06-02-23 - Motions In Limine - USA Attorney Filing - John Sullivan Case.txt

 1  
 UNITED STATES DISTRICT COURT  
FOR THE DISTRICT OF COLUMBIA 
 
UNITED STATES OF AMERICA   : 
:   
v.    : Case No.  21-cr-78 (RCL)  
:  
JOHN SULLIVAN,    :  
   :  
Defendant.   : 
 
UNITED STATES’S OMNIBUS MOTIONS IN LIMINE  
The United States of America, by and through its attorney, the United States Attorney for 
the District of Columbia, respectfully submits this omnibus brief arguing motions in limine  in 
advance of the trial in this case scheduled for October 25, 2023.  Judg e Emmet Sullivan had 
previously ordered parties to file motions in limine  by June 2, 2023.  See ECF 83.  Although the 
Federal Rules of Evidence expressly contemplate motions in limine , the practice of allowing such 
motions has developed over time “pursuant to the district court’s inherent authority to manage the 
course of trials.”  Luce v. United States , 469 U.S. 38, 41 n. 4 (1984).  “Motions in limine are 
designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.”  
Barnes v. D.C., 924 F. Supp. 2d 74, 78 (D.D.C. 2013) (quoting Graves v. District of Columbia , 
850 F.Supp.2d 6, 10 (D.D.C. 2011) ). 
The United States offers the authorities and analys is below to promote efficiency and 
reduce the need to argue objections midtrial.  For each motion herein, the United States asks that 
the Court grant the requested relief or, if the Court reserves ruling, to consider the below arguments 
when the relevant i ssues arise during trial.  
I. Motion in Limine to  Limit Unnecessary Discussion of Security -Related Topics  
Certain topics that could arise at trial—namely the exact locations of USCP CCTV cameras  
and the protocols of the U.S. Secret Service (USSS) —have little to no probative value but would  Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 1 of 18 2  
 compromise significant security interests if needlessly disclosed to the public.  The United States  
does not intend to elicit any of the following topics in its case -in-chief and, therefore, cross -
examinat ion on such topics would be beyond the scope of direct and impermissible.  Fed. R. Evid. 
611(b).  To the  extent that defendant  Sullivan  seeks to argue that any of the following topics are 
relevant and within the scope  of the direct  examination, the United States  requests an order under 
Fed. R. Evid. 403 foreclosing unnecessary cross -examination on these topics. 
It is well- established that a district court has the discretion to limit a criminal defendant’s  
presentation of evidence and cross -examination of wi tnesses.  See Alford v. United States , 282 
U.S. 687 (1931) (“The extent of cross -examination [of a witness] with respect to an appropriate 
subject of  inquiry is within the sound discretion of the trial court.”); United States v. Whitmore , 
359 F.3d 609, 615–16 (D.C. Cir. 2004) (“The district court  . . . has considerable discretion to place 
reasonable limits  on a criminal defendant’s presentation of evidence and cross -examination of 
government  witnesses.”).  A court has the discretion to prohibit cross -examination that goes 
beyond matters  testified to on direct examination.  Fed. R. Evid. 611(b).  This is particularly so 
when the information at issue is of a sensitive nature.   See, e.g., United States v. Balistreri , 779 
F.2d 1191, 1216–17 (7th Cir. 1985) (upholding district court’s decision to prohibit cross -
examination of agent about sensitive  information about which that agent did not testify on direct 
examination and which did not pertain to the charges in the case), overruled on other grounds , 
Fowler v. Butts , 829 F.3d 788 (7th Cir. 2016). 
The Confrontation Clause guarantees only “an opportunity for effective cross -examination, 
not cross -examination that is effective in whatever way, and to whatever extent, the defense might  
wish.”   Delaware v. Fensterer , 474 U.S. 15, 20 (1985).  Even evidence that may be relevant to an  
affirmative defense should be excluded until the defendant sufficiently establishes that defense  Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 2 of 18 3  
 through affirmative  evidence presented during his own case -in-chief.  See United States v. L in, 
101 F.3d 760, 768 (D.C. Cir. 1996) (acknowledging trial court has discretion to limit cross -
examination  on prejudicial matters without reasonable grounding in fact); United States v. Sampol , 
636 F.2d 621, 663–64 (D.C. Cir. 1980) (holding that trial court properly limited cross -examination 
of alleged CIA  murder scheme until defense put forth sufficient evidence of the affirmative defense 
in its case -in-chief).   Preventing defendant from exploring the topics identified above will not 
infringe his  Confrontation Clause right s, because the exact positions of cameras, the camera map , 
and U.S. Secret  Service protocols, implicate national security concerns, are of margi nal probative 
value, and any probative value can be addressed without compromising the protective functions of 
government  agencies.  
A. Exact Locations of USCP Cameras  
The United States  seeks an order limiting the defense from probing, during cross -
examination , the exact locations of U.S. Capitol Police surveillance cameras or from using the 
maps, which show each  camera’s physical location, as an exhibit at trial.  The United States 
produced such information to defendant in discovery pursuant to the Highly Sens itive designation 
of the Protective Order.  Defendant  has been able to make use of such information in order to 
identify  evidence and prepare for trial; however, none of the information serves to illuminate any 
fact of  consequence that is before the jury.  
This lack of relevance must be balanced against the national security implications at stake 
here.  The U.S. Capitol Police’s surveillance system serves an important and ongoing function in  
protecting Congress, and therefore, national security.  Furthermore , the United States represents 
that the maps that show the physical location of cameras have been designated as “Security Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 3 of 18 4  
 Information”  under 2 U.S.C. § 1979, which generally requires approval of the U.S. Capitol Police 
Board before they may be released.  
Evidence about the exact locations of cameras, and the maps used to locate the cameras,  
should be excluded in light of the ongoing security needs of Congress.  Absent some concrete and  
specific defense need to probe the camera’s location, there is nothing to be gained from such  
questioning.  A general description, and the footage from the camera itself, will make clear what 
the camera recorded and what it did not.  Additionally, presenting the map of all U.S. Capitol 
Police cameras  would risk compromising the se security concerns for no additional probative value: 
the map contains  numerous cameras installed in parts of the Capitol that  the defendant did not 
visit.  
Here, the video footage itself reveals the general location and angle of the camera’s  
positioning.  Additional details as to the precise location of the cameras are not relevant to the 
jury’s  fact-finding mission.  Even assuming the evidence that the United States seeks to exclude 
is marginally  relevant, such relevance is substantially outw eighed by the danger to national 
security.   The Supreme  Court has recognized that trial courts’ balancing should account for 
concerns extrinsic to the litigation,  such as “witness’ safety.”  Olden v. Kentucky , 488 U.S. 227, 
232 (1988)  (quoting Delaware v. Van Arsdall , 475 U.S. 673, 679 (1986)) .  Accordingly, courts 
have  properly balanced the sensitivity of national security- related information against the 
probative value  of such information to the case, excluding the evidence where its relevance is 
slight.  See, e.g., United  States v. Marshall , 544 F. Supp. 3d 1032, 1042 (D. Mont. 2021); United 
States v. Mohammed, 410 F. Supp. 2d 913, 918 (S.D. Cal. 2005); cf. United States v. Sarkissian, 
841 F.2d 959, 965 (9th Cir. 1988)  (endorsing balancing test in context  of Classified Information 
Procedures Act).  If a map that revealed  the location of all Capitol cameras were introduced in this Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 4 of 18 5  
 trial, or in any trial, it would become  available to the general public and foreign adversaries.   
Immediately, anyone could lear n about the  U.S. Capitol Police’s camera coverage as of January 6, 
2021, and, importantly , could learn about the  parts of the Capitol where cameras were not installed.  
Broader presentation of evidence about camera  locations could compromise national secur ity 
without adding any appreciable benefit to the  determination of the truth, or the veracity or bias of 
witnesses.  
B. Secret Service Protocols  
To meet its burden of proof at trial, the United States  anticipates  calling a witness from the 
United States  Secret Service to testify that at the time of the Capitol breach, Secret Service agents 
were on duty to protect Vice President Mike Pence and his two immediate family members, all of 
whom were present  at the Capitol.  The witness will further testify about the Capitol breach’s effect 
on the Secret Service’s  protection of Vice President Pence and his family members.  The purpose 
of this testimony will be to  explain , in part , the bases for enhanced security controls at the Capitol 
on January 6 as well as  establish an element of the charge at Count Four , namely , that the civil 
disorder at the Capitol on January 6 interfered with a federally protected function. 
The very nature of the Secret Service’s role in protecting the Vice President and his family  
implicates sensitive information related to that agency’s ability to protect high -ranking members 
of the Executive branch and, by extension, national security.  Thus, the United States  seeks an 
order  limiting the cross -examination of the Secret Service witnesses to questioning about the 
federally  protected function performed by the Secret Service as testified to on direct exam, namely, 
protecting the Vice President and his family.  The United States  further requests that such order 
preclude cross examination that would elicit information that does not directly relate to whether 
the Secret Service was performing that function at the Capitol on January 6, 2021.  Specifically, Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 5 of 18 6  
 cross -examination  should not be permitted to extend to (1) S ecret Service protocols related to the 
locations where  protectees or their motorcades are taken at the Capitol or other government 
buildings when emergencies occur, and (2) details about the nature of Secret Service protective 
details, such as the  number a nd type of agents the Secret Service assigns to protectees. These topics 
have no relevance to any issue at controversy, and even if they did, any relevance would be 
substantially outweighed by the danger of prejudicing the United States’  legitimate interes t in the 
safety of senior government  officials.  See  Fed. R. Evid. 403. 
Cross -examination of Secret Service witnesses about extraneous matters beyond the scope 
of direct examination should be excluded as irrelevant or unduly prejudicial.  Specifically, the 
Secret  Service’s general protocols about relocation for safety should be excluded as irrelevant 
because such  evidence does not tend to make a fact of consequence more or less probable.  See 
Fed. R. Evid. 401.   Similarly, evidence of the nature of Secret Service protective details is not 
relevant in this case.  The disorder on January 6 interfered with the Secret Service’s duties to 
protectees in this case insofar as  they were required to take evasive action of the mob.  The number 
or type  of assigned agents on a  protective detail is not relevant and could not alter the probability 
that there was interference with the Secret Service.  None of the other elements to be proven, or 
available defenses, implicates  further testimony from the Secre t Service.  
Even assuming the evidence to be excluded is marginally relevant, such relevance is  
substantially outweighed by the danger of confusion of the issues, undue delay, and waste  of time.  
Broader cross -examination of Secret Service witnesses  could c ompromise national security 
without adding any appreciable benefit to the determination of  the truth, or the veracity or bias of 
witnesses.1 
 
1 If the defense believes that it is necessary to present evidence or cross -examine witnesses about Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 6 of 18 7  
 II. Motion in Limine to Preclude Improper Defense Arguments  
 
A. First Amendment  
The United States moves this Court to admit in its case -in-chief statements that evince 
defendant ’s motive or intent, or which go to prove an element of any offense with which he  is 
charged.  In anticipation that defendant may seek to oppose introduction of defendant’s statements 
on First Amendment grounds or may cite the First Amendment in arguments to the jury, t he United 
States also moves in limine  to preclude the defense from eliciting evidence or arguing to the jury 
that his  statements and actions were protected by the First Amendment.  
1. Admission of Defendant ’s Statements Does Not Violate the First  
Amendment  
 
The United States intends to introduce several statements, made by defendant, that will aid 
the jury’s determination as  to whether the United States has met the elements of the conspiracy 
statutes at issue and to show motive and intent.  See Wisconsin v. Mitchell, 508 U.S. 476, 489 
(1993) (holding that the First Amendment “does not prohibit the evidentiary use of speech to 
 
the exact locations of USCP cameras or USSS procedures, the United States  requests that the Court  
conduct a hearing in camera to resolve the issue.  Courts have found that in camera proceedings 
are appropriate in circumstances where security  concerns like these are present.  See United States 
v. Nixon , 418 U.S. 683, 714 (1974) (affirming district court’s order for in camera inspection of  
subpoenaed presidentia l materials); United States v. Kampiles , 609 F.2d 1233, 1248 (7th Cir. 1979)  
(“It is settled that in camera  . . . proceedings to evaluate bona fide Government claims regarding 
national security information are proper.”); In re Taylor , 567 F.2d 1183, 1188 ( 2d Cir. 1977) 
(finding that in camera proceedings “serve to resolve, without disclosure, the conflict between the 
threatened  deprivation of a party’s constitutional rights and the Government’s claim of privilege 
based on the  needs of public security”); Uni ted States v. Brown, 539 F.2d 467, 470 (5th Cir. 1976) 
(per curiam)  (“This Circuit, too, has repeatedly approved the use of in camera examinations as the 
means for resolving the conflict between a defendant's need for evidence and the government's 
claim of  privilege based on the needs of public security.” ).  At any such hearing, the defendant 
should be required to make a specific proffer of some  relevant purpose that is not substantially 
outweighed by the prejudice that disclosure would inflict on the Unite d States’s  security interests.  
Cf. United States v. Willie , 941 F.2d 1384, 1393 (10th Cir. 1991)  (explaining that a “proffer of 
great specificity” was necessary to support admission of testimony that  could have proper or 
improper purposes).  Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 7 of 18 8  
 establish the elements of a crime or to prove motive or intent”).  “Evidence of a defendant’s 
previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like.”  Id.   Accordingly, the United States asks 
that the Court rule that the First Amendment does not bar admission at trial of any statement that the United States offers to establish defendant’s motive, intent, or an element of the crime.  
Courts across the country , including this Court’s colleagues during January 6th cases, have 
allowed evidence of defendants’ statements for the purposes sanctioned by Mitchell.  As Judge Cooper ruled:  
Nor does the Court find any First Amendment concerns in the government’s use of 
Robertson’s statements to show intent. . . .  If Robertson had expressed his views only 
through social media, he almost certainly would not be here.  But he also allegedly took action —entering the Capitol without lawful authority in an alleged attempt to impede the 
Electoral College vote certification.  His words remain relevant to his intent and motive for taking those alleged actions. 
 
United States v. Robertson, 588 F. Supp. 3d 114, 124 (D.D.C. 2022) (internal citation omitted).  
Outside of the context of  January 6th, Mitchell has been cited to uphold the admission of a wide 
range of statements, including but not limited to rap lyrics, terrorist materials, and speeches advocating civil disobedience.  See United States v. Smith, 967 F.3d 1196, 1205 (11th Ci r. 2020) 
(rap lyrics); United States v. Pierce , 785 F.3d 832, 841 (2d Cir. 2015) (rap lyrics and tattoos); 
United States v. Salameh, 152 F.3d 88, 111–12 (2d Cir. 1998) (terrorist materials); United States v. Fullmer , 584 F.3d 132, 158 (9th Cir. 2009) (spee ches advocating civil disobedience).
2 
 
2 The court i n Fullmer  specifically noted that one particular defendant’s conduct —which  included 
writing an editorial and recruiting speakers to travel and advocate on behalf of his  organization—
was not criminal, and that punishing him based on that conduct alone would be  unconstitutional.  
Fullmer , 584 F.3d at 158.  The court nonetheless, citing Mitchell, held that this  defendant’s 
“conduct  . . . does provide circumstantial evidence from which a jury could have  reasonably 
inferred that Harper was involved in a con spiracy.”  Id.  Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 8 of 18 9  
 Defendant’s statements that shed light on the elements of the offenses, or motive or intent, 
should be admitted in this case as expressly permitted by Mitchell, regardless of whether any of 
those statements may otherw ise constitute speech protected by the First Amendment. 
2. Defendant Should B e Precluded from Raising a First Amendment Defense 
to the Jury  
 
The United States also moves in limine  to preclude defendant from arguing to the jury that 
his conduct was protected by the First Amendment.  None of the offenses with which defendant is charged punish speech, as crimes such as threats or solicitation do.  The crimes with which the defendant i s charged punish the corrupt obstruction, influence, or impediment of an official 
proceeding (substantive violation of 18 U.S.C. § 1512(c)(2)); civil disorder (substantive violation of 18 U.S.C. §231) ; or actions taken during the riot.  
If the United State s establishes the elements of any of the offenses with which defendant 
is charged, the First Amendment provides him  no defense, even if  the evidence of defendant’s 
crimes is intertwined with , political discussion and rhetoric.  See United States v. Amawi , 695 F.3d 
457, 482 (6th Cir. 2012) (“[A]lthough the conspiracy was closely related to, and indeed proved by, many of the defendants’ conversations about political and religious matters, the conviction was based on an agreement to cooperate in the commission a crime, not simply to talk about it.”); see 
also United States v. Hassan, 742 F.3d 104, 127–28 (4th Cir. 2014) (citing Amawi ).  Furthermore, 
the First Amendment affords no defense for social media enthusiasts who film their crimes .  The 
government antici pates the Defendant may argue he was simply a journalist  documenting January 
6, 2021, and therefore cannot be found guilty.  However, the only members of the media allowed 
to remain in the Capitol, on January 6
th, were those who had been “vetted by their c ompany, by 
the Capitol Police, and issued official badges by the Sergeants -at-Arms.” United States v. Jesus D. 
Rivera, 607 F.Supp.3d, 2  (D.D.C. 2022)  (rejecting a defendant’s “member of the media” defense, Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 9 of 18 10  
 the Court noted filming for social media and engaging in the charged crimes are not “mutually 
exclusive” Id. at 10) .  Here, the evidence will show, including the Defendant’s own admission, 
that he is not a part of the  press .  Even if part of the Defendant’s motive was to record events for 
later dissemination and public consumption, it does not provide an excuse for the criminal conduct 
he engaged in on January 6, 2021. 
Accordingly, any line of cross -examination or argument that the defendant may wish to 
make regarding the First Amendment is irrelevant beca use it lacks a “tendency to make the 
existence of [a] fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,” Fed. R. Evid. 401, and because he is not entitled to a First Amendme nt defense as a matter of law.  To the extent there is any relevance to the 
defendant’s First Amendment claims, the Court should exclude any questioning and argument along those lines under Fed. R. Evid. 403.  Any attempt to shift the jury’s attention to questions 
about whether defendant’s statements were protected by the First Amendment, rather than the charged offenses risks confusing the issues, wasting time, and unfairly prejudicing the jury. 
B. Jury Nullification  
Defendant Sullivan  should be prohibited from making arguments or attempting to 
introduce irrelevant evidence that encourages jury nullification.  As the D.C. Circuit has made clear:  
A jury has no more “ right ” to find a “guilty” defendant “not guilty” than it has to find a 
“not guilty” defendant “guilty,” and the fact that the former cannot be corrected by a court, 
while the latter can be, does not create a right out of the power to misapply the law.  Such 
verdicts are lawless, a denial of due process and constitute an exerci se of erroneously seized 
power.  
 
Washington, 705 F.2d at 494.  Evidence that serves only to support a jury nullification argument 
or verdict has no relevance to guilt or innocence.  See United States v. Gorham , 523 F.2d 1088, Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 10 of 18 11  
 1097–98 (D.C. Cir. 1975); see also United States v. Funches , 135 F.3d 1405, 1409 (11th Cir. 1998) 
(“No reversible error is committed when evidence, otherwise inadmissible under Rule 402 of the 
Federal Rules of Evidence, is excluded, even if the evidence might have encouraged the jury t o 
disregard the law and to acquit the defendant.”).  In particular, the Court should permit no argument, evidence, or questioning regarding the following topics , which would serve only to 
encourage jurors to decide the case based on factors other than the facts and the law.  
C. Use of Federal Resources and the Volume and Timing of Discovery  
The United States requests that the defendant be precluded from arguing or eliciting 
testimony regarding the volume, nature, or timing of discovery or the volume and type of  federal 
resources used in the investigation and prosecution of the case.  Any attempt by the defendant to comment on discovery or allocation of federal resources is irrelevant and unduly prejudicial.  Fed. R. Evid. 401, 402, 403.  Instead, such arguments and testimony invite the jury to improperly 
consider its feelings towards the United States  and the government’s decision making about how 
to allocate resources.  
D. Defendant’s Claimed Good Character  
1. Character Generally  
The Court should exclude evidence and a rgument from defendant  introducing reputation 
or opinion evidence that Defendant  Sullivan  is generous, charitable, family -oriented, religious, or 
community participants.   Evidence that a defendant possesses certain favorable character traits  is 
admissible only when the trait is “pertinent” to the offense charged .  Fed. R. Evid. 404(a)(2)(A); 
see, e.g. , United States v. Harris , 491 F.3d 440, 447 (D.C. Cir. 2007); United States v. Santana-
Camacho, 931 F.2d 966, 967–68 (1st Cir. 1991)  (Breyer, C.J.).  But defendant s may not provide 
evidence of possessing a  generally good character.   See, e.g., United States v. Hill, 40 F.3d 164, Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 11 of 18 12  
 168 (7th Cir. 1994)  (court properly excluded  “classic character evidence offered to prove that 
[defendant]  had a good character an d acted in conformity therewith”).  Such  evidence only 
promotes jury nullification and is not allowable.  See United States v. Joseph, 567 F. App’x 844,  
849 (11th Cir. 2014) (“[W]hen the district court restricted defense counsel’s comments about 
[defendant ]’s honor and social contributions —comments that were part of his jury nullification 
efforts —the court did not  deny [defendant] the opportunity to make a legally tenable argument.  
Instead, it kept him from  making impermissible arguments.”).  Because none of the above  
characteristics are relevant to  the charged offenses , the Court should  exclude any evidence and 
argument addressing these character traits.  
2. Specific Instances of Conduct  
The Court should also exclude evidence and argument of  specific instances  of Defendant ’s 
good character, including caring for family members, donations, attending religious services,  
performing charitable or civic work, or other forms of generosity.  Rule 405(b) makes clear that 
unless a defendant’s character or  character trait  is “an essential element of a charge, claim, or 
defense,” he may not offer evidence of specific instances of good conduct.  Fed. R. Evid. 405(b).  
Because none of the above instances of good conduct are relevant to an essential  element of a 
charge, claim, or defense in this case, evidence of such should be excluded.  See United States v. 
Bernard, 299 F.3d 467, 476 (5th Cir. 2002) (approving court’s sentencing instruction that jurors 
should not “consider the religious views of the  defendants”);  Santana- Camacho, 931 F.2d at 967 
(excluding evidence that defendant was a good family man and a kind man because it was not a 
trait relevant to the offense); United States v. Nazzaro, 889 F.2d 1158, 1168 (1st Cir. 1989) 
(holding evidence of “bravery, attention to duty, perhaps  community spirit” were “hardly 
‘pertinent’ to the [charged] crimes”); United States v. Morison, 622 F. Supp. 1009, 10111 (D. Md. Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 12 of 18 13  
 1985) (holding “patriotism” was not a relevant trait to the  charged offense). 
E. Defendant ’s Claimed I gnorance of the L aw 
 
The Court should exclude evidence and argument from Defendant that he was ignorant of 
the illegality of the charged conduct .  “The general rule that ignorance of the law or a mistake of  
law is no defense to criminal prosecution is deeply rooted in the American legal system.”  Cheek 
v. United States , 498 U.S. 192, 199 (1991).  While there is a “narrow exception,” United States v. 
Brooks , 681 F.3d 678, 700 n.18 (5th Cir. 2012), that excepti on is “reserved  . . . to limited types  of 
statutory violations involving ‘complex’ statutes —namely those governing federal tax law and  
antistructuring transactions.”  United States v. Kay , 513 F.3d 432, 448 (5th Cir. 2007) ; see Bryan 
v. United States , 524 U.S. 184, 195 (1998) . 
Because ignorance of the law is not a defense to any of the charged offenses, any evidence 
and argument that defendant did not know that the charged conduct was illegal should be excluded 
as irrelevant.  
F. Penalties and Collateral Consequences  
The Court should exclude evidence and argument of the potential penalties or 
consequences defendant faces if he is convicted, including: (a) the maximum penalties; (b) that 
defendant could be incarcerated; (d) that defendant would become a felon and could be prohibited 
from obtaining some types of job or lose certain rights; and (e) any mention of defendant’s family.  
The potential penalties faced by defendant is irrelevant to the jury’s determination of guilt 
or innocence.  See Shannon v. United States , 512 U.S. 573, 579 (1994) (“[A] jury has no sentencing 
function, it should be admonished to ‘reach its verdict without regard to what sentence might be imposed.’” (quoting United States v. Rogers , 422 U.S. 35, 40 (1975))).  “[P]roviding jurors 
sentencing information invites them to ponder matters that are not within their province, distracts Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 13 of 18 14  
 them from their factfinding responsibilities, and creates a strong possibility of confusion.”  Id. at 
579.  Accordingly, the D.C. Circuit has held that “the jury is not to consider the potential 
punishment which could result from a conviction.”  United States v. Broxton , 926 F.2d 1180, 1183 
(D.C. Cir. 1991); s ee, e.g., United States v. Greer , 620 F.2d 1383, 1384 (10th Cir. 1980) (“The 
authorities are unequivocal i n holding that presenting information to the jury about possible 
sentencing is prejudicial.”).  Any discussion of possible penalties would serve no purpose beside 
improperly inviting the jury to render a verdict based on sympathy for the defendant —that is,  to 
engage in jury nullification.  See United States v. Bell , 506 F.2d 207, 226 (D.C. Cir. 1974) 
(“[E]vidence which has the effect of inspiring sympathy for the defendant or for the victim  . . . is 
prejudicial and inadmissible when otherwise irrelevant.”) (quoting 1 Wharton’s Criminal Evidence 164 at 304 (13th ed. 1972)); United States v. White , 225 F. Supp. 514, 519 (D.D.C 1963) (“The 
proffered testimony (which was clearly designed solely to arouse sympathy for defendant) was 
thus properly excluded.”). 
III. Motion in Limine to  Preclude Defendant ’s Introduction of His  Own Out -of-Court 
Statements as Inadmissible Hearsay  
 
A defendant’s own out -of-court statements are hearsay that cannot be admitted to prove 
the truth of any matter asserted.  Fed. R. Evid. 801, 802.  Although the United States may offer the defendant’s statements as statements of a party opponent, Fed. R. Evid. 801(d)(2)(A), or other non-hearsay, the defendant has no corresponding right to admit his own statements without 
subjecting himself to cross -examination. 
A. The Rule of Completeness C annot C ircumvent the R ule A gainst H earsay  
Nor does Federal Rule of Evidence 106, the “Rule of Completeness,” provide an end- run 
around the prohibition against hearsay.  That rule provides that, “[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 14 of 18 15  
 any other part —or any other writing or recorded statement —that in fairness ought to be considered 
at the same time.”  Fed. R. Evid. 106.  Rule 106 directs the Court to “permit such limited portions 
[of a statement] to be co ntemporaneously introduced as will remove the distortion that otherwise 
would accompany the prosecution’ s evidence. ”  United States v. Sutton, 801 F.2d 1346, 1369 (D.C. 
Cir. 1986).  The rule does not “empower[] a court to admit unrelated hearsay.”  United States v. 
Woolbright , 831 F.2d 1390, 1395 (8th Cir. 1987).  “[T]he provision of Rule 106 grounding 
admission on ‘fairness’ reasonably should be interpreted to incorporate the common- law 
requirements that the evidence be relevant, and be necessary to qualif y or explain the already 
introduced evidence allegedly taken out of context  . . . .  In almost all cases we think Rule 106 will 
be invoked rarely and for a limited purpose.”  Sutton, 801 F.2d at 1369.  
In this case, many of defendant ’s statements to be offe red by the United States were made 
using social media accounts  that were active over extended periods of time. Rule 106 does not 
make all statements within these groups and accounts admissible over a hearsay objection, but only those narrow portions that a re necessary to “correct a misleading impression.”  Sutton, 801 
F.2d at 1368 (quoting Rule 106 advisory committee notes ).  By way of analogy, Courts of Appeals 
have rejected the notion that “all documents contained in agglomerated files must be admitted into evidence merely because they happen to be physically stored in the same file.”  Jamison v. Collins , 
291 F.3d 380, 387 (6th Cir. 2002) (quoting United States v. Boylan, 898 F.2d 230, 257 (1st Cir.  
1990)).  
Accordingly, at trial the Court should reject any effort by defendant to use the Rule of 
Completeness as a backdoor to admit otherwise inadmissible hearsay.  Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 15 of 18 16  
 B. Law E nforcement T estimony C annot C ircumvent the R ule A gainst H earsay 
Another mechanism by which the United States  anticipates that defendant may attempt to  
introduce his own prior statements is through the testimony of law enforcement officers with 
whom  certain defendant had communications.  Any such statements by defendant, if offered for 
the truth of the matter ass erted, would be inadmissible  hearsay.  
An equally defective mechanism by which counsel might attempt to introduce defendant ’s 
prior statements to the jury would be for defendant to elicit lay opinion testimony from the officers  
or agents .  As an initial matter, such testimony would likely be irrelevant and inadmissible on that 
basis.   Additionally, if such opinions are predicated on self -serving statements by defendant, the 
opinion testimony is likewise inadmissible as a vehicle to admit defendant’ s hearsay.  The Federal  
Rules of Evidence  allow only expert witnesses to offer opinions based on otherwise -inadmissible 
evidence, Fed. R. Evid.  703, and even in that context, expert opinion testimony cannot be a 
backdoor for hearsay.  See Gilmore v. Pales tinian Interim Self- Government Authority , 843 F.3d 
958, 972 (D.C. Cir. 2016) (“The  expert must form his own opinions by applying his extensive 
experience and a reliable methodology  to the inadmissible materials.  Otherwise, the expert is 
simply repeating hearsay evidence without  applying any expertise whatsoever, a practice that 
allows the [proponent] to circumvent the rules  prohibiting hearsay”) ( internal quotation marks and 
alterations omitted ) (quoting United States v. Mejia, 545 F.3d 179, 197 (2d Cir. 2008) ; DL v. D.C. , 
109 F. Supp. 3d 12, 30 (D.D.C. 2015) (“An expert is  entitled to rely on inadmissible evidence in 
forming his or her opinion, though the expert ‘must form  his or her own opinions by applying his 
or her extensive experience and a reliable m ethodology to the inadmissible materials,’ rather than 
simply ‘transmit’ the hearsay to the jury.”  (alterations omitted) (quoting Mejia , 545 F.3d at 197) ).  Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 16 of 18 17  
 At trial, the Court should reject any effort by defendant  Sullivan  to admit otherwise inadmissible 
hearsay indirectly  through a law enforcement officer or other percipient witness. 
IV. Motion in Limine  to Admit Certain Prior Bad Acts  
On May 5, 2023, the government filed notice of intent to use Federal Rules of Evidence 404(b) 
evidence.  See ECF No. 87.  Here, t he government incorporates its argument , from ECF No. 87, as 
to the 404(b) evidence’s relevancy and admissibility. 
V. Motion in Limine to  Admit Certain Statutes and Records  
A. Judicial Notice of the Federal Electoral College Certification La w 
The proceedings that took place on January 6, 2021, were mandated by, and directed under 
the authority of, several constitutional and federal statutory provisions.  In fact, as Vice President 
Pence gaveled the Senate to Order on January 6, 2021, to proce ed with the Electoral College 
Certification Official Proceeding, he quoted directly from, and cited to, Title 3, United States Code, 
Section 17. 
The United States requests that the Court take judicial notice of, and admit into evidence, 
copies of Article I I, Section 1 of the Constitution of the United States, the Twelfth Amendment, 
as well as 3 U.S.C. §§ 15 –18 relating to the Electoral College Certification Official Proceedings.  
It is well established that district courts may take judicial notice of law “w ithout plea or proof.”  
See United States v. Davila -Nieves , 670 F.3d 1, 7 (1st Cir. 2012) (quoting Getty Petroleum Mktg., 
Inc. v. Capital Terminal Co., 391 F.3d 312, 320 (1st Cir. 2004)).  The United States makes this request even though “no motion is required in order for the court to take judicial notice.”  Moore v. Reno , No. 00 -5180, 2000 WL 1838862, at *1 (D.D.C. Nov. 14, 2000).   Further, “where a federal 
prosecution hinges on an interpretation or application of state law, it is the district court’s function Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 17 of 18 18  
 to explain the relevant state law to the jury.”  See United States v. Fazal -Ur-Raheman- Fazal , 355 
F.3d 40, 49 (1st Cir. 2004). 
B. Admission of the Congressional Record and S. Con. Res 1 
The Congressional proceedings on January 6, 2021, were memorialize d in the 
Congressional Record.  The Congressional Record is a public record under Federal Rule of 
Evidence 902(5).  See MMA Consultants , 245 F. Supp. 3d at 503–04.  The United States intends 
to introduce portions of the Congressional Record at trial, including the bodies’ “concurrent resolution to provide for the counting on January 6, 2021, of the electoral votes for President and Vice P resident of the United States,” S. Con. Res. 1, 117th Cong. (2021).  
CONCLUSION 
 For the foregoing reasons, the United States  respectfully requests that the Court grant the 
requested relief or, if the Court reserves ruling, to consider the above arguments when the relevant issues arise during trial.  
 
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 (202) 252- 7012  
rebekah.lederer@usdoj.gov 
 
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