02-15-21 - Initial Discovery Request John Earle Sullivan United States District Court.txt

 1      STEVEN R. KIERSH  
     ATTORNEY AT LAW  
     5335 WISCONSIN AVENUE, N.W.  
             SUITE 440  
           WASHINGTON, D.C. 20015  
       skiersh@aol.com  
         (202) 347 -0200  
 
                        February 15 , 2021  
 
Via electronic mail and regular mail  
 
Candice Wong, Esquire  
Assistant U.S. Attorney  
555 4th Street, N.W.  
Washington, D.C. 20530  
 
Re:  United States v. John Sullivan  
          21-cr-78  
 
Dear Ms. Wong:  
 
 I am writing to memorialize my initial discove ry requests pursuant to 
Federal Rule of Criminal Procedure 16 and established precedent from this 
jurisdiction and the United States Supreme Court. If I do not h ear back from 
you by March 1, 2021,  I will assume all representations made in this letter 
are a ccurate and that any requested materials that have not been provided 
do not exist , and I will prepare for trial accordingly.  
 
 If the requested materials exist but the government declines to 
provide them based on a theory that they are not discoverable, pl ease let 
me know immediately so I may file appropriate motions in a timely manner.  
In connection with the following requests, I additionally request the 
government take steps immediately to preserve any and all evidence to 
which Mr. Sullivan and I are  entitled access to under Rule 16, Brady , or any 
other applicable law.  
 
Eyewitness to the Incident  
 Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 1 of 13 2  I request the names and contact information of all eyewitnesses to 
the alleged incident.  The primary basis for this request is my client’s well -
settled consti tutional guarantees to due process, a fair trial, confrontation of 
government witnesses, and effective assistance of counse l. In Gregory v. 
United States , 369 F.2d  185, 188 (D.C.  1966): it was held that “Witnesses, 
particularly eyewitnesses, to a crime are  the property of neither the 
prosecution nor the defense.  Both sides have an equal right and should 
have an equal opportunity, to interview witnesses ” to an alleged crime.   
Moreover, interviews of such witnesses are likely to produce evidence that 
comes w ithin the scope of Brady v. Maryland , 373 U.S. 83 (1963) , and 
Giglio v. United States , 405 U.S. 150 (1972). I n other words, such 
witnesses will likely have some information that is either directly 
exculpatory for my client or diminishes the witnesses’ own credibility and 
reliability.  Defense attempts to interview  these witnesses are also germane 
to constitutional issues that may arise with regard to their participation in 
identification procedures.  Counsel for Mr. Sullivan  cannot adequately 
confront the  testimony of these witnesses without the opportun ity to 
interview them and use  the information from the interviews to fully 
investigate the case.  
  
 If you believe that identification of government witnesses raises 
legitimate safety and security concerns,  please advise me of such so we 
can craft a protective order to address these concerns.  If you are not 
willing to disclose the names of  witnesses, please advise and provide your 
reasons for denying this request so that this matter may be litigated in a 
timely fashion.  
 
Rule 16 Discovery Requests  
 
1. Statements , Rule 16(a)(1)(A) and (B)  
 
 I request the entirety of any and all statements  made by John Sullivan  
to law enforcement agents , state or federal prosecutors, the media  or to 
others, as well  as information  about when , where, and to whom these 
statements  were given  and where  these statements were given.  If I do not 
receive any notice of such statements, I will prepare for trial with the 
understanding that none exist.  
 
2. Prior Record , Rule 16(a)(1)(D)  
  Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 2 of 13 3  I requ est notice of all prior adjudications and convictions for John 
Sullivan , including the particular dates and offenses involved.   If  I do no t 
receive notice of prior adjudications or convictions for Mr. Sullivan  other 
than those listed in his Pretrial Se rvice Agency Report, I will prepare for trial 
with the  understanding that none e  
 
3. Documents , Rule 16(a)(1)(E)  
 
 I request a copy of all police reports, witness statements, and other 
documents that have been generated by any agent of law enforcement .  
This request includes any MPD and FBI and other agencies  who executed  
reports  in this case, including but not  limited to  any and all PD -47s, PD -58s, 
PD-119s, PD -122As, Cobalt records, and other reports and documents 
produced by police in relation to this case.  I also request copies of any 
photos or photo arrays that were used for any and all identification of John 
Sullivan , and copies of any notes made by police officers or detectives in 
this case.  
 
 To the extent that these documents are not yet discoverable  because 
they are statements made by prospective government witnesses, pursuant 
to the Rule of Criminal Procedure 16(a)(2), I am requesting that these 
documents be provided if and whe n it is determined that the author or 
witness is not going to be a govern ment witness.  
 
4. Tangible Objects , Rule 16(a)(1)(E)  
 
 I request a list and opportunity to view any tangible objects or any 
physical evidence involved in this case that are within the possession, 
custody, or control of the government that either are intended for use by the 
government as evidence in chief at trial, woul d be material in preparation 
for John Sullivan’s defense , or were obtained or belong to John Sullivan .  
Pursuant to  Rule of Criminal Procedure 16(a)(1)(E),if any of these objects 
exist please inf orm me  by March 1 , 2021 so that we can arrange for me to 
view and copy or photograph the objects.  
 
 Please send me a date as soon as possible when I can come and 
view any evidence obtained during or after the incident, and provide  a 
viewing letter authoriz ing counsel and  an investigator from my office, John 
Eicher,  to inspect all tangible evidence.  If a viewing letter is required , 
please send it now with my name, authorization to bring an investigator Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 3 of 13 4 from my office,  John Eicher,  and authorization to bring  a camera to 
photograph the evidence.  
 
5. Photograph and Videos , Rule 16(a)(1)(E)  
 
 I request any and all photographs that are in the possession, custody 
or control of the government that either would be  material to  John Sullivan’s  
defense or intended for  use by the government as evidence in chief at trial, 
or were obtained from or belong to John Sullivan . 
 
 This request also includes any video footage, including from cameras 
owned by MPD (crime and red light) and DDOT (which are operated and 
maintained by  MPD, and to which MPD has access), as well as any 
footage that government actors reviewed.  This request also includes any 
video footage from MPD District where the defendant was taken, and all 
body worn camera footage that may have captured any portion o f the 
alleged incident, investigation or arrest of my client.  As you are aware, 
many cameras loop over footage every 10 to 30 days.  I ask that you 
preserve the footage related to this incident  immediately.  
 
 The request includes all Body Worn Camera (BWC ) footage from all 
offices involves in any and all searchers, arrests, and investigations 
associated with this case and/ or labels  with the CCN Number associated 
with this case; information that will  permit undersigned  counsel to identify 
the officer wear ing the BWC; metadata  related to any and all BWC footage; 
information from the AUSA’s office and/or MPD specifying any edits or 
redactions made to the footage and the corresponding justifications.  
Please also provide the access logs for the BWC footage fo r any and all 
officers involved in this case.  
 
 I request copies of any other photographs, including any identification 
procedures, and videos relevant to this incident.  If I do not hear from you 
by March 1 , 2021, I will assume that the government does no t possess any 
videos and does not plan to introduce any evidence of a video at trial, 
beyond those I have already received.  
 
6. Tape Recordings , Rule 16(a)(1)(E)  
 
 There  may have been radio communications and/ or cellular phone 
calls or audio recordings made i n connection with this case.  I request that Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 4 of 13 5 the government preserve any and all radio communications, phone 
communications and audio recordings, and furnish me with the copy of all 
tape recordings of scout runs, ambulance runs, 911 calls, radio 
transmissi ons, TAC communications, police and ambulance recordings, 
and audio recorded interviews in connection with the incident  and John 
Sullivan’s  arrest, which are within the possession, custody, or control of the 
government , and which is material to the prepa ration of the defense or are 
intended for use by the government as evidence in chief at trial.  I also 
request to be allowed to listen to any existing recorded communications  in 
advance  of trial and to make a taped  copy of any such communications.  
This re quest comes pursuant to Rule 16(a)(1)(E) as well as pursuant  to 
Brady v. Maryland , 373 U.S. 83 (1963).  
 
 It is my position that recorded communications are discoverable in 
advance of trial under Rule 16(a)(1)(C) because the evidence is material 
and relevan t to the preparation of John Sullivan’s  defense.  I understand 
that it may be the government’s position that certain radio communications 
constitute  material covered by  Jencks  v. United States , 353 U.S. 657 
(1952).   To avoid any resultant delay of trial th at may occur in order for me 
to listen to and investigate any last -minute disclosures, I request that you 
provide the recording in advance of trial, and that the government 
immediately provide me with any radio communications being held as 
Jencks  material as soon as the government determines that it will not call 
that witness in its case -in-chief.  
 
7. Results/ Reports of Examination and Tests , Rule 16(a)(1)(F)  
 
 I have received no notice of examination, tests, or experiments 
conducted in this case.  Pursuant to Rule 16( a)(1)(F ), please provide me 
with the results and reports relating to each and ever y individual scientific 
test or  experiment performed in relation to the alleges incident, including  
but not limited to the testing and examination of any drugs; al l examinations 
and reports of ant medical treatment generated as a result of the alleged  
incident , and any fingerprint or other analysis and/or examination of 
biological matter generated in this case.  Please also provide me with the 
authorization to visit  and inspect the laboratory at which examinations were 
performe d.  Please provide the results/ reports in sufficient time for me to 
incorporate the material into my trial preparation, including the possible 
need to seek alternate testing and/or the assistan ce of an expert to 
examine the material or to testify concerning the material.  Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 5 of 13 6  
8. Expert Witness , Rule 16(a)(1)(G)  
 
 I request the notice of any experts the government may call and the 
written summary of the expert’s testimony that the government intends to 
use during its case in chief at trial.  Please include in the summary, the 
expert witness’s name, opinions, the bases and the reasons therefore, and 
the witness’s qualifications.   I requ est contact information for each  expert 
witness.  
 
 If I do not receive  expert disclosure s consistent with Rule 16 , I will be 
unable to prepare adequately to confront the expert and will move the 
Court to preclude the government from calling the expert.  
 
9. Evidence of Uncharged Alleged Misconduct  
 
 Please inform me if the gover nment intends to introduce any 
evidence of u ncharged misconduct relating to John Sullivan by February 
28, 20 21, so that I may file any necessary pre -trial motions. Please provide 
me with a factual proffer of the nature of any uncharged misconduct that 
you intend to introduce at trial . Unless notified otherwise, I will assume that 
the government does not intend to introduce evidence of uncharged 
misconduct under Drew v. Unites States , 331 F.2d 85 (D.C. 1964).  
   
10. Identification Procedures  
 
 Please provide me with the following information for any 
identifications conducted in th is case: any and all statements made by the 
identifying witness before, during , or after the identification; any statements 
made to the identifying  witness before, during, or after the a lleged 
identification; any information regarding false identifications or non -
identifications; the number of officers present at the time of the 
identification; and the circumstances of the witness’s opportunity to 
observe, like distance, lighting, and any  other circumstances relating to the 
reliability of the alleged identification. See Clemons v. United States , 401 
F.2d 1230 (D.C. Cir. 1968).  
 
11. Hearsay Exceptions  
 Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 6 of 13 7  I request advance notice of the government’s intention to introduce 
any arguably hearsay or other out -of-court statements in order to allow me 
to have adequate time to prepare a motion to exclude such statements.  
Unless you inform me otherwise, I will prepare for trial with the 
understanding t hat the government does intend not t o introduce any 
hearsay evidence or other statements.  
 
 Brady  Requests  
 
 I hereby make a general request for exculpatory and impeachment 
information pursuant to Brady v. Maryland , 373 U.S. 83 (1963) and its 
progeny.  
 
 I also make the followin g specific requests pursuant to  Brady , and 
request that the government disclose such information in advance of trial 
so that the defense may investigate, if necessary, and incorporate into its 
preparation for trial;  
 
a. All inconsistencies between any acco unts provided by any  
complainant,  or inconsistencies or differences between any accounts 
by the complainant and other witnesses;  
 
b. any inconsistencies between the descriptio n provided by any 
witnesses related to John Sullivan ; 
 
c. any information tending to undermine the reliability of any eyewitness 
accounts or descriptions;  
 
d. police bias and credibility information, including source documents, 
about any lawsuits against, findings of misconduct or complaints 
sustained against (including information and source documents about 
any discipline i mposed against) any officers involved in the 
investigation and prosecution of this case, and all adverse credibility 
findings and findings of constitutional violations (including but not 
limited to Fourth and Fifth Amendment violations) involving any of th e 
officers involved in the investigation or prosecution of this case. Given 
the repeated occurrence of the USAO denying such information 
exists only for it to be later uncovered by defense investigation, I 
request a proffer of the steps the USAO has taken to locate this 
information, as well as all source documents. I also request that the Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 7 of 13 8 USAO consult the Office of the Attorney General for DC, which 
maintains an independent database of this information.  
 
e. police bias and credibility information, including so urce documents, 
about whether any of the officers involved in the investigation and 
prosecution of this case had any complaints, intervention plans, 
lawsuits, or investigations of conduct pending at any point during the 
pendency of this case, including but  not limited to the officers 
mentioned above. Given the repeated occurrence of the USAO 
denying such information exists only for it to be later uncovered by 
defense investigation, I request a proffer of the steps the USAO has 
taken to locate this informati on. I request that the USAO consult the 
Office of the Attorney General for DC, which maintains an 
independent database of this information.  
 
f. all intervention plans tha t were in place as of January 6 , 2021, or 
which have been imposed since that date for all  officers involved in 
this case in any capacity.  
 
g. any information that others were arrested or questioned regarding 
this case;  
 
h. the identities of and contact information for any witnesses who 
indicate that John Sullivan  did not commit the indicted  offense,  and 
the substance of those witnesses’ statements;  
 
i. the identities of and contact information for any witnesses who do not 
fully corroborate the government’s case or who serve to impeach the 
government’s evidence;  
 
j. any information tending to show the unrel iability of a government 
witness, or which would tend to discredit the testimony of a 
government witness;  
 
k. any evidence of bias for the government or against John Sullvan  for 
all civilian and police witnesses, pursuant to Giglio v. United States , 
405 U.S. 150 (1972). This includes the full parameters on any benefit, 
or promise of benefit, received by any government witness.  
 Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 8 of 13 9 l. any evidence of bias or motive by any witness who have an 
immigration concern which the witness might believe or might have 
believed w ould be favorably affected by government action in this 
case, including but not limited to any conversations which any agent  
of the government, including police, victim advocates, or other staff  of 
the U.S.A.O., regarding immigration status or obtaining im migration 
benefits, such as U, T, or S visas, through cooperation with law 
enforcement. See generally  Delaware v. Van Arsdall , 475 U.S. 673 
(1986).  I request the dates and substances of all statements made 
by either government actors or witnesses regardin g possible 
immigrations issues or benefits;  
 
m. any prior bad acts of government, civilian, and police witnesses, 
pursuant to Giles v. Maryland , 386 U.S. 66 (1976), including use of 
false documents for employment or immigration purpose;  
 
n. any prior  false repor ts pursuant to,  including but not limited to , prior 
complaints or reports to the police or enforcement agencies that did 
not result in conviction;  
 
o. any prior inconsistent, non -corroborative, or other witness statements 
that will not reflect the witness’s t rial testimony;  
 
p. all information in the government’s possession indicating that the 
mental state or capacity of any government witness is below normal 
or is an any way abnormal;  
 
q. any evidence that any government witness or informant was under 
the influence  of any alcohol, narcotics, or any other substance at the 
time of the incident about which the witness will testify, or that the 
witness’s faculties were impaired in a ny way;  
 
r. information concerning any impeachable convictions of any 
government witnesses;  
 
s. all information indicating that:1 
 
                                                      
1 With respect to the below information, I hereby request the docket numbers, 
dates, and jurisdictions for any and all requested cases.  Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 9 of 13 10 1. any government witness had a pending juvenile, immigration 
or criminal case at the time of the incident in the present 
case and/or has had such cases since that date;  
 
2. any government witness had a pending schoo l discipli nary 
proceedings a t he time pf the incident in the present case 
and/or has had such cases since that date;  
 
3. any government witness had an arrest, guilty plea, trial, fact -
finding hearing, sentencing or  disposition pending at the time 
of John Sullivan’s  arrest and/or since that date;  
 
4. any government witness  who was committed or on 
probation, parole, or supervised release in any juvenile or 
adult case at the time of the incident in the present case or 
since that time;  
 
5. any government witness  who has now, or h as had, any 
liberty interest that the witness might believe or might have 
believed would be favorably affected by government action; 
and, 
 
6. any deals, promises, or inducements that have been made 
to any government witness in exchange for their testimony;  
 
t. any information that any government witness was, has been, or is a 
police informant, from the time of the incident in this case up to and 
including the day(s) of trial. If any witness is or has been an 
informant, I request disclosure of the following inform ation:  
 
1. length and extent of witness’s informant status  
 
2. amounts normally paid to the informant;  
 
3. non-monetary assistance also provided to the informant, 
including but not limited to assistance in avoiding or minimizing 
harm from any pending charges, wheth er the charges existed 
at the time of the offense or any other time through the day of 
trial; 
 Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 10 of 13 11 4. all benefits or promises of benefits to an informant or 
statements that a benefit would not be provided to an informant 
without his or her cooperation, whether o r not such a promise 
or threat was fulfilled. “Benefits” refers to any monetary 
compensation, assistance of the prosecutor or the Court 
concerning pending charges against the informant, or any other 
sort of consideration of value;  
 
5. the nature of any such a ssistance provided to the informant in 
the past, including the number of occasions and form of help;  
 
u. any evidence of information that tends to even arguable link another 
individual to the crime charged;  
 
v. any other information in the possession of the gove rnment that is 
favorable to the defense, whether or not admissible in court, and that 
is material to the issues of guilt and/or punishment.  
 
With respect to any of the information requested above, I hereby request 
any reports, records or other documents c ontaining such information. If 
such reports, records or other documents are in the custody, control , or 
possession of the government, they mus t be disclosed to the defense.  
 
In carrying out your constitutional mandated Brady  obligations, please,  
 
1. Speak to all members of the “prosecution team” ; 
2. Speak to all employees of the United States Attorney General’s 
Office involved with the case;  
3. Speak with all police investigators who handled the case;  
4. Speak to all Victim advocates;  
5. Review all case files maintained b y your office, not just concerning 
the instant case but any related cases;  
6. Search all record databases to which you have access for criminal 
records concerning any potential witnesses in this case;  
7. Ask the FBI, DEA, and Metropolitan Police Department if th ey 
have any relevant files; and  
8. Examine any pre -sentence reports and probation files relevant to 
the case  
 Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 11 of 13 12  The forgoing requests are made pursuant to Brady  and its progeny.  
If you disagree with the legality of any of these requests, please let me 
know in  writing so that we can litigate the matter before Court.  
 
 Jencks (Rule 26.2) Requests  
 
 Please be advised that John Sullivan  is requesting prompt disclosure 
of any and all Jencks materials pursuant to R. Crim. P. 26.2.  Undersigned 
counsel is aware that the Rule 26.2(a) does not require the government to 
produce such materials until after a witness has testified.  Rule 26.29(d), 
however, expressly authorizes the Court to recess proceedings when 
counsel requires time to examine and use the materials provid ed under 
subsection (a). Such a recess wastes valuable court time and resources.  
Thus, unless the government has legitimate concerns about witness safety, 
please disclose any Jencks  material well in advance of trial so as to avoid 
any costly delays.  
 
 Duty to Preserve Discoverable Evidence  
   
 Please be  remind ed of the government’s duty to preserve any 
evidence that is discoverable or that the government is obligated to 
disclose pursuant to Brady  and its progeny, including, for example, any 
materials that might yield biological or chem ical evidence.  
 
 Continuing Duty to Disclose  
 
 The Duty to disclose under Rule 16 and Brady  (and it progeny) is a 
continuing one and the requests stated above are therefore continuous, 
stretching until final disposition of thi s case.  Thank you for you r prompt 
attention to these requests.  
 
 This is a  specific and on -going  demand for each e very offer of reward 
that was ex tended in this case by any law enfo rcement agency  or official  or 
prosecutor’ s office.  
 
Offer of rewards  
 
 This request  is for  the full name, address and contact information  for 
each and every p erson who responded to any rewar d that was offered  in Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 12 of 13 13 connection with this indictment. . This demand encompasses al l rewards, 
oral and written, regard less of whet her they we re acted up on. 
 
 This request includes the name  and contact information for any 
member of law enforcement or prose cutor’s  office  which in any manner 
handled the reward  
 
Utah state court proceeding  
 
 Please a dvise me whether the United State s intends to int roduce 
evidence of a pending case in the Utah state court system  against John 
Sullivan  so that I ma y prep are necessary Moti ons in Limine. I f it is your  
intention to seek admission  of the events in U tah, each of  the discovery 
requests identified herein rel ated to the pending  charge in the District  of 
Columbia are he reby adopt ed with  respect to the  Utah  state court case.  
 
 Plea Offer  
 
 I am obliged to relay to my client any plea offer the government may  
want to extend to him. Please contact  me if any plea offer is to be 
extended.  
 
 Thank you for your attention to these requests.  
 
 
       Very truly yours,  
 
 
        /S/ 
 
       Steven R. Kiersh  
 
 
cc: United States District Court case file, 21 -cr-78 Case 1:21-cr-00078-EGS   Document 12-1   Filed 02/15/21   Page 13 of 13