Datasets:

johnearlesullivan
/

capitol

	1
	UNITED STATES DISTRICT COURT
	FOR THE DISTRICT OF COLUMBIA

	UNITED STATES OF AMERICA

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


	JOHN SULLIVAN

	MOTION TO SUPPRESS CUSTODIAL STATEMENT S

	Defendant , John Sulli van, by and through undersigned counsel, does
	hereby move to suppress the oral custodial statemen ts provided to Special
	Agent F.B.I. Agent Matt Foulger on January 11, 2021. In support thereof,
	defendant respectfully sets for th as follows:
	I. FA CTUAL 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, this was one of the mo st intensive and large scale criminal
	investigations ever co nducted in the United States.
	Special Agent Matt Foulger with the F.B.I. Office in Salt Lake City,
	Utah was assigned to the case of John Sullivan and had the responsibility
	of over seeing all the investigative ste ps in the case against Mr. Sullivan. Case 1:21-cr-00078-EGS Document 46 Filed 09/23/21 Page 1 of 82
	Special Agent Fouler was experienced in investigating domestic terrorism
	and weapons of mass destruction.
	Special Agent Foulger was familiar with defendant’s 39 minute video
	that was po sted on his YouTube channel and was familiar with ce rtain
	statemen ts allegedly made by defendant during the video . According to
	testimony el icited from Spec ial Agent Foulger, defendant purportedly stated
	to the crowd inside the Uni ted States Capitol that h e had a knife and
	requested that the crowd let hi m go forward. Special Agent Fo ulger has
	testified that he could not see defendant in the video but that he recognized
	defendant’s voice and was familiar with defendant’s voice.1
	Special Agent Fo ulger descr ibed defendant in the video h e viewed as
	having black hair, a black goatee and wearing a black jacket while inside
	the United States Capitol. The Agent has further testified that another
	witness who allegedly was with defendant was interviewed by F.B.I. ag ents
	in Washington, D.C. The witness provided information from her cellphone
	as well as some CD cards that she had from footage taken on January 6,
	2021.

	1 It was elicited on multiple occasions that Agent Foulger recognized
	defendant’s voice. Case 1:21-cr-00078-EGS Document 46 Filed 09/23/21 Page 2 of 83
	Special Agent Fo ulger inter rogated defendant at his home on January
	11, 2021, five days after the ev ents at the United States Capitol . By the
	time five days had passed there was an enormous and coordinated effort
	involved in the investigation of crimes committed at the United States
	Capitol.
	Special Agent Foulger unquestionably was actively investigating the
	criminal liability of John Sullivan prior to the questioning at defendant’s
	home on January 11, 2021 . Agent Fo ulger had reviewed tapes of the
	events inculpating defendant and interviewed at least one witness who was
	with defendant at the time of the events th at formed the basis for the
	criminal investigation. Agent Fo ulger had seen vide o foo tage and believed
	defendant was both present in the United States Ca pitol and possessed a
	prohibited weapon while in the United States Capitol .
	The interrogation of defendant on January 11, 2021 at his home was
	unannounced and defendant was informed that Foulger had spok en with
	agents in the District of Columbia about the interview. The interview took
	place over 40 minutes and defendant was not advised of rights pursuant t o
	Miranda v. Arizona.
	Defend ant was specifically asked whether he was carrying a kni fe on
	Januar y 6, 20 21 because, according to Agent Fo ulger, “It was important to Case 1:21-cr-00078-EGS Document 46 Filed 09/23/21 Page 3 of 84
	our potential charges.” According to Agent Fo ulger, defendant said he was
	trying to fit in with the cr owd but denied having a knife. The interview on
	January 11, 2021 was recorded by a body worn camera . Upon information
	and belief there were other members of law enforcement who acco mpanied
	Agent Foulger to defend ant’s home on January 11, 2021. I n addition ,
	defendant was not warned by Fo ulger that lying about a knife could bring
	crimi nal charges.
	II. ARGUMENT
	ALL STATEMEN TS MA DE BY JOIHN SULLIVAN DURING TH E
	JANUARY 11, 2021 INTERROGATION WITH SPECIAL AGENT MATT
	FOULGER MUST BE SUPPESSED BECAU SE THEY WERE OBTAINED
	WITHOUT THE BENEFIT OF MIRANDA WARNINGS

	If, as expected, the United States will argue that the sta tements of
	defendant were voluntary, suppression of the statements is still required
	because defendant was not advised o f his right against self -incrimination
	prior to undergoing custodial interrogation. See, e.g., Pennsylvania v.
	Muniz , 496 U.S. 582 (1990). A person is in “custody” under Miranda when
	he “has been…deprived of freedom of action in any significant way.”
	Miranda v. Arizona , 384 U.S. 436,444 (1966). Whether a person is in
	custody depends “how a reasonable man in the suspect’s position would
	have understood his situation.” Berkemer v. McCarty , 468 U.S. 420, 442
	(1980). “[T]he term interrogation under Miranda refers no t only to express Case 1:21-cr-00078-EGS Document 46 Filed 09/23/21 Page 4 of 85
	questioning, but also to any words or actions on t he part of the police (other
	than those normally attendant to arrest and custody) that the police should
	know are reasonably likely to elicit an incriminating response from the
	suspect.” Rhode Isla nd v. Innis, 446 U.S. 291,301 (1980).
	The Supreme Court has noted that being in custody need not include
	questioning in a police facility and may even be found to exist in one’s
	home or bedroom if the conduct of the law enforcement officers turned the
	otherwise comfortable and familiar surroundings of the home into a police -
	dominated environment. See Orozco v. Texas , 394 U.S. 324, 326 -27
	(1969).
	The following facts cannot be disputed.
	1. The Special Agent reviewed videotape of the events at the United St ates
	Capitol that occurred on January 6, 2021 prior to the interrogation on
	January 11, 2021 ;
	2. The Special Agent identified Jo hn Sulliv an as a participant in the events
	of January 6, 2021 and speci fically identified him as being in possession of
	a knife prior to the interrogation on January 11, 2021 ;
	3. A witness and defendant were interviewed by the F.B.I in Washington
	D.C. the day after January 6, 2021; Case 1:21-cr-00078-EGS Document 46 Filed 09/23/21 Page 5 of 86
	4. The Special Agent showed up unannounced at defendant’s home in Salt
	Lake City on January 11, 2021 in the company of at least one other law
	enforcement official;
	5. Defendant was questioned for approximately 40 minutes on January 11,
	2021 and was never given Miranda rights;
	6. The Spec ial Agent was investigating the events at the United States
	Capitol that occurred on January 6, 2021 and believed defendant wa s a
	criminally liable participant in the events:
	7. The Spec ial Agent specifically questioned defendant about being in
	possession of a knife knowing that a denial could lead to a charge of
	making a f alse statement.
	The Special Agent unquestionably was conduct ing an active
	investigation into the events of January 6, 2021 and specifically targeted
	defendant as a subject of his investigation . The Agent was questioning
	defendant about poss ession of a kni fe after already having concluded that
	defendant possessed a knife. The unannounced entry into def endant’s
	home by multiple law enforcement officers was not designed as a benign
	conversation to further an invest igative purpose. Rather, the purpose of the
	40 minute interrogation was to incriminate defendant. Accordingly, Miranda
	warnings were a necessary prer equisite to any questioning on Jan uary 11, Case 1:21-cr-00078-EGS Document 46 Filed 09/23/21 Page 6 of 87
	2021. “ Miranda announced that police officers must warn a suspect prior to
	questioning that he has a right t o remain si lent, and the right to the
	presence of an attorney.” Maryla nd v. Shatzer , 559 U.S. 98, 103 (2010).
	III. REQUEST FOR EVIDENTIARY HEARING
	Defendant request s an evidentiary hearing to examine Special Agent
	Foulger and the other law enfor cement officials who participated in the
	January 21, 2021 interrogation in order to complete his record related to
	the legal issue raised herein.
	IV. CONCLUSION
	A massive and unprecedented investigation wa s conducted into the
	events o f January 6, 2021 at the United States Capitol and defendant was
	specifically targeted by an experienced Special Agent of the F.B.I. as being
	a participant in illegal activity on that date. A primary purpose of the
	unannounced interrogation on January 11, 2021 was to obtain incriminating
	information from defendant. That is the reason why the Special Agent
	interrogated defendant about possession of a knife when the Special Agent
	had already concluded that defendant possessed a knife from a review of
	the vide otape. A s such , defendant should have been provided with Miranda
	warnings before the interrogation commenced. Case 1:21-cr-00078-EGS Document 46 Filed 09/23/21 Page 7 of 88
	WHEREFORE, for the reasons stated herein, and for any other
	reasons that may be adduced at an evidentiary hearing, defendant prays
	this Honorable Court suppress as evidence any statements made during
	the January 11, 2021 interrogation at this home.


	Respectfully submitted,

	_______/s/_______________
	Steven R. Kiersh #323329
	5335 Wisconsin Avenue, N.W.
	Suite 4 40
	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 filing system, on this the
	____ 23rd____day of Septemb er, 2021 upon Assistant U.S. Attorney
	Candice Wong, Esquire.


	______ /s/____________________
	Steven R. Kiersh Case 1:21-cr-00078-EGS Document 46 Filed 09/23/21 Page 8 of 8