05-05-23 - MOTION for 404(b) Evidence by USA as to JOHN EARLE SULLIVAN.txt

 
 1 UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
 UNITED STATES OF AMERICA  :   
 :   
 :  
             v. :  Case No. 21- cr-78 (RCL ) 
 :  
JOHN EARLE SULLIVAN,  : 
 :  
Defendant.                   : 
 
GOVERNMENT’S 404(b) NOTICE  
 
The United States of America, by and through its attorney, the United States Attorney for 
the District of Columbia, respectfully submits this Federal Rule of Evidence 404(b) Notice  
regarding the admissibility of Defendant John Sullivan’s  prior act s of protesting and rioting for the 
proposition that he is a professional protestor whose presence at the Capitol on January 6, 2021 
was no mere accident or part of a journalistic exercise, but was in line with his consistent motivation to trigge r violence and property destruction during civil unrest .  Defendant  Sullivan is  
charged  with crimes related to his conduct at the Capitol on January 6, 2021.  As detailed herein, 
Defendant Sullivan’s prior act s are probative  in establishing Sullivan’s motive, intent, knowledge, 
and absence of mistake  or accident .     
If not used in its case -in-chief, the government intends to use the 404(b) evidence as 
impeachment or rebuttal evidence should defense present a case.   In the event the government is 
precluded from using the 404(b) evidence in its case -in-chief , the government would seek to use 
it as impeachment or rebuttal evidence.  
 Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 1 of 11 
 2 I. PROCEDURAL HISTORY 
On November 10, 2021, a grand jury charged Defendant Sullivan  with Obstruction of an 
Official Proceeding, in violation of 18 U.S.C. § 1512(c)(2), and 2; Civil Disorder in violation of 
U.S.C. § 231(a)(3), and 2; Entering and Remaining in a Restricted Building and Grounds  with a 
dangerous weapon, in violation of 18 U.S.C. § 1752(a)(1) and (b)(1)(A); Disorderly and Disruptive 
Conduct in a Restricted Building or Grounds  with a dangerous weapon, in violation of 18 U.S.C. 
§ 1752(a)(2)  and (b)(1)(A);  Unlawful Possession of a Dangerous Weapon  on Capitol Grounds or 
Buildings, in vi olations of 40 U.S.C. § 5104(e)( 1)(A)( i); Disorderly Conduct in a Capitol Building, 
in violation of 40 U.S.C. § 5104(e)(2)(D); Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G) ; False Statement or Repres entation to an 
Agency of the United States, in violations of 18 U.S.C. § 1001(a)(2); and Aiding and Abetting, in 
violation of 18 U.S.C. § 2. 
 The case is scheduled for jury trial to commence on October 25, 2023.  Judge Emmet 
Sullivan ordered the government t o file notice of Rule 404(b) evidence by May 5, 2023. See ECF 
No.83 at 1.  Defense has been provided the material referenced in this notice during discovery.  
II. DEFENDANT’S CONDUCT ON JANUARY 6, 2021
 
John Sullivan traveled from Utah to Washington, D.C., to at tend and film varying rallies 
on the 5th and 6th.  On January 6th, Sullivan attended the “Stop the Steal” rall y on January 6, 2021. 
Afterwards, Sullivan joined rioters at the U.S. Capitol  grounds  where he filmed a crowd pushing 
through several police barri ers on the west side of the Capitol . After the crowd broke through the 
last barricade. As Sullivan and the others approach the Capitol Building, Sullivan can be heard in 
his video excitedly saying at various points: “There are so many people. Let’s go. This shit is ours! Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 2 of 11 
 3 Fuck yeah,” “We accomplished this shit. We did this together. Fuck yeah! We are all a part of this 
history,” and “Let’s burn this shit down.”  
Sullivan entered the Capitol via  a broken Senate Wing Door. Once inside the Capitol 
Building, Sullivan roamed the building with other individuals who unlawfully entered.  During 
one of his interactions with others, Sullivan can be heard in the video saying, “We gotta get this shit burned,” “it’s our house motherfuckers,” and “we are getting this shit.” Sullivan ignored law enforcements commands to leave and told the officers to stand down, so they would not get hurt. 
Sullivan encouraged other rioters, explaining he was “ready” because he had “been in so many 
riots.”  
Sullivan filmed the crowds trying to break open doors to the House  Chamber  and the n at 
the Speaker’s Lobby. At both locations, Sullivan informed other members of the crowd he had a 
knife which allowed him to cut to the front of  the crowd. At the front of the Speaker’s Lobby 
crowd, Sullivan filmed the crowd trying to break down the doors’ glass windows. Sullivan can be 
heard telling law enforcement to “go home” while encouraging those attempting to break the windows to “Get this shit!” Shortly thereafter, the video includes footage of a female getting shot as she tries to enter through the window opening. After January 6
th, Sullivan  publicly claimed he 
was simply  a journalist  who went inside to film and protect police. Sullivan claimed he made the 
inflammatory statements so he could blend in with the other rioters.  Sullivan did admit, to 
investigators, that he did not have any press credentials.  
III. DEFENDANT’S PRIOR ACT  
Over the course of 2020 -2021, Sullivan participated in numerous  riots and protests  across 
the country and in his home state of Utah .  Sullivan’s participation and attendance at legal protests Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 3 of 11 
 4 is not at issue, but his actions during and after these protests, some of which escalated to riots, are 
the center of this motion. Sullivan’s participation has never been that of a journalist, as he claims on January 6th.  During these  prior  protests and riots, Sullivan is captured, often in his own 
recordings, wearing all black fatigues and giving inflammatory speeches calling for violence.  Sullivan  even started a group called ‘Insurgence USA’ that  organized, promote d, and recruit ed 
attendees  for differing protests , counter protests, and events .  In addition to his physical 
participation, Sullivan utilized several social media platforms to  provide  comment ary on protests 
and riots.  He also used these platforms to post, as well as re -post, ‘how -to” guides on how to 
participate in , survive, and inf lame protests  or riots.  
a. Prior P rotests and Riots  
Sullivan organized multiple protests in Utah over the course of 2020. On June 29, 2020, 
Defendant Sullivan  organized a counter protest to a pro- police event where a group drove cars 
around the Provo police station .  Sullivan did not seek a permit to hold his counter -protest.  
Specifically, Sullivan’s group blocked both the pro- police cars and street traffic, at his instruction.  
Sullivan also damaged several cars including kicking a woman’s SUV while threate ning to beat 
her.  During the blockade, a counter -protester, standing next to Sullivan, shot a driver who was not 
involved with either group. Sullivan was arrested on July 9, 20202, and charged with criminal mischief, threat of violence, and rioting.  His case was dismissed from Utah District Court , due to 
lack of jurisdiction, and could not be filed in state court due to statute of limitations .  On July 22, 
2020, Sullivan held a solo protest at the Utah state Capitol while holding his legally owned AR -
15.  On December 27, 2020, Sullivan tweeted a photo of himself , from his one -man armed protest , Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 4 of 11 
 5 with the caption “An armed revolution is the only way to bring about change effectively.”  He also 
used the hashtags #Fuck12 and #Acab.   
In September of 2020, Defendant Sullivan traveled to Portland, Oregon to attend protest s 
in relation to defunding the police.  Sullivan posted a photograph of himself of Facebook , wearing 
all black and a balaclava with the caption “Let’s start a riot.”  He also posted an Instagram photo 
of himself in the clothing with the Caption “Battle Ready” and a  guide on “How To Take Down 
A Monument.”  Prior to the protests, Sullivan recorded himself walking around the streets of Portland wearing all black and a bullet proof vest.  La ter he  engaged in protests and recorded 
himself giving a speech in support  of taking drastic steps to promote a cause . 
Sullivan also attended protests and marches in August and September 2020, respectively, 
Washington, D.C  and Southern California .  In D.C. , he was recorded giving a speech  and saying, 
“burn it down.”  He posted an Instagram linking his followers to information on a “ purge” with a 
note “SPREAD THE MESSAGE. LET THE ELECTORAL PURGE COMMENCE.”  Sullivan 
also used hashtags including #DCProtest. 
b. Social Media 
In additional to Sullivan’s presence at protests, he has been  just as vocal  about protesting and 
revolution on social media.  As evident by the post described above, Sullivan had several platform 
accounts attached to either his name or his orga nization .   
i. Facebook  
In addition to the posts mentioned above, Sullivan’s Insurgence USA hosted a fundraiser on 
Facebook for bullet proof vests.  Sullivan also offered to sell tactical gear as well  in YouTube 
videos.  Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 5 of 11 
 6 ii. YouTube  
On December 5, 2020, Sullivan posted on his YouTube account Jayden X (which shares the 
same name as the watermark on his recordings of January 6th), dressed in all black while donning 
a bullet proof vest and balaclava with the caption “Here is a full guide on how to keep yourself 
safe during protests and Direct Actions.” At differing points in the video Sullivan brandishes a 
legally owned semi -automatic handgun, rifle, and knife. The same day he also posted a YouTube  
video captioned “Outstanding job protesters in Paris keep making them notice and burn it all!” On 
December 29, 2020, Sullivan posted a how -to guide on making Molotov cocktails.   
 
iii. Twitter  
Sullivan’s Twitter accounts reveal ed similar intent.  On December 2 6, 2020, Sullivan tweeted 
“Riots are meant to bring change, so purge the world with fire.”  On December 27, 2020, Sullivan 
tweeted a photo of himself, holding a legally owned firearm, at his one -man protest with the 
caption “An armed revolution is the only  way to bring about change effectively.”  He also used 
the hashtags #Fuck12 and #Acab.  On December 30, 2021, Sullivan re tweeted  a Tiktok of Senate 
Minority Leader Mitch McConnel l and added the caption “Definitely don’t  surround his house…” 
with the hashta g #fuckMcConnel l.  On December 31, 2020, Sullivan tweeted a photo of himself 
in a bullet proof fest and armed with the caption “I’m already ready to go Nazi Hunting in 2021, 
are you?”  On January 1, 2021, Sullivan retweeted a tweet from then President Trum p and urged 
counter protesters to show up to Trump’s January 6th rally. The very next day Sullivan tweeted 
“Fuck The System -Time To Burn It All Down” with several hashtags including #burn and Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 6 of 11 
 7 #abolishcapitalism. The tweet was accompanied by a Tiktok showing masked figures and ominous 
music . 
IV.    LEGAL STANDARD  
Rule 404(b)  Crimes, Wrongs, or Other Acts  
Federal Rule of Evidence 404(b)(2)(A) requires that the government must provide 
“reasonable notice of the general nature of any such evidence that the prosecutor intends to offer 
at trial; and (B) do so before trial.”   Rule 404(b) provides that evidence of “other crimes, wrongs, 
or acts” is not admissible to prove a defendant’s character, but is admissible for any non- propensity 
purpose, including motive , intent, common scheme or  plan, knowledge,  and absence of mistake, 
or accident .  See United States v. Bowie , 232 F.3d 923, 926, 930 (D.C. Cir. 2000) (citing Fed. R. 
Evid. 404(b)).  As the United States Court of Appeals for the D.C. Circuit has instructed, Rule 
404(b) is a rule of “inclusion rather than exclusion.”  Bowie , 232 F.3d at 929.  Additionally, 
evidence of a defendant’s prior crimes may also be admissible where such evidence (1) is direct 
and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the 
charged crime, or (3) is necessary to place the charged crime in an understandable context.   Jackson  
v. United  States , 856 A.2d 1111, 1115 (D.C. 2004) .  Specifically, “[a]lthough the first sentence of 
Rule 404(b) is ‘fr amed restrictively,’ the rule itself ‘is quite permissive,’ prohibiting the admission 
of ‘other crimes’ evidence ‘in but one circumstance’ — for the purpose of proving that a person’s 
actions conformed to his character.” Id. at 929- 30 (quoting United State s v. Crowder, 141 F.3d 
1202, 1206 (D.C. Cir. 1998) ( en banc ) (“Crowder II ”)); accord United States v. Cassell , 292 F.3d 
788, 792 (D.C. Cir. 2002) (“[A]ny purpose for which bad- acts evidence is introduced is a proper Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 7 of 11 
 8 purpose so long as the evidence is not offered solely  to prove character”) (quoting United States v. 
Miller , 895 F.2d 1431, 1436 (D.C. Cir. 1990) (emphasis in original)). 
There is a two -pronged test for determining whether evidence of prior crimes is admissible 
under Rule 404(b).  First, the evidence must be “probative of a material issue other than character.”  
Miller , 895 F.2d at 1435.  Second, the evidence is subject to the balancing test of Federal Rule of 
Evidence 403, which renders  it inadmissible only if the prejudicial effect of admitting the evidence 
“substantially outweighs” its probative value.  Id.  Furthermore, it is not enough that the evidence 
is simply prejud icial; the prejudice must be “unfair.”  Cassell , 292 F.3d at 796 (quoting Dollar v. 
Long Mf’g, N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977) for the proposition that “[v]irtually all 
evidence is prejudicial or it isn’t material.  The prejudice must be “unf air.”); United States v. 
Pettiford , 517 F.3d 584, 590 (D.C. Cir. 2008) (“[T]he Rule focuses on the danger of unfair  
prejudice, and gives the court discretion to exclude evidence only if that danger substantially  
outweigh[s] the evidence’s probative value.” ) (citations and punctuation omitted) (emphasis in 
original).  
Admission of Rule 404(b) evidence is permitted in the government’s case -in-chief. 
Specifically, the government is entitled to anticipate the defendant’s denial of intent and 
knowledge and to introduce similar act evidence as part of its case -in-chief.  See United States v. 
Inserra , 34 F.3d 83, 90 (2d Cir. 1994) (“[Rule 404(b) other crimes evidence] is admissible during 
the government’s case -in-chief if it is apparent that the defendant will disp ute that issue”); United 
States v. Lewis , 759 F.2d 1316, 1349 n.14 (8th Cir. 1985) (“It was not necessary for the government 
to await defendant’s denial of intent or knowledge before introducing [Rule 404(b) other crimes] 
evidence; instead the government m ay anticipate the defense and introduce it in its case- in-chief”); Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 8 of 11 
 9 United States v. Bussey , 432 F.2d 1330, 1333 n.13 (D.C. Cir. 1970) (noting that Rule 404(b) other 
crimes evidence to prove identity and to prove that prior and subsequent offenses are so identical 
as to mark them as handiwork of the defendant should be introduced in the government’s case -in-
chief).   For a prior act to be probative of intent, the act must “ usually must involve an offense 
similar in kind and reasonably close in time to the cha rge at trial.” Thomas  v. United  States , 59 
A.3d 1252, 1261 (D.C. 2013); Boyer  v. United  States , 132 F.2d 12, 13  (D.C. Cir. 1942) ( “[T]he 
fact that intent is in issue is not enough to let in evidence of similar acts, unless they are so 
connected with the offense charged in point of time and circumstances as to throw light upon the 
intent.” ). 
V. ARGUMENT  
In this case, the evidence of the defendant’s prior acts provides the basis for his motive, the 
absence of mistake, direct and substantial proof of the charged crime, and is so closely intertwined 
with the crime charged that a common scheme or plan is apparent.  Defendant Sullivan ’s conduct 
at the U.S. Capitol on January 6, 2021, was done knowingly, willfully , and with purpose .  Based 
on some of his  statements  claiming to be a journalist , Defendant Sullivan  will presumably deny he 
intentionally breached the  Capitol  to engag e in wrongdoing.  Defendant Sullivan  prior statements 
and acts are probative that his actions, on January 6th, were not the result of self -proclaimed 
journalist’s inadvertence, mistake, or accident .  Sullivan  had knowledge  the Capitol was not open 
to those without credentials, so it was no mistake he went inside. Therefore, his “defense” that he was simply in/at the Capitol to document and protect police is questionable and directly contradicted by his prior actions and words.   Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 9 of 11 
 10 The evidence of the prior acts and statements are close enough in time, provides direct evidence 
of each other,  and shows his continued common plan and scheme .  Sullivan did not go inside to 
document the events, his intentions and motives are made clear fr om his prior acts and statements: 
fuck the system, burn it all down.  The government intends  to introduce  video and present social 
media posts , through investigating witnessing, from  the prior acts as well as present  the posts from  
the days leading up to J anuary 6, 2021  This will be done  to prove his intent to enter, disrupt, and 
obstruct which was done in order advance his true motive: upheaving the system. 
Last, the highly probative value of the government’s proffered 404(b) evidence is not 
substantially  outweighed by potential prejudice to Defendant  Sullivan .  Any potential prejudice is 
not unique to this case —where the government has shown a permissible non- propensity purpose —
but is simply that endemic to all Rule 404(b) evidence.  Such evidence “almost  unavoidably raises 
the danger that the jury will improperly ‘conclude that because [the defendant] committed some 
other crime, he must have committed the one charged in the indictment.’”  United States v. 
Douglas , 482 F.3d 591, 601 (D.C. Cir. 2007) (quoti ng Crowder II , 141 F.3d at 1210).  Prejudice 
in this attenuated sense cannot justify a per se  rule of exclusion.  See Crowder II , 141 F.3d at 1210.   
The defense must instead show “compelling or unique” evidence of prejudice, Mitchell, 49 
F.3d at 777, dist inct from the probative value of the evidence and distinct from the intrinsic 
prejudicial potential of any Rule 404(b) evidence.  The D.C. Circuit has consistently minimized the residual risk of prejudice not by exclusion but by instead issuing limiting instructions to the jury.  See, e.g. , Douglas, 482 F.3d at 601 (emphasizing the significance of the district court’s 
instructions to jury on the permissible and impermissible uses of the evidence); Pettiford , 517 F.3d 
at 590 (same); Crowder II , 141 F.3d at 1210 (stating that mitigating  jury instructions enter  the Rule Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 10 of 11 
 11 403 balancing analysis).  Thus, because the government’s Rule 404(b) evidence is not unduly 
prejudicial and any minimal prejudice can be addressed through an appropriate limiting instruction, i ts admission is appropriate.  
VI. CONCLUSION
For the fore going reasons, the government respectfully requests that the Court permit at 
trial the introduction of its proffered “ other acts” evidence , pursuant to Fed. Rule Evid. 404(b) . 
 
Respectfully submitted,  
 
MATTHEW M. GRAVES  
United States Attorney  
D.C. Bar No. 481052  
 
By:  /s/ REBEKAH  LEDERER  
REBEKAH LEDERER  
Pennsylvania Bar No. 320922 
Assistant  United  States  Attorney 
U.S Attorney’s  Office  for District of 
Columbia 601 D S t. N.W, Washington, DC 
20530 Tel. No. (202) 252- 7012  
rebekah.lederer@usdoj.gov 
  
 
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