Datasets:

johnearlesullivan
/

capitol

Defendant , John Sullivan, by and through undersigned counsel, does
hereby move to Dismiss Count Eight of the superseding indictment. In
support thereof, defendant respectfully sets for th as follows:
I. FACTUA L BACKGROUND
This prosecution arises out of the events that occurred at the United
States Capitol on January 6, 2021. A ma ssive and organized investigation
arose that in cluded law enforcement agents f rom virtually every state in the
country. In fact, th is was one of the mo st intensive and large scale criminal
investigations ever co nducted in the United States.
On February 23, 2021 , the United States returned an initial indictment
against defendant charging as follows: Obstruction of an Official
Procee ding, 18 U.S.C. §§1512 (c) (2); Civil Disorder, 18 U.S.C. § 231(a)(3); Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 1 of 72
Entering and Remaining in a Restricted Building or Grounds, 18 U.S.C. §
1752 (a)(2); Disorderly and Disruptive Conduct in a Restricted Buildin g or
Grounds, 40 U.S.C. § 5104 (e)(2)(D ); Paradi ng, Demonstrating, or
Picketin g in a Capitol Building,§ 5104 (2)(G); Aiding and Abetting, 18
U.S.C. § 2. The indictment was superseded on May 19, 2021 adding a
charge of False Statement or Representation to an Agency of the United
States in violation of 18 U.S.C. § 1001 (a)(2), Count Eight .
II. THE VOID FOR VAGUENESS DOCTRINE
“The consti tutional requirement of definiteness is vi olated by a
criminal statute th at fails to give a person of ordinary intelligence fair notice
that his contemplated conduct is forbidden by statute. The underl ying
principle is that no man shall be held criminally responsible for which h e
could not reasonably underst and to be proscribed.” United States v. Harris,
347 U.S. 612, 617 ( 1954).
“The void -for-vagueness doctrine…gener ally holds that criminal
statutes must be sufficiently specific that the y provide ‘fair warning’ of the
conduct that is proscribed.” United States v. Kim , 808 F. Supp.2d 44, 50
(D.D.C. 20110 (Kollar -Kotelly, J.) Judge Kollar -Kotelly added, “The Fif th
Amend ment ’s guarantee of due process bars enforcement of a statute
which either forbids or r equires the do ing of an act in terms so vague that Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 2 of 73
men of common intelligence must necessarily guess at its meaning and
differ as to its applicati ons.” Id. at 50, quotin g United States v. Lanier , 520
U.S. 259, 266 (1977).
The void -for-vagueness doctrine “requires legislatures to set
reasonably clear guidelines for law enforcement officials and triers of fact in
order to prevent ‘arbitrary and discriminatory enforcement. ’’’ Smith v.
Georgia , 415 U.S. 566, 572 -73 (1974), citations omitted. “[T]he touchstone
is whether the statute, either standing alone or as construed, made it
reasonably clear at the relevant time that the defendant’s conduct was
criminal.” Lanier , 520 U.S. at 267.
Defendant further notes that the constitutional validity of an
indictment must be raised by motion before trial pursuant to Federal Rule of
Criminal Procedure 12 (b)(3)(B). See United States v. Brown , No. CRIM.07
75 CKK, 2007 WL 2007513, at *2 ( D.D.C. July 9, 2007 (Kollar -Kotelly, J.).
III. 18 USC § 1001
The subject statute states in relevant part as follows:
(a) Except as otherwise provided in this section, whoever, in any matter
within the jurisdiction of the executive, legislat ive, of judicial branch of the
Government of the United States, knowingly and willfully — Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 3 of 74
(1) falsifies, conceals, or covers up by tri ck, scheme, or device a
material fact;
(2) makes any materi ally false, fictitious, or fraudulen t statement or
representat ion; or
(3) makes or uses and false writing or document knowing the same
to cont ain any materially false, fictitious, or fraudulent statement or entry;
Shall be fined under this title, imprisoned not more than 5 years….
In order to sustain a conviction for violation of 18 U.S.C. 1001(a)(2)
the government must prove five elements: (1) a statement was made; (2)
the statement was false; (3) the statement was made with specific intent;
(4) the statement was material; and (5) there was government agency
jurisdiction. United States v. Jian g, 476 F.3d 1026, 1029 (9 th Cir. 2007);
United States v. Robinson , 505 F. 3d 1208, 1226 (11th Cir. 2007).
The question of the materiality of the alleged statement is one that
should be clear and unambiguous in or der to pass constitutional scru tiny.
“Since materiality is an element of this offense [18 U.S.C. §1001] the
prosecution carries the burden of proof.” United States v. Talkington , 589
F.2d 415, 417 (9th Cir. 1978); “A district court may not determine the
materiality of a statement as a matter of law. See United States, v. Gaudin,
515 U.S. 506, 512 (1995)”. Rather, “the question of materiality should be Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 4 of 75
submitted to the trier of fact to determine whether the statement has the
propensity to influence agency action.” Unite d States v. Facchini, 874 F. 2d
638, 643 (9th Cir. 1989) (en banc).
In Kungys v. United States , the Supreme Court provided some
guidance concerning the definition of materiality in the context of
misrepresentations within the meaning of a statute providin g for
denat uraliz ation of citizens whose citizenship orders were procured by
conc ealment of a material fact. The Court concluded that “the test of
whether Kung ys’ concealments or misrepresent ations were material is
whether they h ad a natural tendency to in fluen ce the deci sions of the
Immigration and Nat uralization Service.” 485 U.S. 759, 772 (1988) .
Defend ant submits that th e term “materiality” in the context of the
subject statute is vague and there fore void. T he inve stigation of this case
was 100 percent centered around the invasion of the United States Capitol
on Janu ary 6, 2021 . The investigation involved the alleged acti ons of
defendant related t o his presence on the grounds of the United States
Capitol on January 6, 2021. The investigation had absolut ely nothing to do
with defend ant’s possession of a knife. Whether or not defendant was in
possession of a kni fe on January 6, 2021 h as absolu tely no bearing on the
investigation or the involvement of John S ullivan in the invasion. Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 5 of 76
United States v. Bedore , a 9th Circuit opinion related to 18 U.S.C. §
1001 is instructive. The case involved an F.B.I agent who went to Bedore’s
home to serve a subpoena directing Bedore to appear at a court
proceeding. The F.B.I agent knocked on the door and Bedore identified
himself as someone else. Following a convict ion for making a false
statement, the Bedore Court ruled that “Congress did not intend section
1001 to apply to Bedore’s g iving a false name to [F.B.I. Agent] Henry,
beca use his response was not within the class of false statemen ts that
section 1001 was designed to proscribe.” 455 F.2d1109,1110 (9th Cir.
1972) .
The Bedore Court explained the types of statements contemplated by
the statute.
From the statutory history. It is evident that section 1001
was not intended to reach a ll false statements made to
Governmental agencies and departments, but only those
false statements that might support fraudulent claims against
the Government, or that might pervert or corrupt the authorized
functions of those agencies to whom the statements were
made. Typical of the kind of statements that are within the
purview of section 1001 are false reports of crime made to
federal law enforcement agencies that may engender
groundless federal investigations.

Id., 1111.

18 U.S.C. § 1001 does not adequately define “materiality” in general
and specifically does any provide any guidance whether a statement that is Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 6 of 77
outside the scope of the alleged crime that is being investigated comes
within the inten ded purpose of the statute. Accordingly, the statute is void
for vaguen ess.
Wherefor e, the foregoing considered, defendant prays this Ho norable
Court f or dismiss al of Count Eight of the Superseding Indictment as it is
void for vagueness.

Respectfully submitted,

_______/s/_______________
Steven R. Kiersh #323329
5335 Wisconsin Avenue, N.W.
Suite 440
Washington, D.C. 20015
(202) 347 -0200

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and accurate copy of the foregoing
was served, via the Court’s electronic fili ng system, on this the 24thday of
September, 2021 upon Assistant U.S. Attorney Candice Wong, Esquire.

______ /s/____________________
Steven R. Kiersh Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 7 of 7