends -of-justice continuance is warranted.  Id.  Subsection (h)(7)(B) sets 
forth a  non-exhaustive list factors  that the Court  must  consider in determining whether to grant an 
ends-of-justice  continuance , including:  Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 5 of 96 
 (i) Whether the failure to grant such a cont inuance in the proceeding would 
be likely to make a continuation of such proceeding impossible, or result 
in a miscarriage of justice.  
 (ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the ex istence of novel 
questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.  
. . .  
(iv) Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or woul d 
deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.  
 
18 U.S.C. § 3161(h)(7)(B) (i)(ii) and (iv).   Importantly, “[i]n setting forth th e statutory factors that 
justify a continuance under subsection (h)(7), Congress twice recognized the importance of 
adequate pretrial preparation time.” Bloate v. United States , 559 U.S. 196, 197 (2010) ( citing  
§3161(h)(7)(B)(ii), (B)(iv)).  
An interests of justice finding is within the discretion of the Court.  See, e.g., United States 
v. Rojas -Contreras , 474 U.S. 231, 236 (1985); United States v. Hernandez , 862 F.2d 17, 24 n.3 
(2d Cir. 1988). “The substantive b alancing underlying the decision to grant such a continuance is 
entrusted to the district court’s sound discretion.” United States v. Rice , 746 F.3d 1074 (D.C. Cir. 
2014). 
In this case, an ends -of-justice continuance is warranted  under 18 U.S.C. § 3161(h)( 7)(A)  
based on the factors described in 18 U.S.C. § 3161(h)(7)(B) (i)(ii) and (iv).  As described above, 
the Capitol Attack  is likely the most complex  investigation  ever prosecuted by the Department of 
Justice .  Developing a system for storing and searching, producing and/or making available Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 6 of 97 
 voluminous materials accumulated across hundreds of investigations, and ensuring that such 
system will be workable for both the government and defense, will take time.  Even after a system 
generally agreeable to the gove rnment and the Federal Public Defender  is designed and 
implemented , likely through the use of outside vendors, it will take time  to load, process , search 
and review  discovery materials.  Further adding to production and review  times, certain sensitive 
materials may require re daction or restrictions on dissemination, and other materials may need to  
be filtered for potentially privileged information before they can be review ed by the prosecution.  
The need for reasonable time to organize , produce, and review voluminous discovery is 
among multiple  pretrial preparation grounds  that Courts of Appeals have routinely held sufficient 
to grant continuances and exclude the time  under the Speedy Trial Act.  See, e.g., United States 
v. Bikundi , 926 F.3d 761, 777- 78 (D.C. Cir. 2019)  (upholding ends -of-justice continuances totaling 
18 months in two co- defendant  health care fraud and money laundering  conspiracy case, in part 
because t he District Court found a need to “permit defense counsel and the government time to 
both produce discovery and review discovery” ); United States v. Bell , 925 F.3d 362, 374 (7th Cir. 
2019)  (upholding two- month ends -of-justice continuance in firearm possessi on case, over 
defendant’s objection, where five days before trial a superseding indictment with four new counts was returned,  “1,000 pages of new discovery materials and eight hours of recordings” were 
provided, and the government stated that “it needed more than five days to prepare to try [the 
defendant] on the new counts”); United States v. Vernon, 593 F. App’ x 883, 886 (11th Cir. 2014)  
(District court did not abuse its  broad discretion  in case involving conspiracy to commit wire and 
mail fraud  by granting t wo ends-of-justice continuances  due to voluminous discovery); United 
States v. Gordon, 710 F.3d 1124, 1157- 58 (10
th Cir. 2013)  (upholding ends -of-justice continuance Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 7 of 98 
 of ten months and twenty -four days in case involving violation of federal securities laws, where 
discovery included  “documents detailing the hundreds financial transactions that formed the basis 
for the charges” and “hundreds and thousands of documents that needs to be catalogued and 
separated, so  that the parties could identify the relevant ones”)  (internal quotation marks omitted) ; 
United States v. Lewis , 611 F.3d 1172, 1177- 78 (9th Cir. 2010)  (upholding ninety- day ends -of-
justice continuance in case involving international conspiracy to smuggle pr otected wildlife into 
the United States,  where defendant’s case was joined with several co -defendants, and there were 
on-going investigations, voluminous discovery, a large number of counts, and potential witnesses 
from other countries); United States v. O ’Connor , 656 F.3d 630, 640 (7th Cir. 2011)  (upholding 
ends-of-justice continuances totaling five months and twenty days in wire fraud case that began 
with eight charged defendants  and ended with a single defendant exercising the right to trial , based 
on “the complexity of the case, the magnitude of the discovery, and the attorneys’ schedules”) .  
In sum, due to the number of individuals currently charged across the Capitol Attack 
investigation and the nature of those charges, the on- going investigation of  many  other individuals, 
the volume and nature of potentially discover able materials, and the reasonable time necessary for 
effective preparation  by all parties  taking into account the exercise of due diligence, t he failure to 
grant such a continuance in this  proceeding would be likely to make a continuation of this  
proceeding impossible, or result in a miscarriage of justice.  Accordingly, t he ends of justice 
served by granting a request for a continuance outweigh the best interest of the public and the 
defendant in a speedy trial.  
Government counsel notified the defense of the f iling of this motion, and counsel  consents 
to the motion.  Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 8 of 99 
 WHEREFORE, the government respectfully requests that this Court  set a status hearing 
approximately 60 days from the March 30, 2021 status hearing and grant the unopposed motion to 
exclude the time – accounting for those approximately 60 days – within  which the trial must 
commence under the Speedy Trial Act, 18 U.S.C. § 3161 et seq ., on the basis  that the ends of 
justice served by taking such actions outweigh the best interest of the public and the defendant in 
a speedy trial  pursuant to the factors described in 18 U.S.C. § 3161(h)(7)(A), (B) (i), (ii), a nd (iv).   
Respectfully submitted,  
CHANNING D. PHILLIPS  
Acting United States Attorney  
D.C. Bar No.  415793 
 
 
 
By:                                  
CANDICE C. WONG  
Assistant United States Attorney  
D.C. Bar No. 990903 555 Fourth Street, N.W., Room 4816 Washington, DC 20530 Candice.wong@usdoj.gov (202) 252-7849  
Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 9 of 9