09-24-21 - MOTION to Dismiss Count Eight of Superseding Indictment as Being Void for Vagueness by JOHN EARLE SULLIVAN.txt

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                                  UNITED STATES DISTRICT COURT  
               FOR THE DISTRICT OF COLUMBIA  
 
UNITED STATES OF AMERICA  
 
 V.      Case No.: 21 -cr-78 (EGS)  
 
 
JOHN SULLIVAN  
 
   MOTION TO DISMISS COUNT  EIGHT  OF THE SUPERSEDING   
             INDIC TMENT AS BEING VOID FOR VAGU ENESS  
 
 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  The indictment was superseded on May 19, 2021  adding a 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