Datasets:

johnearlesullivan
/

capitol

Defendant, by and though undersigned counsel, does hereby
supplement his Motion to Dismiss Count 8 of the Superseding Indictment.
In support thereof, defendant respectfully sets f orth as follows:
1. On Septemb er 24, 2021, Defendant filed a Motio n to Di smiss
Count 8 of the superseding indictment, Making a False Statement , in
violation of 18 U.S.C. Sec. 1001 (a)(2) . PACER 47. The g round in the initial
motion w as that the term “materiali ty” was void for vagueness and theref ore
unconstitutional and must be dismissed .
2. Defendant adds this supplement to the Motion to Di smiss o n
grounds that the government cannot establish materiality in the co ntext of
Count 8 and the ind ictment must be dismissed. The argument is based
upon the re cord that has to date been established in this matter. Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 1 of 82
This Court can di smiss part of an indictmen t prior to trial . A crimi nal
defendant may move to dismiss an indictment based on a “defect in the
indictment, including …failure to state an offense ” if the “motion can b e
determined without a tri al on the merits [.]” Fed. R. Crim P 12 (b )(3)(B).
The issue raised by defendant is whether the fa lse statem ent indic ted
in Count 8 is a “material ” false statement. The law does criminalize every
false statement that is made to the government. O n the contrary, it is well
settled that the law distinguishes between fa lse statements o f
consequence, wh ich can fairly give rise to criminal liability, and fa lse
statements of little or no significance, whic h cannot. Thus, “materiality ” is
the lega l standard that has long separated one cate gory from the o ther.
Kungys v. U nited States , 485 U.S. 759, 769 (1988).
Consistent with the long -standing requirement of materiality within the
contex t of a prosec ution under 18 U.S.C. Sec. 1001, materiality is
considered to be an essential element of the federal fa lse statement
offense. See U nited States v. Verrusion , 762 F.3d 1, 20 (D.C . Cir. 2014) ;
United S tates v. Stone , 394 F. Supp. 3d 1 (D.D.C. 2019).
To be material , a false statement must have a natural ten dency to
influence, or be capable of influencing, the dec ision-making body to which it
was address ed.” United S tates v. Gaudin , 515 U.S. 506, 509 (1995). In Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 2 of 83
analyzing thi s stand ard in United States v. J ohnson , the Third Circuit noted ,
“materiality requires evidence that the false statements we re of a type
capable of in fluencing a reasonab le decision maker, and that the fa lse
statements c ould have a bearing on an actual decision entrusted t o the
decisionmaker ….” 19 F.4th 248, 257 (2021), citations omitted.
The dec ision-maker in this case is the U nited State s Departmen t of
Justice. The Justice Department is the entity that returned the initial
indictment and the s uperseding indictment s against defen dant John
Sullivan. Therefore, th e charged false statement , in order to be mat erial,
had to have affected the decision makin g of the U nited States Department
of Justice within the context of prosecuting ac ts related to the events at the
United S tates Capitol on January 6, 2022 1
Weinstock v. U nited States, 231 F.2d 699 (D.C . Cir. 1956), involving a
conviction for 18 U.S.C . Sec. 1001 , is instructive. The C ourt discussed the
difference between material evidence and relevant evi dence.
‘Material ’ when used in resp ect to evidence is often
confused with ‘relevant ’, but the terms ha ve wholly
differen t meanings. To be relevant me ans to have
probative weight, i.e., reasonabl y likely to influence
the tribunal in making a determinati on required to be
made. A statement may be relevant but not material …
The test is whet her the false statement has a natural
tendenc y to influence, or was capable of influen cing,
the decision of the tribunal in making a determinati on
required to be made. Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 3 of 84

Id., 701 -702.
In United States v. Naserkhaki , 722 F. Supp. 242 (E.D. Va. 1989) , the
defendant was prosecuted for making false statements to the INS in
violation of 18 U.S.C. Sec. 1001. The false statement s related to his
application and the attached supp orting documents for the pu rpose of
obtaining a Refugee Travel D ocument. The false statements pertained to
the date and place of the defend ant’s last en try into the U nited States.
The Naserkhaki Court determi ned that the alleged f alse statem ents
in the application were not material to acquiring the Refugee Travel
Document. “Where …a misstatement relates to an ancillar y, non -
determinative fact, it is not material and cannot support a co nviction under
Section 100 1 Id. at 248. The C ourt added, “A misstatement in this context
is material only if it relates to a fact or cir cumstance the IN S exami ner
considers in deciding whether to issue an RTD. ” Id. at 249.
The situation herein is precis ely the issue addressed in Naserkhaki .
The F.B.I . was investigati ng the events at the United States Capitol on
January 6, 2021. When the agents spoke w ith Mr. Sullivan they were at his
home exclusively to confront h im about his presence in the U nited States
Capitol on January 6, 2021. It is inconceivab le that a purpo rted false
statement about not being in possession of a kni fe would have impacted Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 4 of 85
the decision -making body in deciding whether to indict defendant for the
offenses contained in the indictment.
The issue of possession of a knife, as well as statements made to the
F.B.I. related to the knife , are noth ing more than ancillary, non -
determinative fact s that are entirely unrelated to the decision regarding
whether to charge defendant with the offenses for which he has been
indicted.
The only decision the Justice Department was in vestigat ing is
whether to charge J ohn Sullivan with matters related to his presence in the
United State s Capitol on January 6, 2021 and what specific charges he
would be faci ng. It was not investigating whether Mr. Sullivan had a kn ife.
Regar dless of whether defendant did have a kn ife or did not have a knife,
that fact was not det erminative of whether he would be charged and for
what he wo uld be charged.
Defendant notes that the original indictmen t was r eturned wi thout
regard to whether h e did or did not posses a knife on January 6, 2021.
None of the indicted charges in the superseding i ndictments , other than
the false statement charge, have anything to do with possession of a knife.
In United States v. Gaudin , Justice Scalia noted, “[d]eciding whether
a statement is ‘materia l’ requires a determination of at least two subsidiary Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 5 of 86
questions …(a) what statement was made? And (b) ‘what decision was the
agency trying to make. ” 515 U.S. 506, 512 ( 1995). Onl y after a court has
identified the “statement ” and the “relevant de cision ” can a court answer
the “ultimate question ”: whether the statement was material to the
decision.” Id.
The anal ysis employed by Judge Scalia was followed in this Circuit in
United States v. Diggs . “The test of materiality is whether the statement has
a nat ural tendency to influence , or was ca pable of influencing the decision
of the tribunal in making a (particular) de termination .” 613 F.2d 988, 999
(D.C. Cir. 1979), quoting Weinstock v. United States , 2312 F.2d 699, 701 -
02 (D.C . Cir. 1956. ) See also United States ex el. Morsell v. Symantec
Corp., 130 F. Supp 3d 106, 123 n.16 (D.D.C. 2015) ([A] statement is
material if it has a nat ural tendency to influence, or is capable of influencing
an agency ’s action. ” quoting United States v. Moore , 612 F.3d 698, 701
(D.C. Cir. 2010).
The statement herein is readily identifiable. It is the subject of the
pending Motion to Suppress Statement and related to the den ial of the
possessio n of a kn ife during the event s of January 6, 2021. The decision to
indict J ohn Sullivan had nothing to do with the statement. This argument
that the statement had nothing to do wi th the dec ision to charge J ohn Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 6 of 87
Sullivan is supported by the fac t that the U nited States has never argued
that the knife had anything to do with the decision -maker ’s determination to
charge defendant.
Defendant submits this issue should be decide d pretrial . The
substance of the statement , the decision conc erning whether to charge
defendant , and the charges fo r which defendant has been indicted are not
in issue.
Defend ant maintains i t is far better to have the issue resolved prior to
trial as intro ducti on of the allegedly false statement will only serve to
prejudice defendant while having no probative value. Federal Rule of
Evidence 403 mandates that “the court may exclude evidence i f its
probative value is sub stantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misl eading the jury,
undu e delay, wasting time, or needlessly presentin g cumul ative evidence.
WHEREFOR E defendant prays this Honorable C ourt dismiss Count 8
of the superseding indictment.

Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 7 of 88

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 foregoin g
was served, via the Court’s electroni c filing system, upon Joseph Huynh
Esquire, A ssistant U.S. Attorney on this the _______ 16th_____ day of
May, 2022 .

______ /s/___________________
Steven R. Kier sh

Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 8 of 8