Datasets:

johnearlesullivan
/

capitol

	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