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johnearlesullivan
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capitol

	1
	UNITED STATES DISTRICT COURT
	FOR THE DISTRICT OF COLUMBIA


	UNITED STATES OF AMERICA



	v. Case No.: 21 -cr-78(EGS)



	JOHN SULLIVAN

	SUPPLEMENT TO MOTION TO DISMISS COUNT 8 OF THE
	SUPERSEDING INDICTMENT

	Defendant, by and though undersigned counsel, does hereby
	supplement his Motion to Dismiss Count 8 of the Superseding Indictment.
	In support thereof, defendant respectfully sets f orth as follows:
	1. On Septemb er 24, 2021, Defendant filed a Motio n to Di smiss
	Count 8 of the superseding indictment, Making a False Statement , in
	violation of 18 U.S.C. Sec. 1001 (a)(2) . PACER 47. The g round in the initial
	motion w as that the term “materiali ty” was void for vagueness and theref ore
	unconstitutional and must be dismissed .
	2. Defendant adds this supplement to the Motion to Di smiss o n
	grounds that the government cannot establish materiality in the co ntext of
	Count 8 and the ind ictment must be dismissed. The argument is based
	upon the re cord that has to date been established in this matter. Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 1 of 82
	This Court can di smiss part of an indictmen t prior to trial . A crimi nal
	defendant may move to dismiss an indictment based on a “defect in the
	indictment, including …failure to state an offense ” if the “motion can b e
	determined without a tri al on the merits [.]” Fed. R. Crim P 12 (b )(3)(B).
	The issue raised by defendant is whether the fa lse statem ent indic ted
	in Count 8 is a “material ” false statement. The law does criminalize every
	false statement that is made to the government. O n the contrary, it is well
	settled that the law distinguishes between fa lse statements o f
	consequence, wh ich can fairly give rise to criminal liability, and fa lse
	statements of little or no significance, whic h cannot. Thus, “materiality ” is
	the lega l standard that has long separated one cate gory from the o ther.
	Kungys v. U nited States , 485 U.S. 759, 769 (1988).
	Consistent with the long -standing requirement of materiality within the
	contex t of a prosec ution under 18 U.S.C. Sec. 1001, materiality is
	considered to be an essential element of the federal fa lse statement
	offense. See U nited States v. Verrusion , 762 F.3d 1, 20 (D.C . Cir. 2014) ;
	United S tates v. Stone , 394 F. Supp. 3d 1 (D.D.C. 2019).
	To be material , a false statement must have a natural ten dency to
	influence, or be capable of influencing, the dec ision-making body to which it
	was address ed.” United S tates v. Gaudin , 515 U.S. 506, 509 (1995). In Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 2 of 83
	analyzing thi s stand ard in United States v. J ohnson , the Third Circuit noted ,
	“materiality requires evidence that the false statements we re of a type
	capable of in fluencing a reasonab le decision maker, and that the fa lse
	statements c ould have a bearing on an actual decision entrusted t o the
	decisionmaker ….” 19 F.4th 248, 257 (2021), citations omitted.
	The dec ision-maker in this case is the U nited State s Departmen t of
	Justice. The Justice Department is the entity that returned the initial
	indictment and the s uperseding indictment s against defen dant John
	Sullivan. Therefore, th e charged false statement , in order to be mat erial,
	had to have affected the decision makin g of the U nited States Department
	of Justice within the context of prosecuting ac ts related to the events at the
	United S tates Capitol on January 6, 2022 1
	Weinstock v. U nited States, 231 F.2d 699 (D.C . Cir. 1956), involving a
	conviction for 18 U.S.C . Sec. 1001 , is instructive. The C ourt discussed the
	difference between material evidence and relevant evi dence.
	‘Material ’ when used in resp ect to evidence is often
	confused with ‘relevant ’, but the terms ha ve wholly
	differen t meanings. To be relevant me ans to have
	probative weight, i.e., reasonabl y likely to influence
	the tribunal in making a determinati on required to be
	made. A statement may be relevant but not material …
	The test is whet her the false statement has a natural
	tendenc y to influence, or was capable of influen cing,
	the decision of the tribunal in making a determinati on
	required to be made. Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 3 of 84

	Id., 701 -702.
	In United States v. Naserkhaki , 722 F. Supp. 242 (E.D. Va. 1989) , the
	defendant was prosecuted for making false statements to the INS in
	violation of 18 U.S.C. Sec. 1001. The false statement s related to his
	application and the attached supp orting documents for the pu rpose of
	obtaining a Refugee Travel D ocument. The false statements pertained to
	the date and place of the defend ant’s last en try into the U nited States.
	The Naserkhaki Court determi ned that the alleged f alse statem ents
	in the application were not material to acquiring the Refugee Travel
	Document. “Where …a misstatement relates to an ancillar y, non -
	determinative fact, it is not material and cannot support a co nviction under
	Section 100 1 Id. at 248. The C ourt added, “A misstatement in this context
	is material only if it relates to a fact or cir cumstance the IN S exami ner
	considers in deciding whether to issue an RTD. ” Id. at 249.
	The situation herein is precis ely the issue addressed in Naserkhaki .
	The F.B.I . was investigati ng the events at the United States Capitol on
	January 6, 2021. When the agents spoke w ith Mr. Sullivan they were at his
	home exclusively to confront h im about his presence in the U nited States
	Capitol on January 6, 2021. It is inconceivab le that a purpo rted false
	statement about not being in possession of a kni fe would have impacted Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 4 of 85
	the decision -making body in deciding whether to indict defendant for the
	offenses contained in the indictment.
	The issue of possession of a knife, as well as statements made to the
	F.B.I. related to the knife , are noth ing more than ancillary, non -
	determinative fact s that are entirely unrelated to the decision regarding
	whether to charge defendant with the offenses for which he has been
	indicted.
	The only decision the Justice Department was in vestigat ing is
	whether to charge J ohn Sullivan with matters related to his presence in the
	United State s Capitol on January 6, 2021 and what specific charges he
	would be faci ng. It was not investigating whether Mr. Sullivan had a kn ife.
	Regar dless of whether defendant did have a kn ife or did not have a knife,
	that fact was not det erminative of whether he would be charged and for
	what he wo uld be charged.
	Defendant notes that the original indictmen t was r eturned wi thout
	regard to whether h e did or did not posses a knife on January 6, 2021.
	None of the indicted charges in the superseding i ndictments , other than
	the false statement charge, have anything to do with possession of a knife.
	In United States v. Gaudin , Justice Scalia noted, “[d]eciding whether
	a statement is ‘materia l’ requires a determination of at least two subsidiary Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 5 of 86
	questions …(a) what statement was made? And (b) ‘what decision was the
	agency trying to make. ” 515 U.S. 506, 512 ( 1995). Onl y after a court has
	identified the “statement ” and the “relevant de cision ” can a court answer
	the “ultimate question ”: whether the statement was material to the
	decision.” Id.
	The anal ysis employed by Judge Scalia was followed in this Circuit in
	United States v. Diggs . “The test of materiality is whether the statement has
	a nat ural tendency to influence , or was ca pable of influencing the decision
	of the tribunal in making a (particular) de termination .” 613 F.2d 988, 999
	(D.C. Cir. 1979), quoting Weinstock v. United States , 2312 F.2d 699, 701 -
	02 (D.C . Cir. 1956. ) See also United States ex el. Morsell v. Symantec
	Corp., 130 F. Supp 3d 106, 123 n.16 (D.D.C. 2015) ([A] statement is
	material if it has a nat ural tendency to influence, or is capable of influencing
	an agency ’s action. ” quoting United States v. Moore , 612 F.3d 698, 701
	(D.C. Cir. 2010).
	The statement herein is readily identifiable. It is the subject of the
	pending Motion to Suppress Statement and related to the den ial of the
	possessio n of a kn ife during the event s of January 6, 2021. The decision to
	indict J ohn Sullivan had nothing to do with the statement. This argument
	that the statement had nothing to do wi th the dec ision to charge J ohn Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 6 of 87
	Sullivan is supported by the fac t that the U nited States has never argued
	that the knife had anything to do with the decision -maker ’s determination to
	charge defendant.
	Defendant submits this issue should be decide d pretrial . The
	substance of the statement , the decision conc erning whether to charge
	defendant , and the charges fo r which defendant has been indicted are not
	in issue.
	Defend ant maintains i t is far better to have the issue resolved prior to
	trial as intro ducti on of the allegedly false statement will only serve to
	prejudice defendant while having no probative value. Federal Rule of
	Evidence 403 mandates that “the court may exclude evidence i f its
	probative value is sub stantially outweighed by a danger of one or more of
	the following: unfair prejudice, confusing the issues, misl eading the jury,
	undu e delay, wasting time, or needlessly presentin g cumul ative evidence.
	WHEREFOR E defendant prays this Honorable C ourt dismiss Count 8
	of the superseding indictment.



	Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 7 of 88


	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 foregoin g
	was served, via the Court’s electroni c filing system, upon Joseph Huynh
	Esquire, A ssistant U.S. Attorney on this the _______ 16th_____ day of
	May, 2022 .


	______ /s/___________________
	Steven R. Kier sh


	Case 1:21-cr-00078-EGS Document 77 Filed 05/16/22 Page 8 of 8