case_files_21_cr_78

01-03-22 - Memorandum in Opposition by USA as to JOHN EARLE SULLIVAN re 61 MOTION for Reconsideration Motion for Reconsideration of December 6, 2021.txt

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+1 
+  UNITED STATES DISTRICT COURT  
+ FOR THE DISTRICT OF COLUMBIA 
+ 
+ UNITED STATES OF AMERICA  :   
+ :   
+ :  
+             v.  :  No. 21- CR-78-EGS  
+ :  
+ : 
+JOHN EARLE SULLIVAN,  : 
+ : 
+                   Defendant.           : 
+    
+GOVERNMENT ’S MEMORANDUM  IN OPPOSITION TO  
+DEFENDANT’S “MOTION FOR RECONSIDERATION OF DECEMBER 6, 2021 
+DENIAL OF MOTION TO RELEASE SEIZURE ORDER AND SUPPLEMENT TO 
+MOTION TO RELEASE SEIZURE ORDER” 
+ 
+The United States of America, by and through its attorney, the United States Attorney f or 
+the District of Columbia, respectfully submits this memorandum in opposition to the defendant’s 
+“Motion for Reconsideration of December 6, 2021 Denial of Motion to Release Seizure Order and 
+Supplement to Motion to Release Seizure Order.”  D.E. 61.1  The motion should be denied.   
+The Court’s well -reasoned, 16- page ruling was thorough and correct .   
+Motions to reconsider “apply only to ‘extraordinary situations’ and ‘should be only 
+sparingly used.’”  United States v. Pollard, 290 F. Supp. 2d 153, 157 (D.D.C . 2003).  Such 
+extraordinary contexts include, for instance, “ whether the Court ‘patently’ misunderstood the 
+parties, made a decision beyond the adversarial issues presented, made an error in failing to 
+consider controlling decisions or data, or whether a controlling or significant change in the law has 
+ 
+1 Due to the holiday , the undersigned previously obtained defense couns el’s consent  to respond to defendant ’s 
+motion, filed on December 17, 2021, on Monday, January 3, 2022,  rather than Friday , December 31, 2021,  and 
+notified Chambers  in advance .    Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 1 of 92 
+ occurred.”   Isse v. Am. Univ., 544 F.Supp.2d 25, 29 (D.D.C. 2008).  “‘ [W]hile the law of the case 
+doctrine does not necessarily apply to interlocutory orders, district courts generally consider the 
+doctrine ’s underlying rationale when deciding whether to reconsider an earlier decision’”; thus, 
+motions for reconsideration are “‘subj ect to the caveat that, where litigants have once battled for 
+the Court's decision, they should neither be required, nor without good reason permitted, to battle 
+for it again.’”   United  States  v. Sunia, 643 F. Supp. 2d 51, 61 (D.D.C. 2009).  The defendant’ s 
+motion – which attempts  to supplement his claim of financial need, and makes no claim of a change 
+in law or clear error – falls well short of the demanding standard  that reconsideration merits . 
+The defendant ’s motion for reconsideration seeks to revive h is request  “that the Court issue 
+an order ‘discharging the seizure of his bank account in Utah and to prevent any further seizures 
+of other bank accounts belonging to defendant’” and hold a “‘post -deprivation, pretrial hearing’ to 
+challenge the sufficiency  of the government’s evidence supporting the seizure of assets.”  D.E. 
+60, at 1- 2 (quoting Deft’s Motion).  Specifically, the motion attempts to fill in certain illustrative 
+gaps highlighted by the Court in discussing the defendant’s deficient threshold showing of 
+financial need.  But as discussed at greater length below, even if the defendant’s newest factual 
+claims were to be credited, they are non- responsive to much of the Court’s reasoning undergirding 
+the denial:  T he defendant’s  threshold showing remains, at best, incomplete .  Even if the 
+defendant were found to have made a threshold showing, this Court ’s denial  of his motion 
+unambiguously relied on reasons in the alternative  to that deficient threshold showing.  And the 
+motion offers no su pplement whatsoever to his conclusory challenge to traceability – the ultimate 
+issue on which the defendant claims a pretrial hearing is required to contest – a matter on which 
+this Court ’s opinion already observed that his argument “carries little weight. ”   Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 2 of 93 
+ First, it remains questionable whether the defendant  has carried his burden of “clearly 
+establish[ing]” a need for seized assets to satisfy rent or other “ household necessities .”  Cf. United 
+States v. E -Gold , Ltd., 521 F.3d 411, 417, 421 (D.C. Cir. 2008) ; United States v. Unimex , Inc., 991 
+F.2d 546, 551 (9th Cir. 1993) (“To determine whether a hearing is required, the court must decide 
+whether the moving papers filed, including affidavits, are sufficiently definite, specific, detailed, and nonconjectura l”).  There remain factual gaps and issues raised by the defendant’s shifting, 
+conjectural , and otherwise vague representations .
+2  As an initial matter, upon his January 14, 
+2021 arrest and ensuing Pretrial Services interview, the defendant put his monthly expenses at 
+“$2,000- $2,250.”  The defendant’s reply to his motion for release of funds then placed his 
+monthly household needs at $4,800.  The defendant’s reconsideration motion now again increases  his monthly household needs to $6,018.44 ($72,221 per year)  – over three times what he 
+reported upon arrest .   
+The government also notes that the defendant reported to Pretrial Services upon his January 
+14, 2021 arrest that he had $51,000 of funds in his bank accounts.  The defendant earned at least 
+$90,875 in proceeds from his January 6 footage, all of which was deposited into his bank account 
+after his Pretrial Services interview .  The government in late April 2021 seized only $62,813.76 
+from a single ba nk account of the defendant, raising reasonable questions  about where and how 
+the defendant apparently handled or expended the remaining approximately $80,000 in that time.  
+In any event, t his Court ’s 16-page opinion observed that “Mr. Sullivan has submitt ed a 
+ 
+2Certain questions are raised by the defendant’s latest representations .  For instance, he attributes 
+his credit score falling to 559 since June 2020 to the April 2021 seizure.  I n fact, his report shows 
+that on April 23, 2021, days  before the seizure warrants  were served , his credit score already 
+dipped to 566.  He also char acterizes the entirety of his credit card statement balances from one 
+month, December 2021 , as “credit card debt” without explanation or unpacking. Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 3 of 94 
+ declaration to the Court that merely provides a ‘summary’ of his ‘monthly household needs’ 
+totaling $4,800 a month, as well as a ‘ partial  listing of sources of … income’” without “any 
+information regarding … the value of any assets he may have.”  D.E. 60 at 11.  As noted, t he 
+defendant has now proffered another such “summary”  listing needs totaling $6,018.44.  It is not 
+self-evident that various line items  encompassed in his summaries – e.g., $250 in monthly 
+“subscriptions” ; a “minimum credit card payments” expense on top of his enumerated household 
+expenses ; or $250 in “entertainment,” $100 in “shopping,” $150 in “savings,” or $300 in “self 
+care” as in his original listing – comprise bona fide  “household necessities.”   It is al so unclear 
+why t he defendant ’s summary  has now, without explanation, dropped two “sources of income” he 
+previously noted (“Google ad sense deposits” and “401 K Deposits” ).  N or is it explained what 
+happened to the “approximately $450 per month from previous contracts he obtained while working as a freight broker” that he told Pretrial Services he was “still receiv[ing]” upon his arrest .  
+And the defendant still has not provided any comprehensive listing of his “liquid and non- liquid 
+assets,” even as he ackn owledges that he has been able to sell certain non -liquid assets this year 
+“to pay expenses.”  D.E. 61 at 15; cf. D.E. 60 at 12 (comparing defendant’s declaration to detailed 
+proffers about assets made by the defendants in E -Gold ).   
+Second, this Court’s denial unambiguously relied on reasons in the alternative to, and in 
+addition to, his deficient “threshold showing ” of financial need – alternat ive reasons that the 
+reconsideration motion does not address.  T his Court went on to rule, “Second, even if the Court 
+proceeded to  ‘ascertaining the requirements of the due process clause’ by ‘look[ing] … to the 
+Supreme Court’s declarations in Mathews v. Eldridge ’ … the result would remain the same .”  
+D.E. 60 at 13 (em phasis added) .  The Court proceeded to observe that “Mr. Sullivan’s interest in Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 4 of 95 
+ acquiring access to the seized funds for rent and household necessities ‘is obviously far less 
+pressing’ than a defendant’s exercise of his Sixth Amendment right.”  D.E. 60 at 14.  Inde ed, 
+courts have contrasted the extraordinary permanence of injury in a trial tainted by a violation of 
+the defendant’s Sixth Amendment right – a “right that must be addressed before trial, if it is to be 
+addressed at all” – with “a defendant’s wis h to use his property in whatever manner he sees fit.” 
+United States v. Monsanto, 924 F.2d 1186, 1193 (2d Cir. 1991).  And “as for the “risk of 
+erroneous deprivation”  under Mathews , this Court noted that the defendant’s “conclusory 
+allegation that the proc eeds of the seized bank account are not the product of the criminal activity 
+alleged in the indictment carries little weight,” observing that in his declaration even the defendant 
+acknowledged that assets of his were “‘ obtained from sale of videotape from January 6, 2021.’ ”  
+D.E. 60 at 15 (emphasis added) .  Those reasons remain fully intact, and the balancing of 
+considerations – even if the defendant’s additional claims about his finances are to be credited –  
+still weighs in favor of adjudicating his arguments at a post -trial proceeding in the ordinary course.  
+See Kaley v. United States , 571 U.S. 320, 334 (2014) (finding that no pretrial hearing was 
+warranted “[e]ven if Mathews applied” ; because “a seizure o f the Kaleys’ property is erroneous 
+only if unsupported by probable cause, the added procedure demanded here is not sufficiently likely to make any difference” ); id. at 327 (“With probable cause, a freeze is valid” and nothing 
+about even a “defendant ’s interest in retaining a lawyer with the disputed assets change[s] the 
+equation”) .   
+At bottom, the reconsideration motion makes additional financial representations, but cites 
+no additional legal  authority.  T he defendant does not dispute , not could he, the legal framework 
+laid out by this Court’s opinion.  Accordingly, i t is not disputed that once the government has Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 5 of 96 
+ obtained a seizure warrant, “the Federal Rules of Criminal Procedure provide for no further inquiry 
+into the property’s forfeitability unti l disposition of the criminal charges on which the forfeiture is 
+predicated.”  D.E. 60 at 6.  It is not disputed that the Supreme Court has “declined to opine” on 
+whether a pretrial hearing should be provided to challenge traceability to the crime , nor that, while 
+lower courts have afforded a qualified right to such hearings when the seized assets implicate the 
+right to counsel of choice , “the D.C. Circuit has never addressed the question” outside that right -
+to-counsel context.  D.E. 60 at 8.  Nor is it in dispute that one decision in this district, United 
+States v. Bikundi, 125 F. Supp. 3d 178 (D.D.C. 2015), found “pretrial judicial review  of the 
+challenged seizure warrants” ( and not a pretrial hearing) to be warranted despite  the absence of a 
+Sixth Amendme nt claim, but in so holding, found “[c]ritical to its decision … the defendant’s 
+substantial evidence regarding ‘near -term financial obligations and his apparent inability to meet 
+those obligations without release of the seized assets ’ as well as express d isclaimers regarding the 
+traceability of the assets in the government’s affidavit supporting the seizure warrant .”  D.E. 60 
+at 9 (emphasis added) .   
+The pretrial hearing the defendant has requested (as compared to the more limited review  
+of the seizure aff idavit undertaken in Bikundi ) has no precedent in this district beyond the right -
+to-counsel context .  And the defendant has not pointed to any traceability gaps  or disclaimers in 
+the seizure warrants  to flesh out red flags remotely analogous to the “critical” second consideration 
+in Bikundi .  That bears emphasis because, as noted, the Court  already found this defendant’s 
+traceability claim – the very issue on which he argues he was erroneously deprived his assets – to be “conclusory”  and “carr[y] little weight.”  D.E. 60 at 15.  It thus remains the case that the 
+defendant  has not even satisfied the premises of Bikundi  – a decision which, in any event, this Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 6 of 97 
+ Court did not hold that it was adopting.  Cf. D.E. 60 at 10 (“Even if the Court  agreed with the 
+reasoning of Bikundi  ….”).  
+ In short, as the magistrate judge in this case found in signing two seizure warrants, there is 
+ample probable cause to believe the seized funds – a portion of the $90,875 in profits that the 
+defendant reaped from selling his video footage from his storming and breach of the U.S. Capitol 
+on January 6, 2021 – are forfeitable proceeds.  As this Court appropriately recognized, “[t]he 
+pretrial seizure of forfeitable property is authorized” by statute, and part and parcel of the “‘strong governmental interest in obtaining full recovery of all forfeitable assets.’” D.E. 60 at 5 -6.  T he 
+defendant is free to contest the forfeitability of the seized funds, but should be limited to doing so 
+in the manner prescribed by Federal Rule of Criminal Procedure 32.2(b)(1)(A) – at trial.  That is the process he is due and the Constitution demands nothing more. 
+CONCLUSION 
+WHEREFORE, th e United States respectfully requests that the  Court deny the defendant’s 
+motion for reconsideration of its December 6, 2021 opinion denying the defendant’s motion to 
+release the seizure order and forbid seizures of other accounts .   
+     
+ Respectfully submitted,  
+ 
+      MATTHEW M. GRAVES  
+UNITED STATES ATTORNEY  
+ 
+ 
+            
+   by:   Candice C. Wong  
+      D.C. Bar No. 990903 
+Assistant United States Attorney  
+555 4th Street, N.W., room 4816 
+Washington, D.C. 20530 (202) 252-7849 Candice.wong@usdoj.gov 
+Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 7 of 98 
+  
+  Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 8 of 99 
+ CERTIFICATE OF SERVICE  
+ 
+I hereby certify that on January 3, 2022, I caused a copy of the foregoing motion  to be 
+served on counsel of record via electronic filing.  
+ 
+ 
+   ______________  
+Candice C. Wong  
+Assistant United States Attorney  
+ 
+ 
+Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 9 of 9

01-24-22 - SUPPLEMENT by USA as to JOHN EARLE SULLIVAN re 65 Response to motion.txt

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+ 
+ 
+ UNITED STATES DISTRICT COURT  
+FOR THE DISTRICT OF COLUMBIA 
+ 
+UNITED STATES OF AMERICA   :  
+      :  v.     : Criminal No. 1:21- cr-00078- EGS  
+      :  JOHN EARLE SULLIVAN,   :  
+   Defendant.   :   
+ 
+UNITED STATES’ SUPPLEMENT TO OPPOSITION TO DEFENDANT’S “MOTION 
+TO ADOPT AND JOIN RELEVANT PORTIONS OF MOTION TO DISMISS COUNT 2 
+OF THE INDICTMENT IN UNITED STATES V. CALDWELL, 21 -CR-28 (APM) AND 
+TO DISMISS COUNT 1 OF THIS SUPERSEDING INDICTMENT”   
+ 
+On January 10, 2022, the government ’s opposition to the defendant ’s “Motion to Adopt 
+and Join Relevant Portions of Motion to Dismiss Count 2 of the Indictment in United States v. 
+Caldwell , 21-cr-28 (APM) and to Dismiss Count 1 of this Superseding Indictment” attached three 
+of the government ’s responsive pleadings from 21- CR-28.  On January 24, 2022, Judge Mehta 
+denied reconsideration of his denial of the relevant motions to dismiss  in 21- CR-28.  The 
+government hereby respectfully submits the Memorandum Opinion and Order denying  reconsideration  as a supplement to the government’ s January 10, 2022 opposition. 
+      Respectfully submitted,  
+ 
+MATTHEW M. GRAVES  
+United States Attorney  
+D.C. Bar No. 481052 
+ 
+By:                                  
+CANDICE C. WONG  
+Assistant United States Attorney  
+D.C. Bar No. 990903 555 Fourth Street, N.W., Room 4816 Washington, DC 20530 Candice.wong@usdoj.gov (202) 252-7849  
+Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 1 of 8 
+ 
+      
+CERTIFICATE OF SERVICE  
+ 
+I hereby certify that on January 24, 2022, I caused a copy of the foregoing supplement to 
+be served on counsel of record via electronic filing.  
+ 
+ 
+   ______________  
+Candice C. Wong  
+Assistant United States Attorney  
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 2 of 8 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+EXHIBIT  
+  Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 3 of 8UNITED STATES DISTRICT COURT  
+FOR THE DISTRICT OF COLUMBIA 
+  
+_________________________________________                                                                                   
+       ) UNITED STATES OF AMERICA,   ) 
+       )   v.     ) Case No. 21- cr-28 (APM) 
+       )   THOMAS E. CALDWELL, et al.,    ) 
+       )  Defendants.      ) 
+_________________________________________ )  
+MEMORANDUM OPINION AND ORDER  
+ Defendant Thomas E. Caldwell asks the court to reconsider its decision denying his and 
+other Defendants’ motions to dismiss Counts 1 and Count 2 of the Sixth S uperseding Indictment 
+based on a statutory construction argument that he had every opportunity to make before the court 
+ruled.  See Def. Caldwell’s Req. for Recons. Regarding Court’s Ruling on Mots . to Dismiss Counts 
+1 & 2 (18 U.S.C. § 1512(c) ), ECF No. 566 [hereinafter Def.’s Mot.].  Caldwell’s motion is 
+procedurally deficient , and it is wrong on the merits.  It is denied.     
+I. 
+ The Federal Rules of Criminal Procedure do not address the legal standard applicable to 
+motions to reconsider interlocutory decisions, but courts in this District have applied the “as justice requires” standard under Federal Rule of Civil Procedure 54(b).  See, e.g.,  Unite d States v. 
+Hassanshahi , 145 F. Supp. 3d 75, 80 (D.D.C. 2015);  United  States v. Hemingway , 930 F. Supp. 
+2d 11, 12 (D.D.C. 2013).  “[A]sking ‘what justice requires’ amounts to determining, within the Court’ s discretion, whether reconsideration is necessary under the relevant circumstances.”   Cobell 
+v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005).  Reconsideration may be warranted where the 
+court “patently misunderstood a party, has made a decision outside the adversarial issues presented Case 1:21-cr-00028-APM   Document 596   Filed 01/24/22   Page 1 of 5Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 4 of 82 
+ to the Court by the parties, has made an error not of reasoning but of apprehension, or where a 
+controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court.”  Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 ( D.D.C.  2005) (internal 
+quotation marks omitted).   The moving party bears the burden of demonstrating that 
+reconsideration is warranted.  See Hassanshahi , 145 F. Supp. 3d at 80.   
+ Caldwell makes no genuine attempt to meet this standard.  He does not show that the court 
+patently misunderstood his or other Defendants’ arguments for dismissal, made a decision outside the adversarial process, committed an error of apprehension, or that there has been an intervening change in law.  Instead , he urges reconsiderat ion because neither this court nor any other judge in 
+this District—at least four have rejected similar challenges to  charges brought under 18 U.S.C. 
+§ 1512(c)(2)—has “addressed the issues raised” by him.  Def.’s Reply to Gov’t Opp’n to Def.’s Mot., ECF No. 575 [hereinafter Def.’s Reply] , at 2, 4 n.4.  But a motion for reconsideration is “not 
+simply an opportunity to reargue facts and theories upon which a court has already ruled,” Hassanshahi , 145 F. Supp. 3d at 80–81 (internal quotation marks omitted), and litigants who “have 
+once battled for the court’s decision, should not be permitted to battle for it again,” Arias v. DynCo rp, 856 F. Supp. 2d 46, 52 (D.D.C. 2012) (cleaned up).  That is precisely what Caldwell 
+attempts to do with his motion.  He asks the court to entertain a statutory construction argument that he had ample opportunity to previously raise and present and whic h he seemingly conceived  
+of only after the court ruled.  That is not a proper basis on which to seek reconsideration.  For that 
+reason alone, Caldwell’s motion is denied. 
+II. 
+ Nor would Caldwell prevail on the merits.  He advances two arguments.  First, he  asks 
+“why Congress would have inserted the word ‘otherwise’ into § 1512(c)(2) for the purpose of Case 1:21-cr-00028-APM   Document 596   Filed 01/24/22   Page 2 of 5Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 5 of 83 
+ demarcating separate and independent  conduct between subsections (c)(1) and (c)(2) when it could 
+have accomplished the same outcome —which it did twenty times in other areas of §  1512—by 
+using the word ‘or’ alone (without ‘otherwise’).”  Def.’s Reply at 1–2; see also Def.’s Mot. at 3–
+4.  Second, he contends that the word “‘otherwise’ operates as a ‘conjunctive adverb’ in § 1512(c), 
+which, as a matter of basic grammatical rules, means that the adverbial clause (‘otherwise obstructs, influences or impedes’) functions exclusively  to modify the preceding clause.”  Def.’s 
+Reply at 2; see also Def.’s Mot. at 5 –9.  Taken together, these arguments lead to the conclusion, 
+he says, that “subsection (c)(1) addresses the ‘letter of the law,’ while (c)(2) addresses the ‘spirit of the law,’ i.e., to punish those who, with a nefarious purpose but in a way not specifically enumerated by Congress in (c)(1), prevent tangible evidence from being obtained and accurately considered by courts, Congress, and administrative agencies.”  Def.’s Reply at 9.   
+ As to Caldwell’s first point, there is an obvious answer why Congress used the word 
+“otherwise” in section 1512(c) in addition to the word “or” to separate subsections (c)(1) and (c)(2):  to emphasize that section 1512(c)(2) is a “catch -all” provision that reaches  conduct not 
+specified in (c)(1).   See, e.g., United States v. Burge , 711 F.3d 803, 809 (7th Cir. 2013).  None of 
+the other provisions within section 1512(c) contain such a catch- all.  Rather, section s 1512(a), (b), 
+and (d) contain a finite list of proscribed ways in which to violate the statute.  See 18 U.S.C. § 1512.  
+Section 1512(c) is structured differently.  It does not itemize multiple ways to commit an offense.  It identifies one way in which to commit obstruction with regard to “a record, document, or other 
+object,” followed by a broad prohibition on obstructive acts that affect an official proceeding.  
+Thus, as the court ruled, Congress meant for the word “otherwise” to “connect[] the two provisions [while]  underscor[ing] that the acts prohibited by (c)(1) are ‘different’ from those prohibited by 
+(c)(2).”  United States v. Caldwell , No. 21- cr-28 (APM), 2021 WL 6062718, at *12 n.6 (D.D.C. Case 1:21-cr-00028-APM   Document 596   Filed 01/24/22   Page 3 of 5Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 6 of 84 
+ Dec. 20, 2021).  Thus, the word “otherwise” is not under the court’s interpretation, as Caldwell 
+suggests, acting as surplusage.  See Def.’s Mot. at 4 , 9.       
+ Nor does Caldwell’s insistence that the word “otherwise” in section 1512(c)(2) is a 
+conjunctive adverb change the court’s understanding.  Caldwell asserts that, as a conjunctive adverb, “otherwise” acts as a modifier, such that subsection (c)(2) “modif ies” subsection (c)(1).  
+Id. at 9.  But “otherwise ” as a modifier, or conjunctive adverb, operates differently than Caldwell 
+posits.  It looks something like this:  “You need to finish your homework; otherwise, you will not make a passing grade,” or “Jaimie needs to clean her room; otherwise, she will not be allowed to have her friends come over.” How to Use Otherwise in a Sentence, Study.com, 
+https://study.com/academy/lesson/how- to-use-otherwise- in-a-sentence.html  (last visited Jan. 21, 
+2022).  In those examples the clause following “otherwise” modifies, or further explains, the clause 
+that precedes it:  the failure to finish homework will result in a failing grade or not cleaning a room will lead to friends not coming over.  But that is not how “otherwise” operates in section 1512(c).  The verbs of (c)(2) in no sense modif y the object of  (c)(1): “obstructs, influences, influences, or 
+impedes” in subsection (c)(2) does not supply additional meaning to “record, document or other 
+object” in subsection (c)(1).  The far more natural reading is the one the court adopted: “otherwise” 
+means “in a different way or manner.”  See Caldwell, 2021 WL 6062718, at *12.  Understood in 
+that sense , section 1512(c)(2) means “that a crime will  occur in a different (‘otherwise’) manner 
+compared to §  1512(c)(1) if the defendant ‘obstructs, influences, or impedes any official 
+proceeding’ without regard to whether the action relates to documents or records.”  United States v. Petruk, 781 F.3d 438, 446–47 (8th Cir. 2015). 
+In truth, Caldwell does not read “otherwise” as a modifier.  He reads it as a word of 
+limitation  that restricts offenses under subsection (c)(2) to those “ involving the integrity and Case 1:21-cr-00028-APM   Document 596   Filed 01/24/22   Page 4 of 5Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 7 of 85 
+ 
+production of documentary evidence ,” Def.’s  Mot. at 10, or “tangible evidence,” Def.’s Reply at  9.  
+But Caldwell points to no court that has read section 1512(c)(2) so narrowly  and, in fact , courts 
+have rejected that reading .  See, e.g., Petruk, 781 F.3d at  446 (8th Cir. 2015) (rejecting argument 
+that section 1512(c)(2) “is limited to obstruction involving documents or physical evidence ”); 
+United States v. Ring, 628 F. Supp. 2d 195, 224 (D.D.C. 2009) ( rejecting assertion  that “18 U.S.C. 
+§ 1512(c)(2) applies only to acts involving ‘tampering with documents or physical evidence ’”).  
+ The court leaves it to grammarians to say whether “otherwise” as it appears in section 
+1512(c)(2) is properly classified a s a conjunctive adverb.  Whether it is or not does not alter this 
+court’s reading of the statute.   
+III. 
+ For the foregoing reasons, the court denies Defendant Caldwell’s motion for 
+reconsideration.  
+ 
+ 
+                                                   
+Dated:  January 24, 2022     Amit P. Mehta  
+       United States District Court Judge  
+ Case 1:21-cr-00028-APM   Document 596   Filed 01/24/22   Page 5 of 5Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 8 of 8

02-01-21 - NOTICE OF SUBSTITUTION OF COUNSEL United States District Court For the District Of Columbia.txt

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+UNITED STATES DISTRICT COURT 
+FOR THE DISTRICT OF COLUMBIA  
+UNITED STATES OF AMERICA  
+v. : 
+: Criminal No: 21-MJ-00050 ( RMM)
+: 
+: 
+JOHN SULLIVAN , : 
+: 
+Defendant.  : 
+NOTICE OF SUBSTITUTION OF COUNSEL 
+The United States of America, by and through its attorney, the United States Attorney for the 
+District of Columbia, informs the Court that the above-captioned matter is now assigned to 
+Assistant United States Attorney (“AUSA”) Candice C. Wong.  The undersigned will 
+substitute for Assistant United States Attorney Amanda Vaughn as counsel for the United 
+States.  AUSA Wong may be contacted either by phone at 202-252-7849 or by e-mail at 
+candice.wong@usdoj.gov.
+Respectfully submitted, 
+MICHAEL R. SHERWIN  
+Acting United States Attorney 
+New York Bar No. 4444188  
+By: /s/ Candice    C. Wong
+Candice C. Wong  
+Assistant United States Attorney  
+D.C. Bar No: 990903
+United States Attorney’s Office
+555 Fourth Street, N.W. #4816
+Washington, D.C. 20530
+Telephone: 202 -252-7849
+E-mail: candice.wong@usdoj.govCase 1:21-mj-00050-RMM   Document 5   Filed 02/01/21   Page 1 of 1

02-02-22 - Consent MOTION to Continue and Exclude Time Under Speedy Trial Act by USA as to JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,77 @@
+1 
+ UNITED STATES DISTRICT COURT  
+FOR THE DISTRICT OF COLUMBIA 
+ 
+UNITED STATES OF AMERICA   :  
+      : 
+ v.     : Criminal No. 1:21- cr-00078- EGS  
+      :  
+JOHN EARLE SULLIVAN,   :  
+      :  
+   Defendant.   :   
+UNITED STATES ’ CONSE NT MOTION TO CONTINUE AND  
+TO EXCLUDE TIME UNDER THE SPEEDY TRIAL ACT  
+ 
+The parties are currently scheduled for a status hearing on March 4 , 2022 .  The United 
+States  of America , with the consent of counsel for the defendant, John Sullivan, hereby move s this 
+Court for a n approximately 45- day continuance of that hearing, and further to exclude the time 
+within which  the trial must commence  under the Speedy Trial Act, 18 U.S.C. § 3161 et seq..  In 
+support of this consent  motion, the undersigned state s as follows:   
+1. The parties last conven ed for a status hearing on January  4, 2022.  On January 18, 
+2022, and February 3, 2022, the government made additional discovery productions  to 
+counsel for the defendant.  The materials include d indexes shared via filesharing of 
+documents produced to Relativity.  The production to Relativity  included numerous 
+audio files and other records of the U.S. Capitol Police, tens of thousands of tips and 
+related documentation made to the Metropolitan Police Department tipline, and FBI reports of interviews, among other materials.  On February 10, 2022, the undersigned 
+also filed a memorandum on the docket summarizing the status of global discovery in 
+Capitol Breach matters for the Court.   
+2. Counsel for defendant s recently obtained access to the FPD Relativity workspace .  As 
+noted, m any of the materials previously produced via filesharing, including those in the 
+production described in paragraph 1, are currently available to search, review, and Case 1:21-cr-00078-EGS   Document 69   Filed 03/02/22   Page 1 of 42 
+ download as necessary in the database; keyword searches, for instance, may be 
+performed.   
+3. Counsel for the defendant anticipates being in a homicide trial commencing this week 
+in D.C. Superior Court. 
+4. Counsel for the government anticipates being in an approximately two- week trial in 
+this Court beginning on March 10, 2022.   
+5. The undersigned anticipates the continued production of additional discovery to t he 
+defendant, including defendant -specific materials , in the near future .  Given counsel 
+for the  defendant’s interest in reviewing the voluminous discovery materials, including 
+the most recent productions  on the Relativity workspace, and the government’s 
+continued production of discovery materials  to defense counsel , the parti es seek an 
+additional continuance of approximately 45 days or another date thereafter at the 
+Court’s convenience .  The additional time will afford the parties time to continue to 
+produce and review discovery.  
+6. The need for reasonable time to address discovery obligations is among multiple pretrial preparation grounds that Courts of Appeals, including our Circuit, have routinely held sufficient to grant continuances and exclude time under the Speedy Trial Act – and in cases involving far less complexity in te ’rms of the volume and 
+nature of data, and the number of defendants entitled to discoverable materials.  See, 
+e.g., United States v. Bikundi , 926 F.3d 761, 777- 78 (D.C. Cir. 2019) (upholding 
+ends-of-justice continuances totaling 18 months in two co- defendant health care f raud 
+and money laundering conspiracy case, in part because the District Court found a need to “permit defense counsel and the government time to both produce discovery Case 1:21-cr-00078-EGS   Document 69   Filed 03/02/22   Page 2 of 43 
+ and review discovery” ); United States v. Gordon, 710 F.3d 1124, 1157- 58 (10th Cir. 
+2013)  (upholding ends -of-justice continuance of ten months and twenty- four days in 
+case involving violation of federal securities laws, where discovery included 
+“documents detailing the hundreds of financial transactions that formed the basis for the charges” and “hundreds and thousands of documents that needs to be catalogued and separated, so that the parties could identify the relevant ones”) (internal quotation marks omitted); United States v. O’Connor , 656 F.3d 630, 640 (7th Cir. 2011) 
+(upholding ends -of-justice continuances totaling five months and 20 days in wire 
+fraud case that began with eight charged defendants and ended with a single defendant exercising the right to trial, based on “the complexity of the case, the magnitude of the discovery, and the a ttorneys’ schedules”) . 
+WHEREFORE, the parties respectfully request that this Court grant the motion for a n 
+approximately 45- day continuance of the above -captioned proceeding, and tha t the Court exclude 
+the time within which the trial must commence under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., on the basis  that the ends of justice served by taking such actions  outweigh the best interest 
+of the public and the defendant in a spee dy trial  pursuant to the factors described in 18 U.S.C. § 
+3161(h)(7)(A), (B) (i), (ii), a nd (iv) , and failure to grant such a continuance would result in a  
+  Case 1:21-cr-00078-EGS   Document 69   Filed 03/02/22   Page 3 of 44 
+ miscarriage of justice .   
+Respectfully submitted,  
+       MATTHEW M. GRAVES  
+United States Attorney  
+D.C. Bar Number 481052 
+ 
+By: /s/ Candice C. Wong 
+Candice C. Wong  
+       D.C. Bar No. 990903  
+Assistant United States Attorney  
+555 4th Street, N.W., R oom 4816 
+Washington, D.C. 20530 
+(202) 252- 7849  
+candice.wong@usdoj.gov 
+ 
+ Case 1:21-cr-00078-EGS   Document 69   Filed 03/02/22   Page 4 of 4

02-03-21 - Indictment John Earle Sullivan United States District Court.txt

@@ -0,0 +1 @@
+Case 1:21-cr-00078-EGS   Document 8   Filed 02/03/21   Page 1 of 3Case 1:21-cr-00078-EGS   Document 8   Filed 02/03/21   Page 2 of 3Case 1:21-cr-00078-EGS   Document 8   Filed 02/03/21   Page 3 of 3

02-04-21 - Arrest Warrant John Earle Sullivan United States District Court.txt

@@ -0,0 +1,5 @@
+01/13/2021 01/14/2021
+Salt Lake City, Utah
+01/14/2021
+Matthew Foulger, Special Agent FBI
+Case 1:21-cr-00078-RCL   Document 17   Filed 02/04/21   Page 1 of 1

02-04-21 - GOVERNMENT’S MEMORANDUM John Earle Sullivan United States District Court.txt

@@ -0,0 +1,493 @@
+1 
+  UNITED STATES DISTRICT COURT  
+ FOR THE DISTRICT OF COLUMBIA  
+ 
+ 
+UNITED STATES OF AMERICA  :   
+ :   
+ :  
+             v. :  No. 21- mj-50 (RMM ) 
+ :  
+ : 
+JOHN EARLE SULLIVAN,  : 
+ : 
+                   Defendant.           : 
+ 
+   
+GOVERNMENT ’S MEMORANDUM  
+IN SUPPORT OF PRE -TRIAL DETENTION 
+ 
+The United States of America, by and through its attorney, the United States Attorney for 
+the District of Columbia, respectfully submits this memorandum in support of its oral motion that 
+the d efendant , John Earle Sulliva n, be detained pending trial  pursuant to 18 U.S.C. §§ 3148 and 
+3142(f)(2)(B) and (g).  The defendant was a brazen, vocal participant in the disruption and 
+disorder surrounding the events on January 6, 2021, at the U.S. Capitol.  Since his release on 
+string ent conditions  on January 15, 2021, he has repeatedly flouted court -imposed conditions .  
+The alleged violations prompted the magistrate judge in the arresting jurisdiction to convene a 
+hearing earlier this week on February 1, 2021, at which she expressed s erious concerns about the 
+allegations , yet decided  – in light of the defendant’s imminent initial appearance in the District of 
+Columbia  – to defer resolution to this Court.  This Court, with the matter now transferred and 
+under its jurisdiction, should hold the defendant  to account :  The clear and convincing evidence 
+from the defendant’s own supervision officer is that the defendant has repeatedly attempted to 
+circumvent fundamental conditions of his release, warranting revocation and demonstrating his Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 1 of 262 
+ unwillingness to abide by any combination of conditions of release.  These violations only further 
+underscore that there are serious risks that this defendant will obstruct or attempt to obstruct justice 
+and that he continues to pose a recurring threat to the safety of the community  – risks that cannot 
+redressed by any combination of release conditions .    
+The government respectfully requests that the following points and authorities, as well as 
+any other facts, arguments and authorities presented orally , be considered in the Court’s 
+determination regarding pre -trial detention.  
+BACKGROUND  
+ Factual Background  
+Sullivan is the leader of an organization called Insurgence USA through which he organizes 
+protests.  On January 7, 2021, the defendant participated in a  voluntary interview with a Federal 
+Bureau of Investigation Special Agent in Washington, D.C.  The defendant stated that he was in 
+Washington, D.C. to attend and film the “Stop the Steal” March on January 6, 2021.  The 
+defendant claimed to be an activist and journalist that filmed protests and riots, but admitted that 
+he did not have any press credentials.  
+The defendant also stated that he was at the U.S. Capitol on January 6, 2021, when scores 
+of individuals entered it.  The defendant stated he was wearing  a ballistic vest and gas mask while 
+there.  He showed the interviewing agent the ballistic vest.  He further stated that he entered the 
+U.S. Capitol with others through a window that had been broken out.  The defendant stated he 
+followed the crowd as the crowd pushed past U.S. Capitol Police and followed the crowd into the 
+U.S. Capitol.  
+The defendant further stated that he had been present at the shooting of a woman within Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 2 of 263 
+ the U.S. Capitol by a U.S. Capitol Police officer and that he had filmed the incident.  During the 
+interview, the defendant showed the interviewing agent the footage he had taken, which the 
+defendant stated he had uploaded to the Internet.  The footage showed the area immediately 
+outside of the Speaker’s Lobby within the U.S. Capitol, the  hallway from which one can enter 
+directly into the chamber of the U.S. House of Representatives.  The defendant also voluntarily 
+provided two phone numbers and multiple social media accounts and identifiers, including a 
+YouTube account username, JaydenX.   
+On January 9, 2021, t he defendant voluntarily provided to law enforcement video footage 
+that he stated that he recorded within the U.S. Capitol on January 6, 2021.  The defendant sent a 
+link to law enforcement from a Google Photos account under the name “John Sullivan.”  A 
+portion of the video is publicly available on a Youtube channel attributed to “JaydenX .”1  The 
+defendant’s  voice can be heard narrating the video  and speaking to other individuals and law 
+enforcement officers .  A t one point , the camera pans to a tactical vest and a gas mask  being worn 
+and held by the individual filming , which match the tactical vest and gas mask that the defendant 
+showed law enforc ement agents  during a voluntary interview on January 11, 2021. 
+ 
+                                                 
+1 A portion of the video is also publicly available on a YouTube channel attributed to “JaydenX ” 
+here: https://www.youtube.com/watch?v=PfiS8MsfSF4&bpctr=1610480291 . 
+Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 3 of 264 
+  
+Among other things, the video the defendant recorded and provided to law enforcement 
+shows Sullivan  filming at the front of a crowd as they pushed  through police barriers on the west 
+side o f the U.S. Capitol.  At the first moment the crowd breaks through, Sullivan can be heard 
+saying, “they’re going in.”  The video follows the crowd as they move toward the Capitol 
+Building where Sullivan captured additional scenes of individuals breaking thr ough police 
+barriers:  
+ 
+After the crowd broke through the last barricade, and as Sullivan  and the others approach 
+the Capitol Building, Sullivan can be heard in the video saying at various points: “There are so 
+many people. Let’s go.  This shit is ours! Fuc k yeah,” “We accomplished this shit. We did this 
+together. Fuck yeah! We are all a part of this history,” and “Let’s burn this shit down.”  
+Later, Sullivan’s video includes footage of individuals climbing a wall to reach a plaza just 
+Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 4 of 265 
+ outside the Capitol Bui lding entrance, as seen in the screenshot below.  As individuals are 
+climbing the wall, Sullivan can be heard saying, “You guys are fucking savage.  Let’s go!”  
+ 
+At one point, Sullivan  can be heard telling one of the individuals climbing the wall to give 
+Sullivan his hand as individuals in the crowd are calling to help people up the wall. 
+The video records Sullivan’s entrance into the U.S. Capitol building through a broken 
+window:  
+ 
+Sullivan , once inside the  Capitol  Building , roamed the building with other individuals who 
+unlawfully entered .  During one of his interactions with others, Sullivan can be heard in the video 
+saying , “We gotta get this shit burned.”  At other times as he is walking through the Capitol, 
+Sullivan can be heard saying, among other things, “it’s our house motherfuckers” and “we are 
+getting this shit.”  
+Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 5 of 266 
+ In addition, several  times during the video, Sullivan encounters law enforcement officers 
+who are trying to prevent further advancement through the buildi ng by those who entered 
+unlawfully.  In at least two encounters, Sullivan can be heard on the video arguing with the 
+officers , telling them to stand down so that they do not get hurt .  Among other things, Sullivan 
+can be heard telling  officers,  “you are pu tting yourself in harm’s way,” “ the people have spoken,” 
+and “there are too many people, you gotta stand down, the people out there that tried to do that 
+shit, they got hurt, I saw it, I’m caring about you.”  
+At one point in the video, Sullivan enters an of fice within the U.S. Capitol, as seen in the 
+screenshot below.  Once inside the office, Sullivan approaches a window, also seen in the 
+screenshot below, and states, “We did this shit.  We took this shit.”  
+While at the window, a knocking noise is heard off -screen.  The camera then pans to show 
+more of the window and a broken pane can be seen that was not broken on Sullivan’s  approach to 
+the window .  Sullivan can then be heard saying, “I broke it.  My bad, my apologies.  Well they 
+already broke a window, so, you know, I didn’t know I hit it that hard.  No one got that on 
+camera.”  Sullivan then exits the office.  
+Later, Sullivan can be heard saying, “I am ready bro.  I’ve been to too many riots.  I’ve 
+been in so many riots.”  
+At another point in the video, Sullivan joins a crowd trying to open doors to another part 
+of the U.S. Capitol which are guarded by law enforcement officers, as seen in the screenshot below.  
+Sullivan can be heard on the video telling other individuals in the crowd, “there’s officers at the 
+door.”  Less than two minutes later, while officers are still at the doors and as others yell to break 
+the glass windows in them with various objects, Sullivan can be heard saying, “Hey guys, I have Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 6 of 267 
+ a knife. I have a knife.  Let me up.”  Sullivan does not, however, ever make it to the doors.   
+When someone says something about how people are “getting arrested,” he can be heard saying, 
+“don’t worry, you’ll be fine, it’s only a little jail time… I do this all the time.”   
+ 
+Eventually, individuals in the crowd outside the doors announce that the officers are 
+leaving and “giving us the building.”  As the crowd begins to part so the officers can leave, 
+Sullivan can be heard saying, “Haul that motherfucker out this bitch.”  
+At another time in the video, Sullivan is walking down a hallway in the U.S. Capitol with 
+a large group of people.  Sullivan pans to a closed door and can be heard saying, “Why don’t we 
+go in there.”  After someone hits against the door, Sullivan can be heard saying, “That’s what 
+I’m sayin’, brea k that shit.”  Further down the hall, Sullivan can be heard saying, “It would be 
+fire if someone had revolutionary music and shit.”  
+In the video, once Sullivan approaches the doorway to the Speaker’s Lobby, where a 
+woman was eventually shot, Sullivan can be heard again saying, “I have a knife…. Let me through 
+I got a knife, I got a knife, I got a knife.”  He can be heard telling one of the law enforcement 
+officers guarding the doors, as seen in the screenshot below, “We want you to go home.  I’m 
+recording and there’s so many people and they’re going to push their way up here.  Bro, I’ve seen 
+Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 7 of 268 
+ people out there get hurt.  I don’t want to see you get hurt.”   
+ 
+Eventually, the law enforcement officers begin to exit and individuals within the crowd 
+move toward the doors.  As this is happening, Sullivan  can be heard yelling after the officers, “I 
+want you to go home,” and then ye lling, “Go!  Go!  Get this shit!”  Sullivan then films as 
+others in the crowd try to break out the glass in the entryway door windows.  Shortly thereafter, 
+the video includes footage of a female getting shot as she tries to enter through the window 
+opening . 
+Procedural History  
+On January 1 3, 2021, the d efendant was charged by  complaint with  violations of  18 U.S.C. 
+§§ 231(a)(3) & 2 (Civil Disorders) ; 18 U.S.C. § 1752(a)  (Knowingly Entering or Remaining in a 
+Restricted Building or Grounds without Lawful Author ity); and 40 U.S.C. § 5104(e)(2)  (Violent 
+Entry and Disorderly Conduct on Capitol Grounds) .   
+On January 15, 2021, at the defendant’s initial appearance in the District of Utah,  the 
+government orally moved for a three -day hold pursuant to 18 U.S.C. § 3142(f)(2).  Magistrate 
+Judge Daphne Oberg held that the “threshold conditions” under § 3142(f) had not been met to 
+qualify for a detention hearing.  Exh. A at 1.  Addressing § 3142( f)(2)(B)’s requirement of a 
+showing of a “serious risk the defendant will obstruct justice in the future,” the judge emphasized 
+Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 8 of 269 
+ that such an inquiry is “forward- looking” and stated that the fact that the defendant allegedly 
+appeared in a Utah state court proceeding via internet video conference while in Washington, D.C. 
+and allegedly “might have incited others to resist police officers in a separate Oregon event” were 
+insuffic ient to merit a detention hearing.  Id. at 4. 
+The defendant was ordered released .  His conditions of release included home  detention; 
+that the defendant “find new employment” and “no longer work for Insurgence USA” ; that he be 
+“monitored by the form of loc ation monitoring technology, at the discretion of the pretrial services 
+officer, and abide by all technology and program requirements” ; and that he “participate in the 
+United States Probation and Pretrial Services Office Computer and Internet Monitoring Pr ogram.”  
+From the bench, the judge underscored that the defendant was to have nothing to do with 
+Insurgence USA beyond handling existing bank accounts or paying its taxes.  At the court’s 
+request, the government submitted the names of numerous social media  websites and applications , 
+including Twitter,  believed to be used by the defendant to advance his activities.  In imposing the 
+conditions, the judge warned the defendant that any violations would “not be taken lightly” and 
+could result in detention. 
+On Ja nuary 27, 2021, the defendant’s supervision officer reported that the defendant had 
+committed four violations of his release conditions on January 17, 18, 19 and 26, 2021, 
+respectively .  The first two alleged violations involve the defendant’s alleged logi ns to Twitter 
+accounts @insurgenceusa, @realjaydenx, @activistjohn while the defendant had been prohibited 
+from accessing enumerated social media websites, including Twitter; had been instructed by his 
+supervision officer that he could use the Internet onl y under his father’s supervision; had been  
+admonished that he could use the Internet only for work or employment purposes ; and had been Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 9 of 2610 
+ further admonished that he could do no work with or for Insurgence USA.  The third alleged 
+violation involves the defendant’s purchase of an Internet -capable phone in direct contravention 
+of his supervision officer’s instructions, and apparent attempt to seek out alternatives to Facebook 
+– another prohibited platform – on the Internet.  The fourth alleged violation involves  the 
+defendant’s January 26, 2021, appearance on “ Infowars ” for which he purportedly requested that 
+Insurgence USA’s website be specifically plugged on the show so that people could “follow” him 
+and the organization.  During that Infowars interview, the defend ant denied having any regrets 
+about his participation in the January 6 events, stating that “I stand by my actions and what I do” 
+and that “I am definitely not responsible for anything that took place that day.”  The defendant 
+also said, “I have my own group, Insurgence USA, but that’s my company that I built for 
+documenting these events.” 2 
+The magistrate judge in the District of Utah issued a summons .  A t a hearing on February 
+1, 2021, the judge noted serious concerns about the violations .  She informed the defendant that 
+his “picture changes just by nature of these allegations,” noting that his release had been based on 
+her “threshold” analysis and not based on any consideration of dangerousness or the risk of flight; 
+now that he was alleged  to have violated his conditions of release, such considerations were 
+relevant under § 3148(b)(2)(A), which cross -references the “factors set forth in section 3142(g).”  
+However, acknowledging that the defendant’s initial appearance in the District of 
+Columbia was days away, the magistrate judge – at defense counsel’s request,  over the 
+government’s stated preference to address the violations immediately – decided to defer ruling for 
+                                                 
+2 The Infowars interview is available at 
+https://cantcensortruth.com/watch?id=6010cad9c155bf0e53d1675c  Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 10 of 2611 
+ this Court’s consideration.  The magistrate judge nonetheless scheduled a F ebruary 8, 2021, 
+hearing in the District of Utah to address the violations if “for some reason” the initial appearance 
+in the District of Columbia were not to proceed as anticipated.  
+The morning of the hearing, an emai l was sent from “John Sulli van” to “Insurgence USA 
+Members ” entitled “Pack The Courtroom.”  The email provided the ZoomGov Meeting link, dial -
+in numbers, and information for the magistrate judge’s hearing .  The body of the email stated, 
+“They are  trying to imprison me for crimes I did not commit at the United States Capitol…. Please 
+show your support by packing the courtroom today.”   Exh. B.   
+On February 3, 2021, a grand jury in the District of Columbia returned an indictment 
+against the defendan t on violations of 18 U.S.C. §§ 231(a)(3) & 2 (Civil Disorders); 18 U.S.C. § 
+1512(c)(2) & 2 (Obstruction of an Official Proceeding); 18 U.S.C. §§ 1752(a) (1) (Entering or 
+Remaining in a Restricted Building or Grounds)  and 1752(a) (2) (Disorderly and Disrupti ve 
+Conduct in a Restricted Building or Grounds);  and 40 U.S.C. §§ 5104(e)(2) (D) (Disorderly 
+Conduct in a Capitol Building) and 5104(e)(2) (G) (Parading, Demonstrating, or Picketing in a 
+Capitol Building) . 
+ARGUMENT  
+Applicable Statutory Authority  
+Under 18 U.S.C. § 3148, detention is an available sanction for a “person who has been 
+released … and who has violated a condition of his release.”  Section 3148 expressly 
+contemplate s that, at least in some circumstances, the “judicial officer” to enter the order o f 
+revocation and detention may not be the same “judicial officer who ordered the release and whose 
+order is alleged to have been violated.”  See 18 U.S.C. § 3148(b) (“ To the extent practicable, a Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 11 of 2612 
+ person charged with violating the condition of release that such person not commit a Federal, State, 
+or local crime during the period of release, shall be brought before the judicial officer who ordered 
+the release and whose order is alleged to have been violated.”).  The statut e thus contemplates 
+the very type of considerations of practical ity and workability  that make ample sense where, as 
+here, the arresting district does not have jurisdiction over the offenses .  The magistrate judge’s 
+decision this week to give this Court the opportunity to consider the defendan t’s pretrial release 
+violations , given this Court’s imminent hearing date and obligation to review release conditions 
+afresh , was reasonable and consistent with the statutory scheme .   
+Alternatively, this Court could also find a risk of obstructing justice  sufficient to proceed 
+to a detention hearing  and the core consideration of whether, under § 3142(g), there are conditions 
+of release that will reasonably assure the appearance of the person as required and the safety of 
+any other person and the community.  18 U.S.C. § 3142(f)(2) makes clear that the Court “ shall 
+hold a hearing … in a case, that involves … (B) a serious risk that such person will obstruct or 
+attempt to obstruct justice, or threaten, injure, or intimidate, a prospective witness or juror.”   
+Here, the government respectfully disagrees with the finding by the magistrate judge in the 
+District of Utah that the obstruction- of-justice threshold is not met, and in any event, in light of 
+the apparent violations  of his release conditions , that inquiry stands in a very different posture than 
+it did on January 15.  T he defendant is alleged to have willfully participated in a massive and 
+momentous obstructi on effort  – an attempt to prevent the congressional certification of the results 
+of a Presidential election .  The defendant has been indicted on two obstructive felonies under 18 
+U.S.C. §§ 1512(c)(2)  and 231(a)(3) – the former involving obstruction of an official proceeding 
+through lawless and unauthorized conduct, and the latter involving obstruction and interference Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 12 of 2613 
+ with the official duties of a law enforcement officer.  The defendant, according to his own video 
+footage , apparently exhorted others to “bur n this shit down,”  “break that shit,” and – amid the 
+smashing of the Speaker’s Lobby doors – “Go!  Go!  Get this shit!”  He celebrated the breach 
+of the Capitol as “revolutionary” “history.”  He boasted of how “it’s only a little jail time… I do 
+this all the time.”  He spoke of “[h]aul[ing]” officers out and sought to cajole other s performing 
+their official duties to “stand down” or “go home.”  The assessment of risk, to be sure, is a 
+forward -looking inquiry.  But any assessment of risk is necessarily infor med by past actions, and 
+here defendant has engaged in marked obstruction of both official proceeding s and officers  that 
+reflects a brazen disrespect for the orderly administration of justice .   
+The defendant’s apparent violations of his court -imposed rele ase conditions  provide even 
+more pointed and compelling examples of his attempts to obstruct justice in this very case.  In 
+fact, in his Infowars interview, the defendant, in discussing the issue of censorship, conversed 
+freely about  the myriad ways he has sought to circumvent other unspecified restrictions on his use 
+of technology and social media platforms. 3  In short, it is clear t oday that this defendant readily 
+poses “a serious risk” of obstructing or attempting to obstruct justice  pursuant to § 3142(f)(2)(B).  
+Analysis  
+Under  § 3148, the “judicial officer shall enter an order of revocation and detention” upon 
+finding: (1) clear and convincing evidence that the person has violated any condition of release, 
+and (2) that no conditions will assure that the person will not flee or pose a danger to the safety of 
+                                                 
+3 The defendant says: “[T]he Twitter account that you saw that I had, JaydenX, that was, you 
+know, my fourth account.  And Facebook, I was banned to the point on Facebook where, even if 
+I use a VPN, and it was pinging my IP address out of China, I still  couldn’t create a new account.  
+I could make, have a new phone number, a new email, and new name, use a different computer or 
+phone ; I actually bought another phone just to see if I could log into Facebook, still didn’t work.”  Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 13 of 2614 
+ any other person or the community or that the person is unlikely to abide by any conditions of 
+release. 18 U.S.C. § 3148(b)(1) -(2).  Under § 3142(g), moreover, the judicial officer shall 
+similarly consider whether there are conditio ns of release that will reasonably assure the 
+appearance of the person as required and the safety of any other person and the community  – an 
+inquiry that considers (1) the nature and circumstances of the offense charged, (2) the weight of 
+the evidence, (3)  his history and characteristics, and (4) the nature and seriousness of the danger 
+posed by his release.  The government proffers the submission of the defendant’s supervision 
+officer through the Pretrial Services Agency as the requisite clear and convincing evidence of the 
+violations, and submits that no combination of conditions will assure that the defendant will not 
+pose a danger to the safety of the community.   
+In considering the nature and circumstances of the offense , what is particularly troubling 
+about the defendant’s depicted conduct on January 6 was its consistency throughout his extended 
+foray through the Capitol Building.  Defendant positioned himself with a front seat to not one, 
+but multiple confrontations with officers  at multiple locations , and made consistently gleeful 
+exhortati ons about burning and breaking things throughout the building and its grounds.   
+The weight of the evidence likewise favors detention.  The defendant admitted in 
+voluntary interviews to his unlawful presence inside the Capitol and identified the video foot age 
+provided as his own.  His acts and statements are memorialized on video.  
+The defendant’s history and characteristics further weigh in favor of detention.  On July 
+13, 2020, the defendant was charged with Rioting and Criminal Mischief by the local law 
+enforcement authorities in Provo, Utah, based on his activities around a June 30, 2020, protest in 
+which a civilian was shot and injured.  The case is still pending , but the fact the defendant was Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 14 of 2615 
+ charged with analogous offenses while on release in that matter underscores the recurring threat 
+he poses to the community.  Moreover, the defendant has not merely run afoul of release 
+conditions  in this case ; he has brazenly flouted them, in some cases flouting multiple conditions at 
+once.  Several violations appa rently came on the heels of detailed instructions to the contrary by 
+his supervision officer.  The defendant’s actions demonstrate an unwillingness to grapple with 
+the seriousness of his charges and a contempt for the courts  and its proceedings .   
+Finally, the defendant poses  a danger to the community.  He breached the U.S. Capitol in 
+tactical gear , wound his way to the front of numerous crowds and confrontations, and cheered and 
+attempted to instigate  others in committing criminal acts.  That even in hindsight he feels no 
+remorse for his participation in the events that unfolded underscores the ongoing threat he poses 
+to the community.   
+Given the above assessment, the government respectfully submits that there are no 
+conditions that will assure that the defendant will not continue to pose a danger to the safety of 
+any other person or the community, nor are there conditions that the defendant is likely to abide 
+by.   
+CONCLUSION 
+WHEREFORE, th e United States respectfully requests that the  Court grant the  
+  Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 15 of 2616 
+ government’ s motion to  detain the defendant  pending trial.  
+        
+Respectfully submitted,  
+       M ichael R. Sherwin  
+Acting United States Attorney  
+New York Bar No. 4444188 
+  
+By:      
+ 
+Candice C. Wong D.C. Bar No. 990903 
+Candice.wong@usdoj.gov Assistant United States Attorney  
+555 4th Street, N.W.  Washington, D.C. 20530 (202) 252-7849 
+  
+Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 16 of 2617 
+ CERTIFICATE OF SERVICE  
+ 
+I hereby certify that on February 4, 2021, I caused a copy of the foregoing motion  to be 
+served on counsel of record via electronic filing.  
+ 
+__ ____________  
+Candice C . Wong 
+Assistant United States Attorney  
+ 
+ 
+Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 17 of 26 
+ 
+ 
+EXHIBIT A  
+ 
+ 
+ 
+ Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 18 of 26IN THE UNITED STATES DISTRICT CO URT FOR THE DISTRICT OF UTAH 
+ 
+United States,  
+Plaintiff,  
+ v.   John Earle Sullivan,  
+Defendant. RELEASE ORDER 
+    
+Case No. 2:21mj14-DAO 
+ 
+Magistrate Judge Daphne A. Oberg 
+ 
+ The court orders John Earle Sullivan’s releas e in this case, based on a finding that the 
+government did not establish a basi s to hold a detention hearing.  Mr. Sullivan made his initial 
+appearance at a transfer hearing, conducted pursuan t to Rule 5 of the Federal Rules of Criminal 
+Procedure.  Mr. Sullivan has b een charged with federal offens es in Washington, D.C., and the 
+Rule 5 hearing was held for purpos es of transferring him there.  At this hearing, the government 
+made a verbal motion for detention and asked the court to continue Mr. Sullivan’s detention hearing for three days, pursuant to 18 U.S.C.  § 3142(f)(2).  However, in this case, the 
+government simply did not meet its burden of establishing any basis fo r a detention hearing.  
+Because the court finds the threshold conditions  under § 3142(f) have not been met, it cannot 
+hold a detention hearing and, thus , cannot detain the defendant.  Where the court cannot even 
+hold a detention hearing, it ce rtainly cannot delay such hear ing on the government’s motion—
+detaining the defendant all the while.     Case 2:21-mj-00014-DAO   Document 8   Filed 01/15/21   PageID.36   Page 1 of 5 Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 19 of 262 LEGAL STANDARDS 
+ The court can only hold a deten tion hearing (hence, can only de tain a defendant), in cases 
+which qualify for such a hearing under the Bail Reform Act, 18 U.S.C. §§ 3141–3150.  These 
+cases are delineated in § 3142(f).  As noted by the Third Circuit, in United States v. Himler , the  
+§ 3142(f) “circumstances for invoking a detention hear ing in effect serve to  limit the types of 
+cases in which detention may be ordered prio r to trial.”  797 F.2d 156, 160 (3d Cir. 1986).  
+“Congress did not intend to authorize preventive detention unless the judici al officer first finds 
+that one of the § 3142(f) conditions for holding a detention hearing exists.”  United States v. 
+Ploof , 851 F.2d 7, 10 –11 (1st Cir. 1988).  In other words, this is a “two-part inquiry.”  United 
+States v. Gerkin , 570 F. App’x 819, 820 (10th Cir. 2014) (un published).  “At the first step, the 
+judicial officer must decide whether there is any basis to hold a detenti on hearing.”  Id. at 821.  
+Only if the “government establis hes a basis for a detention heari ng,” does the court move to the 
+second step, where the government must show “‘no condition or combination of conditions’ that 
+‘will reasonably assure the appearance of the person as required and the safety of any other 
+person and the community.’”  Id. (quoting § 3142(f)).   
+ANALYSIS 
+ In this case, the government did not establ ish a basis for the detention hearing.  When 
+asked at the hearing on what st atutory grounds the case qualified  for a detention hearing, the 
+government first began to argue dangerousness to the community—a factor the court cannot 
+even consider unless it first fi nds the case qualifies for a detenti on hearing.  The government then 
+indicated the case qualified unde r § 3142(f)(2)(B).  Under this provision, a case qualifies for a 
+detention hearing if the government establishes “a serious risk that  such person will obstruct or Case 2:21-mj-00014-DAO   Document 8   Filed 01/15/21   PageID.37   Page 2 of 5 Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 20 of 263 attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or 
+intimidate, a prospectiv e witness or juror.”  Id.  This is a forward-l ooking inquiry, requiring a 
+showing of a serious risk the de fendant will obstruct justice in the future.  Alt hough the standard 
+of proof under this section is not well-develope d, some courts have dete rmined that where the 
+government seeks detention under th is section, it must sustain its  burden of proof by “clear and 
+convincing evidence.”  See United States v. Jones , No. 99-1682, 1999 U.S. App. LEXIS 19916, 
+*8 (1st Cir. Aug. 9, 1999) (unpublished);  United States v. Dodge , 846 F. Supp. 181, 185 (D. 
+Conn. 1994).    Obstruction of justice contemplates interfer ence in the administration of justice.  For 
+instance, a common federal criminal statute prohib iting obstruction of justice requires proof that 
+a person endeavored to influence a juror or officer of the court in the discharge of her duties 
+through threats or force—or endeav ored to influence the due administration of justice.  18 U.S.C. 
+§ 1503.  Although the government obviously n eed not make any st atutory showing of 
+obstruction, this overall concept of  obstruction is instructive.  
+ In this case, the government made no atte mpt to argue there was a serious risk Mr. 
+Sullivan would threaten, injure, or intimidate a prospective witness or juror—or attempt to do 
+any of these things.  Instead, th e government focused on the risk of  obstruction.  In support of its 
+claim, the government pointed to Mr. Sullivan’s a lleged behavior at a riot in Utah, wherein he 
+allegedly threatened to harm another person, whil e kicking her car door, and incited others to 
+block public roadways.  Mr. Sullivan  was charged for participating in this riot in the state system 
+in Utah in July 2020; these events are not char ged in the federal case.  The government claimed 
+Mr. Sullivan’s attempt to obstruct justice could be shown by the fact that  he appeared at his Case 2:21-mj-00014-DAO   Document 8   Filed 01/15/21   PageID.38   Page 3 of 5 Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 21 of 264 hearing in this Utah state case via internet vi deo conference, while he was in Washington, D.C., 
+the day before the conduct  alleged in this federal case.  Th e government argued this act showed 
+“reckless disregard for the courts.”  The government  also argued Mr. Sullivan incited others to 
+resist police officers’ orders to disperse in an entirely separate, unrelat ed, incident in Oregon.  
+The government offered no da te for this Oregon event, only asse rting that it occurred “while he 
+was facing” the riot-related char ges in Utah.  The government indi cated it was stil l attempting to 
+obtain footage related to th is alleged event.    
+The government’s proffer simp ly fails to establish a serious risk  Mr. Sullivan will 
+obstruct justice or attempt to obstruct justice in th e future.  The fact that Mr. Sullivan allegedly 
+appeared in a Utah state cour t proceeding via internet vide o conference—while in Washington, 
+D.C., just before becoming involved in the fede ral offense alleged—does not stand as evidence 
+of an attempt or willingness to obstruct justice.  As Mr. Sullivan ’s counsel pointed out, all recent 
+hearings in the state court system  in Utah have been held via in ternet video conference, due to 
+the coronavirus pandemic.  The allegation that Mr. Sullivan might have incited others to resist 
+police officers in a separate Oregon event adds little  to inquiry.  These alle gations are insufficient 
+to meet the government’s burden of establishing § 3142(f)(2)(B) a pplies in this case, even by a 
+preponderance of the evidence, let alone by clea r and convincing evidence.  And this was the 
+only proffer made in support of th is threshold question.        
+After the court declined to  continue the detention hearing on the grounds that the 
+government failed to first es tablish the case even qualified  for a detention hearing, the 
+government asked the court to de lay its threshold determination, but to detain Mr. Sullivan 
+during this delay.  The court in vited the government to provide any legal authority allowing the Case 2:21-mj-00014-DAO   Document 8   Filed 01/15/21   PageID.39   Page 4 of 5 Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 22 of 265 temporary detention of a defendant when the th reshold for holding a detention hearing has not 
+been met.  The government declined to do so.  The government also asked the court to stay its 
+release order.  The court declin ed to do so, finding that where the government failed to even 
+meet the threshold for a dete ntion hearing, it could not de tain Mr. Sullivan pending the 
+government’s appeal.   
+CONCLUSION 
+Where the government failed to establish, as a threshold matter, that this case meets the 
+preconditions in § 3142(f) for holding a detention hearing, the court must release Mr. Sullivan.  
+The release conditions can be found in a separate or der.  As stated at th e hearing, the government 
+is invited to file a detention moti on in an attempt to meet its burden to establish the threshold for  
+a detention hearing.  In addition, defense c ounsel is invited to fi le any motion to amend 
+conditions of release, if needed.    DATED this 15
+th day of January, 2021. 
+BY THE COURT: 
+    
+Daphne A. Oberg United States Magistrate Judge 
+ 
+Case 2:21-mj-00014-DAO   Document 8   Filed 01/15/21   PageID.40   Page 5 of 5 Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 23 of 26 
+ 
+ 
+EXHIBIT B  Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 24 of 26From:  John  Sullivan  < >
+Sent:  Monday,  February  1, 2021  8:55  AM
+To: Insurgence  USA Members  < >; Event  List < >
+Subject:  Pack  The Courtroom
+ 
+CAUTION:  This email  originated  from  outside  of  email  system.  Do not click  links  or open  attachments  unless
+you recognize  the sender  and know  the content  is safe.
+ 
+Hey All, 
+ I
+ appreciate  the continued  support  over  the months  today,  Feb 1st, 2021.  They  are trying  to
+imprison  me for crimes  I did not commit  at the United  States  Capitol.  I was there  a Journalists
+expressing  my 1st amendment  rights  to document  the historic  and tragic  point  in our nation's
+history.  Help  me fight  for the rights  of our freedom  of the press.
+ 
+Congress shall make no law respecting an establishment of religion, or
+abridging the freedom of speech, or the press;
+ Please
+ show  your  support  by packing  the courtroom  today. 
+ 
+Join ZoomGov Meeting
+https://www.zoomgov.com/j/16013932932?pwd=TkZCbFNnaENOTzU3N3JDWWd4
+ 
+Meeting ID: 160 Passcode: One tap mobile+166925452+166921615
+ 
+Dial by your location
+        +1 669 254  US (San Jose)
+        +1 669 216  US (San Jose)
+Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 25 of 26        +1 551 285  US
+        +1 646 828  US (New York)
+Meeting ID: 160 
+Passcode: 
+ 
+ 
+Thanks,
+John  Sullivan
+Phone:  
+Email:  
+Website:  
+Insurgence  USA:  
+-- 
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+Case 1:21-cr-00078-EGS   Document 6   Filed 02/04/21   Page 26 of 26

02-09-23 - NOTICE OF ATTORNEY APPEARANCE Rebekah Lederer appearing for USA..txt

@@ -0,0 +1,41 @@
+UNITED STATES  DISTRICT  COURT 
+FOR  THE  DISTRICT  OF COLUMBIA  
+ 
+ 
+UNITED STATES  OF AMERICA  
+ 
+v. : 
+: 
+: Case  No. 21-CR-78 (RCL)  
+: 
+JOHN SULLI VAN,  : 
+: 
+Defendant.  : 
+  
+NOTICE  OF ATTORNEY APPEARANCE  
+ 
+ 
+The United States of America, by and through its attorney, the United States Attorney for 
+the District of Columbia, informs  the Court  that Assistant United  States  Attorney (AUSA)  Rebekah  
+Lederer  will appear , in the above captioned case, as counsel on behalf of the government.  
+ 
+Respectfully submitted,   
+MATTHEW  M. GRAVES  
+United  States  Attorney  
+DC 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 
+Tel. No. (202) 252- 7012  
+Email: rebekah.lederer@usdoj.gov  Case 1:21-cr-00078-RCL   Document 85   Filed 02/09/23   Page 1 of 2CERTIFICATE  OF SERVICE  
+ 
+On this 9th day of February  2023, a copy of the foregoing was served  upon all  parties  listed  on 
+the Electronic Case Filing (ECF) System.  
+ 
+ /s/ REBEKAH  LEDERER   
+ Case 1:21-cr-00078-RCL   Document 85   Filed 02/09/23   Page 2 of 2

02-10-22 - NOTICE Memorandum Regarding Status of Discovery by USA as to JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,578 @@
+ 
+ UNITED STATES DISTRICT COURT  
+ FOR THE DISTRICT OF COLUMBIA 
+ 
+UNITED STATES OF AMERICA   : 
+:  CRIMINAL NO. 1:21 -cr-00078- EGS  
+v.    : 
+:  
+JOHN EARLE SULLIVAN    :  
+:      
+Defendant.   : 
+ 
+UNITED STATES’ MEMORANDUM  
+REGARDING STATUS OF DISCOVERY AS OF FEBRUARY 9, 202 2 
+ 
+ The United States files this memorandum for the purpose of describing the status of 
+implementation of our Capitol Siege1 global discovery plan, i.e., our  plan for producing or 
+making accessible to all defense teams voluminous data collected by the government in relation 
+to the Capitol Siege investigation, so they may identify information they deem relevant.2  Under 
+ 
+1 The “Capitol Siege” refers to the events of January 6, 2021, when thousands of individuals 
+entered the U.S. Capitol and U.S. Capitol grounds without authority, halting the Joint Session 
+and the entire official proceeding of Congress for hours until the United States Capitol Police (“USCP”), the Metropolitan Police D epartment (“MPD”), and other law enforcement agencies 
+from the city and surrounding region were able to clear the Capitol of rioters and to ensure the safety of elected officials.    
+2 By way of illustration, the  data subject to the global discovery plan includes  items such as:  
+1. Investigations into all allegations of officer misconduct arising out of January 6, 2021 (regardless of whether sustained);  
+2. Thousands of hours of surveillance footage from the USCP, MPD, the U nited States 
+Secret Service (“USSS”), and the Senate and House floors, and body- worn -camera 
+(“BWC”) footage from multiple law enforcement agencies that responded on January 6, 2021;  
+3. Radio transmissions for multiple law enforcement agencies that responded on January 6, 2021;  
+4. Location history data for thousands of devices that connected to the Capitol’s cellular network infrastructure, or whose presence within the restricted perimeter was captured in records obtained from Google and multiple data aggregation  companies;  
+5. Thousands of tips;  
+6. Relevant materials from other subjects’ case files, including results of searches of digital devices, Stored Communications Act (“SCA”) accounts, and interviews of 
+ Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 1 of 202 
+ our global discovery plan , the data that  is being made accessible to all defendants far exceeds the 
+information to which any defendant is entitled under Federal Rule of Criminal Procedure 16, the 
+Jencks act, or our Brady  obligations.3  We are making such vast quantities of data  available due 
+to the unique circumstances of this matter, i.e., literally hundreds of similar crimes being 
+committed in the same place contemporaneously.  
+This memorandum addresses the status of:  
+1. Production of voluminous amounts of video to the  Federal Public Defender (“FPD”)  
+instance of evidence.com (access available since October 18, 2021), and the multiple 
+tools the government has provided to assist the def ense in locating footage they may 
+consider relevant;   
+2. The ability of inmates housed in the D.C. Department of Corrections (“DOC”) to 
+access those same materials through a separate DOC instance of evidence.com 
+(beginning as of February 4, 2022) ;  
+3. Voluminous documents produced since our last  status  memorandum  dated November 
+5, 2021;   
+4. The ability of legal defense teams to obtain access to FPD’s  Relativity workspace 
+(beginning as of January 21, 2022) , and the current contents of that database;  
+5. Manner of production of voluminous documents in view of  defense counsel access to 
+Relativity (beginning as of February 3, 2022);   
+6. Plans for a n e-discovery room in the DOC;  
+7. Access by inmates to laptops made available through the DOC’s e -discovery 
+program;  
+8. Access to voluminous discovery by pro se  defendants;  
+9. Challenges we are overcoming ; and  
+10. Our plan for certain  trials that may proceed before our discovery plan is substantially  
+executed.  
+ 
+*** 
+  
+ 
+other subjects, witnesses, tipsters and victims (redacted o f identifying information as 
+appropriate); and  
+7. All reports and exhibits related to allegations of officer misconduct or complicity on 
+January 6, 2021.  
+ 
+3 Brady v. Maryland, 373 U.S. 83 (1963)  Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 2 of 203 
+ 1. Status of Production of Video Footage  to FPD  Instance of Evidence.com  
+Since our last status memorandum describing the status of discovery (dated  November 5, 
+2021) , the following video footage has been shared to the defense instance of evidence.com and 
+is accessible to any Capitol Siege defense counsel who requests a license from FPD : 
+1. 1,063 files consisting of approximately 714 hours of BWC footage recorded by 675 
+MPD  officers.   
+2. 104 files consisting of approximately 102 hours of  BWC  and pole  cam era footage 
+recorded by approximately 54 Arlington County Police Department  (“ACPD”)  
+officers  
+ 
+At this juncture, just over  24,000 files  consisting of USCP  closed circuit video (“CCV”) 
+footage , BWC  from multiple law enforcement agencies,  and USSS surveillance footage have 
+been made available to the defense instance of ev idence.com.  For context, t he files provided via 
+evidence.com  amount to over nine terabytes of information and  would take 102 days  to view .  
+Accordingly, s olely to assist Capitol Siege defense teams  in identifying video files they  may 
+consider relevant in specific cases, we have also produced the following analytical and mapping 
+tools, all of which comprise  substantial  government work product:  
+1. MPD Radio Global Positioning Satellite (“GPS”) Spreadsheet :  The Discovery Team 
+learned th at radios provided to MPD officers by the D.C. Office of Unified 
+Communications (“OUC”)  provide GPS location data when four or more satellites are 
+visible to the radio.  Under these circumstances, the data is transmitted: (1) every ten 
+minutes; (2) when there is an emergency activation on the radio; and (3) each time an  
+officer pushes the button to talk over the radio. The Discovery Team obtained MPD radio GPS records for January 6, 2021 and created a spreadsheet of data that  may be 
+plotted on a time -scaled  map using commercially available GPS mapping software.  
+In many instances, the subscriber alias for a radio is an individual officer’s Computer Aided Dispatch (“CAD”) number and last name.  Since MPD BWC footage in 
+evidence.com is  also frequently saved under an officer’s  CAD number and name , a 
+particular officer’s radio location information  can be used to search for  BWC footage  
+from the same time and location  in evidence.com ; 
+ 
+2. BWC Summary Spreadsheet and related zone maps:  This 752- page spreadsheet was 
+initially created by over sixty individuals as an investigative tool to assist prosecutors 
+in locating relevant BWC footage from responding law enforcement agencies including MPD, Montgomery County Police Department, and Fairfax County Police Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 3 of 204 
+ Department .  Wi th respect to  over 2,800 BWC video files, the spreadsheet provides: 
+(1) the name and CAD number of the officer associated with the video, (2) the video 
+start time, (3) a short summary of notable events observed by the reviewer including potential crimes observed and the time the camera appears to enter the Capitol, if any; and (4) the apparent location of the camera between noon and midnight, using 15-
+minute periods of duration.  The locations identified correspond to zone maps that 
+section the interior of the Capitol, the Lower West Terrace, and the Capitol Grounds 
+into smaller areas ;   
+ 
+3. USSS video spreadsheet :  The Discovery Team  created a spreadsheet containing the 
+filenames/titles, starting times, video length, and date of USSS video ; 
+ 
+4. 15 camera maps of the interior of Capitol Visitor’s Center and the interior of the Capitol , and one camera map of the Capitol grounds.  The maps depict the general 
+location of the cameras that are identified by unique number in each USCP CCV video filename ;   
+ 
+5. ACPD spreadsheet:  The Discovery Team created a spreadsheet listing start times of handheld camera video from Arlington County Police Department ; and  
+ 
+6. A timeline of events drafted by the USCP , beginning December 16, 2020, 
+memorializ ing critical events  occurring in advance of  and during the Capitol Siege.  
+ 
+2. Status of Access to Evidence.com by  Defendants  Housed  in the D.C. Department of 
+Corrections  
+ 
+Through a n unprecedented  collaboration among the government, FPD, FPD’s National 
+Litigation Support Team (“NLST”), American Prison Data Systems  (“APDS”) , the DOC,  and 
+Axon Enterprise, Inc. (“Axon”), as of February 2, 2022, a separate, stand -alone instance of 
+evidence.com has been made available to allow in -custody Capitol Siege defendants who are 
+pending trial to view video footage.  This DOC instance of evidence.com is a mirror image of the 
+FPD instance of evidence.com .  The government and FPD have drafted a  memorandum of 
+understanding describing the contents of the DOC instance , the applicable technical settings,  and 
+the requirements for inmates to obtain access .   In brief, the government will make a request for 
+an inmate to gain access to  the DOC instance of  evidence.com once the assigned prosecutor Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 4 of 205 
+ notifies the Capitol Siege Discovery Unit Chief that one of the following three things has 
+occurred:  
+1. The inmate has signed Attachment A to the protective order;  
+2. The inmate has  stated on the record in court that s/ he has read the protective order, 
+reviewed it with his/her attorney, understands the protective order, and agrees to 
+abide by it; or  
+3. (a) A defense attorney has represented to the assigned prosecutor in writing that they have reviewed the protective order w ith their client and have been authorized to sign 
+Attachment A on their client’s behalf; and (b) the defense attorney also agrees that at 
+the next scheduled hearing in which the client is present, s/he will put on the record that s/he signed Attachment A on the client’s behalf after reviewing the protective order with him or her.  
+ 
+Based upon information provided by APDS, as of February 9, 2022, twenty  Capitol Siege 
+inmates should have received access to evidence.com over their APDS educational tablets.
+4  As 
+of today, a ssigned prosecutors are still  waiting for  defense counsel who represent  an additional  
+fifteen  Capitol Siege  defendants  to confirm their  respective client’s agreement to abide by the 
+terms of the protective order.  
+3. Status of Production of Documents  to Date   
+ Global productions made  to defense counsel since November 5, 2021 ( Global Production 
+Nos. 8 to  11) have continued to focus on materials most fre quently requested by defendants and 
+include  items (in addition to some  of the tools  referenced  above)  such as : 
+1. Two new USCP Office of Professional Responsibility  (“OPR”)  reports and 16 
+associated exhibits ;  
+2. Forty  additional exhibits to previously produced USCP OPR repor ts; 
+3. One hundred sixty- two USCP Use of Force reports and exhibits ; 
+4. A collection of MPD Use of Force reports and exhibits ; 
+5. Sixty -five video  files  of the Capitol Siege  recorded by MPD’s  Electronic Surveillance 
+Unit and six  related reports ; 
+6. Ten video files of footage from the Senate floor from the Senate Recording Studio;  
+7. Ten video files of footage from the House floor from the House Recording Studio;  
+8. Sixty -four audio recordings of Virginia State Police radio communications ; 
+ 
+4 Although APDS attempted to make the link accessible on February 4, there were technological 
+issues.  As of February 9, we understand that those issues have been resolved. Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 5 of 206 
+ 9. Eight  audio files of USCP radio communications and conference bridge ; 
+10. A redacted transcript of the USCP Dignitary Protection Detail radio channel ; 
+11. 18,484 anonymous tips received by MPD ; 
+12. Documents relevant the interstate commerce element of  charged offenses ; and  
+13. USSS files related to Vice President Elect Kamala Harris and Vice President Michael 
+Pence’s whereabouts on January 6, 2021.  
+ 
+These materials are substantial .  For example, the exhibits to  USCP OPR  and MPD U se of F orce 
+reports  described above include approximately 94 audio- recorded  interviews of officers and 
+witnesses  (35 USCP OPR interviews and 59 MPD use of force interviews).   
+4. Access to  FPD Relativity Workspac e 
+On Friday, January 21, 2022, FPD circulated instructions to defense attorneys on how to 
+gain access to the FPD Relativity workspace.  Capitol Siege defense attorneys were advised that 
+since the Relativity database is in a FedRAMP,5 secure environment, completing the process  for 
+obtaining access  is time -consuming for FPD  and its vendor .  Thus, counsel should expect  the 
+process  for gaining access to the database to take  at least  four to five business days from when 
+counsel  first submit s a Relativity License Request Form.   
+5. Manner of Production Going Forward  
+Approximately two weeks after Capitol Siege defense counsel were notified to apply for 
+Relativity access,  and after providing ample notice to defense counsel, the Discovery Team 
+began making its global productions directly to the defense Relativity workspace  and 
+discontinue d the practice of making voluminous  productions via USAfx.6  Using a defense 
+ 
+5 The Federal Risk and Authorization Management Program (FedRAMP) was established in  
+2011 to provide a cost -effective, risk -based approach for the adoption and use of cloud services 
+by the federal government. FedRAMP empowers agencies to use modern cloud technologies, 
+with an emphasis on security and protection of federal information.  
+ 
+6 We expect prosecutors will continue use USAfx to make productions in individual cases.  
+ Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 6 of 207 
+ Relativity workspace to receive materials produced by the government in discovery will have 
+several benefits for defense teams, including but not limited to avoiding any challenges they  may 
+have experienced  in downloading large productions from USAfx.7  They  will no longer need to 
+download productions to review them, as the materials will already be available for review in the 
+database.  Additional benefits will include the ability to perform keyword searches across the 
+materials in the database, including searches of audio and video that has been “machine” 
+transcribed.8  Also, within the database, materials that are linked to each other (e.g., a report and 
+multiple exhibits), will be easily identified as connected to eac h other for reviewing purposes, 
+even if the materials were not initially provided in the same discovery production.9  Notably, 
+many of the materials we will be providing, such as  thousands of tips or the  results of searches of 
+other defendants’ devices and SCA  accounts, would be of little value if produced in any other 
+manner.  In addition to the fact that they would likely exceed the capacity of our file transfer 
+system or defense downloading capabilitie s – and thus require an enormous number of storage 
+devices to be provided in every single case  – there would be no way to search the contents 
+universally. 
+ 
+7 USAfx is merely a tool for file transfer using the Internet, while Relativity is an online search 
+and review database.  USAfx is not an optimal nor in many cases even a workable manner of 
+transferring extremely large volumes of data.  
+ 
+8 Machine transcription is an imperfect tool that is intended to assist defense teams  in locating 
+relevant information. On high- quality audio files (e.g., equivalent to a deposition or court 
+hearing), machine -transcription is more accurate than on audio files that contain background 
+noise or in which the speakers are not clearly enunciating (e.g., cell phone videos, custodial interviews, radio communications, voicemails).  
+ 
+9 In e-discovery parlance, linked documents (such as a report and exhibits, or an email and 
+attachments), are also known as a document “family.”  
+ Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 7 of 208 
+ Defendants will not be provided access to the FPD Relativity workspace , given the 
+extensive volume of  highly sensitive materials  currently  therein  and those  that we will produce in 
+the future .  Pursuant to the protective order issued in Capitol Siege cases, defense counsel may 
+not permit defendant s to view such materials unsupervised by defense counsel or an attorney, 
+investigator, paralegal, or support staff person employed by defense counsel .10  By way of 
+illustration, highly sensitive materials currently in the database include allegations about officers’ 
+use of force or complicity with rioters  (even if  ultimately not sustained ), and CCV camera maps 
+of the Capitol and grounds containing information that , if further disclosed, could negatively  
+impact the security of the U.S. Capitol.  In the future, such materials will grow to include  
+relevant  materials derived from searches of subjects’ digital devices and social media accounts ; 
+interviews with  defendants,  tipsters , witnesses , and victims ; background information 
+accumulated about investigation subjects; and financial , communications, and travel records 
+pertaining to investigation subjects that may  bear little or no relevance to most other defendants.  
+Notably, such information may pertain to subject s who are not  currently and who may never be 
+charged.     
+ Of course, we  will continue to notify the defense of materials have been added to the 
+FPD Relativity  workspace  so that counsel and defendants may collaborate to identify any 
+materials a defendant should review in a particular case.  Subject to the protective order, defense 
+counsel can share such documents with  their respective clients through a variety of mechanisms 
+ 
+10 The protective order places the burden of demonstrating need for protection on the 
+government, and it gives the assigned prosecutor ample flexibility to negotiate sensitivity 
+designations and redactions with respect to individual document s in specific cases.  It further 
+permits defendants to contest any sensitivity designation when no agreement may be reached.  
+  Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 8 of 209 
+ including Internet -based file transfer systems or traditional storage devices, such as hard drives, 
+flash drives, and discs.11   
+At this juncture, the defense Relativity workspace contains Global Productions 8 to 11, 
+and portions of Global Production No. 2 (all of which were already made accessible to defense 
+teams via USAfx ).  We are in the process of transferring Global Production Nos. 1 through 7 to 
+the defense Relativity workspace and anticipate that process will be completed this week.   
+Among the materials the government expects to provide in the near future  are: 
+1. The remainder of discoverable documents we received from the USCP and MPD in 
+response to requests by the Discovery Team.12 
+ 
+2. Over 900 records pertaining to Federal Bureau of Investigation (“FBI”) interviews of 
+law enforcement officers.  These records are currently being redacted to remove information such as officer’s personal telephone numbers ;  
+ 
+3. Search warrant documents  related to the FBI’s collection  of: (a) cell tower data  from 
+Verizon, AT&T, and T -Mobile/Sprint ; (b) Google account subscriber information and 
+ 
+11 FPD and i ts vendor are also attempting to determine if it will be possible for  defendants to 
+view selected materials within the Relativity workspace, utilizing permissions that would ensure the selected materials are viewable only by the relevant client.   
+ 
+12 We have nearly completed our assessment and review of approximately 56,000 records 
+provided by the USCP and MPD.  Discoverable documents from both data sets continue to be turned over to the defense on a rolling basis. Those discoverable materials not yet  produced will 
+be shared to the FPD Relativity workspace as soon as the on- going review and redaction process 
+is completed.  
+ Of approximately 22,000 MPD records we received, we determined that approximately 19,300 were unique (not duplicates) and needed review. Of those , approximately 18,200 have been 
+reviewed and deemed discoverable – they are now in the redaction process.  There are still approximately 1,000 MPD records undergoing review. The remainder have been deemed not discoverable.  
+ Of approximately 34,000 USCP records we received, we removed a large number of files from the review process because: (1) they consisted of unscoped digital devices or social media accounts, or (2) they were duplicative.  At this juncture, of the remaining approximately 13,200 documents, approximately 3,000 documents are still undergoing review, and approximately 4,200 are in the process of being redacted.  
+ Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 9 of 2010 
+ location data  from the Capitol and restricted perimeter , i.e., the Google geofence 
+warrants;  (c) anonymized location data collected by ten data aggregation companies ; 
+and (d) basic subscriber information for Facebook/Instagram accounts linked to the 
+anonymized advertising identifiers obtained pursuant to the data aggregation 
+warrants.  These materials are currently being redacted to remove law enforcement 
+sensitive infor mation, for example, the precise location of cellular network 
+infrastructure  that provide d cellular service to the Capitol on January 6, 2021;  
+ 
+4. Archived Parler13 posts and comments from around the period of January 6, 2021, 
+hosted by the Internet Archive Project  and retrieved by the FBI ; and  
+ 5. Videos scraped from Parler that were deemed potentially relevant to the Capitol Siege after the FBI’s  review of thousands of  videos from a two- week period encompassing 
+January 6, 2021.  
+  Finally, we currently have a surge team reviewing for discoverability and sensitivity an 
+additional 26,000 FBI documents that were previously loaded into our Relativity  database.  
+Relevant documents will be provided after appropriate redactions are completed . 
+6. Status of Access to Documents in Defense Team Relativity  Workspace  by Inmates  
+Housed  in the D.C. Depart ment of Corrections  
+ 
+We continue to collaborate with FPD and DOC with respect to the creation of  an e-
+discovery room in the Correctional Treatment Facility in which Capitol Siege defendants  can 
+access materials pro vided to them by counsel from the defense team  Relativity  workspace .  The 
+government and FPD’s vendors have worked together to establish a plan for production options 
+ 
+13 Parler is social media website  that was  used by some individuals to coor dinate in advance of 
+the Capitol Siege. See, e.g., Timberg, Craig and Harwell, Drew, “ Pro-Trump f orums e rupt with 
+violent t hreats ahead of Wednesday’s r ally against the 2020 e lection , The Washington Post, (Jan. 
+5, 2021), https://www.washingtonpost.com/technology/2021/01/05/parler -telegram -violence- dc-
+protests/ ; Frenkel, Sheera , The Storming of Capitol Hill was O rganized on S ocial M edia, The 
+N.Y. Times , (Jan. 6, 2021), https://www.nytimes.com/2021/01/06/us/politics/protesters -storm -
+capitol -hill-building.html . Parler went offline on January 10, 2021, when Amazon Web Services 
+canceled its hosting services.  See Room, Tony and Lerman, Rachel, “ Amazon suspends Parler, 
+taking pro- Trump site offline indefinitely , The Washington Post, (Jan. 11, 2021), 
+https://www.washingtonpost.com/technology/2021/01/09/amazon- parler -suspension/ . Concerned  
+that Parler was going to be taken offline, the government attempted to collect and preserve publicly available Parler posts, comments , and videos  through a variety of  methods .  
+   Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 10 of 2011 
+ and formats for detained defendants .  Broadly , the options under consideration would allow 
+counsel to share productions to detained defendants in one of two ways:  
+1. An HTML production format that would provide a “CSV”14 file with metadata fields 
+and links to the documents for review . The CSV  file would also contain a column in 
+which inmates could make notes about individual documents  and send them back to 
+counsel for review.  The CSV  would be delivered to inmates  on a storage device or 
+via a file transfer program.  
+ 
+2. Productions could be viewed within the Relativity workspace  in the manner being 
+considered per  footnote 11 . 
+ 
+Fifteen laptop computers that FPD ordered to support the proposed program are in transit to 
+FPD.  The government, FPD and DOC have made significant progress on a memorandum of 
+understanding that will govern each party’s duties and responsibilities in relation to such a 
+program.   
+The implementation of this solution has met with some delays recently, in part due to the 
+need to identify individuals who would be willing to staff the room.  Under the agreement in 
+principle, FPD will be responsible for providing necessary staffing of an  e-discovery room .  At a 
+bare minimum, staff will be responsible for assigning computers for review and ensuring defendants are able to access the relevant programs.
+15  Finding staff with the requisite computer 
+skills who are willing to work full -time in a  correctional setting is challenging, and that  challenge 
+is further exacerbated by the existence of the COVID -19 pandemic.  In any event, even if staff 
+were currently  available,  it is questionable whether the program could have  been made accessible 
+ 
+14 A CSV (comma -separated values) file is a text file that has a specific format which allows data 
+to be saved in a table structured format.  It can be opened in a wide variety of programs and  is 
+commonly opened in Microsoft Excel and appears as a spreadsheet.  
+ 
+15 Ideally, such staff would be able to provide additional support including troubleshooting issues 
+with computers and assistance with accessing and reviewing productions. 
+ Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 11 of 2012 
+ to larg e groups of inmates  in recent months .  Pursuant to medical stay -in-place protocols issued  
+December 22, 2021, the  DOC has suspended all in- person small group activities  and volunteer 
+services in the effort to combat the spread of COVID -19.16   
+7. Status of Access to Laptops Through DOC’s E -Discovery Program  
+In the interim, the DOC’s e -discovery laptop program has presented inmates with a 
+reasonable alternative for viewing voluminous documentation.  As described in our prior 
+submissions, there are over 20 com puters in the DOC’s e -discovery program, and inmates may 
+keep them for up to two weeks at a time once they are eligible.  Based on the most recent version of the laptop waitlist (dated February 4, 2022), it appears there are approximately 18 -22 inmates  
+on the waitlist, and 14 of them were added  no earlier than  January 21, 2022.    
+8. Pro Se  Defendants  
+ The government and FPD continue to collaborate about a discovery plan for pro se 
+defendants.  Currently, s ubject to the terms of the protective order, standby counsel  can use their 
+own license s for the FPD instance of evidence.com to  share videos with non- detained  pro se 
+defendants , and detained pro se defendants can view video in the DOC instance .  As we have 
+previously made defense counsel aware, we ha ve agreed to waive the requirement that a 
+defendant be  supervised while reviewing highly s ensitive video in cases where access  is 
+provided through evidence.com  and:  
+1. A protective order has been entered in the relevant case;  
+2. The defendant has executed the written acknowledgement to the protective order (or  
+been subject to an equivalent admonishment by the Court) ; and  
+3. The ability of the defendant to download or reshare is  suppressed by counsel before  
+the video is shared to the defendant . 
+ 
+ 
+16 We understand that the DOC imminently intends to revert to the modified stay -in-place 
+protocols that w ere in effect prior to December 22, 2021. Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 12 of 2013 
+ For the reasons elaborated  in part 5 above, the government will not agree to providing 
+pro se  defendants  unfettered  access to FPD’s Relativity workspace.  However , prosecutors 
+assigned to pro se case will share production indexes with both defendants and their standby 
+counsel .  Standby counsel should discuss the materials on the production index with the  pro se 
+defendant , and subject to the protective order, s/he  can share any materials requested utilizing the 
+same mechanisms available to represented defendants described above.  Further, i n those 
+instances  where a pro se  defendant wishes to view highly sensitive documents, standby counsel 
+or his/her staff must supervise the defendant unless: (1) the defendant  and the assigned 
+prosecutor are able to reach a suitable compromise  or (2) the Court orders otherwise.   
+9. Challenge s We Are Overcoming  
+In November, we projected that by the end of January 2022, we would provide the 
+discoverable portions of several hundred thousand FBI records.  We were unable to meet this goal for several reasons.  Our plan was to identify a ll data in the FBI’s case management  system 
+associated with any Capitol Siege  investigation subject , and then export that data for review  in 
+Relativity ( after culling it of any material arguably protected by Federal Rule of Criminal 
+Procedure 6(e) ).  Our request to e xtract this volume of data from  the FBI’s case management  
+system  was unprecedented.  A n FBI data scientist worked closely with the developers of the 
+FBI’s case management system to create a technological solution that would identify the relevant case materials and export the data  for uploading to Relativity.  In  November 2021, we 
+understood that the technological solution had been suc cessfully deployed, and we expected to 
+receive over 400,000 documents for further discovery processing at about that time.   Upon subsequent review of the export, however, our technology experts recognized that the solution developed was not as successful as originally believed.  Although the materials were identified Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 13 of 2014 
+ and exported, they were no longer organized in any logical fashion, i.e., by individual 
+investigation and in chronological order.  As a result, the government was r equired to develop 
+additiona l technological solutions to ensure that documents were associated to appropriate case 
+files and properly sequenced before they were loaded to Relativity .  This was an iterative process 
+that took time.  Efforts to move quickly were also frustrated by COVID -related quarantines  and 
+snowstorms that limited access  of key personnel  to the technology labs necessary to complete 
+their work.  As a result of all the above, this entire process took far longer than was originally anticipated.    
+Ultimately, approximately 380,000 documents from the FBI’s case management system  
+were delivered to Deloitte on February 7, 2022.
+17  Given the volume of material, it may take up 
+to ten days for it to finish being uploaded.  Once the se materials  complete uploading, they  will 
+require in -depth analysis and customization so that they may be produced to the FPD database in 
+a standardized for mat, vastly facilitating future searching and review  by defense teams .  This 
+process is required prior to any human review and is expected to take an additional several 
+weeks.  During this same period, we will also leverage Relativity’s  analytical  tools to deduplicate  
+files, potentially eliminating thousands of documents from the need for any further review .  (A 
+highly preliminary review suggests that approximately one -third to one -half of the documents 
+may be duplicative in nature .)  During this time, w e also expect to identify certain types of 
+documents that may be “bulk- coded” as for production without the need for  additional  human 
+ 
+17 An additional 50,000 documents that were contained in results of searches for materials 
+potentially protected by Rule 6(e) will be separately delivered directly to the government for 
+review.  Based on recent experience, our search terms were intentionally designed to be  
+overinclusive and we expect that a sizeable portion of these materials will be sent to  our 
+Relativity database.  
+     Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 14 of 2015 
+ review.  Once the remaining  materials are ready for human review, we have a surge staffing plan 
+in place to perform  review  and redact ions, and to quality -check proposed productions.18 
+Another challenge we continue to confront  is our plan to provide  defense teams the 
+ability to view materials scoped from other subjects’ devices and SCA accounts, as well as law -
+enforcement recorded interviews  of other investigation subjects .  As of today, we have provided 
+over 900 items in these categories to Deloitte  for ingestion into the government’s Relativity 
+database.  Processing and loading these materials is complicated because there are  no cookie -
+cutter solution s that may be applied to all  devices and  interview s. There is a wide variability in 
+the format of results obtained from searches o f digital devices and  SCA account s.  Similarly, 
+subject interviews were recorded in proprietary player formats unique to the recording devices 
+used.  All this data  require s thoughtful examination and decision- making to ensure it will be 
+accessible, organized, and searchable  once it is loaded to FPD’s Relativity database .  In addition, 
+we are providing assigned prosecutors a short timeframe to verify there are no security  concerns 
+with the production of such items  to a global database .  At this juncture, a lmost 300 such  items 
+have been uploaded to the government’s  Relativity  database, and we expect to begin providing 
+them to FPD ’s Relativity  database shortly.  We are continuing to process and upload such items 
+on a rolling basis.   
+10. Short -Term Discovery Plan for Certain Trials  
+The events of January 6 were historic, not only because they represented the first time 
+that American citizens had stormed the  Capitol, but because  the amount  of information and 
+ 
+18 The extracted FBI case files discussed above represent the FBI’s Capitol Siege case files as of 
+approximately September 2021.  The lessons learned from this first extraction have led to 
+significant improvements in the overall process.  We will begin t he next extraction after we 
+complete application of the technological solution to the 50,000 documents that were contained in results of searches for materials potentially protected by Rule 6(e).  Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 15 of 2016 
+ evidence involved is unprecedented.  As d efendants are in a better position to determine what 
+evidence they believe is exculpatory and will help in their defense, we maintain that our plan – to 
+provide the defense with all data that may contain such information, but in a m anner that will 
+facilitate search, retrieval, sorting, and management of that information  – continues to be 
+reasonable and appropriate .19  Notwithstanding the challenges arising from organizing and 
+ 
+19 The government’s approach is also consistent with the Recommendations for Electronically 
+Stored Information (ESI) Discovery Production developed by the Department of Justice and 
+Administrative Office of the U.S. Courts Joint Working Group on Electronic Technology in the Criminal Justice System.  See https://www.j ustice.gov/archives/dag/page/file/913236/download.   
+It is also the generally accepted approach for ensuring that arguably exculpatory materials are provided in cases involving voluminous information.  Notably, every circuit to address the issue has concluded that, 
+where the government has 
+provided discovery in a useable format, and absent bad faith such as padding the file with 
+extraneous materials or purposefully hiding exculpatory material within voluminous 
+materials, the government has satisfied its obligations under Brady v. Maryland, 373 U.S. 83 
+(1963) and progeny.   See United  States  v. Yi, 791 F. App’x 437, 438 (4th Cir. 2020)  (“We reject  
+as without  merit Yi’s  argument  that fulfillment of  the Government’s  obligation 
+under  Brady  requires  it to identify  exculpatory material.”);  United States v. Tang Yuk , 885 F.3d 
+57, 86 (2d Cir. 2018) (noting that the “ government’s duty to disclose generally does not include a 
+duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence”) 
+(internal citations omitted); United States v. Stanford, 805 F.3d 557, 572 (5th Cir. 2015) (“ We 
+have previously rejected such ‘open file’ Brady  claims where the government provided the 
+defense with an electronic and searchable database of records, absent some showing that the government acted in bad faith or used the file to obscure exculpatory material.” ); United States v. 
+Gray , 648 F.3d 562, 567 (7th Cir. 2011) (“The government is not obliged to sift fastidiously 
+through millions of pages (whether paper or electronic). . . [and] is under no duty to direct a 
+defendant to exculpatory evidence [of which it is unaware] within a larger mass of disclosed 
+evidence.”) (quotation marks and citations omitted); Rhoades v. Henry , 638 F.3d 1027, 1039 (9th 
+Cir. 2011) (rejecting Brady claim on the ground that the defendant “points to no authority 
+requiring the prosecuti on to single out a particular segment of a videotape, and we decline to 
+impose one”); United States v. Warshak, 631 F.3d 266, 297 (6th Cir. 2010) (“ As a general rule, 
+the government is under no duty to direct a defendant to exculpatory evidence within a la rger 
+mass of disclosed evidence”); United States v. Skilling, 554 F.3d 529, 576 (5th Cir. 2009)(same), aff’d in part, vacated in part, remanded, 561 U.S. 358 (2010); United States v. Pelullo , 399 F.3d 
+197, 212 (3d Cir. 2005) (“ Brady  and its progeny . . . i mpose no additional duty on the 
+prosecution team members to ferret out any potentially defense -favorable information from 
+materials that are so disclosed.”); United States v. Jordan, 316 F.3d 1215, 1253- 54 (11th Cir. 
+2003) (concluding that the defendant’s demand that the government “identify all of the Brady and Giglio material in its possession,” “went far beyond” what the law requires).  Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 16 of 2017 
+ producing unprecedented amounts of data that are frequentl y complex in nature, our plan is 
+being executed promptly and in good faith.  We have produced terabytes of organized and 
+searchable data in hundreds of cases and continue to do so as quickly as possible .   
+In addition, we have developed a short -term discov ery plan that will enable  certain trials 
+to proceed before our discovery plan is substantially executed.  To be clear, this is not the plan we recommend, nor one that would be workable in multiple cases or complex cases.  Time spent executing this plan will reduce resources available to execute the global plan described above.  Pursuant to our short -term plan, we will create lists describing substantially all our holdings .  
+Defense teams  can review  the lists  to request specific items  they believe may be relevant .  We 
+expect these lists  will identify the physical  and digital  evidence that has been accumulated across 
+all Capitol Siege investigations ; and c ategories of potentially discoverable information  from 
+materials that are in our possession but have not yet been produced in global discovery, e.g., the FBI materials recently provided to Deloitte; small amounts of material from other law 
+enforcement agencies that played a role on the Janu ary 6, 2021;  damage estimates from the 
+Architect of the Capitol; and grand jury transcripts.
+20 
+In addition, pursuant to this plan, assigned prosecutors will ensure that searches  based on 
+the defendant’s personal and/or device  identifiers , as relevant,  have been or will be conducted 
+within of the following sets of data , as appropriate : 
+ 
+20 If additional materials requested by defense teams are extensive, we will likely need to request 
+a continuance and tol ling of the Speedy Trial Act to allow the defense adequate time to prepare 
+for trial.  This is especially true in the case of requests for the results of multiple other subjects’ 
+digital devices and SCA accounts that have not yet been scoped for relevant i nformation.  
+Further, if the requested materials have not been loaded and organized within our Relativity database yet, they will be turned over in their native format and the defendant will be unable to leverage FPD’s Relativity’s search tools to review t hem.  
+ Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 17 of 2018 
+ 1. Cell tower data from Verizon, AT&T, and T -Mobile/Sprint Cell for devices that 
+connected to the Capitol’s cellular network infrastructure;  
+ 
+2. Google account subscr iber information and location data from the Capitol and 
+restricted perimeter  obtained pursuant to the Google geofence warrants;  
+ 
+3. Location data obtained by the FBI from multiple  data aggregation companies ; 
+ 
+4. Basic subscriber information and  call records  obtained pursuant to applications made 
+to twelve cell service providers under 18 U.S.C. 2703(d) for devices  that, according 
+to location data obtained pursuant to the Google geofence warrants , were present 
+within the U.S. Capitol on January 6, 2021;  
+ 
+5. A repository of Archived Parler posts and comments from around the period of 
+January 6, 2021, hosted by the Internet Archive Proj ect and retrieved by the FBI ;21  
+ 
+6. A repository of digital media tips maintained by the FBI ; and  
+ 7. The government’s discovery databases .  
+ 
+We will also  perform  searches of the data described above in response to defense counsel  
+requests for materials that we are obligated to produce under  Federal Rule Criminal Procedure 
+16, the Jencks Act, and our Brady obligations.
+22   
+Further, prosecutors  will ensure that a facial recognition search has been performed 
+within a repository of images and video that the FBI continually populates , so that all identifiable 
+images of the defendant within that repository a t a time close to trial are produced .   
+ 
+21 Items 1 -4 will never be provided en masse  in global discovery because they contain highly 
+sensitive personal identifying information for members of Congress, their staff, and law enforcement who were all lawfully present on January 6, 2021, and the process of locating that information and eliminating it from these results continues even today.  
+ 
+22 We will not perform searches for materials that are not required pursuant to the above -
+described obligations.  We advise defendants who wish to perform wider -ranging searches to 
+wait for the substantial completion of our global discovery plan.  Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 18 of 2019 
+ Finally, prosecutors  will confirm that FBI case agents conduct searches of FBI databases 
+before trial, to ensure that all relevant documents concerning a specific case or any witnesses 
+have been identified and produced.  
+Conclusio n 
+The government has taken it s Capitol Siege discovery obligations seriously from the 
+inception of this investigation and has made substantial efforts to produce vast quantities of 
+information that is varied and frequently complex in nature in hundreds of cases.  These efforts have in cluded:  
+• Appointing a Capitol Siege Discovery Coordinator in January 2021;  
+• Assembling a Capitol Siege Discovery Team consisting of experienced attorneys, 
+project managers, and litigation technology professionals;  
+• Collecting information from multiple sources involved in the response to and investigation of the Capitol Siege;  
+• Collaborating with FPD to develop a standard protective order for Capitol Siege 
+cases;  
+• Identifying database solutions for making terabytes of video and documents 
+accessible to hundreds of defendants;  
+• Funding defense databases and obtaining licenses for all Ca pitol Siege defense 
+counsel, and collaborating with FPD to execute these solutions;  
+• Reviewing specific discovery requests by defense counsel to ensure the appropriate 
+materials are prioritized for production;  
+• Creating protocols and procedures to ensure that (a) case -specific discovery is 
+provided, (b) defendants will receive complete copies of their own unscoped devices and SCA accounts upon request; (c) devices and SCA accounts are systematically filtered for attorney -client communications; (d) relevant s coped  digital data and 
+custodial interviews will be uploaded to the government’s discovery databases for production to all;  and (e) increasing access to discovery by detained defendants. 
+   
+  Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 19 of 2020 
+  
+We have now made substantial progress in our  effort to provide the defense appropriate  
+discovery review platforms for both documents and digital media, to populate those platforms, 
+and to use alternative means to provide the most relevant discovery without delay.  W e will 
+diligently continue to transfer data to our vendor s, process it for production, and make 
+productions  as expeditiously as possible .  As we continue to implement our plan, we will 
+continue to file status memoranda with the Court on a regular basis.  
+Respectfully submitted,  
+MATTHEW M. G RAVES  
+United States Attorney  
+DC Bar No. 481052  
+ 
+ 
+ 
+By:           /s/  Emily A. Miller    
+Chief, C apitol Siege Discovery Unit  
+DC Bar No. 462077  
+555 Fourth Street, N.W., Room 5826 
+Washington, DC 20530 Emily.Miller2@usdoj.gov (202) 252- 6988   
+By:          /s/ Candice C. Wong   
+ CANDICE C. WONG  
+Assistant Unite d States Attorney  
+DC Bar No. 990903  
+555 Fourth Street, N.W., Room 4816 Washington, DC 20530 Candice.Wong@usdoj.gov 
+(202) 252 -7849  
+  
+ Case 1:21-cr-00078-EGS   Document 67   Filed 02/10/22   Page 20 of 20

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

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+ 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

02-15-21 - MEMORANDUM CONCERNING CONDITIONS OF Conditions Of Pretrial Release John Earle Sullivan United States District Court.txt

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+1                                   UNITED STATES DISTRICT COURT                FOR THE DISTRICT OF COLUMBIA  UNITED STATES OF AMERICA   V.      Case No.: 21-cr-78 (EGS)   JOHN SULLIVAN     MEMORANDUM CONCERNING CONDITIONS OF                           PRETRIAL RELEASE   Defendant, by and through undersigned counsel, does hereby provide the following memorandum concerning conditions of his pretrial release. I. Defendant strenuously opposes any restrictions regarding his use of the Internet, Twitter, Facebook and other forms of social media.   “A prior restraint on expression is a content-based restriction of speech. A prior restraint exists when the enjoyment of protected expression is contingent upon the approval of government officials.” Near v. Minnesota, 283 U.S. 697, 711-13 (1931);  White v. Baker, 696 F. Supp 2d 1289, 1306  (N.D. Georgia 2010) In Ward v. Rock Against Racism, 491 U.S. 781, 795 n.5, the Supreme Court held that “A prior restraint on expression exists when the government can deny access to a forum for expression before the expression occurs.” Case 1:21-cr-00078-EGS   Document 13   Filed 02/15/21   Page 1 of 82   As a condition of defendant’s pre-trial relelase, the government is seeking to limit his use of the internet and to expressly prohibit him from using the following: Twitter, Facebook, encrypted platforms.  The requests by the United States to limit defendant’s ability to communicate the way the vast majority of Americans communicate is oppressive, overbroad and unconstitional.  While courts have broad discretion to prescribe conditions of release, The “conditions of supervised release may not restrict more liberty than reasonably necessary, including constitutional liberty.” See United States v. Holena, --F.3d--, 2018 WL 4905748, at *5 (3rd Cir. 2018). The Court in Hoena further noted that computer and internet usage restrictions potentially “limit an array of First Amendment activity,” and accordingly cautioned district courts to ensure that any such restrictions “not…restrict (defendants) First Amendment Rights more than reasonably necessary or appropriate to protect the public.”  See also Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (Striking down state statute barring sex offenders from using social media for violating First Amendment.).  The government’s request for limitations on defendant’s right to use social media is not reasonably related to the crimes for which he has been indicted. To the contrary, the sweeping restrictions requested to be placed Case 1:21-cr-00078-EGS   Document 13   Filed 02/15/21   Page 2 of 83  on Mr.  Sullivan are completely unmoored from the conduct that is ostensibly what is necessary to protect the community. The entirely overboard request by the government would effectively ban hm from communicating with friends, interacting, with his family, writing his thoughts, keeping up with the news, checking on the weather, reading a newspaper outline or any of the typical reasons why the vast majority of the polukatin uses these social media platforms. The breadth of the requested restrictions have no relationship to the conduct for which Mr. Sullivan has been indicted.  Packingham v. United States in instructive. The case involved a challenge to statute making it a felony for registered sex offenders to access commercial social networking websites where the sex offender knows that the site permits minor children to become members. Petitioner was indicted for violating the subject state law. The specific charge was Petitioner posted a statement on his Facebook profile about a positive experience in traffic court. Petitioner challenged the law on grounds that it violated free speech. The trial court denied the challenge. The State Court of Appeals struck the statute down on grounds that it cioated the First Amendment. The State appealed the ruling.   The Supreme Court struck the sstaue down as being violative of rights guaranteed by the First Amendment. “A fundamental principle is that all Case 1:21-cr-00078-EGS   Document 13   Filed 02/15/21   Page 3 of 84  persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media….” 137 S. Ct. at 1732. Justice Kennedy added, “It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002). That is what North Carolina has done here. Its law must be held invalid.” supra, 1738.  The government’s argument in support of detention is completely contradicted by the facts before this Court.  The government has argued, “there are serious risks that this defendant will obstruct or attempt to obstruct and that he continues to pose a recurring threat to the safety of the community.” PACER Document,6, page 2.  There is no evidence to support this unfounded claim. Defendant has not in any manner whatsoever attempted to obstruct justice. His request to have people attend his release hearing in Utah was a perfectly reasonable and constitutionally protected request to invite people to his court proceeding. It is inconceivable that he be punished for this completely lawful request. Case 1:21-cr-00078-EGS   Document 13   Filed 02/15/21   Page 4 of 85   United States Magistrate Judge Daphne A. Oberg of the United States  District Court for the District of Utah debunked the government’s argument as to John Sullivan’s alleged obstruction of justice.   The government’s proffer simply fails to establish a serious   risk Mr. Sullivan will obstruct justice or attempt to obstruct   justice in the future…The allegation that Mr. Sullivan might   have incited others to resist police officers in a separate     Oregon event adds little to the inquiry. These allegations   are insufficient to meet the government’s burden of establishing   § 3142 (f)(2)(B)  applies in this case, even by a preponderance   of the evidence, let alone clear and convincing evidence.  United States v. Sullivan, Case No. 21-mj14 (U.S. District Court Utah), PACER DOCUMENT, page 4.  II. Defendant should not be restricted from earning his income through Insurgence USA   Insurgence USA is not charged with any offense in this matter. Insurgence is not deemed to have been involved in any criminal activity. Defendant is legitimately self-employed as a documentarian and it is oppressive to require that he not be allowed to continue his primary area of employment for an extended period of time. Attached to this pleading are  receipts for services documenting defendant’s employment. 1. Contract with Australian Broadcasting.  2. Contract with Left/Right, LLC; Case 1:21-cr-00078-EGS   Document 13   Filed 02/15/21   Page 5 of 86  3. Agreement to release video footage with Rocky Mountain Public Media. 4. License Agreement with CNN III. Defendant should not required to wear an ankle bracelet pending trial  There is absolutely no question that John Sullivan has faithfully appeared for very court appearance remotely. He is actively engaged with his trial counsel in preparing a defense to the charges in the indictment.  There is not a reasonable argument that he is a danger of flight. The government is not making this argument. This begs the question: Why does John Sullivan have to wear an electronic monitoring device? John Sullivan has substantial ties to the community. His father is a retired Army officer having spent 21 years in the military. Defendant’s parents reside approximately one hour away from him in Utah and are actively involved in his life.   “Release pending trial is governed by the Bail Reform Act of 1984 which, like its predecessor, the Bail Reform Act of 1966, 18 U.S.C. Sections 3146-3152 (1982)(repealed October 18, 1984) mandates release of a person facing trial under the least restrictive conditions or combination of conditions that will reasonably assure the appearance of the person….” Banks v. United States, 414 F.2d 1150,1153 (D.C. Cir. 1969). Case 1:21-cr-00078-EGS   Document 13   Filed 02/15/21   Page 6 of 87   The ankle monitor is an overly restrictive and unnecessary restriction\ on defendant.          CONCLUSION  Defendant is a decent, honest young man who has been utterly mischaracterized by pleadings filed in this Court and comments attributed to him have been taken out of context. There is no reason to conclude he is risk of flight or that he will attempt to obstruct justice. He has promptly appeared for every court appearance in Utah and the District of Columbia and there is nothing in the record to reasonably suggest that he will not continue to abide by conditions of relelease. The government seeks unconstitutional and oppressive conditions that defendant respectfully submits should not be permitted by this Court.                                                                                       Respectfully submitted,         _______/s/_______________          Steven R. Kiersh #323329        5335 Wisconsin Avenue, N.W.        Suite 440        Washington, D.C. 20015        (202) 347-0200                       Case 1:21-cr-00078-EGS   Document 13   Filed 02/15/21   Page 7 of 88         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 ____15th____day of February, 2021 upon all counsel of record.                        ______/s/____________________       Steven R. Kiersh Case 1:21-cr-00078-EGS   Document 13   Filed 02/15/21   Page 8 of 8

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

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+1 
+                                  UNITED STATES DISTRICT COURT  
+               FOR THE DISTRICT OF COLUMBIA  
+ 
+UNITED STATES OF AMERICA  
+ 
+ V.      Case No.: 21 -cr-78 (EGS)  
+ 
+ 
+JOHN SULLIVAN  
+ 
+    NOTICE OF F ILING OF INITI AL DISCOVERY REQUESTS  
+    
+    
+  
+       Respectfully submitted,  
+ 
+       _______/s/_______________  
+  
+       Steven R. Kiersh #323329  
+       5335 Wisconsin Avenue, N.W.  
+       Suite 440  
+       Washingto n, 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 
+____ 15th____day of February , 2021 upon all couns el of record.  
+ 
+               
+      ______ /s/____________________  
+      Steven R. Kiersh  Case 1:21-cr-00078-EGS   Document 12   Filed 02/15/21   Page 1 of 1

02-16-21 - APPEARANCE BOND John Earle Sullivan United States District Court.txt

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+AO 98 (Rev. 12/11) Appearance Bond
+UNITEDSTATESDISTRICTCOURT
+for the 
+__________ District of __________
+United States of America )
+)
+)
+)
+)v.
+Case No.
+Defendant
+APPEARANCE BOND
+Defendant’s Agreement
+I, (defendant) , agree to follow every order of this court, or any 
+court that considers this case, and I further agree that this bond may be forfeited if I fail:
+( X ) to appear for court proceedings;
+( X ) if convicted, to surrender to serve a sentence that the court may impose; or
+( ) to comply with all conditions set forth in the Order Setting Conditions of Release.
+Type of Bond
+( ) (1)   This is a personal recognizance bond. 
+( ) (2)   This is an unsecured bond of $ .
+( ) (3)   This is a secured bond of $ , secured by:
+( ) (a)  $ , in cash deposited with the court.
+( ) (b)  the agreement of the defendant and each surety to forfeit the following cash or other property
+(describe the cash or other property, including claims on it – such as a lien, mortgage, or loan – and attach proof of
+ownership and value) :
+.
+If this bond is secured by real property, documents to protect the secured interest may be filed of record.
+( ) (c)  a bail bond with a solvent surety (attach a copy of the bail bond, or describe it and identify the surety) :
+.
+Forfeiture or Release of the Bond
+Forfeiture of the Bond.   This appearance bond may be forfeited if the defendant does not comply with the above
+agreement.  The court may immediately order the amount of the bond surrendered to the United States, including the
+security for the bond, if the defendant does not comply with the agreement.  At the request of the United States, the court
+may order a judgment of forfeiture against the defendant and each surety for the entire amount of the bond, including
+interest and costs.               District of ColumbiaCase 1:21-cr-00078-EGS   Document 16-2   Filed 02/16/21   Page 1 of 2Page 2
+AO 98 (Rev. 12/11) Appearance Bond
+Release of the Bond.  The court may order this appearance bond ended at any time.  This bond will be satisfied and the
+security will be released when either: (1) the defendant is found not guilty on all charges, or (2) the defendant reports to
+serve a sentence.
+Declarations
+Ownership of the Property.   I, the defendant – and each surety – declare under penalty of perjury that:
+(1) all owners of the property securing this appearance bond are included on the bond;
+(2) the property is not subject to claims, except as described above; and
+(3) I will not sell the property, allow further claims to be made against it, or do anything to reduce its value
+while this appearance bond is in effect.
+Acceptance.   I, the defendant – and each surety – have read this appearance bond and have either read all the conditions
+of release set by the court or had them explained to me.  I agree to this Appearance Bond.
+I, the defendant – and each surety – declare under penalty of perjury that this information is true.  (See 28 U.S.C. § 1746.)
+Date:
+Defendant’s signature
+Surety/property owner – printed name Surety/property owner – signature and date
+Surety/property owner – printed name Surety/property owner – signature and date
+Surety/property owner – printed name Surety/property owner – signature and date
+CLERK OF COURT
+Date:
+Approved.
+Date:
+Judge’s signature
+Case 1:21-cr-00078-EGS   Document 16-2   Filed 02/16/21   Page 2 of 2

02-16-21 - MEMORANDUM in Support of Pretrial Detention Exhibits for previously filed Memorandum Regarding Conditions of Pretrial Release by JOHN EARLE SULLIVAN.txt

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+Case 1:21-cr-00078-EGS   Document 14   Filed 02/16/21   Page 1 of 4Case 1:21-cr-00078-EGS   Document 14   Filed 02/16/21   Page 2 of 4Case 1:21-cr-00078-EGS   Document 14   Filed 02/16/21   Page 3 of 4Case 1:21-cr-00078-EGS   Document 14   Filed 02/16/21   Page 4 of 4

02-16-21 - ORDER SETTING CONDITIONS OF RELEASE John Earle Sullivan United States District Court.txt

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+AO 199A (Rev. )  Order Setting Conditions of Release Page 1 of Pages
+UNITEDSTATESDISTRICTCOURT
+for the
+__________ District of __________
+United States of America)
+)
+)
+)
+)v.
+Case No.
+Defendant
+ORDER SETTING CONDITIONS OF RELEASE
+IT IS ORDERED that the defendant’s release is subject to these conditions:
+The defendant must not violate federal, state, or local law while on release.
+The defendant must cooperate in the collection ofa DNA sample if it is authorized by  U.S.C. § .
+The defendant must advise the court or the pretrial services office or supervising officer in writing before making
+any change of residence or telephone number.
+The defendant must appear in court as required and, if convicted, must surrender as directed to serve a sentence that
+the court may impose.
+The defendant must appear at:
+Place
+on
+Date and Time
+If blank, defendant will be notified of next appearance.
+(5)The defendant must sign an Appearance Bond, if ordered.              District of ColumbiaCase 1:21-cr-00078-EGS   Document 16   Filed 02/16/21   Page 1 of 3AO 199B (Rev. 12/11)  Additional Conditions of Release Page of Pages
+ADDITIONAL CONDITIONS OF RELEASE
+IT IS FURTHER ORDERED that the defendant’s release is subject to the conditions marked below:
+( ) (6) The defendant is placed in the custody of:
+Person or organization
+Address (only if above is an organization)
+City and state Tel. No.
+who agrees to (a) supervise the defendant, (b) use every effort to assure the defendant’s appearance at all court proceedings, and (c) notify the court immediately
+if the defendant violates a condition of release or is no longer in the custodian’s custody.
+Signed:
+Custodian Date
+( ) (7) The defendant must:
+( ) (a) submit to supervision by and report for supervision to the ,
+telephone number , no later than .
+( ) (b) actively seek employment
+( ) (c) continue or start an education program.
+( ) (d) surrender any passport to:
+( ) (e) not obtain a passport or other international travel document.
+( ) (f) abide by the following restrictions on personal association, residence, or travel:
+( ) (g) avoid all contact, directly or indirectly, with any person who is or may be a victim or witness in the investigation or prosecution,
+including:
+( ) (h) get medical or psychiatric treatment:
+( ) (i) return to custody each at o’clock after being released at o’clock for employment, schooling,
+or the following purposes:
+( ) (j) maintain residence at a halfway house or community corrections center, as the pretrial services office or supervising officer considers
+necessary.
+( ) (k) not possess a firearm, destructive device, or other weapon.
+( ) (l) not use alcohol ( ) at all ( ) excessively.
+( ) (m) not use or unlawfully possess a narcotic drug or other controlled substances defined in 21 U.S.C. § 802, unless prescribed by a licensed
+medical practitioner.
+( ) (n) submit to testing for a prohibited substance if required by the pretrial services office or supervising officer.  Testing may be used with random
+frequency and may include urine testing, the wearing of a sweat patch, a remote alcohol testing system, and/or any form of prohibited
+substance screening or testing.  The defendant must not obstruct, attempt to obstruct, or tamper with the efficiency and accuracy of prohibited
+substance screening or testing.
+( ) (o) participate in a program of inpatient or outpatient substance abuse therapy and counseling if directed by the pretrial services office or
+supervising officer.
+( ) (p) participate in one of the following location restriction programs and comply with its requirements as directed.
+( ) (i) Curfew.  You are restricted to your residence every day ( ) from to , or ( ) as 
+directed by the pretrial services office or supervising officer; or
+( ) (ii) Home Detention.   You are restricted to your residence at all times except for employment; education; religious services; medical,
+substance abuse, or mental health treatment; attorney visits; court appearances; court-ordered obligations; or other activities
+approved in advance by the pretrial services office or supervising officer; or
+( )(iii)Home Incarceration.   You are restricted to 24-hour-a-day lock-down at your residence except for medical necessities and
+court appearances or other activities specifically approved by the court. 
+( ) (q) submit to location monitoring as directed by the pretrial services office or supervising officer and comply with all of the program
+requirements and instructions provided.
+( )You must pay all or part of the cost of the program based on your ability to pay as determined by the pretrial services office or
+supervising officer.
+( ) (r) report as soon as possible, to the pretrial services office or supervising officer, every contact with law enforcement personnel, including
+arrests, questioning, or traffic stops.
+( ) (s)
+ USACase 1:21-cr-00078-EGS   Document 16   Filed 02/16/21   Page 2 of 3Case 1:21-cr-00078-EGS   Document 16   Filed 02/16/21   Page 3 of 3

02-16-21 - UNITED STATES PROBATION AND PRETRIAL SERVICES OFFICE District Of Utah Monitoring Program JOHN EARLE SULLIVAN.txt

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+DU 
+(05-2015)  
+UNITED STATES PROBATION AND PRETRIAL SERVICES OFFICE  
+DISTRICT OF UTAH  
+Computer and Internet Monitoring Program  Agreement  
+ 
+ 
+ 
+NAME:   Sullivan    ,John    Earle    CR21-78  PACTS  #: Client ID  
+ 
+I understand I have been ordered , as a condition of  Pretrial Release Supervision , to participate in the United 
+States Probation and Pretrial Services  Computer and Internet Monitoring Program  under:   
+ 
+APPENDIX  A : Computer and Internet Use, as approved  
+ 
+1) I acknowledge I am to comply with all program r ules set forth in this appendix  and the instructions U.S. 
+Probation and Pretrial Services Office (USPO) .  I understand that this appendix is, by reference, part of 
+the order setting conditions for my release .  I acknowledge I am  to comply with its provisions and the 
+instructions of the USPO, failure to do so may be considered a violation of my supervision and may 
+result in an adverse action.  I agree to call the USPO  if I have any questions about the  rules of the 
+program, or if I ex perience any problems that may hinder my compliance with this program.  
+ 
+2) I understand I must complete and provide the C IMP Questionnaire to my supervising officer as directed.  
+I further understand I am to provide the USPO  all previous, current, and future internet identifications 
+(i.e. internet email addresses, logon identification, screen names, etc).  
+ 
+3) I shall possess and/or access only  computer hardware and software ( including operating system 
+software)  approved by the USPO .  I shal l obtain  permission fro m the USPO  prior to obtaining or 
+accessing any additional computer hardware/software or making any alterations to my system . 
+ 
+4) I will not use any system settings,  program s, or device s designed to hide, alter or delete records/logs of 
+my computer use, Internet activities or files stored on my assigned computer(s).  This includes the use 
+of encryption, virtual machines, steganography, and cache/cookie removal software.  
+ 
+5) If the court has not prohibited my use or possession of a computer, I understand that I may only use  
+computer (s) in my home or at my place of employment  that have been approved by the USPO.   I 
+further understand I am responsible for the content, programs, and data that may  be stored  or accessed 
+by a computer I am permitted to use  
+ 
+ 
+Case 1:21-cr-00078-EGS   Document 16-1   Filed 02/16/21   Page 1 of 4DU 
+(05-2015)  
+ 
+6) I agree to allow the USPO  to inspect, configure, and/or install software/hardware designed to monitor 
+computer activities on any computer I am authorized to use.  I understand that the software may record 
+any and all activity on my computer.  I further understand that a notice may be placed on the computer 
+at the time of installation to warn others of the existence of the monitoring software on my computer.  I 
+agree not to attempt to remove, tamp er with, reverse engineer, or in any way circumvent the 
+software/hardware.  
+ 
+7) I understand that the USPO  may use measures to assist in monitoring compliance with these conditions 
+such as adjusting of my computer, the configuration removal of programs and app lications that may 
+interfere with monitoring my compliance, and may apply tamper resistant tape over unused ports a s well 
+as seal my computer case.  
+ 
+8) I will notify all individuals that have access to my computer system that it is subject to monitoring 
+and/o r search/seizure.  
+ 
+9) I shall not create or assist directly or indirectly in the creation of any electronic bulletin board, ISP, or 
+any other public or private network without the consent of the USPO .  Any approval shall be subject to 
+any condition set by the  USPO  or the Court with regard to that approval.  
+ 
+10) I understand the USPO  may determine a program, application, website  and/or material may be 
+detrimental to my success in this program and therefore ask the Court to prohibit future access to same.   
+ 
+11) I understand that my officer will use telephone calls and unannounced personal visits to monitor my 
+compliance.  When I am at home, I agree to promptly answer my telephone and/or door.  
+ 
+12) I will provide copies of credit card billing reco rds or other financial records as directed by the USPO to 
+corroborate by use of the internet and purchases of electronic devices subject to the program .   
+ 
+13) The USPO  utilizes commercially available software applications.  While there are no known  conflicts 
+or defects in the software Office for any direct, indirect, incidental, special or consequential damage 
+whatsoever including but not limited to loss of revenue or profit, lost or damaged packages, I indicate by 
+my signature below that I accept a ll responsibility and risk for the computer intake and software 
+installation and use on my computer(s).  Further I agree to hold harmless the U.S. Probation data, other 
+personal commercial or economic loss, or warranties voided as a result of computer insp ection, search, 
+and/or use of monitoring software.  
+ 
+14) All repairs to your authorized computer system must be pre -authorized by the USPO .  Documentation 
+indicating repairs done and reason for repairs may be required, and y our authorized computer system 
+may be  subject to examination by the USPO  prior to and after authorized repairs . 
+ 
+15) I will not access any computer(s) or online service (s) using someone else =s account, name, designation, 
+or alias.  I understand I am to only access the Int ernet on a computer and account reported to and 
+approved by the USPO .  Furthermore, I will not utilize any service which conceals, spoofs, or 
+anonymizes my Internet address , or computer use . 
+ 
+ Case 1:21-cr-00078-EGS   Document 16-1   Filed 02/16/21   Page 2 of 4DU 
+(05-2015)  
+ 
+16) I will access email accounts, including web -mail accounts, via a pproved protocols (i.e. POP, IMAP, 
+SMTP) and approved email clients (i.e. Outlook, Outlook Express).  
+ 
+17) I will not download, possess and/or install copyrighted material  (for which I do not possess a lic ense) , 
+which include but is not limited to protected audio files, video files, software applications, etc., that I did 
+not legitimately purchase or obtain the legal authorization to utilize.  Nor shall I download, possess 
+and/or install applications which allow for the circumvention and/or decryption of copyright protection 
+measures.  
+ 
+18) I will not purchase, download, possess, utilize , and/or install any unapproved anti -virus, anti -spyware, 
+firewall, internet security applications, file password protection, encryption, cryptography, and/or 
+steganography, including Secure Socket Layer ("SSL") and Virtual Private Networks (VPN) 
+connection s. 
+ 
+19) I will not view, possess, and/or compose any material that describes or promotes the unauthorized access 
+to computer systems. This includes, but is not limited to, spoofing/defacing web sites, how to launch 
+denial of service attacks, how to gain unauth orized access to information maintained by corporate, 
+government, education computer systems, etc.  
+ 
+20) I will not purchase, download, possess, upload, and/or install freeware/shareware/software applications 
+whose primary purpose is to cause damage to other co mputer systems (i.e. viruses, worms) and/or 
+covertly install remote connection/back door applications not authorized by users of other computer 
+systems (i.e. Trojan Horses (NetBus, Back Orifice)).  
+ 
+21) I will not use any freeware/shareware/software application  or other device which wipes (secure file 
+deletion) disk space, drives, media, etc. unless approved by the USPO . 
+ 
+22) I will not utilize network/internet storage, cloud computing, or other applications/methods which store 
+data to any location other than  my app roved computer system(s), unless approved by the USPO.  
+ 
+23) I will not change or attempt to change, circumvent, or disable any restrictions and/or settings established 
+by the Probation Department and my supervision officer, my Internet Serv ice Provider, monitoring 
+software/hardware, and/or biometric user authentication hardware/software.  Nor shall I possess or use 
+removable media (i.e. CD -R=s, DVDs, External Hard Drives, USB flash drives) configured with 
+bootable operating systems or stealt h applications.  
+ 
+24) I will not change, re -install, or upgrade the current operating system (i.e. Windows, iOS, etc.) on any 
+authorized computer without pre -approval and authorization by USPO . This includes but is not limited 
+to utilizing the "system restore" function available in some operating systems.  
+ 
+25) I will not have another individual access the Internet on my behalf to obtain files, access websites, or 
+other information/data which I am restricted from accessing myself.  
+ 
+26) Any computer and/or other device which allows Internet access and/or digital media storage within my 
+residence, or otherwise accessible by me, is subject to random examinations/analysis/search by the 
+USPO . Case 1:21-cr-00078-EGS   Document 16-1   Filed 02/16/21   Page 3 of 4DU 
+(05-2015)  
+ 
+ 
+ 
+           Sworn to on the record  2/16/21                                                                                                                                          
+Defendant  Date 
+ 
+                                                                                                                                                    
+U.S. Probation Officer  Date 
+ Case 1:21-cr-00078-EGS   Document 16-1   Filed 02/16/21   Page 4 of 4

02-21-23 - RESPONSE by USA as to JOHN EARLE SULLIVAN re 84 MOTION to Change Venue Motion to Change Venue.txt

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+1 UNITED STATES DISTRICT COURT  
+ FOR THE DISTRICT OF COLUMBIA 
+ 
+UNITED STATES OF AMERICA   : 
+:  CASE NO. 21- cr-78 (RCL)  
+v.    :   
+:   
+JOHN SULLIVAN,    : 
+      : 
+Defendant.   : 
+            
+GOVERNMENT’S OPPOSITION TO DEFENDANT’S   
+MOTION TO TRANSFER VENUE   
+ 
+Defendant John Sullivan, who is charged in connection with events at the U.S. Capitol on 
+January 6, 2021, has moved to transfer venue in this case to the District of Utah .  Sullivan  fails to 
+establish  that he “cannot obtain a fair and impartial trial” in t his district, Fed. R. Crim. P. 21(a) , 
+and this Court should deny his motion.1 
+ 
+1 Judges on this Court have denied motions for change  of venue  in dozens of  January 6 
+prosecutions, and no judge has granted a change of venue in a January 6 case.  See, e.g., United 
+States v. Ramey , 22- cr-184, Minute Entry (D.D.C. Jan. 30, 2023) (DLF);  United States v.  
+Eckerman, et al. , No. 21- cr-623, Minute Order (D.D.C. Jan. 26, 2023) (CRC);  United States v. 
+Pollock, et al., No. 21- cr-447, Minute Entry (D.D.C. Jan. 25, 2023) (CJN);  United States v. 
+Gossjankowski , No. 21- cr-12, ECF No. 114 (D.D.C. Jan. 25, 2023) (PLF);  United States v. Adams , 
+No. 21- cr-212, ECF No. 60 ( D.D.C. Jan. 24, 2023)  (ABJ); United States v. Rhine , No. 21- cr-687, 
+ECF No. 78 (D.D.C. Jan. 24, 2023) (RC);  United States v. Oliveras , No. 21- cr-738, ECF No. 52 
+(D.D.C. Jan. 17, 2023) (BAH);  United States v. Sheppard, No. 21 -cr-203, ECF No. 62 (D.D.C. 
+Dec. 28, 2022) (JDB);  United States v. Samsel, et al., No. 21- cr-537, ECF No. 227 ( D.D.C. Dec. 
+14, 2022) (JMC);  United States v. Gillespie, No. 22- cr-60, ECF No. 41 (D.D.C. Nov. 29, 2022) 
+(BAH);  United States v. Barnett , No. 21- cr-38, ECF No. 90 (D.D.C. Nov. 23, 2022) (CRC);  United 
+States v. Bender , et al., No. 21- cr-508, ECF No. 78 ( D.D.C. Nov. 22, 2022) (BAH);  United States 
+v. Sandoval , No. 21- cr-195, ECF No. 88 ( D.D.C. Nov. 18, 2022) (TFH); United States v. Vargas 
+Santos , No. 21- cr-47, Minute Entry (D.D.C. Nov. 16, 2022) (RDM);  United States v. Nordean, et 
+al., No. 21- cr-175, ECF No. 531 ( D.D.C. Nov. 9, 2022) (TJK);  United States v. Ballenger , No. 21-
+719, ECF. No. 75 (D.D.C. Oct. 28, 2022)  (JEB);  United States v. Eicher , No. 22- cr-38, ECF No. 
+34 (D.D.C. Oct. 20, 2022)  (CKK) ; United States v. Schwartz, et al., No. 21 -cr-178, ECF No. 142 
+(D.D.C. Oct. 11, 2022)  (APM);  United States v. Nassif , No. 21- cr-421, ECF No. 42 (D.D.C. Sep. 
+12, 2022) (JDB);  United States v. Brock , No. 21 -cr-140, ECF No. 58 (D.D.C. Aug. 31, 2022)  
+(JDB); United States v. Jensen , No. 21- cr-6, Minute Entry (D.D.C. Aug. 26, 2022) (TJK);  United Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 1 of 172 BACKGROUND 
+On January 6, 2021, a Joint Session of the United States House of Representatives and the 
+United States Senate convened to certify the vote of the Electoral College of the 2020 U.S. 
+Presidential Election .  While the certification process was proceeding, a large crowd gathered 
+outside the United States Capitol, entered the restricted grounds, and forced entry  into the Capitol 
+building.  As a result, the Joint S ession and the entire official proceeding of the Congress was 
+halted until law enforcement was able to clear the Capitol of hundreds of unlawful occupants and ensure the safety of elected officials.  
+John Sullivan traveled from Utah to Washington, D.C., to attend  and film  the “Stop the 
+Steal” rall y on January 6, 2021. Afterwards, Sullivan joined rioters at the U.S. Capitol where he 
+filmed a crowd pushing through several police barriers on the west side of the Capitol . After the 
+crowd broke through the last barricade. As Sullivan and the others approach the Capitol Building, 
+Sullivan can be heard in his video saying at various points: “There are so many people. Let’s go. 
+ 
+States v. Seitz , No. 21- cr-279, Minute Order (D.D.C. Aug. 17, 2022) (DLF);  United States v. 
+Strand, No. 21- cr-85, ECF No. 89 (D.D.C. Aug. 17, 2022)  (CRC) ; United States v. Williams , No. 
+21-cr-618, ECF No. 63 (D.D.C. Aug. 12, 2022) (ABJ);  United States v. Herrera , No. 21- cr-619, 
+ECF No. 54 (D.D.C. August 4, 2022) (BAH);  United States v. Garcia, No. 21- cr-129, ECF No. 83 
+(D.D.C. July 22, 2022) (ABJ); United States v. Rusyn, et al., No. 21 -cr-303, Minute Entry (D.D.C. 
+July 21, 2022) (ABJ);  United States v. Bledsoe , No. 21- cr-204, Minute Order  (D.D.C. July 15, 
+2022) (BAH) ; United States v. Calhoun, No. 21 -cr-116, Minute Order  (D.D.C. July 11, 2022) 
+(DLF);  United States v. Rhodes, et al., No. 22- cr-15, ECF No. 176 (D.D.C. June 28, 2022) (APM); 
+United States v. Williams , No. 21- cr-377, Minute Entry (D.D.C. June 10, 2022) (BAH); United 
+States v. McHugh, No. 21- cr-453, Minute Entry (D.D.C. May 4, 2022) (JDB);  United States v. 
+Hale -Cusanelli , No. 21- cr-37, Minute Entry ( D.D.C. Apr. 29, 2022) (TNM) ; United States v. 
+Webster , No. 21- cr-208, ECF No. 78 (D.D.C. Apr. 18, 2022)  (APM); United States v. Alford, 21-
+cr-263, ECF No. 46 (D.D.C. Apr. 18, 2022) (TSC) ; United States v. Brooks , No. 21- cr-503, ECF 
+No. 31 (D.D.C. Jan. 24, 2022) (RCL); United States v. Bochene , No. 21- cr-418, ECF No. 31 
+(D.D.C. Jan. 12, 2022) (RDM); United States v. Fitzsimons , No. 21- cr-158, Minute Order  (D.D.C. 
+Dec. 14, 2021) (RC);  United States v. Reffitt, No. 21- cr-32, Minute Order  (D.D.C. Oct. 15, 2021) 
+(DLF); United States v. Caldwell , 21-cr-28, ECF No. 415 (D.D.C. Sept. 14, 2021) (APM). Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 2 of 173 This shit is ours! Fuck yeah,” “We accomplished this shit. We did this together. Fuck yeah! We 
+are all a part of this history,” and “Let’s burn this shit down.”  
+Sullivan entered the Capitol via a broken Senate Wing Door. Once inside the Capitol 
+Building, Sullivan roamed t he building with other individuals who unlawfully entered.  During 
+one of his interactions with others, Sullivan can be heard in the video saying, “We gotta get this shit burned,” “it’s our house motherfuckers,” and “we are getting this shit.” Sullivan ignored law enforcements commands to leaving and told the officers to stand down, so they would not get hurt. Sullivan encouraged other rioters, explaining he was “ready” because he had “been in so many riots.”  
+Sullivan filmed the crowds trying to break open doors as the House and the Speaker’s 
+Lobby. At both locations, Sullivan informed other members of  the crowd he had a knife  which 
+allowed him to cut  to the front of the crowd. At the front of the Speaker’s Lobby crowd, Sullivan 
+filmed the crowd trying to break down the doors ’ glass windows. Sullivan can be heard telling law 
+enforcement to “go home” while encouraging those attempting to break the windows to “Get this shit!” Shortly thereafter, the video includes footage of a female getting shot as she tries to enter through the window opening. Sullivan later claimed to be a journalist but admitted he did not have 
+any press credentials. 
+ 
+Based on his  actions on January 6, 2021, the defendant  was charged with  Obstruction of 
+an Official Proceeding, in violation of 18 U.S .C. § 1512(c)(2), and 2; Civil Disorder in violation 
+of U.S.C. § 231(a)(3), and 2; Entering and Remaining in a Restricted Building and Grounds  with 
+a dangerous weapon, in violation of 18 U.S.C. § 1752(a)(1)  and (b)(1)(A); Disorderly and 
+Disruptive Conduct in a Restricted Building or Grounds  with a dangerous weapon, in violation of 
+18 U.S.C. § 1752(a)(2)  and (b)(1)(A);  Unlawful Possession of a Dangerous Weap on Capitol Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 3 of 174 Grounds or Buildings, in violations of 40 U.S.C. § 5104(e)( 1)(A)i);  Disorderly Conduct in a 
+Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D); Parading, Demonstrating, or Picketing 
+in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G) ; False Statement or Representation 
+to an Agency of the United States, in violations of 18 U .S.C. § 1001(a)(2); and Aiding and Abetting, 
+in violation of 18 U.S.C. § 2.  
+The defendant  now moves for a change of venue.  ECF No.  84.  He contends that prej udice 
+should be presumed in this district for two  reasons , under Federal Rule of Criminal Procedure 2 : 
+prejudice and  convenience. Id. at 2. Each of the defendant’s  arguments is without merit, and the  
+motion should be denied. 
+ARGUMENT  
+The Constitution provides that “[t]he trial of all Crimes . . . shall be held in the State where 
+the said Crimes shall have been committed .”  U.S. Const. Art. III, § 2, cl. 3.  The Sixth Amendment 
+similarly guarantees the right to be tried “by an impartial jury of the State and district wherein the crime shall have been committed .”  U.S. Const. amend. VI.  These provisions provide “a safeguard 
+against the unfairness and hardship involved when an accused is prosecuted in a remote place.” United States v. Cores , 356 U.S. 405, 407 (1958).  Transfer to another venue is constitutionally 
+required only where “extraordinary l ocal prejudice will prevent a fair trial.”  Skilling v. United 
+States , 561 U.S. 358, 378 (2010); see Fed. R. Crim. P. 21(a)  (requiring transfer to another district 
+if “so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there”).  
+The primary safeguard of the right to an impartial jury is “an adequate voir dire to identify 
+unqualified jurors.”  Morgan v. Illinois , 504 U.S. 719, 729 (1992)  (italics omitted) .  Thus, the best 
+course when faced with a pretrial publicity claim is ordinarily “to proceed to voir dire to ascertain Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 4 of 175 whether the prospect ive jurors have, in fact, been influenced by pretrial publicity.”  United States 
+v. Campa, 459 F.3d 1121, 1146 (11th Cir. 2006) (en banc) .  “[I]f an impartial jury actually cannot 
+be selected, that fact should become evident at the voir dire.”  United Stat es v. Haldeman, 559 F.2d 
+31, 63 (D.C. Cir. 1976) (en banc) (per curiam).  And, after voir dire, “it may be found that, despite 
+earlier prognostications, removal of the trial is unnecessary.”  Jones  v. Gasch , 404 F.2d 1231, 1238  
+(D.C. Cir. 1967) . 
+I. The Venue is not Prejudicial   
+ 
+a. Size and characteristics of the community  
+The defendant suggests that an impartial jury cannot be found in Washington, D.C., despite 
+the District’s population of nearly 700,000. See No. ECF 84 at 4.  Although this District may be 
+smaller than most other federal judicial districts, it has a larger population than two states (Wyoming and Vermont ).  The relevant question is not whether the  District of Columbia is as 
+populous as the Southern District of Texas in Skilling , but whether it is large enough that an 
+impartial jury can be found.  In Mu’Min v. Virginia, 500 U.S. 415, 429 (1991), the Court cited a county population of 182,537 as supporting the view than an impartial jury could be selected.  And Skilling  approvingly cited a state case in which there was “a reduced likelihood of prejudice” 
+because the “venire was drawn from a pool of over 600,000 individuals.”  Skilling , 561 U.S. at 382  
+(quoting Gentile v. State Bar of Nev. , 501 U.S. 1030, 1044 (1991)).  There is simply no reason to 
+believe that, out of an eligible jury pool of nearly half a million, “12 impartial individuals could not be empaneled.”   Id.    
+ Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 5 of 176 b. The Pretrial Publicity Does Not Support a Presumption of Prejudice in This 
+District.  
+i. The Pretrial Publicity Related to January 6 Does Not Support a Presumption of Prejudice in This District.  
+ 
+ 
+The defendant contends that a change of venue is warranted  based on pretrial publicity in 
+relation to both January 6 and Sullivan himself .  E.C.F. No. 84 at 4).  “The mere existence of intense 
+pretrial publicity is not enough to make a trial unfair, nor is the fact that potential jurors have been 
+exposed to this publicity. ”  United States v. Childress , 58 F.3d 693, 706 (D.C. Cir. 1995) ; see 
+Murphy v. Florida, 421 U.S. 794, 799 (1975) (juror exposure to “news accounts of the crime with which [a defendant] is charged” does not “alone presumptively deprive[] the defendant of due process”).  Indeed, “ every case of public interest is almost, as a matter of necessi ty, brought to the 
+attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits.”  Reynolds v. United States , 98 U.S. 145, 155- 56 (1878).   
+Thus, the “mere existence of any preconceived notion as to the guilt or innocence of an accused, without more,” is insufficient to establish prejudice.  Irvin v. Dowd, 366 U.S. 717, 723 (1961) .  “It 
+is sufficient if the  juror can lay aside his impression or opinion and render a verdict based on the 
+evidence presented in court.”  Id.   
+The Supreme Court has recognized only a narrow category of cases in which prejudice is 
+presumed to exist without regard to prospective jurors’ answers during voir dire.  See Rideau v. 
+Louisiana, 373 U.S. 723 (1963) .   In Rideau, the defendant’s confession—obtained while he was 
+in jail and without an attorney present —was broadcast three times shortly before trial on a local 
+television station to audiences ranging from 24,000 to 53,000 individuals in a parish of 
+approximately 150,000 people.  Id. at 724 (majority opinion), 728- 29 (Clark, J., dissenting).  The Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 6 of 177 Court concluded that , “to the tens of thousands of people who saw and heard it,” the televised 
+confession “in a very real sense was Rideau’s trial —at which he pleaded guilty to murder.”  
+Rideau, 373 U.S. at 726.  Thus, the Court “d[id] not hesitate to hold, without pausing to examine 
+a particularized transcript of the voir dire,” that these “kangaroo court proceedings” violated due 
+process.  Id. at 726- 27. 
+Since Rideau, the Supreme Court has emphasized that a “presumption of prejudice . . . 
+attends only the extreme case,” Skil ling, 561 U.S. at 381, and the Court has repeatedly “held in 
+other cases that trials have been fair in spite of widespread publicity,” Nebraska Press Ass’ n v. 
+Stuart , 427 U.S. 539, 554 (1976).  In the half century since Rideau, the Supreme Court has never 
+presumed prejudice based on pretrial publicity.  But see Estes v. Texas , 381 U.S. 532 (1965)  
+(presuming prejudice based on media interference with courtroom proceedings) ; Sheppard v. 
+Maxwell , 384 U.S. 333 (1966)  (same).  In fact, courts have declined to transfer venue in some of 
+the most high- profile prosecutions in recent American history.  See  In re Tsarnaev , 780 F.3d 14, 
+15 (1st Cir. 2015) (per curiam) (capital prosecution of Boston Marathon bomber); Skilling , 561 
+U.S. at 399 (f raud trial of CEO of Enron Corporation); United States v. Yousef , 327 F.3d 56, 155 
+(2d Cir. 2003) (trial of participant in 1993 World Trade Center bombing); United States v. Moussaoui , 43 F. App’x 612, 613 (4th Cir. 2002)  (per curiam) (unpublished) (terrorism 
+prosecution for conspirator in September 11, 2001 attacks); Haldeman, 559 F.2d at 70 (Watergate 
+prosecution of former Attorney General John Mitchell and other Nixon aides).  
+In Skilling , the Supreme Court considered several factors in determining that prejudice 
+should not be presumed where former Enron executive Jeffrey Skilling was tried in Houston, 
+where Enron was based.  Skilling , 561 U.S. at 382 -83.  First, the Court considered the “size and 
+characteristics of the community.”  Id.  at 382.  U nlike Rid eau, where the murder “was committed Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 7 of 178 in a parish of only 150,000 residents,” Houston was home to more than 4.5 million people eligible 
+for jury service.  Id. at 382.  Second, “although news stories about Skilling were not kind, they 
+contained no confession or other blatantly prejudicial information of the type readers or viewers 
+could not reasonably be expected to shut from sight.”   Id.  Third, “over four years elapsed between 
+Enron’s bankruptcy and Skilling’s trial,” and “the decibel level of media attenti on diminished 
+somewhat in the years following Enron’s collapse.”  Id. at 383.  “Finally, and of prime significance, 
+Skilling’s jury acquitted him of nine insider -trading counts,” which undermined any “supposition 
+of juror bias.”   Id.   
+Although these Skilling  factors are not exhaustive, courts have found them useful when 
+considering claims of presumptive prejudice based on pretrial publicity.  See, e.g.,  In re Tsarnaev , 
+780 F.3d at 21- 22; United States v. Petters , 663 F.3d 375, 385 (8th Cir. 2011).  And contrary to 
+the defendant’s contention, those factors do not support a presumption of prejudice in this case.   
+ii. The Pretrial Publicity Related to Sullivan  Does Not Support a 
+Presumption of Prejudice in This District.  
+The defendant also asserts that a fair trial cannot be had in D.C. because of news coverage 
+about  himself .  ECF No. 84 at 5.   But even “massive” news coverage of a crime does not require 
+prejudice to be presumed.  Haldeman, 559 F.2d at 61.  Sullivan has not pointed to any s alacious 
+new coverage about himself, or any specific news coverage for that matter .  Unlike most cases 
+involving pretrial publicity,  where the news coverage focuses on the responsibility of a single 
+defendant (as in Rideau  or Tsarnaev ) or small number of c o-defendants (as in Skilling  and 
+Haldeman) , the events of January 6 involved thousands of participants and have so far resulted in 
+charges against more than 900 people.  The Court can guard against any spillover prejudice from 
+the broader coverage of Janua ry 6 by conducting a careful voir dire and properly instructing the 
+jury about the need to determine a defendant’s individual guilt.  Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 8 of 179 And, in any event, any threat of such spillover prejudice is not limited to Washington, D.C. 
+because much of the news cover age of January 6 has been national in scope.  See Haldeman , 559 
+F.2d at  64 n.43 (observing that “a change of venue would have been of only doubtful value” where 
+much of the news coverage was “national in [its] reach” and the crime was of national interest) ; 
+United States v. Bochene , No. 21- cr-418-RDM, 2022 WL 123893, at *3 (D.D.C. Jan. 12, 2022) 
+(“The fact that there has been ongoing media coverage of the breach of the Capitol and subsequent 
+prosecutions, both locally and nationally, means that the influenc e of that coverage would be 
+present wherever the trial is held.” (internal quotation marks omitted)) .  Thus, the nature and extent 
+of the pretrial publicity do not support a presumption of prejudice.  
+c. Passage of time before trial  
+ 
+In Skilling , the Court considered the fact that “over four years elapsed between Enron’s 
+bankruptcy and Skilling’s trial.”  Skilling , 561 U.S. at 383.  In this case, twenty -five months have 
+already elapsed since the events of January 6, and more time will elapse before trial.  T his is far 
+more than in Rideau, where the defendant’s trial came two months after his televised confession.  
+Rideau, 373 U.S. at 724.  Although January 6 continues to be in the news, the “decibel level of media attention [has] diminished somewhat,” Skillin g, 561 U.S. at 383.  Moreover, only a 
+relatively small percentage of the recent stories have mentioned Sullivan, and much of the reporting has been national is scope, rather than limited to Washington, D.C.  
+d. The jury verdict  
+Because Sullivan  has not yet gone to trial, the final Skilling factor —whether the “jury’s 
+verdict . . . undermine[s] in any way the supposition of juror bias,” Skilling , 561 U.S. at 383—does 
+not directly apply.  But the fact that Skilling considered this factor to be “of prime significance,” 
+id., underscores how unusual it is to presume prejudice before trial.  Ordinarily, a case should Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 9 of 1710 proceed to trial in the district where the crime was committed, and courts can examine after trial 
+whether the record supports a finding of actual or presumed prejudice.   In short, none of the Skilling 
+factors support s the defendant’s contention that the Court should presume prejudice and order a 
+transfer of venue without even conducting voir dire.  
+The defendant  suggests that this factor ac tually supports  his claim of prejudice because the 
+other jury trials involving January 6 defendants have resulted in prompt and (until recently) unanimous guilty verdicts .  ECF No. 84 at 5- 6. But although the Skilling  indicated that a split 
+verdict could “undermine” a presumption of prejudice, it never suggested that a unanimous verdict —particularly a unanimous verdict in a separate case involving a different defendant —was 
+enough to establish prejudice.  The prompt and unanimous guilty verdi cts in other January 6 jury 
+trials resulted from the strength of the government’s evidence.  Moreover, juries in two  recent 
+January 6 trial s have either been unable to reach a verdict  on certain counts , see United States v. 
+Williams , No. 21-cr-618 ( D.D.C. ), or have acquitted on some  counts, see United States v. Rhodes, 
+et al. , No. 22- cr-15, ECF No. 410 (D.D.C. Nov. 29, 2022) .  This indicates that D.C. jurors are 
+carefully weighing the evidence and not reflexively convicting January 6 defendants on all 
+charges.  And, as explained below, the jury selection in those cases actually indicates that impartial 
+juries can be selected in this district.  
+II. A Change of Venue Is Not Warranted Under Federal Rule of Criminal Procedure 
+21(b) Based on Convenience or the Interest of Justice.  
+ 
+The defendant argue s (ECF No. 84 at 3 and 7 ) that this Court should transfer venue to the 
+District of Utah  under Rule 21(b), which allows transfer to another district “for the convenience 
+of the parties, any victim, and the witnesses, and in the interest of justice.”  Fed. R. Crim. P. 21(b).  
+The defendant  asserts that a change in venue is necessary because he and his witnesses live in Utah 
+and one of the numerous charges arose out of conduct in Utah. ECF No.  84 at 7.  These arguments Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 10 of 1711 do not support a transfer of venue under Rule 21(b).    
+“There is a general presumption that a criminal prosecution should be retained in the 
+original district.” United States v. Bowdoin, 770 F. Supp. 2d 133, 138 (D.D.C. 2011) (quoting 
+United States v. Baltimore & Ohio R.R., 538 F. Supp. 200, 205 (D.D.C. 1982) ).  That presumption 
+is rooted in the Constitution, which states that “[t]he trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed.”  U.S. Const. Art. III, § 2, cl. 3.  And it is reflected in the Federal Rules of Criminal Procedure, which state that, “[u]nless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense 
+was committed.”  Fed. R. Crim. P. 18.  To obtain a change of venue under Rule 21(b), a defendant must demonstrate that trial in the district where the crime occurred  “would be so unduly 
+burdensome that fairness requires the transfer to another district of proper venue where a trial would be less burdensome.”  Bowdoin, 770 F. Supp. 2d at 138 (quotations marks omitted).   Factors 
+a court considering a motion to transfer venue are:  
+(1) location of the defendant; (2) location of possible witnesses; (3) location of 
+events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of the defendant’s business; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district of division involved; and (10) any other special elements w hich 
+might affect the transfer.  
+ 
+Id. at 137- 38.   Those factors strongly support keeping the prosecution in this District.  The events 
+at issue took place in the District of Columbia, and the witnesses and evidence are in this District.  
+Holding a trial in  the District of Utah would require a significant expenditure of government funds 
+for the prosecution team and witnesses to travel to that district.   
+Moreover, none of the defendant’s  reasons for transfer under Rule 21(b) support s an 
+interest of justice transfer.  A trial in the District of Utah would undoubtedly be more convenient 
+for the defendant .  But that fact alone is not sufficient to justify transfer, particularly considering Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 11 of 1712 that the defendant  chose to travel to Washington, D.C. to commit his  crimes at the U.S. Capitol.  [  
+The defendant’s claim that venue should be transferred under Rule 21(b) because the 
+District of Utah  would provide him with a fairer jury pool , (ECF No. 84 at 3- 7) is similar ly 
+unavailing.  As explained above, the defendant cannot obtain a change of venue based on 
+prejudicial publicity under the constitutional standard or Rule 21(a).  And the defendant cannot use Rule 21(b)’s “interest of justice” standard as an alternative way to raise a claim of “local 
+community prejudice.”  Jones v. Gasch, 404 F.2d 1231, 1238 (D.C. Cir. 1967) .  In Jones , the D.C. 
+Circuit denied a petition for mandamus which challenged the presiding judge’s denial of his 
+motion to transfer under Rule 21(b) based on a claim of prejudicial publicity.  Id.  at 1234, 1238-
+39.  T he court of a ppeals held “that the standard of Rule 21(a) is the exclusive gauge by which 
+circumstances of that character (prejudice) are to be measured.”  Id.  at 1239.  The defendant has 
+failed to establish that he  cannot receive a fair trial in this District, and the defendant  has failed to 
+articulate a basis for transfer under Rule 21(b).  
+III. The January 6- Related Jury Trials That Have Already Occurred Have 
+Demonstrated the Availability of a Significant Number of Fair, Impartial Jurors 
+in the D.C. Venire.  
+ 
+At this point, more than a dozen  January 6 cases have proceeded to jury trials, and the 
+Court in each of those cases has been able to select a jury without  undue expenditure of time or 
+effort .  See Murphy, 421 U.S. at 802- 03 (“The length to which the trial court must go to select 
+jurors who appear to be impartial is another factor relevant in evaluating those jurors’ assurances 
+of impartiality.”); Haldeman, 559 F.2d at  63 (observing that “i f an impartial jury actually cannot 
+be selected, that fact should become evident at the voir dire ”).  Instead, the judges presiding over 
+nearly all of those trials were able to select a jury in one or two days.  See  United States v. Reffitt, 
+No. 21-cr-32, Minute Entries ( Feb. 28 & Mar. 1, 2022) ; United States v. Robertson, No. 21-cr-34, Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 12 of 1713 Minute Entry ( Apr. 5, 2022) ; United States v. Thompson, No. 21- cr-161, Minute Entry (Apr. 11, 
+2022); United States v. Webster , No. 21- cr-208, Minute Entry (Apr. 25, 2022); United States v. 
+Hale -Cusanelli , No. 21-cr-37, Minute Entry (May 23, 2022) ; United States v. Anthony Williams , 
+No. 21-cr-377, Minute Entry (June 27, 2022) ; United States v. Bledsoe , No. 21- cr-204, Minute 
+Entry (July 18, 2022); United States v. Herrera , No. 21- cr-619, Minute Entry (D.D.C. August 15, 
+2022) ; United States v. Jensen, No. 21-cr-6, Minute Entries (Sep. 19 &  20, 2022) ; United States v. 
+Strand, No. 21- 85, Minute Entry (D.D.C. Sep. 20, 2022);  United States v. Alford , No. 21- cr-263, 
+Minute Entry (Sep. 29, 2022);  United States v. Riley Williams , No. 21- cr-618, Minute Entries 
+(D.D .C. Nov. 7 &  8, 2022) ; United States v. Schwartz , No. 21- cr-178, Minute Entries (D.D.C. 
+Nov. 22 & 29, 2022); United States v. Gillespie  No. 22- cr-60, Minute Entry ( D.D.C. Dec. 19, 
+2022) ; United States v. Barnett , 21-cr-38, Minute Entries (D.D.C. Jan. 9 & 10, 2023);  United States 
+v. Sheppard, No. 21- cr-203, Minute Entries (D.D.C. Jan. 20 & 23, 2023); United States v. 
+Eckerman , No. 21- CR-623, Minute Entry (D.D.C. Jan. 23, 2023) . The only exceptions  have trials  
+involving seditious conspiracy charges.  See Uni ted States v. Rhodes, et al., No. 22- cr-15, Minute 
+Entries (Sept. 27, 28, 29; Dec. 6, 7, 8, 9, 2022).   And, using the first five jury trials as exemplars, 
+the voir dire that took place undermines the defendant’s claim that prejudice should be presumed.  
+In Reffitt, the Court individually examined 56 prospective jurors and qualified 38 of them 
+(about 68% of those examined).  See Reffitt, No. 21- cr-32, ECF No. 136 at 121.  The Court asked 
+all the prospective jurors whether they had “an opinion about Mr. Reffi tt’s guilt or innocence in 
+this case” and whether they had any “strong feelings or opinions” about the events of January 6 or 
+any political beliefs that it would make it difficult to be a “fair and impartial” juror.  Reffitt, No. 
+21-cr-32, ECF No. 133 at 23, 30. The Court then followed up during individual voir dire.  Of the 
+18 jurors that were struck for cause, only nine  (or 16% of the 56 people examined) indicated that Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 13 of 1714 they had such strong feelings about the events of January 6 that they could not serve as fair or 
+impartial jurors.2 
+In Thompson, the Court individually examined 34 prospective jurors, and qualified 25 of 
+them (or 73%).  See Thompson, No. 21- cr-161, ECF No. 106 at 170, 172, 181, 190, 193.  The court 
+asked the entire venire 47 standard  questions, and then followed up on their affirmative answers 
+during individual voir dire.  Id.  at 4-5, 35.  Of the nine prospective jurors struck for cause, only 
+three (or about 9% of those examined) were stricken based on an inability to be impartial, as  
+opposed to some other cause.3   
+Similarly, in Robertson, the Court individually examined 49 prospective jurors and 
+qualified 34 of them (or about 69% of those examined).  See Robertson, No. 21- cr-34, ECF No. 
+106 at 73.  The Court asked all prospective jurors whether they had “such strong feelings” about the events of January 6 that it would be “difficult” to follow the court’s instructions “and render a fair and impartial verdict.”  Robertson, No. 21- cr-34, ECF No. 104 at 14.  It asked whether 
+anything about the allegations in that case would prevent prospective jurors from “being neutral and fair” and whether their political views would affect their ability to be “fair and impartial.”  Id.  
+ 
+2 For those struck based on a professed inability to be impartial, see Reffitt, No. 21- cr-32, 
+ECF No. 133 at 49- 54 (Juror 328), 61- 68 (Juror 1541), 112- 29 (Juror 1046); ECF No. 134 at 41 -
+42 (Juror 443), 43- 47 (Juror 45), 71- 78 (Juror 1747), 93- 104 (Juror 432), 132- 43 (Juror 514); ECF 
+No. 135 at 80- 91 (Juror 1484).  For those struck for other reasons, see Reffitt, No. 21- cr-32, ECF 
+No. 134 at 35- 41 (Juror 313, worked at Library of Congress); ECF No. 134 at 78- 93 and ECF No. 
+135 at 3 (Juror 728, moved out of D.C.); ECF No. 135 at 6- 8 (Juror 1650, over 70 and declined to 
+serve), 62 -73 (Juror 548, unavailability), 100- 104 (Juror 715, anxiety and views on guns ), 120 
+(Juror 548, medical appointments); ECF No. 136 at 41- 43 (Juror 1240, health hardship), 53- 65 
+(Juror 464, worked at Library of Congress), 65- 86 (Juror 1054, prior knowledge of f acts).  
+ 
+3 For the three stricken for bias, see Thompson, No. 21- cr-161, ECF No. 106 at 51- 53 (Juror 
+1242), 85- 86 (Juror 328), 158- 59 (Juror 999).  For the six stricken for hardship or inability to focus, 
+see Thompson, No. 21- cr-161, ECF No. 106 at 44 (Juror 1513), 45 (Juror 1267), 49- 50 (Juror 503), 
+50-51 (Juror 1290), 86 -93 (Juror 229), 109- 10 (Juror 1266).  
+  Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 14 of 1715 at 13, 15.  The Court followed up on affirmative answers to those questions during individual voir 
+dire.  Of  the 15 prospective jurors struck for cause, only nine (or 18% of the 49 people examined) 
+indicated that they had such strong feelings about the January 6 events that they could not be  fair 
+or impartial.4   
+In Webster , the Court individually examined 53 jurors and qualified 35 of them (or 66%),  
+Webster , No. 21- cr-208, ECF No. 115 at  6, though it later excused one of those 35 based on 
+hardship, Webster , No. 21- cr-208, ECF No. 114 at 217- 18.  The Court asked all prospective jurors 
+whether they had “strong feelings” about the events of January 6 or about the former President that 
+would “make it difficult for [the prospective juror] to serve as a fair and impartial juror in this case.”  We bster , No. 21- cr-208, ECF No. 113 at 19.  During individual voir dire, t he Court followed 
+up on affirmative answers to clarify whether prospective jurors could set aside their feelings and 
+decide the case fairly .  See, e.g., id. at 32 -33, 41- 42, 54- 56, 63, 65-66.  Only 10 out of 53 
+prospective jurors (or about 19%) were stricken based on a professed or imputed inability to be impartial, as opposed to some other reason.
+5  The Webster Court observed that this number “was 
+ 
+4 For those struck based on a professed inability to be impartial, see Robertson, No. 21- cr-
+34, ECF No. 104 at 26- 34 (Juror 1431), 97- 100 (Juror 1567); ECF No. 105 at 20- 29 (Juror 936), 
+35-41 (Juror 799), 59- 70 (Juror 696), 88- 92 (Juror 429); ECF No. 106 at 27- 36 (Juror 1010), 36-
+39 (Juror 585), 58- 63 (Juror 1160).  For those struck f or other reasons, see Robertson, No. 21- cr-
+34, ECF No. 104 at 23- 26 (Juror 1566, hardship related to care for elderly sisters), 83- 84 (Juror 
+1027, moved out of D.C.); ECF No. 105 at 55- 59 (Juror 1122, language concerns), 92- 94 (Juror 
+505, work hardship); E CF No. 106 at 16- 21 (Juror 474, work trip); 50- 53 (Juror 846, preplanned 
+trip).  
+ 
+5 Nine of the 19 stricken jurors were excused based on hardship or a religious belief.  See 
+Webster , No. 21 -cr-208, ECF No. 113 at 46 (Juror 1464), 49- 50 (Juror 1132), 61 (Juror 1153), 68 
+(Juror 951), 78 (Juror 419); Webster , No. 21- cr-208, ECF No. 114 at 102- 04, 207, 217 (Juror 571), 
+188 (Juror 1114), 191 (Juror 176), 203- 04 (Juror 1262).  Of the ten other stricken jurors, three 
+professed an ability to be impartial but were nevertheless stricken based on a connection to the 
+events or to the U.S. Attorney’s Office.  See Webster , No. 21- cr-208, ECF No. 113 at 58 -60 (Juror 
+689 was a deputy chief of staff for a member of congress); Webster , No. 21- cr-208, ECF No. 114 Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 15 of 1716 actually relatively low” and therefor e “doesn’t bear out the concerns that were at root in the venue 
+transfer motion” in that case.  Webster , No. 21- cr-208, ECF No. 115 at 7.  
+In Hale -Cusanelli , the Court individually examined 47 prospective jurors and qualified 32 
+of them (or 68%).  Hale -Cusanelli, No. 21- cr-37, ECF No. 91 at 106, 111.  The Court asked 
+prospective jurors questions similar to those asked in the other trials.  See  Hale -Cusanelli , No. 21-
+cr-37, ECF No. 90 at 72- 74 (Questions 16, 20).  Of the 15 prospective jurors struck for cause, 11 
+(or 23% of those examined) were stricken based on a connection to the events of January 6 or a 
+professed inability to be impartial.6 
+In these first five jury trials, the percentage of prospective jurors stricken for cause based 
+on partiality is far lower than in Irvin , where the Supreme Court said that “statement[s] of 
+impartiality” by some prospective jurors could be given “little weight” based on the number of other prospective jurors who “admitted prejudice.”  Irvin , 366 U.S. at 728.  In Irvin , 268 of 430 
+prospective jurors ( or 62%) were stricken for cause based on “fixed opinions as to the guilt of 
+petitioner. ”  Id.  at 727.  The percentage of parti ality-based strikes in these first five January 6-
+related jury trials —between 9% and 23% of those examined—is far lower than the 62% in Irvin .  
+The percentage in these cases is lower  even than in Murphy , where 20 of 78 prospective jurors 
+(25%) were “excuse d because they indicated an opinion as to petitioner’s guilt .”  Murphy , 421 
+U.S. at 803.  Murphy said that this percentage “by no means suggests a community with sentiment 
+so poisoned against petitioner as to impeach the indifference of jurors who displaye d no animus 
+ 
+at 139- 41 (Juror 625’s former mother- in-law was a member of congress); 196 -98 (Juror 780 was 
+a former Assistant U.S. Attorney in D.C.).  
+ 
+6 See Hale -Cusanelli , No. 21- cr-37, ECF No. 90 at 61- 62 (Juror 499), 67- 68 (Juror 872), 
+84-85 (Juror 206), 91- 94 (Juror 653); ECF No. 91 at 2- 5 (Juror 1129), 32 (Juror 182), 36 (Juror 
+176), 61- 62 (Juror 890), 75- 78 (Juror 870), 94- 97 (Juror 1111), 97- 104 (Juror 1412).  For the four 
+jurors excused for hardship, see Hale -Cusanelli , No. 21- cr-37, ECF No. 90 at 77 -79 (Juror 1524), 
+99 (Juror 1094); ECF No. 91 at 12 (Juror 1014), 31 (Juror 899).  Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 16 of 1717 of their own.”  Id.   As in Murphy , the number of prospective jurors indicating bias does not call 
+into question the qualifications of others whose statements of impartiality the Court has credited. 
+Far from showing that “an impartial jury actua lly cannot be selected,” Haldeman, 559 F.2d 
+at 63, the first five January 6- related jury trials have confirmed  that voir dire can adequately screen 
+out prospective jurors who cannot be fair and impartial , while leaving more than sufficient 
+qualified jurors to hear the case.   The Court should deny the defendant’s request for a venue 
+transfer and should instead rely on a thorough voir dire to protect the defendant’s right to an 
+impartial jury.  
+CONCLUSION 
+ For the foregoing reasons, the defendant’s motion to transfer venue should be denied. 
+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 St. N.W, Washington, DC 20530 
+Tel. No. (202) 252- 7012  
+Email: rebekah.lederer@usdoj.gov  Case 1:21-cr-00078-RCL   Document 86   Filed 02/21/23   Page 17 of 17

03-23-21 - NOTICE OF DISCOVERY by USA as to JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,83 @@
+U.S. Department of Justice  
+C
+hanning D. Phillips 
+Acting United States Attorney  
+D
+istrict of Columbia  
+Judiciary Center  
+555 Fourth St., N.W.  
+Washington, D.C.  20530
+M arch 23, 2021 
+Via Email  
+Steven K iersh 
+Counsel for John Earle Sullivan 
+5335 Wisconsin Avenue, N.W., Suite 440 
+Washington, D.C. 20015 
+skiersh@aol.com 
+R
+e: United States v. John Earle Sullivan 
+Case No.  1:21- cr-00078- EGS  
+D
+ear Counsel:  
+T
+he enclosed memorializes the provision of the following preliminary discovery in this 
+case, via filesharing (unl ess otherwise indicated ): 
+1. I
+ndictment (emailed on 2/3/2021)
+2. Signed Complaint (emailed on 2/18/2021)3. Signed Affidavit Supporting Complaint (emailed on 2/18/2021)4. 302 from Defendant’ s Interview 1/7 (emailed on 2/18/2021)
+5. 302 from  Defendant ’s Interview 1/9 (emailed on 2/18/2021)
+6. Signed Redacted Complaint7. Signed Arrest Warrant, and Arrest Warrant Return8. 9 Screenshots of Defendant from Affidavit9.Criminal History  Report
+10.Vide o of Defendant’ s Interview  1/11
+11. Videos Provided by Defendant 1/11 (10 files )
+12. CenturyLink Subpoena Production (2 files)13. Beehive Broadband Subpoena Production (2 fil es)
+14.Defendant ’s Molotov Cocktail Video  and Jayden X screen shot
+15.Defendant ’s Insurgence USA Instagram post “ How to Take Down A
+Monument”
+16.Defendant ’s Periscope video  “Let’s Explore DC ”
+17.Defendant ’s Facebook post “ Let’s start a riot”
+Case 1:21-cr-00078-EGS   Document 18-1   Filed 03/23/21   Page 1 of 32 
+ 18. Defendant ’s Facebook post “ Insurgence Defense Fund”  
+19. Defendant ’s Youtube videos  (7 files ) 
+20. Defendant ’s Youtube screenshots  (11 files)  
+21. Defendant ’s Twitter videos  (9 files ) 
+22. Defendant ’s Tweets  (6 posts)  
+23. Open -Source Videos (10 files, zipped)  
+24. Open -Source Articles  (5 files)  
+25. Vide o of Defendant ’s Infowars Interview  
+ 
+ Due to the extraordinary nature of the January 6, 2021 Capitol Attack , the government 
+anticipates that a large volume of materials may contain information  relevant to this prosecution.  
+These materials may include , but are not limited to,  surveillance video, statements of similarly 
+situated defendants, forensic searches of electronic devices and social media accounts of 
+similarly situated defendants, and  citizen tips .   The government is working to develop a system 
+that will facilitate access to these materia ls.  In the meantime, p lease let me know if there are any 
+categories of information  that you believe are particularly relevant to your client. 
+  The discovery is unencrypted .  Please contact me if you have any issues accessing the 
+information, and to confer regarding pretrial discovery as provided in Fed. R. Crim. P. 16.1.  
+  Additional materials will be provided after the entry of a Protective Order in this case.  
+ 
+I recognize the government’s discovery obligations under Brady v. Maryland, 373 U.S. 
+83 (1963), its progeny, and Rule 16.  I will provide timely disclosure if any such material comes to light.  Consistent with Giglio , Ruiz , and  18 U .S.C. § 3500, I  will provide information about 
+government witnesses prior to trial and in compliance with the court’s tr ial management order.     
+ I request reciprocal discovery to the fullest extent provided by Rule 16 of the Federal 
+Rules of Criminal Procedure, including results or reports of any physical or mental examinations, or scientific tests or experiments, and any expert witness summaries.  I also request that defendant(s) disclose prior statements of any witnesses defendant(s) intends to call to testify at any hearing or trial.  See Fed. R. Crim. P. 26.2; United States v. Nobles , 422 U.S. 255 (1975).  I 
+request th at such material be provided on the same basis upon which the government will 
+provide defendant(s) with materials relating to government witnesses.  
+  
+ Additionally, pursuant to Federal Rules of Criminal Procedure 12.1, 12.2, and 12.3, I 
+request that defen dant(s) provide the government with the appropriate written notice if 
+defendant(s) plans to use one of the defenses referenced in those rules.  Please provide any notice within the time period required by the Rules or allowed by the Court for the filing of  any pretrial 
+motions.  
+  I will forward additional discovery as it becomes available.  If you have any questions,  
+  Case 1:21-cr-00078-EGS   Document 18-1   Filed 03/23/21   Page 2 of 33 
+ please feel free to contact me.  
+  
+ Sincerely,  
+ 
+   
+    _______________________ 
+ Candice C. Wong 
+ Assistant United States Attorney  
+ 202-252-7849 
+ Candice.wong@usdoj.gov 
+Case 1:21-cr-00078-EGS   Document 18-1   Filed 03/23/21   Page 3 of 3

03-26-21 - UNITED STATES’ UNOPPOSED MOTION TO Exlude Time Under Speedy Trial Act JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,191 @@
+UNITED STATES DISTRICT COURT  
+FOR THE DISTRICT OF COLUMBIA 
+UNIT
+ED STATES OF AMERICA  : 
+: 
+v. : Criminal No. 1:21-CR-00078-E GS 
+:
+ 
+JOHN EARLE SULLIVAN, : 
+: 
+Defendant.  : 
+UNITED STATES’ UNOPPOSED  MOTION TO  
+EXCLUDE TIME  UNDER THE SPEEDY TRIAL ACT  
+The parties are scheduled to appear before the Court for a status hearing in  the above -
+captioned proceeding on March 30, 2021.  The United States of America an ticipates proceeding 
+with the scheduled status hearing, requesting that this Court set the next status date 
+approximately  60 days out , and further moving  to exclude the time within which the trial must 
+commence under the Speedy Trial Act, 18 U.S.C. § 3161 et  seq., on the basis that the ends of 
+justice served by taking such actions  outweigh the best interest of the public and the defendant in 
+a speedy trial  pursuant to the factors described in 18 U.S.C. §  3161(h) (7)(A), (B)(i), (ii), a nd (iv). 
+In support of its unopposed motion, the government s tates as follows:  
+FACTUAL B ACKGROUND 
+Defendant is charged via indictment with offenses related to crimes that occurred at the 
+United States Capitol on January 6, 2021.   In brief, on that date, as a Joint Session of the United 
+S
+tates House of Representatives and the United States Senate convened to certify the vote of the 
+Elector al College of the 2020 U.S. Presidential Election, members of a large crowd that had 
+gathered outside forced entry into the U.S. Capitol, including by breaking windows  and by 
+assaulting members of law enforcement , as others in the crowd encouraged and ass is ted those acts.   
+Scores of individuals entered the U.S. Capitol without authority to be there.   As a result, the J oint Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 1 of 92 
+ Session and the entire official proceeding of the Congress  was halted until the Capitol Police, the 
+Metropolitan Police Department, and other law enforcement agencies from the city and 
+surrounding region were able to clear the Capitol of hundreds of unlawful occupants and ensure 
+the safety of elected officials.  This event in its entirety is hereinafter referred to as the “Capitol 
+Attack. ” 
+The investigation and prosecution of the Capitol Attack will likely be  one of  the largest in 
+American history, both in terms of the number of defendants prosecuted and the nature and volume 
+of the evidence .  Over 300 individuals have been charged in connection with the Capitol Attack.  
+The investigation continues and the government expects that at least one  hundr ed additional 
+individuals  will be charged .  While most of the cases have been brought against individual 
+defendants, the government is also investigating conspiratorial activity that occurred prior to and 
+on January 6, 2021.  The spectrum of crimes charged  and under investigation in connection with 
+the Capitol Attack includes (but is not limited to) trespass, engaging in disruptive or violent conduct in the Capitol or on Capitol grounds, destruction of government property, theft of government property, assa ults on federal and local police officers, firearms offenses, civil disorder, 
+obstruction of an official proceeding, possession and use of destructive devices, and conspiracy.  
+Defendants charged and under investigation come from throughout the United States , and 
+a combined total of over 900 search  warrants have been executed in almost all fifty states and the 
+District of Columbia.  Multiple law enforcement agencies were involved in the response to the 
+Capitol Attack, which included officers and agents from U.S. Capitol Police, the District of Columbia Metropolitan Police Department, the Federal Bureau of Investigation, the Department of Homeland Security, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the United Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 2 of 93 
+ States Secret Service, t he United States Park Police, the Virginia State Police, the Arlington 
+County Police Department, the Prince William County Police Department, the Maryland State 
+Police, the Montgomery County Police Department, the Prince George’s County Police Department, and the New Jersey State Police.  Documents and evidence  accumulated in the 
+Capitol Attack investigation thus far include : (a) more than 15,000 hours of surveillance and body -
+worn camera footage from multiple law enforcement agencies ; (b) approximately 1,600 electronic 
+devices ; (c) the results of hundreds of searches of electronic communication providers ; (d) over 
+210,000 tips , of which a substantial portion include video, photo and social media ; and (e)  over 
+80,000 reports and 93,000 attachments related to  law enforcement interviews of suspects and 
+witnesses and other investigative steps .  As the Capitol Attack investigation is still on -going, the 
+number of defendants charged and the volume of  potentially discoverable materials  will only 
+continue to grow.  In short , even in cases involving a single defendant, the volume of discoverable 
+materials is likely to be significant.   
+The United States is aware of and takes seriously its obligations pursuant to Federal Rule 
+of Criminal Procedure 1 6 and Local Criminal Rule 5.1(a) , the provisions of Brady v. Maryland, 
+373 U.S. 83, 87 (1963), Giglio v. United States , 405 U.S. 150, 153- 54 (1972), and the Jencks Act, 
+18 U.S.C. § 3500.  Accordingly, t he government , in consultation with the Federal Public 
+Defender , is developing a comprehensive plan for handling, tracking, processing, review ing and 
+produc ing discovery across the Capitol Attack cases .  Under the plan, the discovery most directly  
+and immediately  related to pending charges in cases involving detained defendants will be 
+provided w ithin the next thirty to sixty days .  Cases that do not involve detained defendants will 
+follow thereafter.  Such productions  will also be supplemented on an on- going basis .  In the Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 3 of 94 
+ longer term, the plan will include a  system for storing, organizing, searching, producing and/or 
+making available voluminous  materials  such as those described above  in a manner that is workable 
+for both the government and hundreds of defendants.  This latter portion of the plan will require  
+more time  to develop and implement, including further consultation with the Federal Public 
+Defender . 
+Defendant  in this case is charged with  violations of  18 U.S.C. §§ 231(a)(3) & 2 ( any act to 
+obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the 
+lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects the performance of any federally protected fu nction) ; 18 U.S.C. §§ 1512(c)(2)  & 2 ( corruptly obstruct ing, influenc ing, or impeding  
+any official proceeding, or attempt ing to do so) ; 18 U.S.C. § 1752(a) (1) and (2) (knowingly 
+enter ing or remain ing in any restricted building or grounds without lawful aut hority, or knowingly, 
+and with intent to impede or disrupt the orderly conduct of Government business or official functions, engaging in disorderly or disruptive conduct ); and 40 U.S.C. § 5104(e)(2) (D) and (G) 
+(willfully and knowingly engag ing in disorderl y or disruptive conduct, at any place in the Grounds 
+or in any of the Capitol Buildings  with the intent to impede, disrupt, or disturb the orderly conduct 
+of a session of Congress or either House of Congress, or the orderly conduct in that building of any deliberations of either House of Congress ).  In this case, t he government has already provided 
+defense counsel with preliminary  discovery, including charging documents, screenshots of the 
+defendant from relevant video footage, 302s, a video of the defendant’s interview, videos provided by the def endant to the FBI, subpoena productions from some of the defendant’s digital accounts, 
+media interviews given by the defendant, open -source articles about the defendant, open- source Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 4 of 95 
+ video footage of events relating to the attack on the Speaker’s Lobby door way, law enforcement 
+database reports on the defendant, and numerous social media videos and postings from the 
+defendant’s accounts on Facebook, Instagram, Youtube, Twitter, and Periscope .   
+ARGUMENT  
+Pursuant to the Speedy Trial Act, an indictment charging an individual with the 
+commission of an offense generally must  be filed within thirty days from the date on which such 
+individual was arrested or served with a summons in connection with such charges. 18 U.S.C. §  
+3161( a).  Further, as a general matter, in  any case in which a plea of not guilty is entered, a  
+defendant charged in an information or indictment with the commission of an offense must  
+commence within seventy days from the filing date (and making public) of the information or indictment, or from t he date the defendant has appeared before a judicial officer of the court in 
+which such charge is pending, whichever date last occurs.  18 U.S.C. § 3161( c)(1).  
+Section 3161(h) of the Speedy Trial Act sets forth certain periods of delay which the  Court 
+must exclude from  the computation of time within which  a trial must commence .  As is relevant 
+to this motion for a continuance, pursuant to subsection (h)(7)(A), the Court must exclude:  
+Any period of delay resulting from a continuance granted by any judge on his own 
+motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.  
+ 
+18 U.S.C. § 3161( h)(7)(A).  This provision further requires the Court to set forth its reasons for 
+finding that that any ends -of-justice continuance is warranted.  Id.  Subsection (h)(7)(B) sets 
+forth a  non-exhaustive list factors  that the Court  must  consider in determining whether to grant an 
+ends-of-justice  continuance , including:  Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 5 of 96 
+ (i) Whether the failure to grant such a cont inuance in the proceeding would 
+be likely to make a continuation of such proceeding impossible, or result 
+in a miscarriage of justice.  
+ (ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the ex istence of novel 
+questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.  
+. . .  
+(iv) Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or woul d 
+deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.  
+ 
+18 U.S.C. § 3161(h)(7)(B) (i)(ii) and (iv).   Importantly, “[i]n setting forth th e statutory factors that 
+justify a continuance under subsection (h)(7), Congress twice recognized the importance of 
+adequate pretrial preparation time.” Bloate v. United States , 559 U.S. 196, 197 (2010) ( citing  
+§3161(h)(7)(B)(ii), (B)(iv)).  
+An interests of justice finding is within the discretion of the Court.  See, e.g., United States 
+v. Rojas -Contreras , 474 U.S. 231, 236 (1985); United States v. Hernandez , 862 F.2d 17, 24 n.3 
+(2d Cir. 1988). “The substantive b alancing underlying the decision to grant such a continuance is 
+entrusted to the district court’s sound discretion.” United States v. Rice , 746 F.3d 1074 (D.C. Cir. 
+2014). 
+In this case, an ends -of-justice continuance is warranted  under 18 U.S.C. § 3161(h)( 7)(A)  
+based on the factors described in 18 U.S.C. § 3161(h)(7)(B) (i)(ii) and (iv).  As described above, 
+the Capitol Attack  is likely the most complex  investigation  ever prosecuted by the Department of 
+Justice .  Developing a system for storing and searching, producing and/or making available Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 6 of 97 
+ voluminous materials accumulated across hundreds of investigations, and ensuring that such 
+system will be workable for both the government and defense, will take time.  Even after a system 
+generally agreeable to the gove rnment and the Federal Public Defender  is designed and 
+implemented , likely through the use of outside vendors, it will take time  to load, process , search 
+and review  discovery materials.  Further adding to production and review  times, certain sensitive 
+materials may require re daction or restrictions on dissemination, and other materials may need to  
+be filtered for potentially privileged information before they can be review ed by the prosecution.  
+The need for reasonable time to organize , produce, and review voluminous discovery is 
+among multiple  pretrial preparation grounds  that Courts of Appeals have routinely held sufficient 
+to grant continuances and exclude the time  under the Speedy Trial Act.  See, e.g., United States 
+v. Bikundi , 926 F.3d 761, 777- 78 (D.C. Cir. 2019)  (upholding ends -of-justice continuances totaling 
+18 months in two co- defendant  health care fraud and money laundering  conspiracy case, in part 
+because t he District Court found a need to “permit defense counsel and the government time to 
+both produce discovery and review discovery” ); United States v. Bell , 925 F.3d 362, 374 (7th Cir. 
+2019)  (upholding two- month ends -of-justice continuance in firearm possessi on case, over 
+defendant’s objection, where five days before trial a superseding indictment with four new counts was returned,  “1,000 pages of new discovery materials and eight hours of recordings” were 
+provided, and the government stated that “it needed more than five days to prepare to try [the 
+defendant] on the new counts”); United States v. Vernon, 593 F. App’ x 883, 886 (11th Cir. 2014)  
+(District court did not abuse its  broad discretion  in case involving conspiracy to commit wire and 
+mail fraud  by granting t wo ends-of-justice continuances  due to voluminous discovery); United 
+States v. Gordon, 710 F.3d 1124, 1157- 58 (10
+th Cir. 2013)  (upholding ends -of-justice continuance Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 7 of 98 
+ of ten months and twenty -four days in case involving violation of federal securities laws, where 
+discovery included  “documents detailing the hundreds financial transactions that formed the basis 
+for the charges” and “hundreds and thousands of documents that needs to be catalogued and 
+separated, so  that the parties could identify the relevant ones”)  (internal quotation marks omitted) ; 
+United States v. Lewis , 611 F.3d 1172, 1177- 78 (9th Cir. 2010)  (upholding ninety- day ends -of-
+justice continuance in case involving international conspiracy to smuggle pr otected wildlife into 
+the United States,  where defendant’s case was joined with several co -defendants, and there were 
+on-going investigations, voluminous discovery, a large number of counts, and potential witnesses 
+from other countries); United States v. O ’Connor , 656 F.3d 630, 640 (7th Cir. 2011)  (upholding 
+ends-of-justice continuances totaling five months and twenty days in wire fraud case that began 
+with eight charged defendants  and ended with a single defendant exercising the right to trial , based 
+on “the complexity of the case, the magnitude of the discovery, and the attorneys’ schedules”) .  
+In sum, due to the number of individuals currently charged across the Capitol Attack 
+investigation and the nature of those charges, the on- going investigation of  many  other individuals, 
+the volume and nature of potentially discover able materials, and the reasonable time necessary for 
+effective preparation  by all parties  taking into account the exercise of due diligence, t he failure to 
+grant such a continuance in this  proceeding would be likely to make a continuation of this  
+proceeding impossible, or result in a miscarriage of justice.  Accordingly, t he ends of justice 
+served by granting a request for a continuance outweigh the best interest of the public and the 
+defendant in a speedy trial.  
+Government counsel notified the defense of the f iling of this motion, and counsel  consents 
+to the motion.  Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 8 of 99 
+ WHEREFORE, the government respectfully requests that this Court  set a status hearing 
+approximately 60 days from the March 30, 2021 status hearing and grant the unopposed motion to 
+exclude the time – accounting for those approximately 60 days – within  which the trial must 
+commence under the Speedy Trial Act, 18 U.S.C. § 3161 et seq ., on the basis  that the ends of 
+justice served by taking such actions outweigh the best interest of the public and the defendant in 
+a speedy trial  pursuant to the factors described in 18 U.S.C. § 3161(h)(7)(A), (B) (i), (ii), a nd (iv).   
+Respectfully submitted,  
+CHANNING D. PHILLIPS  
+Acting United States Attorney  
+D.C. Bar No.  415793 
+ 
+ 
+ 
+By:                                  
+CANDICE C. WONG  
+Assistant United States Attorney  
+D.C. Bar No. 990903 555 Fourth Street, N.W., Room 4816 Washington, DC 20530 Candice.wong@usdoj.gov (202) 252-7849  
+Case 1:21-cr-00078-EGS   Document 21   Filed 03/26/21   Page 9 of 9

03-26-21 - UNOPPOSED MOTION FOR PROTECTIVE ORDER JOHN EARLE SULLIVAN.txt

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+UNI
+TED STATES DISTRICT COURT  
+FOR THE DISTRICT OF COLUMBIA 
+UNI
+TED STATES OF AMERICA   : 
+: 
+: v.     Crim No. 1:21- CR-00078-E GS 
+:
+ 
+JOHN EARLE SULLIVAN, : 
+: 
+Defendant.  : 
+UNOPPOSED MOTION FOR PROTECTIVE ORDER 
+T
+he United States of America hereby respectfully moves the Court for  the entry of a 
+protective order governing the production of discovery by the parties in the above -captioned case. 
+The United States and counsel for Defendant have reached an agreement as to the proposed 
+protective order. Therefore, the United States is authorized to represent to the Court that D efendant 
+does not oppose this motion or the entry of the attached protective order. 
+R
+espectfully submitted,  
+CHANNING D. PHILLIPS  
+Acting United States Attorney  
+D.C. Bar No. 415793
+By: 
+CANDICE C. WONG  
+Assistant United States Attorney  
+D.C. Bar No. 990903
+555 Fourth Street, N.W., Room 4816Washington, D C 20530
+Candice.wong@usdoj.gov(202) 252-7849
+Case 1:21-cr-00078-EGS   Document 20   Filed 03/26/21   Page 1 of 1

03-27-21 -TRANSCRIPT OF HEARING Before Robin M. Meriweather JOHN EARLE SULLIVAN.txt

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+ 1
+UNITED STATES DISTRICT  COURT
+FOR THE DISTRICT  OF COLUMBIA
+* * * * * * * * * * * * * * * * 
+UNITED STATES OF AMERICA, )Criminal  Action 
+)No. 2021-78 
+vs. ) 
+)
+JOHN EARLE SULLIVAN , )February  16, 2021 
+)4:01 p.m. 
+Defendant . )Washington , D.C.
+)
+* * * * * * * * * * * * * * * *
+TRANSCRIPT  OF HEARING
+BEFORE THE HONORABLE  ROBIN M. MERIWEATHER ,
+UNITED STATES DISTRICT  COURT MAGISTRATE  JUDGE 
+(Parties appearing  via videoconference  and telephonically ) 
+APPEARANCES :
+FOR THE UNITED STATES:  CANDICE WONG
+U.S. Attorney 's Office 
+for the District  of Columbia
+555 Fourth Street, NW
+Washington , DC 20530
+(202) 252-7849
+Email: candice.wong@usdoj.gov
+FOR THE DEFENDANT :  STEVEN ROY KIERSH
+5335 Wisconsin  Avenue, NW
+Suite 440
+Washington , DC 20015
+(202) 347-0200
+Email: skiersh@aol.com
+ALSO PRESENT: MASHARIA  HOLMAN, Pretrial  Officer 
+JOSHUA CAHOON, U.S. Probation
+Court Reporter : Elizabeth  Saint-Loth, RPR, FCRR
+Official  Court Reporter
+Proceedings  reported  by machine shorthand , transcript
+produced  by computer -aided transcription .Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 1 of 641
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+P R O C E E D I N G S
+THE COURT:  Okay.  I am ready.  
+THE DEPUTY:  Okay.   
+Criminal  Case No. 2021-78, the United States of 
+America versus John Earle Sullivan .  
+Candice Wong representing  the government ; 
+Steven Kiersh representing  the defendant .  Shay Holman is 
+the pretrial  services  officer.  The defendant  is 
+participating  by video.  This case is called for a hearing 
+to set conditions  of release.  
+Also, Your Honor, just to let you know, Josh 
+Cahoon is also connected  by video.  
+THE COURT:  Thank you.  
+I set this hearing to set release conditions  given 
+that I know we had some concerns  at the last hearing with 
+the proposed  conditions , specifically  with a proposal  to 
+adopt the conditions  that were set by the arresting  
+jurisdiction  which subjected  Mr. Sullivan  to an internet  
+monitoring  system supervised  by pretrial  services  in Utah 
+and -- pursuant  to which -- that court's release conditions  
+where, in fact, Mr. Sullivan  was banned from certain 
+websites  that discussed  the specific  nature which were not 
+set forth in the Court's release order but, instead, were 
+determined  by pretrial  based on its assessment  of sites that 
+potentially  posed some risks.  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 2 of 641
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+I invited the parties that -- if I were going to 
+be asked to invoke limits on use of websites , it would need 
+to be presented  directly  to me for me to resolve in the 
+release order; both for clarity of the record, because I 
+know that there were some extra steps involved  in trying to 
+review the revocation , but then, also, it was -- in my aim 
+to finish within the time limits we had, it was probably  not 
+explained  as fully on the record.  But, also, I wasn't aware 
+that he -- of the restrictions  of the potential  First 
+Amendment  implications ; and I wanted to make sure that 
+anything  that I did set was specifically  justified  by the 
+government  and, also, appropriately  tailored  to the concerns  
+that we have to consider  under the Bail Reform Act when we 
+are setting release conditions . 
+Before we called the case, I was advised by the 
+defense that they had filed a memorandum  concerning  release 
+conditions  and that memorandum , which I reviewed  before we 
+called the case, raised First Amendment  concerns, and it 
+indicated  their objections  to the release conditions .  
+I think the best way to proceed today, for clarity 
+of the record, given the extent of time since our last 
+hearing, would be for Ms. Wong to first state exactly what 
+release conditions  the government  is requesting .  I will 
+then let Mr. Kiersh indicate  exactly which of those 
+conditions  the defense objects to.  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 3 of 641
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+If I have questions  for pretrial  services  about 
+implementation  or logistics  of any of the conditions  that 
+are being proposed  or any recommendations  from pretrial , I 
+will hear from pretrial ; and that can be our pretrial  or 
+Mr. Cahoon who has graciously  agreed to participate  from 
+pretrial ; and then, hopefully , I will have enough 
+information  in front of me to decide.  
+I realize that the question  of Mr. Sullivan 's 
+release has been pending for some period of time.  And I 
+presume that, while it's been pending, he has been subject 
+to all of the restrictions  by the arresting  jurisdiction  and 
+that that Court can modify the order in the interim.  
+So, Ms. Wong, if you could just go through one by 
+one the conditions  you are requesting .  Thank you.  
+MS. WONG:  Yes, Your Honor.  
+Candice Wong for the United States.  
+Thank you, Your Honor.
+I did ask at the last hearing for us to reimpose 
+the conditions  in Utah, but Your Honor did ask us to confer 
+with the parties.  I have spoken with Mr. Kiersh over the 
+weekend, as well as Mr. Cahoon and Ms. Holman from pretrial , 
+and have a modification  to what I was requesting  initially .  
+I would say I do believe that pretrial  and the 
+government  are in alignment  here.  We have, sort of, two 
+possibilities  or alternative s with respect to the social Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 4 of 641
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+media that we would propose.  But, essentially , the 
+conditions  would include the home detention , which is what 
+was imposed in the arresting  jurisdiction ; that would 
+include GPS monitoring , as was imposed in the arresting  
+jurisdiction ; it would include computer  and internet  
+monitoring ; and there are some miscellaneous  ones, Your 
+Honor, involving  firearms.  
+Do you want me to go through -- 
+THE COURT:  Yes.  I think it would just be helpful 
+to go through each one.  I am going to write it down and 
+make sure I know which ones are in dispute. 
+MS. WONG:  Let me just grab the order.  
+THE COURT:  Take your time. 
+MS. WONG:  Yes, Your Honor.  
+He was asked -- okay, Your Honor, starting  from 
+the beginning , that:  The defendant  must maintain  or 
+actively  seek verifiable  employment  and/or maintain  or 
+commence  an educational  program as approved  by the pretrial  
+officer.  
+The Court, I believe, had added in there some 
+language  about Insurgence  USA.  The government  here would 
+request some more specific  language  than what we were 
+requesting  there; it's that the defendant  must actively  seek 
+or maintain  verifiable  employment  as approved  by the Court; 
+can no longer do any work for Insurgence  USA to include any Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 5 of 641
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+promotion , affiliation  with, marketing  of, or communication  
+through Insurgence  USA, InsurgenceUSA .com, or Insurgence  USA 
+social media channels, accounts , or handles.  
+All activity  relating  to Insurgence  USA is 
+prohibited , except for the payment of taxes and maintenance  
+of existing  bank accounts .  
+THE COURT:  One minute.  Let me make sure I finish 
+writing this down.  
+All activity  regarding  Insurgence  USA is 
+prohibited  except for paying taxes -- and doing what?  
+MS. WONG:  Maintenance  of existing  bank accounts .  
+And, Your Honor, that is the same language  that 
+was delivered  from the bench but was not in the order; and 
+so that was my attempt to provide it, the language  in the 
+order. 
+THE COURT:  Okay.  
+MS. WONG:  Another restriction  is that the 
+defendant  abide by restrictions  on his place of abode or 
+travel which include maintaining  his residence  and not 
+changing  without prior permission  from his supervision  
+officer, not traveling  out of state without prior permission  
+from his supervision  officer, not traveling  outside the 
+United States without prior permission  from the Court.  
+The next restriction  is:  Avoid all contact with 
+those named persons who are considered  either alleged Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 6 of 641
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+victims, potential  witnesses , and/or codefendants .  
+The next condition  is:  Report on a regular basis 
+to the supervision  officer as directed .  The next condition  
+is:  Not to possess a firearm, ammunition , destructive  
+device, or any other dangerous  weapon.  
+The next condition  was:  Do not use or unlawfully  
+possess a narcotic  drug and other controlled  substance s 
+unless prescribed .  
+The next condition  was:  Undergo mental health 
+evaluation  and complete  any recommended  treatment  as 
+directed  by the supervision  officer.  I don't know if that's 
+already been done.  
+The next condition  is:  Surrender  any passport  to 
+the Clerk of Court in the District  of Utah.  I believe that 
+would have been done already, but Mr. Kiersh can confirm.  
+The next condition  is:  Not obtain or apply for a 
+passport .  
+The next condition  is:  Home detention , as I 
+mentioned .  After that is:  GPS location  monitoring , as I 
+mentioned .  
+The next condition  is:  The computer  and internet  
+monitoring  program, as administered  by Mr. Cahoon's agency. 
+And with respect to that, the government 's request would be 
+that the Court prohibit  the defendant  from his use of 
+Twitter and Facebook  and encrypted  social media platforms .  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 7 of 641
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+As one alternative  to that, Your Honor, something  
+Ms. Holman has discussed  or considered  was not limiting  the 
+platforms  but, instead, potentially  -- if Your Honor 
+preferred  an approach  that encompassed  more platforms  but 
+perhaps was more narrowly  tailored  to communication s to 
+prohibit :  Inciting , promoting , or organizing  protests, 
+riots, criminal  activity , armed conflict s, or violence  on 
+any social media platform .  I think they both have different  
+issues, and I am happy to discuss them; but those are two 
+possibilities  adjusted  for social media.  
+THE COURT:  With that alternative , it was 
+prohibiting :  Inciting , promoting , or organizing  protests 
+riots, or -- what else?  
+MS. WONG:  Criminal  activity , armed conflict s, or 
+violence . 
+THE COURT:  Thank you.  
+Were there any other conditions  you were asking 
+for?  
+MS. WONG:  I believe that's it, Your Honor.  
+There is something  about appearing  in court which 
+is one of the standard  ones. 
+THE COURT:  Yes.  That has been the standard  form, 
+appear in Court as required , and not commit any federal, 
+state, or local crimes. 
+MS. WONG:  Correct, Your Honor. Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 8 of 641
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+THE COURT:  Thank you.  
+Does pretrial  wish to be heard any further -- or 
+wish to be heard on what Ms. Wong's recommending ?  
+If there is something  you want to address later, 
+you may.  But, just preemptively , was there anything  at this 
+juncture ?  
+MS. HOLMAN:  Your Honor, this is Ms. Holman with 
+pretrial  services .  
+Mr. Cahoon may want to confirm this, but there was 
+also a condition  that said:  Submit person, residence , or 
+office, or vehicle to search conducted  by a pretrial  officer 
+at a reasonable  time upon reasonable  suspicion  of contraband  
+or evidence  of a violation  of condition s of release. 
+THE COURT:  Okay.  
+THE DEPUTY:  Excuse me.  
+MS. HOLMAN:  And I think that goes to the possible  
+use of having the cell phones and other computer  equipment  
+in the home, Your Honor.  
+THE COURT:  Ms. Kay?  
+THE DEPUTY:  Excuse me, just one moment.  
+I just want to remind everyone  if you could mute 
+your telephone  if you are not speaking , if you are able to 
+do that.  Most everyone  is muted; but I don't know if people 
+on the telephone  are able to mute if they are not speaking .  
+That's a request by the court reporter .  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 9 of 641
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+Thank you.  
+THE COURT:  Ms. Holman, it was:  Submit person, 
+vehicle, or residence  to search at a reasonable  time upon 
+grounds of suspected  violation ?  
+MS. HOLMAN:  Yes, Your Honor; reasonable  suspicion  
+of contraband  or evidence  of a violation  of a condition  of 
+release.  
+It was part of the original  conditions  of release.  
+THE COURT:  Thank you.  
+Ms. Wong, are you requesting  that condition  as 
+well to carry forward?  
+MS. WONG:  Yes, Your Honor.  I am just seeing it 
+now; I didn't mean to omit that.  
+THE COURT:  Okay.  Thank you.  
+Okay.  Ms. Holman, was there anything  else from 
+pretrial , or Mr. Cahoon?  
+MS. HOLMAN:  Not from D.C. pretrial , Your Honor.  
+THE COURT:  Mr. Cahoon is muted.  
+Mr. Cahoon, could you just unmute yourself  and 
+confirm at this juncture  whether there is anything  you 
+wanted to add?  
+MR. CAHOON:  I do not believe so, Your Honor.  
+I was not aware though if I heard a mental health 
+evaluation  had been recommended ; that was one of the 
+conditions  that was originally  ordered.  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 10 of 641
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+THE COURT:  What type of evaluation , mental 
+health?  
+MR. CAHOON:  The specific  wording was:  Undergo a 
+mental health evaluation , and complete  any recommended  
+treatment  as directed  by the pretrial  officer; take any 
+mental health medication  as prescribed ; and the defendant  
+shall pay part or all of the cost of the program based upon 
+ability to pay as determined  by the pretrial  officer.  
+THE COURT:  Thank you.  
+Okay.  Mr. Kiersh, I take it from your memorandum  
+that you object to GPS monitoring  and any restriction  on 
+social media.  
+Are there other of these proposed  conditions  that 
+the defense objects to?  
+MR. KIERSH:  Thank you, Your Honor.  
+Again, Steven Kiersh appearing  remotely  on behalf 
+of John Sullivan , and Mr. Sullivan  is present remotely .  
+And we did submit, as the Court has noted, a 
+detailed  written memorandum  concerning  our objections  based 
+upon First Amendment  grounds.  
+We strenuously  object to the representation s made 
+today both by pretrial  services and Ms. Wong.  The 
+recommendations  they're making are totally oppressive ; 
+they're unconstitutional ; they're overbroad ; they're 
+inconsistent  with the purposes  and designs of the statute Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 11 of 641
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+governing  pretrial  release.  I will take them one by one.  
+Again, there are a few exceptions  that we don't 
+object to but the vast majority , again, we strenuously  
+object to; and we'll go through them.  
+Number one, let's talk about no longer working for 
+Insurgence  USA; this is how Mr. Sullivan  makes his living.  
+We've submitted  receipts  to the Court, they're also provided  
+to the government  -- demonstrating  that he has active 
+contracts , legitimate  contracts , related to his work with 
+Insurgence  USA.  There is no reason to limit this young 
+man's employment .  He is actively  employed .  There is no 
+connection  with the crimes that are charged in the 
+indictment  with his activities  working with Insurgence  USA.  
+No, he is not going to be committing  any criminal  
+activity  because those, naturally , are prohibited .  But the 
+legal purposes  of Insurgence  USA which, really, is just a 
+vehicle for the transmission  of information  is a perfectly  
+proper, perfectly  legal exercise  of his right to be 
+gainfully  employed .  
+The government  says, Well, you should look for 
+employment ; that's fine, but he has employment .  He has 
+employment  with Insurgence  USA.  Insurgence  USA is not 
+charged as a defendant  in this case.  Mr. Sullivan  is not 
+charged as being, in any way, in a conspiracy  with 
+Insurgence  USA, of being a participant , as some sort of Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 12 of 641
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+ancillary  robot of Insurgence  USA; there is no connection  
+there whatsoever .  
+He was using his validly documented  work with 
+Insurgence  USA to promote his activities .  This has nothing 
+to do with the crimes that occurred  inside -- if they were 
+crimes -- inside the United States Capitol; so, for those 
+reasons, we'd say there is no connection .  And just to say, 
+well, because, Mr. Sullivan , you're charged with a crime, 
+we're going to deprive you of your gainful employment  that 
+you have created, that you have managed, that you are the 
+sole proprietor  of -- that there is no connection  whatsoever  
+between that company and the crimes which you are charged -- 
+is completely  beyond the scope of what the statute that 
+we're working under requires.  
+The social media limitations  are also incredibly  
+oppressive , incredibly  overbroad , and serve no purpose other 
+than to, basically , oppress Mr. Sullivan .  
+We laid it out in detail in our detention  
+memorandum .  Social media is how people -- particularly  in 
+Mr. Sullivan 's age group -- communicate  with each other.  
+So if the government  is saying, Well, we want to 
+limit you.  We want to separate  you out from society; 
+separate  you out from your friends; separate  you out from 
+your family; separate  you out from your business  
+association  -- associate s; separate  you out from your Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 13 of 641
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+ability to market your legitimate  business  by taking you 
+down on social media; it's incredibly  oppressive .  And to 
+say that he can't use Twitter, that he can't use Facebook  -- 
+these are outrageous  requirements .  
+And the government  says, well, as long as it 
+doesn't prohibit  [sic] crimes -- excuse me -- that he's 
+prohibited  from inciting  crimes.  He is not going to be 
+inciting  crimes on Twitter or Facebook ; and if he is, the 
+government  has a remedy.  But there is nothing to suggest 
+that he has ever incited any criminal  activity  on Twitter or 
+Facebook  or any other social media platform .  
+His only use of these platforms  is a completely  
+legitimate  use, which is typical of millions  and millions  of 
+American s.  That's how people, again, most -- I would say 
+predominantly  Mr. Sullivan 's generation , his age group -- 
+that's how they communicate .  That's how he gets his news; 
+that's how he gets his weather; that's how he gets his 
+information .  That's how he keeps in touch with friends and 
+family, especially  during the pandemic  when people are not 
+out and about and commingling  with each other.  
+They use these platforms  to meet with each other, 
+to talk with each other, to exchange ideas.  Mr. Sullivan  is 
+very much involved  in the exchanging  of ideas amongst his 
+peers; this is how he does it.  
+We cited Packingham  versus United States which is Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 14 of 641
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+the Supreme Court decision  in our pleadings  today, where 
+Packingham  very clearly -- the Supreme Court made very clear 
+that a fundamental  principle  is that all persons have access 
+to places where they can speak and listen and then, after 
+reflection , speak and listen once more.  
+Today, one of the most important  places to 
+exchange views is cyberspace , particularly  social media.  
+And that opinion was written by Judge Kennedy prior to the 
+pandemic ; it was written in 2017.  And that opinion hits it 
+right on the head with respect to this case; that this is 
+how this young man, who has not been convicted  of any 
+criminal  offense, is able to communicate  and able to get 
+information  legally and disseminate  information  legally.  
+And to now say that, well, you are restricted  
+because the government  has charged you in a case -- that we 
+are now going to restrict  you from using these platforms  is 
+a complete  -- I would submit to the Court, respectfully  -- a 
+complete  violation  of his First Amendment  right to freedom 
+of speech; and it's oppressive .  And, really, it serves no 
+purpose.  It serves absolutely  no purpose other than to cut 
+this young man off from legitimate  access to social media 
+platforms .  
+I also -- I think it's incredible  that the 
+government  is asking for a mental health evaluation  and that 
+Mr. Sullivan  should then pay for any type of subsequent  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 15 of 641
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+treatment .  What is the basis for that?  There is absolutely  
+no basis; this man is not mentally  ill.  The charges with 
+which he is charged have nothing to do with his mental 
+acuity.  This is not a situation  where there is some concern 
+about whether the person understands  the nature of the 
+proceedings .  
+He has a complete  and very knowledgeable  
+understanding  of the nature of the proceedings , of the 
+nature of his conduct, of his surroundings .  He is perfectly  
+able to communicate  with me as his counsel, to assist in the 
+formulation  of his defense.  And to come in with no basis -- 
+no medical records, no medical history, no reports from 
+physicians  saying, oh, Mr. Sullivan , you're charged with a 
+criminal  offense so we want you to undergo a mental health 
+evaluation  is a complete  intrusion  on his rights to privacy.  
+It's completely  inappropriate ; and we would strenuously  
+object to that.  
+I want to get to the issue of the searching of his 
+car and his home.  We obviously  completely  and strenuously  
+object to that.  
+Mr. Sullivan  -- because he has been charged with a 
+criminal  offense -- doesn't give up his Fourth Amendment  
+right to privacy.  So the government  is coming in and 
+saying, well, if we believe -- based on what?  What is the 
+basis for their belief?  Is this just some fanciful  belief?  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 16 of 641
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+Something  -- some idea that just floated into their heads?  
+If we believe that Mr. Sullivan , without any foundation  -- 
+believe that he may have been involved  in some criminal  
+activity , we reserve the right to go search his car and 
+search his house.  That, I submit to the Court, is 
+incredible  and intrusive  violation  and an intrusion  on 
+Mr. Sullivan 's Fourth Amendment  constitutional  rights.  
+If the government  believes  that there is some 
+proceeds  of a crime or fruits of a crime in either 
+Mr. Sullivan 's car or his house, the United States then can 
+go to a federal magistrate , in a completely  separate  matter 
+from this, and try to obtain a warrant based upon probable  
+cause.  But, certainly , what they can't do is say:  Well, 
+we're going to bypass the ordinary  regulations ; we're going 
+to bypass the way we ordinarily  do things; we're going to 
+bypass the Fourth Amendment , and just go and search his car 
+and his home -- absolutely , undeniably  a violation  of Fourth 
+Amendment  rights.  And Mr. Sullivan  is not waiving -- as any 
+part of these proceedings , he is not waiving First Amendment  
+rights; he is not waiving Fourth Amendment  rights; he is not 
+waiving any constitutional  rights.  
+The government  says:  Well, we want to impose 
+restrictions  that Mr. Sullivan  avoid all contact with 
+victims, witnesses , or codefendants .  Well -- so what the 
+government  is then saying is that:  Well, Mr. Sullivan , Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 17 of 641
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+because you have been charged in this offense, we're saying 
+you should not be allowed to participate  in building  a 
+defense; and, if you do, you are violating  your conditions  
+of pretrial  release.  Again, that involves  a restriction  on 
+his Sixth Amendment  right to the effective  assistance  of 
+counsel.  Now we have got three constitutional  provision s 
+that the government  is seeking to step on, to trounce, 
+because Mr. Sullivan  has been charged as -- in a crime.  
+Number one, with respect to codefendants , neither 
+Mr. Sullivan  nor I can go to the codefendants  because they 
+have counsel.  So the only thing we can do is ask counsel if 
+we can speak to the particular  person.  And, certainly , 
+we'll abide by our professional  rules and responsibilities  
+in regard to contacting  codefendants .  
+But to say that Mr. Sullivan  cannot interact  with 
+victims or witnesses  is just prohibitive ; they can't do 
+that.  You can't say that you can't go with your lawyer, for 
+instance , and go and interview  a witness, or go and 
+interview  a victim.  And what constitutes  -- under what 
+umbrella  are these people being put under that they are 
+victims or witnesses ?  
+There are hundreds  of people involved .  There are 
+thousands  of people involved .  It would undertake  a massive 
+investigation  to try to learn who witnesses  may be, who 
+victims may be; and we are certainly  going to try to contact Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 18 of 641
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+them and speak with them.  But to say that Mr. Sullivan  
+can't be involved  in that is clearly an intrusion .  
+I can't count the number of cases that I have been 
+involved  with over the years where I have interviewed  
+victims or witnesses  to crimes; and I have had my client -- 
+if that person was not incarcerated  -- with me in the vast 
+majority  of those times.  I want my client to hear what that 
+person has to say personally .  I don't want to just take 
+notes and bring them back to my client.  
+I want my client to understand  what this person 
+has to say about their knowledge  of the event or my client's 
+not being a participant  in the event; and that information  
+is essential  because my client has to make decisions  about 
+how to proceed in building  his defense.  So, again, we have 
+got First Amendment , Fourth Amendment , and now a Sixth 
+Amendment  violation .  
+We have no objection  to his reporting  to his 
+supervision  officer.  Mr. Sullivan  has already turned in his 
+firearms; and he is not going to acquire any additional  
+firearms.  
+The government  says, well, no use of narcotics .  
+Well, he doesn't use narcotics .  And if it's illegal, it's 
+illegal; and he is not going to acquire or obtain or use 
+anything  that's illegal.  He may be taking -- I am not quite 
+sure if he takes prescription  medication ; but, obviously , Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 19 of 641
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+there is no prohibition  against prescription  medication .  
+He's already surrendered  his passport .  
+I do -- I want to get to the ankle monitoring .  
+Well, let me go back to the computer  monitoring 
+and the program.  Every case that I am aware of with respect 
+to the computer  monitoring  program involves  sex offenses 
+because that's the vehicle by which, typically , the people 
+who are charged with sex offenses gain access to the victims 
+of their alleged sex crimes.  This is not a sex crime case; 
+this has nothing to do with a sex crime case.  
+The monitoring  -- the government  hasn't laid out 
+any reason -- any specific  articulable  reason that would 
+justify entry into an internet  monitoring  program.  There is 
+nothing in this case -- and I know I have already said this, 
+but I will just repeat it -- to suggest that the use of his 
+computer , the use of the internet  is what Mr. Sullivan  
+relied on for the activity  that brings him before this 
+Court.
+So I believe that I have covered most of the 
+argument s and most of the grounds and most of the conditions  
+that the government  is asserting .  We would incorporate  the 
+memorandum  that we filed yesterday  into our argument s.  And 
+we certainly  would be amenable  to answering  any questions  
+the Court may have.  
+One final thing.  There may be an issue as to Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 20 of 641
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+residency , where Mr. -- not "residency " with respect to the 
+state of Utah, but the particular  place of residency  with 
+respect to Mr. Sullivan .  But we'd just ask the Court for a 
+break so I can confirm some information  related to that.  
+THE COURT:  I'm sorry.  
+MS. HOLMAN:  Your Honor, this is Ms. Holman. 
+THE COURT:  You wanted a breakout room?  
+Mr. Kiersh, I am not sure why I didn't -- 
+something  on my computer  buzzed.  I didn't hear the last 
+thing you said. 
+MR. KIERSH:  I said that there may be an issue 
+with respect to Mr. Sullivan 's place of residence .  He will 
+remain in Utah, but I just need a breakout for 30 seconds 
+just to confirm some information . 
+THE COURT:  I see.  With Mr. Sullivan ?  
+MR. KIERSH:  Yes, and his father who is also on 
+the line. 
+THE COURT:  Okay.  And then, Ms. Holman, did you 
+have something  that you wanted to ask or raise before I let 
+Mr. Kiersh confer?  
+MS. HOLMAN:  Yes, Your Honor.  
+Mr. Cahoon can confirm this.  But in reference  to 
+the firearm, I don't believe it was surrendered  to the 
+District  of Utah.  I believe it was given to his father.  
+But Mr. Cahoon can confirm that. Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 21 of 641
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+MR. CAHOON:  Your Honor, this is Josh Cahoon.  
+That was the information  I was provided  by the 
+defendant .  He indicated  he had sold the firearm to his 
+father and had a bill of sale to prove this transaction  
+occurred .
+MR. KIERSH:  I can confirm that information , Your 
+Honor.  
+THE COURT:  And does Mr. Sullivan  reside with his 
+father?  
+MR. KIERSH:  No.  He does not presently  reside 
+with his father; but he is going to have to change his 
+address at the end of this month.  What we are trying to 
+make a final determination  is whether or not he can reside 
+with his parents who live about an hour away from Salt Lake 
+City. 
+THE COURT:  Okay.  Ms. Kay, can you put Mr. Kiersh 
+and Mr. Sullivan  in a breakout room so they can briefly 
+confer?  
+THE DEPUTY:  Yes, Your Honor.  Just one moment.  
+(Whereupon , Mr. Kiersh and the defendant  confer.) 
+THE DEPUTY:  I closed the room.  So Mr. Sull -- 
+okay.  Mr. Sullivan  and Mr. Kiersh are back.  
+MR. KIERSH:  Thank you, Ms. Kay.  
+THE COURT:  Thank you.  
+Mr. Kiersh. Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 22 of 641
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+MR. KIERSH:  Yes, Your Honor.  
+Just a couple of things.  
+I may have not fully discussed  the ankle 
+monitoring  but, again, Mr. Sullivan  has -- there is really 
+no issue of flight in this case.  I mean, no one is 
+suggesting  that Mr. Sullivan  is not going to appear at every 
+court appearance  that he is required  to appear before.  
+He has faithfully  appeared  in every Utah state 
+court proceeding .  He has faithfully  appeared  in every Utah 
+federal court proceeding ; and he has faithful ly and timely 
+appeared  in every court proceeding  in the United States 
+District  Court for the District  of Columbia  before Your 
+Honor. 
+He doesn't have a passport .  He doesn't have 
+resources  to go anywhere.  He certainly  will abide by the 
+condition  that if he is going to travel out of state he will 
+first seek prior approval .  But there is no reason in the 
+world to monitor him, we would submit, on the ankle bracelet  
+because there is nothing to suggest that he is not in full 
+compliance  with his responsibilities  with respect to 
+appearing  in Court; there is no risk of flight whatsoever .  
+So we would submit and incorporate  by reference  our 
+arguments  on the ankle monitoring . 
+With respect to Mr. Sullivan 's housing, he is 
+going to be -- have to leave his premises that he currently  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 23 of 641
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+resides in at the end of February .  He is seeking to find 
+another residence  in the Salt Lake City area to move into.  
+But as a backup, if he can't secure an apartment  in Salt 
+Lake City, he will reside with his parents.  And I believe 
+that Jack Sullivan , his father, can make any representation s 
+or answer any questions  the Court has regarding  his 
+permission  to allow his son to reside in his house.  And 
+that if Mr. Sullivan  is able -- Mr. John Sullivan  is able to 
+acquire a new residence , we will certainly  notify pretrial  
+of the address and any other means of communication  with 
+respect to the new residence .  
+THE COURT:  Thank you.  
+Ms. Wong, could you -- with respect -- first, with 
+respect to Insurgence  USA, what is the government 's proffer 
+for why future work of any kind with Insurgence  USA would 
+pose a danger to the community ? 
+MS. WONG:  Sure, Your Honor.  
+And I apologize  if you had expected  this earlier.  
+I thought I was just summarizing  the request of conditions ; 
+but I am prepared  to address at length and proffer why the 
+government  is seeking these restrictions . 
+THE COURT:  Okay.   
+MS. WONG:  If I could just briefly mention two of 
+the things that Mr. Kiersh said because -- I think he's just 
+misreading  what the conditions  actually  say.  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 24 of 641
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+One is -- on the mental health evaluation , I 
+believe that just says:  Undergo a mental health evaluation  
+and complete  any recommended  treatment  as directed  by your 
+supervision  officer.  That's no different  from the standard  
+condition  we see all the time where you undergo mental 
+health treatment  as needed; so I think that's at the 
+discretion  of the supervision  officer if that's required  or 
+not. 
+As to the search, Mr. Kiersh asked what that would 
+be based on.  The specific  language  in the condition  is:  
+Submit person, residence , office, or vehicle to a search 
+conducted  by the supervision  officer at a reasonable  time, 
+in a reasonable  manner, based upon reasonable  suspicion  of 
+contraband  or evidence  of a violation  of a condition  of 
+release.  So that is the standard :  Reasonable  suspicion  of 
+contraband  or evidence  of a violation .  I just wanted to 
+address those two briefly.
+THE COURT:  Thank you, Ms. Wong.  
+Why don't you -- instead of -- if you could begin 
+with Insurgence  USA, and then you can address any others.  
+I did initially  want you to just list them because I wanted 
+to make sure we were all working from the same page.  But 
+certainly  there has been an extensive  and clear objection  
+from the defense.  So if you could justify any of those 
+release conditions  -- Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 25 of 641
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+MS. WONG:  Certainly , Your Honor. 
+Now, the government  would note that these are 
+not conditions  -- the Insurgence  USA condition  is not a 
+condition  we would take lightly.  
+But the reason the magistrate  imposed these 
+restriction s was for a reason; and that's because Insurgence  
+USA, which is Mr. Sullivan 's own LLC, headquartered  in his 
+own address, is the vehicle through which he is engaged in 
+the underlying  activities .  
+The representation  that there is quote-unquote no 
+connection  between the activity  with which he has been 
+charged, both in Utah and in Washington , D.C., is unfounded , 
+Your Honor.  
+Insurgence  USA is absolutely  the instrumentality  
+through which Mr. Sullivan  committed  the relevant  act.  
+Now, the defendant  has now -- I would, first of 
+all, note that the Insurgence  USA restriction  was consented 
+to as appropriate  by Mr. Sullivan 's own counsel in Utah.  
+And the requirement  that he get new employment  reflects , as 
+the defense counsel stated, he was willing to do as believed 
+was appropriate .  Nevertheless , that is water under the 
+bridge.  
+I would note here the defendant  has been 
+criminally  charged twice in two pending cases with criminal  
+rioting activity  that he would have not been on the scene Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 26 of 641
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+for but for Insurgence  USA. 
+THE COURT:  So let me just interject  here 
+because I find -- I am going to go back and look at it 
+before I make any decisions  because I may be wrong.  
+I would like you to be clear in distinguishing  
+between whether Insurgence  USA is recommending  that people 
+attend protests and then some sort of violence  or possession  
+of weapons -- or whatever  illegally occurs at the protest, 
+or whether Insurgence  USA is specifically  asking people to 
+do something  illegal, because there is a distinction . 
+MS. WONG:  Yes, Your Honor.  
+I think I can parse this out in the following  way:  
+Sometimes  what Insurgence  does is directly  organize  the 
+events which have been violent.  So one example is the Utah 
+protest in Provo which Insurgence  and Mr. Sullivan  organized  
+and promoted  where a civilian  was shot, and where he has 
+been charged with felony rioting; that's the criminal  
+mischief .
+Sometimes  Insurgence  is Mr. Sullivan 's reason for 
+being there and for his criminal  participation  in the riots; 
+that was the case on January 6th.  Insurgence  USA did not 
+organize  that demonstration ; but he was there on behalf of 
+Insurgence  USA, on behalf of the mission -- of what he deem 
+s is the mission of his group.  
+So he has stated that he has a need to document  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 27 of 641
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+these riots as part of what is Insurgence  USA's mission.  In 
+fact, he claims to seriously  disagree  with the ideology  of 
+some of these rioters.  But he justifies  his own statements  
+on scene to law enforcement  agents to statements  including  
+having a knife; that we should burn it down; that we should 
+haul that MF'er [sic] out -- referring  to an officer.  
+He justified  his rhetoric  while illegally  inside 
+the Capitol on grounds that he was part of this undercover  
+work, or this is how he -- this is how he ensures that he 
+gets the coverage  he needs and that he is not suffering  
+repercussions  for that; it is how he quote-unquote needs to 
+relate to the people that he believes  he's depicting .  
+Third, Your Honor, Insurgence  positions  itself as 
+a, sort of, expert resource  for rioters.  Now, Mr. Kiersh -- 
+this does bleed into the social media because I would say 
+the defendant  has many social media accounts ; some of which 
+are under the Insurgence  handles, but that he retweets under 
+other handles; or that -- and they are all sort of -- they 
+all, kind of, put out the same content and retweet each 
+other sometimes .  But obviously , even on the defendant 's 
+personal  channels, he touts himself as the founder of 
+Insurgence  USA.  He has videos on his personal  YouTube that 
+are called:  Insurgence  USA firearms training .  So they do 
+all bleed together .  
+But it's remarkable  Mr. Kiersh noted that his Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 28 of 641
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+social media to be -- must be typical of what millions  of 
+American s his age engage in.  The government  would submit 
+there is nothing typical about proffering  postings, YouTube 
+postings, with tutorial s on how to make a Molotov cocktail ; 
+that is the defendant 's own account; that is his own content 
+that he posts.  
+There is nothing typical about crowdsourcing  
+funding for tactical  gear to arm rioters to protect them 
+against military  officers  that are depicted  on Facebook  in a 
+photograph .  There is nothing typical about this kind of 
+activity .  
+Your Honor, the defendant  has a video that he 
+posted -- one of many -- where he posts a quote-unquote -- 
+this is from December  2020:  A full guide on how to keep 
+yourself  safe during protests and direct action.  This is 
+part and parcel of what I call the Insurgence  USA mission of 
+serving as an expert resource  for rioters.  On it, he 
+provides  instructions  to viewers on what clothing  and type 
+of gear to bring to protests, to discuss the importance  of 
+concealing logos on clothing  and bags and tattoos to avoid 
+being identified .  He shows how you need a handgun -- he has 
+a 9mm handgun, a rifle; and he says:  If you need a less 
+lethal option, you choose a black retractable  tactical  
+knife.
+He encourage s defendants  -- he encourage s viewers Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 29 of 641
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+to bring those items -- quote-unquote, again, this is how to 
+keep yourself  safe during protests in direct actions.  He 
+notes in that video, when speaking  about his 9mm handgun, 
+when speaking  about what happened  today in Washington  -- 
+this is in December  2020 -- I almost had to shoot an MF'er 
+and continued  to say that:  If someone punched him or 
+sprayed him with pepper spray he would put a bullet in their 
+eye.  He refers to that rifle as a chud killer.  My 
+understanding  is "chud" is often used by persons as a 
+derogatory  term for Trump supporters .  
+Beyond that, Your Honor -- so Insurgence 's entire 
+mission, as the defendant  has styled it as alternately  
+calling it a journalist  organization  or an activist  group.  
+But under the guise of journalism  or activism  he has engaged 
+in and incited violent activity , including  the kind of 
+destructive  activity  we saw on January 6th.  
+He has used Insurgence 's purported  mission not 
+just for financial  incentives .  In his videos he's widely 
+and frequently  heard saying that -- calling for donations  to 
+help me keep making more videos like this to help us fight 
+in the revolution , and how he presumably  funds his trips, 
+which are frequent , to different  protests -- just in the 
+last six months -- across the country; not just protest s 
+but, of course, violent riots.  Because he claims to be 
+there to live stream these events -- in his view, his job, Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 30 of 641
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+his work, his Insurgence  mission is to put his body on the 
+line to bring people the best documentation  of history; that 
+is what the Insurgence  USA mission is in the defendant 's own 
+words and according  to his own public statements .  
+So, Your Honor, it was appropriate  for the 
+District  of Utah to hold that employment  in Insurgence  is 
+not authorized  for this reason.  Insurgence  is absolutely  
+the vehicle through which he both participated  -- not just 
+promoted  and organized  to protest in Utah, but the reason he 
+was here in Washington , D.C., and the reason we know that 
+this kind of activity  will continue  to occur, and it's the 
+reason he excuses his own conduct on January 6th; his own 
+incitement  and instigating  statements  that he is on videos 
+stating.  There is a direct message between Insurgence  USA 
+and what happened  both in this case and his serially  similar 
+case in Utah.  
+Now, the government  is not aware of this being any 
+kind of formal employment  arrangement .  As we noted, this is 
+his own group.  There is no known group rosters or known 
+members.  So the government 's submission  is that with clear 
+language  we can maintain that reasonable  restriction  that 
+was imposed by the magistrate  judge in Utah that -- but with 
+more explicit  spelling  out of the kinds of provision s or 
+conditions  that led in part to the defendant 's violation  
+here.Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 31 of 641
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+Now, Your Honor, I can go into social media; but 
+do you have any other questions  about Insurgence ?  
+THE COURT:  Yes.  Do you have any information  
+suggesting  that Insurgence  USA would typically encourage  
+people to go to the Capitol on January 6?  
+MS. WONG:  Your Honor, the -- so we're hamstrung  
+in that the defendant  has actually  had almost all of his 
+Twitter and Facebook  accounts  suspended  presumably  because 
+of violations  of the terms of service.  So I do have some 
+screenshots ; I do not have anything  from that time.  
+What I do have, Your Honor, is late December  2020 
+the defendant  encouraged  rioting; he said:  Riots are meant 
+to bring change to purge the world with fire.  
+On December  27th he stated that an armed 
+revolution  is the only way to bring about change 
+effectively .  He has a picture of him at some other protest 
+and says:  I can tell you the dynamics  completely  shift when 
+shots will be fired back.  And this is a picture from the 
+Utah state capital.  
+So, Your Honor, the defendant  has spoken freely 
+about how he organized  on social media to infiltrate , in his 
+view, the organizers  of the riots on January 6th.  He said 
+that in an interview  with law enforcement  agents, that he -- 
+that is how he learned about protests; that he goes on 
+various social media platforms  including  -- I think he just Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 32 of 641
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+gave an interview  to The New Yorker where he describes  
+joining activist  group chats on Signal and Telegram  to 
+collaborate  with the community  to stay abreast of where the 
+next big riot is likely to break out.  So he certainly  warns 
+about it.  He has spoken openly, for instance , on the 
+Infowars  interview  that Your Honor is familiar  with, about 
+how he had been hearing about it, how he knew to be in 
+Washington , D.C., because of social media activity .
+This defendant  has certainly  also used his own 
+social media platform  to post his footage, including  the 
+images and the footage of himself engaging  in the illegal 
+activity  on January 6th.  
+As Your Honor notes, the government  would submit 
+that his own footage does document  his actions on 
+January 6th:  His illegal entry, his obstruction  of the 
+official  proceedings , and the civil disorder  that he has 
+been charged with.  So that is all broadcast widely on his 
+social media channel.  
+As I noted, again, one of the challenges  here is 
+that the defendant  is a very prolific  user on social media.  
+He has many, many accounts  on each individual  platform .  He 
+does widely use a large number of them and they retweet each 
+other.  A Facebook  post will push out the same thing that's 
+on his Twitter.  It's the Insurgence  -- there is an 
+Insurgence  USA Facebook , as well as an Insurgence  USA Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 33 of 641
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+Twitter.  But the content -- there is an Insurgence  USA 
+YouTube.  The content seems to overlap extensively  with the 
+same accounts  that he has under different  handles that may 
+not include the word "Insurgence ."  But, yes, those -- as I 
+have noted, Your Honor, those -- the January 6th footage is 
+currently  still available  on YouTube which is one of the 
+accounts  of his that has not been taken down as far as I 
+know.  
+Your Honor, if I can say just a little bit more 
+about the defendant 's use of social media.  As I have noted, 
+he does promote protests and violence  and armed 
+confrontations  through social media.  He does use social 
+media to organize  and set up these demonstration s.  He 
+learns of them, scouts them out through his social media.  
+He goes there funded in part by his social media channels 
+for outreach  to get live footage -- live streamed  footage 
+and YouTube footage so that he can put that out through 
+those channels; and he has absolutely  engaged and promoted  
+himself in illegal activity  encouraging  violence .  So I 
+would note the December  29th video tutorial  on Molotov 
+cocktails .  I would note the December  2020 guide 
+involving  -- you know, urging protesters  on how to disguise , 
+avoid identification , and bring weapons to any protests 
+including  to use if you are pepper sprayed.  
+And the government  has information  about events in Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 34 of 641
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+L.A. involving  the vandalism  of a federal building  in 
+September  2020 where a walk-in complain ant to the FBI in 
+Salt Lake City provided  Discord chats from Mr. Sullivan  from 
+days before.  Mr. Sullivan  was, according  to Twitter, in Los 
+Angeles at the time and there was damage to a federal 
+building  and vandalism  causing property  damage to the 
+structure , as well as some spray painting of ACAB and FTP -- 
+which I understand  stands for:  All Cops Are Bastards , and 
+Fuck the Police.  When guards gave chase, the suspects fled 
+to an awaiting vehicle.  
+What the walk-in complainant  said is that they had 
+participated  in a chat with Mr. Sullivan  who was identified  
+as John Sullivan  -- Activist  John, Salt Lake City, Utah; and 
+that screen-shotted chat provided  -- discussed  associates  
+being decoys at the sheriff's department  in West Los 
+Angeles; identified  that federal building ; gave parking and 
+paint smearing  instructions ; and provided  a map with an X 
+marked on that federal building .  So these were Discord 
+communication s on one of those platforms  in September  2020.  
+The government  would also note that the defendant  
+has -- and I mentioned  this last week -- in August posted 
+videos of himself on YouTube in Washington , D.C., at a 
+microphone  where he is inciting  the crowd stating:  We about 
+to burn the shit down.  We got to rip Trump out of office.  
+And saying:  Pull him out of that shit.  We aren't waiting Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 35 of 641
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+til the next election .  We about to go get that MF'er.  
+Leading the crowd in a chant that:  It's time for a 
+revolution . 
+Your Honor, in this case, the defendant 's social 
+media presence  is not -- it does not read like a typical 
+20-something -year-old social media person.  It's not about 
+the weather; it's not about communicating  with friends.  
+It is hundreds  of videos like this, Your Honor.  
+It includes  -- even where not celebrating  outright illegal 
+activities , certainly  celebrating  and encouraging  violence .  
+And there are legions of examples.  Just two months ago, one 
+of the videos on YouTube says -- it's titled:  What a 
+savage, running up on the cops like that with an AK-47.  
+There is a video.  Another one from two months ago:  The 
+black bloc in paris has a projectile  launcher, emoji.  
+Anyone have a link?  Take my money.  
+Another one from two months ago:  Outstanding  job 
+protesters  in Paris, keep making them notice and burn it 
+all.  From December  31st, his tweet:  I am already ready to 
+go Nazi hunting in 2021; are you?  
+Your Honor, this is a situation  where it is clear 
+that the lion's share -- if not the entirety  -- of what the 
+defendant  does on his very active social media channels is 
+inextricably  tied to Insurgence  USA, and what he does 
+through Insurgence  USA is inextricably  tied to exactly the Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 36 of 641
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+kind of activity  that is why he stands here today.  
+Now, Mr. Kiersh noted that the defendant  has been 
+absolutely  compliant .  The government  will just note that 
+the reason we were convened  last week was because the 
+defendant  had been documented  with multiple  violations  of 
+his release conditions .  This is not an example of a 
+defendant  who has been absolutely  compliant  to date. 
+The government  does have a concern that with 
+unfettered  access to communicate  with confederates  and 
+continues  to incite violence  and use armed conflict  and 
+illegal activity , Your Honor, that that would not be an 
+acceptable  risk here.  
+Given what the defendant  has engaged in in his two 
+pending cases, the government  thinks that it would be a 
+reasonable  restriction  here not to, again, espouse the -- I 
+believe there were 13 platforms  that were specified  in the 
+arresting  jurisdiction  but to limit it to the two in which 
+we know are probably  the most widely available , Facebook  and 
+Twitter, where he does have multiple  handles, as I noted, 
+where many of those tweets and posts and crowdsourcing , or 
+his -- all of those that I have mentioned  do arise on 
+Twitter and Facebook .  
+So as one option to more carefully  circumscribe  
+the number of platforms , the government  submits that that is 
+a more reasonable  restriction  and certainly  would allow Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 37 of 641
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+him -- would not prohibit  him from seeking out employment , 
+connect with family or be informed  on current events.  
+The government  would also note this is not an 
+internet  ban.  He is allowed to access the internet  under 
+appropriate  supervision .  What we are talking about here is 
+social media platforms .  And what we are talking about among 
+that universe  is really just two social media platforms ; two 
+in which he has spoken openly about being blocked; using 
+Lively [sic], and having to use a VPN to see if he can 
+create new accounts  to get into; he's publicly  spoken about 
+that.  The two of which he has, presumably , one of his 
+largest following s given his widespread  use of this 
+platform .
+Does Your Honor have any questions ?  
+THE COURT:  No.  Not about social media or 
+Insurgence .
+Could you speak to GPS, why an ankle bracelet  is 
+necessary , given Mr. Sullivan 's appearance  of -- appearance  
+in court as required  in the other jurisdiction s, as his 
+counsel represented ; and he certainly  has appeared  for 
+numerous  hearings in the District . 
+MS. WONG:  Yes, Your Honor.  
+The government  submits that GPS location  
+monitoring  is appropriate  because this is a defendant  who we 
+know has traveled  prolifically , just in the last six months, Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 38 of 641
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+precisely  to chase these riots and this type of riot 
+activity .  As law enforcement  is aware, he has traveled  and 
+crisscrossed  the country to violent riots in Portland , Los 
+Angeles -- I just mentioned  the Discord events; in 
+Washington , D.C., multiple  times; Seattle; Richmond ; Utah.  
+Again, this is an organization  that he created in 
+mid-2020; this is all really in the last six months.  The 
+defendant  is a prolific  traveler precisely  to attend this 
+kind of gathering .  
+THE COURT:  Thank you.  
+Did you want to address any of the other 
+objections  the defense made, such as contact with witnesses  
+and victims, being in violation  of rights under the Sixth 
+Amendment  or the search of his residence ?  
+I guess you did briefly touch on the search. 
+MS. WONG:  Yes, Your Honor.  
+As to the search, my answer was just that that 
+does incorporate  the reasonable  suspicion  standard  and helps 
+effectuate  the conditions  of release as this Court said.  
+As to the language  again about -- as I mentioned , 
+the condition  is:  Avoid all conflict  with named persons -- 
+so I don't believe he has any codefendants .  I don't believe 
+there are any named victims or witnesses  in this case.  So I 
+was just reading what is typically  used as form conditions ; 
+but it does not appear that there were any such individuals  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 39 of 641
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+that were named. 
+And if I can just say one final thing, Your Honor.  
+As to the First Amendment  issues that have been raised, 
+Packingham  involved  a question  about the level of scrutiny  
+that applies with respect to a law and whether or not that 
+law as a whole would apply when applied to an entire state, 
+an entire category  of felons, including  individuals  that had 
+no longer any contact with the criminal  justice system; that 
+certainly  left open the possibility  and, indeed, the 
+likelihood  that as applied in an individual  case, as all 
+restrictions  pending trial, must be -- can be justified  by 
+an individual .  
+Here it's generally  the case that an internet  
+ban -- and this is not an internet  ban yet; but, certainly , 
+you do see a greater prevalence  of internet -type 
+restrictions  in cases that involve sex offender s.  
+The government  would note that this is not a 
+typical case and this is not a typical defendant .  Here it 
+is clear that the activity  he's engaged in he's engaging  in 
+because and for his social media channels and his social 
+media presence .  
+And here, you know, if the question  is whether as 
+to social media an individual  is likely to, sort of, 
+encounter  a similar type of activity  or address similar 
+types -- engage in similarly concerning  acts, the Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 40 of 641
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+indications  are legion, again, just from a cursory look at 
+the defendant 's social media history.  
+The question  is whether the defendant  has used 
+social media to initiate  and facilitate  the defense in, for 
+instance , a child pornography  context.  Here, the defendant  
+has certainly  used social media with his platform s, his 
+channels.  The very footage he's creating  is in order to be 
+distributed  to those channels.  He's organizing  the 
+confederates  on those channels.  He's providing  instructions  
+about how to serve as decoys from vandalism  at the federal 
+buildings .  Certainly  social media platforms  have proven to 
+be a basis for him to initiate  and facilitate  certain 
+offenses . 
+The government  would also note obviously  -- again, 
+none of these cases are precisely  on point but, also, the 
+restrictions  we are talking about here are narrower and more 
+narrowly  tailored  to the individual ; that there are cases -- 
+I would just cite United States vs Love, 593 F.3d 1, a D.C. 
+Circuit opinion from 2010, upholding , again, far broader but 
+an internet  prohibition  for a defendant .  And I think some 
+of the factors they consider  about this, whether or not -- 
+even assuming  and recognizing  that there is a deprivation  of 
+liberty -- whether or not that slightly  greater deprivation  
+of liberty is reasonably  necessary  to deter illegal conduct 
+and protect the public.  In this case, the government  would Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 41 of 641
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+submit that that is readily satisfied  based on the specific  
+facts of this individual  and his specific  history of 
+engagement  in social media.  
+THE COURT:  What was the cite for that case you 
+just mentioned , Ms. Wong?  
+MS. WONG:  593 F.3d 1.  And there is a related 
+opinion, Your Honor, called United States versus Legg, 
+L-E-G-G, 713 F.3d 1129, another D.C. Circuit opinion.
+But, again, just noting these are articulating  the 
+general principles .  They did uphold prohibitions  in 
+slightly  different  contexts but extrapolating  this principle  
+to the case at hand.  
+The government  does think that the requested  -- 
+more narrowly -tailored  prohibition s being requested  are 
+certainly  justified  as an arguably  greater deprivation  on 
+liberty than might happen in the ordinary  course. 
+THE COURT:  Thank you, Ms. Wong.  
+And has -- is it correct to assume -- because what 
+is being asked for here -- that Utah -- the state court 
+where the other charge is pending -- has not imposed any 
+restrictions  based on the alleged violent riot -- rioting 
+that occurred  there?  
+MS. WONG:  Your Honor, I am not aware of that.  
+I did know that the AUSA in Utah was about to 
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+of this arrest.  I don't -- I am not privy to those 
+conversation s.  
+THE COURT:  Thank you.  
+Mr. Kiersh, did you want to say anything  further 
+in rebuttal ? 
+MR. KIERSH:  Just a little bit of rebuttal  to the 
+representations  of Ms. Wong.  
+When I spoke about Mr. Sullivan 's perfect 
+compliance , what I was talking about is his perfect 
+compliance  with respect to appearing  for each and every 
+court appearance .  I understand  that we had an issue of 
+violations  that the Court ruled upon previously .  
+But with respect to the limited issue of his 
+complete  adherence  to his requirements  to appear faithfully  
+at every court appearance , there is no question  that he has 
+fulfilled  those responsibilities .  
+I also want to talk a little bit about weapons.  
+As far as I know and as far as the discovery  that 
+I have received  so far, there is no allegation  whatsoever  
+that Mr. Sullivan  was in possession  of a gun or any type of 
+weapon regarding  the events of January 6th at the United 
+States Capitol.  He is not charged with that.  There is 
+nothing in the complaint  about that.  So I would ask the 
+Court, respectfully , to please take that into account in the 
+context of Ms. Wong's argument  that he's using Insurgence  to Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 43 of 641
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+promote violence .  
+He was clearly not armed -- at least as far as I 
+can see from the evidence  that I have been shown so far; and 
+there is no suggestion  that he -- before he entered the 
+Capitol or if he entered the Capitol that he was armed, or 
+anything  like that.  So I would ask that you use that 
+information  in evaluating  the government 's argument  that he 
+was using Insurgence  as some sort of vehicle to promote 
+violence .  
+What one person -- for instance , Ms. Wong -- 
+characterizes  a lot of his other uncharged conduct as being 
+involved  in rioting, we characterize  it as being involved  in 
+constitutionally  protected  freedom of assembly .  
+There's no -- he has not been charged with any 
+riotous conduct in Oregon.  He has not been charged with any 
+criminal  conduct in California .  There was no reason why he 
+was not permitted  -- if he was even present at those events; 
+but he should not be punished  because the government  alleges 
+that he was at an event in Oregon that became disruptive  or 
+he should be punished  because he allegedly  was at an event 
+in Los Angeles that became disruptive .  
+He had every right, if he was there, to be there.  
+And he had -- and this goes back to Ms. Wong's argument  
+regarding  travel -- that he was a prolific  traveler in her 
+argument  regarding  why he needs to be on GPS.  Again, if Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 44 of 641
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+Mr. Sullivan  chose and had the means to travel to Oregon, 
+that's not a crime.  If he had the means and the desire to 
+travel to Los Angeles or any other state in the country, 
+that's not a crime.  
+Now that he has been charged, there is a condition  
+that we are not objecting  to regarding  that he seek 
+permission  if he needs to travel out of state; that's fine.  
+That's standard , and we can abide by that.  But to say that 
+he needs to be on an ankle monitor because before this 
+happened  he traveled  a lot is completely  inconsistent  with 
+the statute that governs these proceedings .  
+He is somebody  who -- again, if he desires to 
+travel -- and we don't really see any need for that other 
+than to meet with counsel to discuss his defense -- he'll go 
+to his probation  officer and say:  I would like permission  
+to travel to wherever  it is I am going.  If he violates  
+that, there will be a violation  report issued.  So if that's 
+the only reason for the GPS, we submit the government  hasn't 
+met its standard  at all to impose this very, very 
+restrictive  standard  -- this restrictive  condition  that he 
+continue  to be placed -- continue  to have to be placed on 
+ankle monitoring.  
+I cannot account for why the lawyers who 
+represented  Mr. Sullivan  in Utah agreed to some of these 
+conditions .  I got into the case after the Utah Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 45 of 641
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+proceedings  -- after the Utah court proceedings  had 
+concluded .  But ever since I have been on the case, we have 
+been objecting  to these restrictions .  
+And I haven't seen -- it hasn't been provided  to 
+me yet -- the full length of Mr. Sullivan 's Twitter and 
+Facebook  accounts , but I would -- it seems to me that he is 
+using his Twitter and Facebook  accounts  not exclusively  for 
+Insurgence ; he is using it for what every other person 
+legitimately  uses it for.  
+There is nothing -- he has not been charged with 
+committing  any crime on Facebook  or Twitter or any encrypted  
+site.  He is using those sites for legitimate  purposes .  
+And, again, what the government  -- what Ms. Wong 
+characterized  as riotous behavior , that's a legal 
+definition ; that's not been adjudicated .  If he's using 
+Facebook  or Twitter to say:  Hey, let's meet at a certain 
+place, or there is going to be an assembly  of people at a 
+certain place, let's get together  and go -- there is nothing 
+illegal about that.  
+I would agree that Mr. Sullivan  should be 
+prohibited  from using social media to commit crimes; 
+certainly  we are not going to object to that.  But because 
+there's been nothing -- there is no evidence  that's been 
+presented  to Your Honor to suggest that he used Insurgence  
+USA to get people to the United States Capitol on Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 46 of 641
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+January 6th to commit crime -- there is nothing that the 
+government  has presented  which would support that position .  
+And unless and until the government  has evidence  that 
+Mr. Sullivan  used Insurgence  USA to get people to 
+Washington , D.C., to charge the Capitol -- to illegally 
+enter the Capitol and commit the crimes that were committed  
+in the Capitol, I would submit to the Court that the 
+government  has not, by any standard , satisfied  its burden.  
+So for all of the reasons stated in my memorandum  
+and in my argument s today, we would ask the Court to not 
+impose the conditions  that the government  has suggested  with 
+the exception  of the few that we have agreed are acceptable  
+and appropriate . 
+THE COURT:  Thank you.  
+Ms. Wong, did you want to respond any further?  
+MS. WONG:  Yes, Your Honor.  Just briefly on a few 
+points.  
+First, with respect to there not being any 
+indication  or inference  of an indication  of a weapon in the 
+complaint , that's not correct.  The defendant  is, as 
+prescribed in the complaint  on camera, at multiple  points 
+within the Capitol, stating -- describing  that he has a 
+knife on him.  It is true that he has not been charged with 
+a knife, but I would just note that for clarity of the 
+record.  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 47 of 641
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+Secondly , I would note this complaint  is not the 
+only analysis  here.  As Your Honor notes, the government  
+sought detention  because they did believe that the defendant  
+was a danger to the community .  The question  is whether 
+there are conditions  which, in the government 's view, should 
+include GPS monitoring  that would help suffice to provide 
+that reasonable  assurance  that he will not pose that risk.
+Finally, I would just note with respect to riots, 
+riotous, rioting being the legal definition  -- that is the 
+defendant 's own term; that is what the defendant  himself has 
+celebrated .  When I speak of riots, that is not my gloss on 
+it; that is the defendant  himself glorifying  riots in his 
+tweets on December  26th.  Riots are meant to bring change 
+and purge the world with fire.  
+It's the defendant  himself on his footage in the 
+Capitol on January 6th boasting  to others that:  I have been 
+to too many riots; I have been in so many riots; I am ready, 
+bro'.  And then later telling another individual  who is 
+talking about people getting arrested :  You will be fine; 
+that's why I'm a photographer .  It's only a little jail 
+time; I do this all the time.  
+That's why, at the end of the day, Your Honor, the 
+government  would submit that it's a red herring whether or 
+not -- and it's difficult  to prove here given the removal of 
+his accounts , whether or not he was encouraging  people on Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 48 of 641
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+his specific  accounts  -- the other rioters to arrive on 
+January 6th.  We know that that's the whole reason he was 
+there on January 6; and we know that his justification  for 
+the acts with which he has been charged -- that is his 
+justification  for why he was saying:  Haul that MF'er out; 
+why he was in the Speaker's Lobby persuading  those officers  
+to leave their posts at the very scene where a woman 
+fatefully  lost her life.  So, Your Honor, the defendant  was 
+there because of his activities  with Insurgence  USA.  
+Thank you. 
+THE COURT:  Thank you, Ms. Wong.  
+I am going to be mindful of the fact that we need 
+to conclude  this by 5:15 -- by 6:15, which is still 
+55 minutes away but, also, respect that I don't want to 
+continue  this yet again; I would like to get the conditions  
+out.  But I am going to take a brief recess to look over my 
+notes on the requested  conditions , the areas of dispute.  I 
+will also take a quick look at the two cases that Ms. Wong 
+cited; and I will come back.  
+If you want to -- if anyone else -- if anyone 
+wants to take a break to stretch your legs, or whatever , I 
+think it will take me about -- it will take me at least 
+20 minutes; it may take me a little bit more.  So if you 
+want to turn your cameras off and come back on in the 
+vicinity  of 5:45, and if I am not ready to rule I will let Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 49 of 641
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+you know then. 
+I am hoping that I will be able to rule on the 
+release conditions  by that time.  
+THE DEPUTY:  Okay, Your Honor. 
+(Whereupon , a recess was taken, 5:22 to 5:52 p.m.)
+THE DEPUTY:  Your Honor, we are back on the 
+record.  
+THE COURT:  Okay.  Thank you.  
+I just have a question  for Ms. Wong and probably  
+Mr. Cahoon.  The United States is requesting  the computer  
+and internet  monitoring  program.
+In the original  jurisdiction  -- in the arrest 
+jurisdiction 's release conditions  there were tiers of 
+internet  monitoring  that we -- I believe this one was placed 
+in Appendix  A.  Are you asking that I use a similar -- if I 
+approve internet  monitoring , which I am inclined  to do, are 
+you asking that I specify one of those tiers recognizing  
+that there will need to be some modifications  to the extent 
+that the tiers would allow for bans on websites  to be set at 
+pretrial 's discretion ?  
+MS. WONG:  Yes, Your Honor.  The government  would 
+request the same Attachment  A.  
+THE COURT:  Okay.  
+And then a question  for pretrial  services  in Utah.  
+Mr. Cahoon, there's been some argument  about a Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 50 of 641
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+request that Mr. Sullivan  submit himself or his vehicle or 
+residence  to search on suspicion  of violations  or 
+contraband .  Does pretrial  contend that it needs access to 
+his residence  -- something  beyond the Appendix  A to be able 
+to determine  if -- I guess to be able to monitor the 
+devices?  
+MR. CAHOON:  No, Your Honor.  
+We can remotely  monitor the devices from the 
+software  that we install on his -- excuse me -- from the 
+software  that we install on media-approved  devices.  That 
+other condition  would come when we would be conducting  
+visits if we notice anything  that would suggest that he has 
+other types of digital media or storage devices, or other 
+internet  access capable devices that are not being monitored  
+that we are unaware of. 
+THE COURT:  Thank you.  
+Mr. Kiersh, I know the defense has objected  to any 
+requirement  that Mr. Sullivan  submit to search.  Would there 
+also be an objection  to a requirement  that we allow pretrial  
+services  to search if they have indication  that he has a 
+device that is not authorized  under the monitoring ?  
+MR. KIERSH:  Yes, Your Honor.  We would object to 
+that for the reasons previously  set forth.  
+THE COURT:  Thank you.    
+Okay.  Having reviewed  the recommended  conditions , Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 51 of 641
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+the information  in the record, and the requests  and 
+argument s from both the United States and the defense -- and 
+I thank counsel on both sides for your detailed  presentation  
+of the legal issues as well as the factual proffers 
+presented  here.
+I have a high-level summary, first, and then will 
+go through it one by one.  At this time of the high-level 
+summary, I am going to partially  grant the United States' 
+request for release conditions .  
+I am rejecting  home detention  and GPS monitoring  
+because I don't believe either has been demonstrated  to be 
+necessary  to protect the safety of the community  or assure 
+Mr. Sullivan 's appearance  as required .  
+I am rejecting  the recommended  condition  that 
+Mr. Sullivan  avoid contact with named persons who are 
+victims, witnesses , or codefendants  given that there appear 
+to be no such readily identifiable  people in this case.  
+I am rejecting  the request that he be evaluated  
+for mental health given that I see nothing in the record 
+that indicates  that this case -- distinguishes  this case 
+from other cases before the Court in which no such 
+evaluation  has been required  for people charged with similar 
+crimes.
+I am rejecting  the proposed  condition  that he 
+submit his person, vehicle, or residence  to search upon Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 52 of 641
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+reasonable  suspicion  of contraband  or violation  of release 
+conditions .
+And I am rejecting  the broader prohibition  of 
+Twitter and Facebook  and encrypted  social media platforms , 
+but I am accepting  the alternative  proposal  to have more 
+targeted  social media restrictions .  
+With that said, specifically , I've conclude d that 
+the release conditions  should be as follows:  
+Mr. Sullivan  will be subject to courtesy  
+supervision  by pretrial  services  in Utah -- the District  of 
+Utah.  
+He will also comply with internet  monitoring  
+programs , Attachment  A, which I will clarify in the release 
+papers -- I will have to go through it line by line to make 
+sure there is nothing else -- there may be a few things that 
+are different ; but I will note that to the extent that 
+Attachment  A does give pretrial  services  the discretion  to 
+add websites  to what is prohibited  and not hearing that 
+or -- given the First Amendment  concerns  that have been 
+raised here.  I don't want to delay it by trying to read out 
+line for line while I scratch out -- it will be clear with 
+the release order.  
+So he is to be subject to internet  and computer  
+monitoring  by pretrial  services .  
+He is to maintain  his employment  -- jumping back Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 53 of 641
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+to the broader point.  I did not address the Insurgence  USA.  
+I am granting  the request that he be prohibited  from working 
+for Insurgence  USA.  
+So going back to the list of conditions , he is to 
+obtain or seek employment .  However, he is to no longer work 
+for Insurgence  USA, which would include:  Promotions , 
+affiliation s, marketing  -- or promotion s with Insurgence  
+USA, InsurgenceUSA .com, or other iteration s of the entity.  
+Essentially , all activities  regarding  Insurgence  USA are 
+prohibited  except for paying taxes and maintaining  existing  
+bank accounts .  
+I realize that is an objected  to condition .  I 
+find the proffers made by the USA regarding  specific  
+Insurgence  USA promotion  of making weapons, bringing  weapons 
+to protests is sufficient ; as well as the pending charges in 
+the state of Utah are sufficient  to warrant such a 
+restriction  in this case.  We'll note that it is unusual and 
+more restrictive  than has been present in other 
+Capitol-related cases that I have seen or that have appeared 
+before me. 
+He is not to travel outside the state of Utah 
+without prior permission  from pretrial  services .  He is not 
+to travel outside the continental  United States without 
+prior court approval .  
+He is to report on a regular basis to his Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 54 of 641
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+supervising  officer with pretrial  services  in Utah as 
+directed  by that pretrial  services  agency.  
+He is not to possess any firearms, ammunition , or 
+explosive  devices.  He is to surrender  any passports  not 
+applied for or obtain new passports .  
+In terms of specific  social media restrictions , he 
+is not -- I am not prohibiting  Twitter and Facebook  or 
+encrypted  social media platforms .  I am prohibiting  him 
+using any social media platforms  to incite a riot or to 
+promote or advocate  for violent protests, unlawful  protests, 
+armed conflict , or violence .  
+He is to appear in court as required .  He is not 
+to commit any state or federal crimes.  And he is to verify 
+his residence  and notify pretrial  services  in advance of any 
+proposed  change of residence .
+I realize I didn't accept all of the conditions  
+that the United States recommended .  
+But, Ms. Wong, are there any conditions  that you 
+recommended  that I just have not addressed  at all?  
+MS. WONG:  Your Honor, did you address the 
+narcotics  provision ?  
+THE COURT:  I did not. 
+MS. WONG:  I believe that's the only one. 
+THE COURT:  Mr. Kiersh, my notes are not clear on 
+your position  on narcotics .  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 55 of 641
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+I wrote down that you said he doesn't need them so 
+it's not an issue.  By saying "it's not an issue" do you 
+mean it's not an issue that warrants  a condition  or it's not 
+an issue that warrants  an objection ?  
+MR. KIERSH:  Well, I don't believe it's an issue 
+that warrants  further discussion  because Mr. Sullivan  is not 
+a narcotics  user, and it's not something  that's ever going 
+to come into play in this case.  So if anybody is in 
+possession  of an illegal substance  they're going to be held 
+accountable .  There is no reason to suspect Mr. Sullivan  is 
+going to be involved  in that type of activity , so I don't 
+believe it's a necessary  issue that needs a resolution  by 
+the Court. 
+THE COURT:  Thank you.  
+Ms. Holman or Mr. Cahoon, is not using any 
+unlawful  narcotics  -- is that a standard  condition  when Utah 
+is doing courtesy supervision ?  
+MR. CAHOON:  This is Josh Cahoon, Your Honor.  
+Not normally , unless there is a potential  that the 
+defendant  may or may not -- or may be trying to abuse drugs, 
+then we would request that condition  as well as a drug 
+testing condition  to supplement  it. 
+THE COURT:  Thank you, Mr. Cahoon.  
+So I will not impose a prohibition  on narcotics  or 
+controlled  substance s recognizing , of course, that the Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 56 of 641
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+general prohibition  against violating  the law would apply.  
+Mr. Kiersh, are any of those conditions  -- I 
+recognize , of course, you may appeal.  But are there any 
+conditions  that you wanted me to further explain to 
+Mr. Sullivan  or to you for that matter?  
+MR. KIERSH:  Thank you, Your Honor.  
+I believe that Mr. Sullivan  and I have an 
+understanding .  I will speak with Mr. Sullivan  later on.  
+We'll find out whether or not he does.  
+He understands  the nature of the proceedings  and 
+he understands  the nature -- I am confident  he understands  
+the nature of the Court's ruling.  
+My only question  is whether or not Mr. Sullivan  
+and Mr. Cahoon should discuss between themselves  how to 
+remove the ankle monitor and just the logistics  of turning 
+it in. 
+THE COURT:  Mr. Cahoon. 
+MR. CAHOON:  Yes, Your Honor.  
+I will have him -- as soon as the hearing is 
+concluded , he can turn off the device; and I will pick it 
+up, and all associated  equipment , from him tomorrow .  
+It is no longer a condition  of release.  We don't 
+want it on him any longer than is reasonably  needed.  So as 
+soon as the proceeding  is over he can cut it off.  I will 
+terminate  the condition  of the GPS monitor and pick up all Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 57 of 641
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+equipment  tomorrow . 
+MR. KIERSH:  Thank you. 
+THE COURT:  Thank you.  
+Does pretrial  -- Ms. Holman, you may be preparing  
+the papers.  Does pretrial  need any further clarification  
+from me on any of these, recognizing  that you can also 
+follow up with my chambers  as you're working on the draft 
+order?  
+MS. HOLMAN:  No, Your Honor.  
+You answered  my only question .  I didn't know 
+if -- Your Honor has stated that she would be issuing an 
+order or do you want pretrial  to fill out the order?  
+THE COURT:  If you could send us your draft as you 
+typically  do, we will take care of any adjustments  to that 
+Attachment  A on internet  monitoring , and -- that's my 
+intention .  If, after looking at this, you think the 
+other -- you think deviating  from that would make sense, you 
+can follow up with my law clerk, and we can figure it out. 
+MS. HOLMAN:  Okay, Your Honor.  
+MS. WONG:  Does Your Honor need Attachment  A?  
+Mr. Cahoon just emailed it to me a few days ago. 
+THE COURT:  I have it from the original  hearing, I 
+believe.  Well, I have it from -- maybe if you can send it.  
+I have what was attached  to the Utah court which I 
+was guessing  was the same -- somehow it ended up before me; Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 58 of 641
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+but just to make sure I am working from the same document  
+and not something  outdated, it would be helpful if you send 
+it to my chambers ' account.  
+Thank you. 
+MR. KIERSH:  Just for my clarity, with respect to 
+Twitter and Facebook , Mr. Sullivan  can use Twitter and 
+Facebook , he just can't use it to incite a riot or other 
+criminal  endeavor s; is that correct?  
+THE COURT:  Right.  He can't use it to incite a 
+riot, a violent protest, unlawful  protest, armed conflict , 
+or violence . 
+MR. KIERSH:  Thank you.  
+MR. CAHOON:  Your Honor, this is Josh Cahoon.  
+I wanted to clarify one thing. 
+THE COURT:  Yes.  
+MR. CAHOON:  As far as the computer  and internet  
+monitoring  goes, it would be my understanding  then that we 
+would open up all avenues of internet  access for the 
+defendant  as long as they are approved  and monitored  
+devices; and we will be monitoring  the internet  activity  and 
+other activity  associated  with those -- specifically  for 
+those reasons you stated, for inciting  a riot, violent armed 
+conflict  -- of that nature, correct?  
+THE COURT:  Is that something  you can do if it's 
+not in specific  platforms ?  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 59 of 641
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+MR. CAHOON:  That is something  that we can do.  
+It's time consuming .  It's intensive  supervision , Your 
+Honor, but it is something  that we can do.  
+THE COURT:  So I was saying not doing that on 
+social media platforms .  Let me clarify.  
+Ms. Wong, I know you presented  that as an 
+alternative .  I can't tell from my notes.  Was that specific  
+social media sites?  I mean, can we target that to -- was 
+that for Twitter and Facebook , or was it for some others as 
+well?  
+MS. WONG:  Our proposal  was that this would be 
+across all platforms  if we were just focused on that. 
+THE COURT:  Okay.  Thank you.  
+That's what I will do.  
+If that becomes unworkable , it probably  will go to 
+Judge Sullivan  as opposed to me.  If that becomes 
+unworkable , perhaps there can be a request to modify the 
+conditions  to facilitate  the monitoring .  
+MR. CAHOON:  Thank you, Your Honor.  
+We can flag specific  key words that may help us so 
+that any time those key words are presented  in any of the 
+data it would notify us to then investigate  further, so we 
+can do that as well. 
+THE COURT:  Okay.  Thank you.  
+MR. KIERSH:  Your Honor, with respect to the Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 60 of 641
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+internet  monitoring , Mr. Sullivan  and I have privileged  
+communication s over the internet  via electronic  now; and I 
+certainly  don't want any communication s -- Mr. Sullivan  
+certainly  would object to any communication s between himself 
+and me being read or in any way considered  by anyone.  I 
+mean, it should just be between the two of us as part of our 
+confidential  relationship . 
+THE COURT:  Mr. Cahoon, is there a way to exclude 
+certain email accounts  from the search, the keyword search?  
+MR. CAHOON:  Not generally .  
+I will dig into it and see if there is a way so 
+that we can block -- so that we don't even see any of the 
+communication  between defense counsel and his client.  If 
+those things do come up, it is our practice  to not even read 
+them and to just dismiss them in their entirety  so that we 
+do not disrupt that privilege  that they have between one 
+another. 
+THE COURT:  Okay.  
+MR. KIERSH:  Thank you. 
+THE COURT:  Thank you.  
+Okay.  With that, Mr. Kiersh, can I have my 
+courtroom  deputy swear Mr. Sullivan  to his conditions  to 
+make sure everything  is on the up and up. 
+MR. KIERSH:  Yes, Your Honor.  Thank you. 
+THE COURT:  Okay.  Ms. Kay, would you please swear Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 61 of 641
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+Mr. Sullivan  to his conditions . 
+THE DEPUTY:  Yes, Your Honor.  
+Mr. Sullivan , would you please raise your right 
+hand?  
+(Whereupon , the defendant  was sworn to the 
+conditions  of release.)  
+THE DEFENDANT :  I do.  
+THE DEPUTY:  Thank you.  
+THE COURT:  Thank you.  
+Mr. Sullivan , can you confirm for the record that 
+you have heard and understood  the conditions  that you just 
+agreed to follow?  
+THE DEFENDANT :  I do swear -- 
+THE COURT:  I couldn't hear you. 
+THE DEFENDANT :  I do understand  the conditions . 
+THE COURT:  Thank you.  
+Do the parties have a next court date before 
+Judge Sullivan  already?  You do. 
+MS. WONG:  Yes, Your Honor.  This Thursday . 
+THE COURT:  Okay.  Is there anything  else 
+regarding  release conditions  that we need to address before 
+we adjourn?  
+MS. WONG:  No, Your Honor.  Thank you.  
+MR. KIERSH:  Not on behalf of Mr. Sullivan .  
+Thank you.  Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 62 of 641
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+THE COURT:  Okay.  Thank you.  
+And thank you, again, to pretrial  for making 
+yourself  available .  The Court will coordinate  with pretrial  
+to get the release order; and we will provide a copy of that 
+to counsel.
+That concludes  this matter.  
+Mr. Sullivan  is released  under the conditions  
+stated on the record.  
+Well -- I am sorry.  I need to do a couple of 
+warnings .  
+Mr. Sullivan , I did release you under the 
+conditions  of release.  The paperwork  will say this as well, 
+but if you violate the release conditions , you could find 
+yourself  facing revocation  proceedings  as you did when you 
+first appeared  before me.  There could be another motion to 
+hold you in custody while you're awaiting  trial; they could 
+issue a warrant for your arrest; there can be negative  
+consequences .  
+Also, if you commit any crimes while you are on 
+release -- in addition  to any penalties  you face for that 
+crime, you may face an additional  penalty for having 
+committed  a crime while on release.  
+Finally, you are required  to appear in court as 
+directed  while you are on pretrial  release.  Your failure to 
+appear in court as directed  could also lead to -- could lead Case 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 63 of 641
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+to a warrant for your arrest or revocation  of your release, 
+or your detention  pending trial.  These warnings  will also 
+be in the release order that we will provide.  
+Thank you.  
+That concludes  this hearing.  You are all excused.  
+Have a good evening. 
+THE DEFENDANT :  Thank you. 
+(Whereupon , the hearing concludes , 6:13 p.m.)
+CERTIFICATE
+I, ELIZABETH  SAINT-LOTH, RPR, FCRR, do hereby 
+certify that the foregoing  constitutes  a true and accurate  
+transcript  of my stenographic  notes, and is a full, true, 
+and complete  transcript  of the proceedings  to the best of my 
+ability.
+PLEASE NOTE:  This hearing was held via 
+videoconference  and telephonically  in compliance  with the 
+COVID-19 pandemic  stay-safer-at-home orders and is therefore  
+subject to the limitations  associated  with the use of 
+technology , including  but not limited to telephone  signal 
+interference , static, signal interruptions , and other 
+restrictions  and limitations  associated  with remote court 
+reporting  via telephone , speakerphone , and/or 
+videoconferencing  capabilities .
+This certificate  shall be considered  null and void 
+if the transcript  is disassembled  in any manner by any party 
+without authorization  of the signatory  below. 
+Dated this 15th day of March, 2021.
+/s/ Elizabeth  Saint-Loth, RPR, FCRR
+Official  Court ReporterCase 1:21-cr-00078-EGS   Document 22   Filed 03/27/21   Page 64 of 64

04-03-22 - Supplemental MOTION to Dismiss Count re 62 Motion to Dismiss Count in the Supserseding Indictment by JOHN EARLE SULLIVAN..txt

@@ -0,0 +1,75 @@
+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  COUN T 1 OF THE   
+    SUPERSEDING INDICTMENT  
+ 
+ Defendant , by and though  undersigned  counsel, does her eby 
+supplement hi s Motion to Dismiss  Count 1 of the  Superseding  Indictment. 
+In support  thereof, defend ant respectfully sets for th as follows:  
+ 1. On December 3 1, 2021 , defend ant filed a Mot ion to Dismiss C ount 
+1 of the Superseding Indictment. Defendant  incorp orate d the Motion to 
+Dismiss C ount 2 of the Indi ctment submitted in United States v. Caldwel l, 
+21-cr-28 (APM). See E CF 62. On January 10, 2022, the United S tates filed 
+an Oppo sition to the Motion to Dismiss. ECF 65.  
+ 2. On March 7, 2022 , the H onorable Carl J. Nichols  of this U nited 
+States District C ourt issued a Memoran dum Opin ion in United States v . 
+Garrett Miller , 21-cr-119 (CJN) . The opinion addressed  a Motion to Di smiss Case 1:21-cr-00078-EGS   Document 71   Filed 04/03/22   Page 1 of 32 
+ Count Three of the Indictment , violation of 18 U.S.C. Sec. 1512 (c)(2). This 
+is the same sta tutory count  that defendan t John Sullivan seeks  to dismiss .  
+ 3. Miller argued, as d oes defendant  Sullivan,  that Sec. 1512 (c)(2) 
+does not make  criminal  his all eged actions  on January 6 . Judge Nichols 
+held that “the Court must determi ne what conduct Sec. 1512  (c)(2) prohi bits 
+and whether Miller ’s alleged actions  fall within that prohibition. ” Miller, 8. 
+Judge Nichols further concluded that  three readin gs of the statute are 
+possible , two plausible . Ultimately , the rule of lenity required the C ourt to  
+“resolve ambiguities in favor of the defendant. ” Id.11 citing  United  States v.  
+Nasir  17 F.4th 459, 473 (3rd Cir. 2021 ) (en banc) . Judge Nichols later 
+determined that “the Court is left with a  serious ambiguity in a criminal 
+statute. ” Id. 28.  
+ 4. Judge Nic hols con cluded that “Sec. 1512  (c)(2) must be interpreted  
+as limited by subsection (c)(1), and thus requires that the defendant  have 
+taken s ome action with respect to a document, record, or other  object in 
+order to corruptly obstruct , impede or influence an official proceeding .: Id., 
+28, emph asis supplied.  
+ 5. Finding that M iller is not alleged to have taken such action, Judge 
+Nichols dismissed the  felony 1512 count i n the indictment.  Case 1:21-cr-00078-EGS   Document 71   Filed 04/03/22   Page 2 of 33 
+  6. Defendant  Sullivan  notes that he , like Miller, is not alleged to have 
+taken some action with respect to a document, record, or other object  in 
+order to corruptly obstruct, impede or influence an official proceeding.  
+ 7. Defendant  adopts the analysis  of Judge Nichols in United States v . 
+Miller  and supplements his Motion to Di smiss C ount 1 of the Superseding 
+Indictment with  the ruling of Judge Nich ols. 
+ 
+______ /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 Candice Wong , 
+Esquire, Assistant  U.S. Attorney on this the 3rd day of April, 2022,  
+ 
+ 
+       ______ /s/___________________  
+       Steven R. Kier sh 
+ 
+ 
+    Case 1:21-cr-00078-EGS   Document 71   Filed 04/03/22   Page 3 of 3

04-04-22 - NOTICE of Discovery by USA as to JOHN EARLE SULLIVAN.txt

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+ 
+ 
+ 
+  U.S. Department of Justice  
+ Matthew M. Graves  
+United States Attorney  
+ District of Columbia  
+       Judiciary Center  
+555 Fourth St., N.W.  
+Washington, D.C.  20530  
+ 
+       April 4, 2022 
+ Via Email 
+Steven Kiersh  
+Counsel for John Earle Sullivan 5335 Wisconsin Avenue, N.W., Suite 440 Washington, D.C. 20015 skiersh@aol.com  
+  Re: United States v. John Earle Sullivan 
+ Case No. 1:21- cr-00078- EGS  
+ Dear Counsel:  
+  The enclosed letter memorializes the provision of the following additional discovery in 
+this case, via filesharing  (unless otherwise indicated ): 
+ 
+1. Periscope search warrant  and production (1 zip file)  
+2. 302 for Periscope review  
+3. 302 regarding provision of witness videos, redacted 
+4. Material from other Capitol investigations:  
+a. 302 from proffer with defendant AJ  
+b. Notes from proffer with defendant AJ  
+5. Additional open- source video relating to Speakers Lobby (Benjamin 
+Reports)  
+ 
+ The discovery is unencrypted.  Please contact me if you have any issues accessing the 
+information, and to confer regarding pretrial discovery as provided in Fed. R. Crim. P. 16.1.  
+  This material  is being provided pursuant to the Protective Order issued in this case.  
+Please adhere to sensitivity markings.   I will forward add itional discovery as it becomes available.  If you have any questions,  
+please feel free to contact me.  
+Case 1:21-cr-00078-EGS   Document 72-1   Filed 04/04/22   Page 1 of 22 
+   
+ Sincerely,  
+ 
+   
+    _______________________ 
+ Candice C. Wong 
+ Assistant United States Attorney  
+ 202-252-7849 
+ Candice.wong@usdoj.gov 
+ 
+Case 1:21-cr-00078-EGS   Document 72-1   Filed 04/04/22   Page 2 of 2

04-05-22 - NOTICE OF WITHDRAWAL OF APPEARANCE by USA as to JOHN EARLE SULLIVAN.txt

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+ UNITED STATES DISTRICT COURT  
+ FOR THE DISTRICT OF COLUMBIA  
+       
+UNITED STATES OF AMERICA   : 
+:  Criminal No.: 21-CR-00078  (EGS ) 
+  v.    :  
+:     
+JOHN SULLIVAN     :  
+                                        :  
+                               Defendant .                      : 
+ 
+ NOTICE OF WITHDRAWAL  OF APPEARANCE    
+ The United States of America by and t hrough its attorney, the United States Attorney for 
+the District of Columbia, informs the Court that Assistant United States Attorney  
+Candice C. Wong , as counsel for the U nited States, is terminating her  appearance as counsel of 
+record in this matter.  All other government counse l noted on the docket at the time of this filing 
+will remain counsel for the United States.   
+      
+Respectfully submitted,  
+ MATTHEW M. GRAVES   
+                           United States Attorney  
+D.C. Bar  No: 481052     
+      
+     By: /s/ Candice C. Wong      
+      Candice C. Wong   
+      Assistant United States Attorney  
+      D.C. Bar No: 990903  
+      United States Attorney’s Office  
+      555 Fourth Street, N.W. #4816  
+      Washington, D.C. 20530  
+      Telephone: 202 -252-7849  
+      E-mail: candice.wong@usdoj. gov 
+ Case 1:21-cr-00078-EGS   Document 73   Filed 04/05/22   Page 1 of 1

04-06-22 - NOTICE OF ATTORNEY APPEARANCE Joseph Hong Huynh appearing for USA.txt

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+UNITED STATES DISTRICT COURT  
+FOR THE DISTRICT OF COLUMBIA 
+ 
+UNITED STATES OF AMERICA                :     
+              :  Case No. 21- CR-00078 (EGS )  
+v.             :  
+           :     
+JOHN EARLE SULLIVAN,      :  
+                                                              :                                                                   :     
+                         Defendant.     :     
+      
+       
+ 
+ 
+NOTICE OF APPEARANCE  
+ 
+The United States of America, by and t hrough its undersigned counsel, the United States 
+Attorn ey for the District of Columbia , herby informs the Court that As sistant United States 
+Attorney Joseph H. Huynh is entering his  appearance in this matter on behalf of the United 
+States.  
+ 
+Respectfully submitted,  
+       MATTHEW M. GRAVES  
+United States Attorney  
+D.C. Bar No. 481052  
+ 
+       /s/ Joseph H. Huynh   
+                              JOSEPH H. HUYNH  
+  D.C. Bar No. 495403  
+Assistant United States Attorney  (Detailed)  
+405 East 8th Avenue, Suit e 2400 
+Eugene, Oregon 97401- 2708 
+Telephone:  (541) 465 -6771 
+  Joseph.Huynh@usdoj.gov 
+ 
+ Case 1:21-cr-00078-EGS   Document 74   Filed 04/06/22   Page 1 of 1

04-17-22 - Joint MOTION to Continue Status Conference, Joint MOTION to Exclude Time under the Speedy Trial Act by USA as to JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,78 @@
+1 
+ UNITED STATES DISTRICT COURT  
+FOR THE DISTRICT OF COLUMBIA 
+ 
+UNITED STATES OF AMERICA   :  
+      :  v.     : Criminal No. 1:21- cr-00078- EGS  
+      :  JOHN EARLE SULLIVAN,   :  
+      :     Defendant.   :   
+JOINT MOTION TO CONTINUE AND  
+TO EXCLUDE TIME UNDER THE SPEEDY TRIAL ACT  
+ 
+The parties are currently scheduled for a status hearing on April 20 , 2022 .  The United 
+States  of America and counsel for the defendant, John Sullivan, hereby move s this Court for a n 
+approximately 60- day continuance of that hearing and to exclude the time within which  the trial 
+must commence  under the Speedy Trial Act, 18 U.S.C. § 3161 et seq ..  In support of this  joint 
+motion, the undersigned state s as follows:  
+1. As set forth in the United States’ prior motion to continue [DE60] granted by this Court, 
+the parties last convened for a status hearing on January 4, 2022.  Discovery was 
+provided on January 18, 2022, and February 3, 2022, which has include d filesharing of 
+documents produced to Relativity.  The production to Relativity  included numerous 
+audio files and other records of the U.S. Capitol Police, tens of thousands of tips and 
+related documentation made to the  Metropolitan Police Department tipline, and FBI 
+reports of interviews, among other materials.  On February 10, 2022, the United States 
+also filed a memorandum on the docket summarizing the status of global discovery in Capitol Breach matters for the Court .  
+2. Last week, the United States provided to Defendant another extensive global discovery production (Volume 13) as well as defendant- specific discovery.  The United States  
+anticipates the continued production of additional discovery to the defendant, including Case 1:21-cr-00078-EGS   Document 76   Filed 04/17/22   Page 1 of 42 
+ more defendant -specific materials, in the near future.  The United States has also 
+indicated it is collecting additional specific discovery for production related to potential 
+404(b) material for trial that will need to be reviewed and investigated by both parties.  
+3. Given defenses interest in reviewing the voluminous discovery materials, including the 
+most recent productions on the Relativity workspace, and the governm ent’s continued 
+production of discovery materials to defense counsel, the parties seek an additional continuance of approximately 60 days or another date thereafter at the Court’s 
+convenience.  The additional time will afford the United States time to continue to produce discovery, defense counsel time to review and investigate any matters as needed,  and the parties time to discuss any possible pre -trial resolution of this matter.  
+4. The need for reasonable time to address discovery obligations is among multiple pretrial preparation grounds that Courts of Appeals, including our Circuit, have routinely held sufficient to grant continuances and exclude time under the Speedy 
+Trial Act – and in cases involving far less complexity in terms of the volume and nature o f data, and the number of defendants entitled to discoverable materials.  See, 
+e.g., United States v. Bikundi , 926 F.3d 761, 777- 78 (D.C. Cir. 2019) (upholding 
+ends-of-justice continuances totaling 18 months in two co- defendant health care fraud 
+and money laundering conspiracy case, in part because the District Court found a need to “permit defense counsel and the government time to both produce discovery and review discovery” ); United States v. Gordon, 710 F.3d 1124, 1157- 58 (10th Cir. 
+2013) (upholding ends -of-justice continuance of ten months and twenty- four days in 
+case involving violation of federal securities laws, where discovery included “documents detailing the hundreds of financial transactions that formed the basis for Case 1:21-cr-00078-EGS   Document 76   Filed 04/17/22   Page 2 of 43 
+ the charges” and “hundreds and thousands of documents that needs to be catalogued 
+and separated, so that the parties could identify the relevant ones”) (internal quotation marks omitted); United States v. O’Connor , 656 F.3d 630, 640 (7th Cir. 2011) 
+(upholding ends -of-justice continuances totaling five months and 20 days in wire 
+fraud case that began with eight charged defendants and ended with a single defendant exercising the right to trial, based on “the complexity of the case, the magnitude of the discovery, and the attorneys’ schedules”) . 
+5. The parties also note that there are numerous substantive motions pending before the Court that should also toll the speedy trial clock.  These include Defendant’s Motion to Dismiss Count 1 of the Superseding Indictment and Motion to Adopt and Join Motion in 21- cr-28 [DE 62] and a Supplemental Motion to Dismiss Count [71] 
+recently filed, Motion to Dismiss Count Eight of the Superseding Indictment as Being Void for Vagueness [DE 47], Motion to Suppress Custodial Statements [DE 46], and 
+Motion for Rec onsideration re: December 6, 2021 Order Denying Motion to Remove 
+Seizure Order [DE61]. The Government has filed responses opposing all motions. 
+6. Defense counsel intends to supplement its Motion for Reconsideration re: December 6, 2021 Order Denying Motion t o Remove Seizure Order [DE61] with information 
+about Defendant’s current financial situation and would request respectfully the Court consider subsequently its motion during any continuance given the financial situation of the Defendant.  The Government continues to oppose the motion. 
+7. The parties anticipate that , if the Court grant this continuance, they will be better 
+positioned to request from the Court at the next status conference a trial date and schedule for corresponding pretrial motions.  Case 1:21-cr-00078-EGS   Document 76   Filed 04/17/22   Page 3 of 44 
+ WHEREFORE,  the parties respectfully request that this Court grant the motion for a n 
+approximately 60-day continuance of the above-captioned proceeding, and that the Court exclude 
+the time within which the trial must commence under the Speedy Trial Act, 18 U.S.C. § 3161 et 
+seq., on the basis  that the ends of justice served by taking such actions outweigh the best interest 
+of the public and the defendant in a speedy trial  pursuant to the factors described in 18 U.S.C. § 
+3161(h)(7)(A), (B) (i), (ii), a nd (iv), and failure to grant such a continuance would result in a 
+miscarriage of justice .   
+Respectfully submitted,  
+       MATTHEW M. GRAVES  
+United States Attorney  
+D.C. Bar Number 481052 
+ 
+ 
+      By: /s/ Joseph H. Huynh  
+                              JOSEPH H. HUYNH  
+  D.C.  Bar No. 495403 
+Assistant United States Attorney  (Detailed)  
+405 East 8th Avenue, Suite 2400 
+Eugene, Oregon 97401-2708 Telephone: (541) 465-6771 
+  Joseph.Huynh@usdoj.gov 
+ 
+ 
+/s/ Steven Roy Kiersh           
+STEVEN ROY KIERSH  
+Law Offices of Steven R. Kiersh  
+5335 Wisconsin Avenue, NW Suite 440 Washington, DC 20015 Telephone (202) 347-0200 skeirsh@aol.com Case 1:21-cr-00078-EGS   Document 76   Filed 04/17/22   Page 4 of 4

05-05-23 - MOTION for 404(b) Evidence by USA as to JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,234 @@
+ 
+ 1 UNITED STATES DISTRICT COURT 
+FOR THE DISTRICT OF COLUMBIA 
+ 
+ UNITED STATES OF AMERICA  :   
+ :   
+ :  
+             v. :  Case No. 21- cr-78 (RCL ) 
+ :  
+JOHN EARLE SULLIVAN,  : 
+ :  
+Defendant.                   : 
+ 
+GOVERNMENT’S 404(b) NOTICE  
+ 
+The United States of America, by and through its attorney, the United States Attorney for 
+the District of Columbia, respectfully submits this Federal Rule of Evidence 404(b) Notice  
+regarding the admissibility of Defendant John Sullivan’s  prior act s of protesting and rioting for the 
+proposition that he is a professional protestor whose presence at the Capitol on January 6, 2021 
+was no mere accident or part of a journalistic exercise, but was in line with his consistent motivation to trigge r violence and property destruction during civil unrest .  Defendant  Sullivan is  
+charged  with crimes related to his conduct at the Capitol on January 6, 2021.  As detailed herein, 
+Defendant Sullivan’s prior act s are probative  in establishing Sullivan’s motive, intent, knowledge, 
+and absence of mistake  or accident .     
+If not used in its case -in-chief, the government intends to use the 404(b) evidence as 
+impeachment or rebuttal evidence should defense present a case.   In the event the government is 
+precluded from using the 404(b) evidence in its case -in-chief , the government would seek to use 
+it as impeachment or rebuttal evidence.  
+ Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 1 of 11 
+ 2 I. PROCEDURAL HISTORY 
+On November 10, 2021, a grand jury charged Defendant Sullivan  with Obstruction of an 
+Official Proceeding, in violation of 18 U.S.C. § 1512(c)(2), and 2; Civil Disorder in violation of 
+U.S.C. § 231(a)(3), and 2; Entering and Remaining in a Restricted Building and Grounds  with a 
+dangerous weapon, in violation of 18 U.S.C. § 1752(a)(1) and (b)(1)(A); Disorderly and Disruptive 
+Conduct in a Restricted Building or Grounds  with a dangerous weapon, in violation of 18 U.S.C. 
+§ 1752(a)(2)  and (b)(1)(A);  Unlawful Possession of a Dangerous Weapon  on Capitol Grounds or 
+Buildings, in vi olations of 40 U.S.C. § 5104(e)( 1)(A)( i); Disorderly Conduct in a Capitol Building, 
+in violation of 40 U.S.C. § 5104(e)(2)(D); Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G) ; False Statement or Repres entation to an 
+Agency of the United States, in violations of 18 U.S.C. § 1001(a)(2); and Aiding and Abetting, in 
+violation of 18 U.S.C. § 2. 
+ The case is scheduled for jury trial to commence on October 25, 2023.  Judge Emmet 
+Sullivan ordered the government t o file notice of Rule 404(b) evidence by May 5, 2023. See ECF 
+No.83 at 1.  Defense has been provided the material referenced in this notice during discovery.  
+II. DEFENDANT’S CONDUCT ON JANUARY 6, 2021
+ 
+John Sullivan traveled from Utah to Washington, D.C., to at tend and film varying rallies 
+on the 5th and 6th.  On January 6th, Sullivan attended the “Stop the Steal” rall y on January 6, 2021. 
+Afterwards, Sullivan joined rioters at the U.S. Capitol  grounds  where he filmed a crowd pushing 
+through several police barri ers on the west side of the Capitol . After the crowd broke through the 
+last barricade. As Sullivan and the others approach the Capitol Building, Sullivan can be heard in 
+his video excitedly saying at various points: “There are so many people. Let’s go. This shit is ours! Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 2 of 11 
+ 3 Fuck yeah,” “We accomplished this shit. We did this together. Fuck yeah! We are all a part of this 
+history,” and “Let’s burn this shit down.”  
+Sullivan entered the Capitol via  a broken Senate Wing Door. Once inside the Capitol 
+Building, Sullivan roamed the building with other individuals who unlawfully entered.  During 
+one of his interactions with others, Sullivan can be heard in the video saying, “We gotta get this shit burned,” “it’s our house motherfuckers,” and “we are getting this shit.” Sullivan ignored law enforcements commands to leave and told the officers to stand down, so they would not get hurt. 
+Sullivan encouraged other rioters, explaining he was “ready” because he had “been in so many 
+riots.”  
+Sullivan filmed the crowds trying to break open doors to the House  Chamber  and the n at 
+the Speaker’s Lobby. At both locations, Sullivan informed other members of the crowd he had a 
+knife which allowed him to cut to the front of  the crowd. At the front of the Speaker’s Lobby 
+crowd, Sullivan filmed the crowd trying to break down the doors’ glass windows. Sullivan can be 
+heard telling law enforcement to “go home” while encouraging those attempting to break the windows to “Get this shit!” Shortly thereafter, the video includes footage of a female getting shot as she tries to enter through the window opening. After January 6
+th, Sullivan  publicly claimed he 
+was simply  a journalist  who went inside to film and protect police. Sullivan claimed he made the 
+inflammatory statements so he could blend in with the other rioters.  Sullivan did admit, to 
+investigators, that he did not have any press credentials.  
+III. DEFENDANT’S PRIOR ACT  
+Over the course of 2020 -2021, Sullivan participated in numerous  riots and protests  across 
+the country and in his home state of Utah .  Sullivan’s participation and attendance at legal protests Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 3 of 11 
+ 4 is not at issue, but his actions during and after these protests, some of which escalated to riots, are 
+the center of this motion. Sullivan’s participation has never been that of a journalist, as he claims on January 6th.  During these  prior  protests and riots, Sullivan is captured, often in his own 
+recordings, wearing all black fatigues and giving inflammatory speeches calling for violence.  Sullivan  even started a group called ‘Insurgence USA’ that  organized, promote d, and recruit ed 
+attendees  for differing protests , counter protests, and events .  In addition to his physical 
+participation, Sullivan utilized several social media platforms to  provide  comment ary on protests 
+and riots.  He also used these platforms to post, as well as re -post, ‘how -to” guides on how to 
+participate in , survive, and inf lame protests  or riots.  
+a. Prior P rotests and Riots  
+Sullivan organized multiple protests in Utah over the course of 2020. On June 29, 2020, 
+Defendant Sullivan  organized a counter protest to a pro- police event where a group drove cars 
+around the Provo police station .  Sullivan did not seek a permit to hold his counter -protest.  
+Specifically, Sullivan’s group blocked both the pro- police cars and street traffic, at his instruction.  
+Sullivan also damaged several cars including kicking a woman’s SUV while threate ning to beat 
+her.  During the blockade, a counter -protester, standing next to Sullivan, shot a driver who was not 
+involved with either group. Sullivan was arrested on July 9, 20202, and charged with criminal mischief, threat of violence, and rioting.  His case was dismissed from Utah District Court , due to 
+lack of jurisdiction, and could not be filed in state court due to statute of limitations .  On July 22, 
+2020, Sullivan held a solo protest at the Utah state Capitol while holding his legally owned AR -
+15.  On December 27, 2020, Sullivan tweeted a photo of himself , from his one -man armed protest , Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 4 of 11 
+ 5 with the caption “An armed revolution is the only way to bring about change effectively.”  He also 
+used the hashtags #Fuck12 and #Acab.   
+In September of 2020, Defendant Sullivan traveled to Portland, Oregon to attend protest s 
+in relation to defunding the police.  Sullivan posted a photograph of himself of Facebook , wearing 
+all black and a balaclava with the caption “Let’s start a riot.”  He also posted an Instagram photo 
+of himself in the clothing with the Caption “Battle Ready” and a  guide on “How To Take Down 
+A Monument.”  Prior to the protests, Sullivan recorded himself walking around the streets of Portland wearing all black and a bullet proof vest.  La ter he  engaged in protests and recorded 
+himself giving a speech in support  of taking drastic steps to promote a cause . 
+Sullivan also attended protests and marches in August and September 2020, respectively, 
+Washington, D.C  and Southern California .  In D.C. , he was recorded giving a speech  and saying, 
+“burn it down.”  He posted an Instagram linking his followers to information on a “ purge” with a 
+note “SPREAD THE MESSAGE. LET THE ELECTORAL PURGE COMMENCE.”  Sullivan 
+also used hashtags including #DCProtest. 
+b. Social Media 
+In additional to Sullivan’s presence at protests, he has been  just as vocal  about protesting and 
+revolution on social media.  As evident by the post described above, Sullivan had several platform 
+accounts attached to either his name or his orga nization .   
+i. Facebook  
+In addition to the posts mentioned above, Sullivan’s Insurgence USA hosted a fundraiser on 
+Facebook for bullet proof vests.  Sullivan also offered to sell tactical gear as well  in YouTube 
+videos.  Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 5 of 11 
+ 6 ii. YouTube  
+On December 5, 2020, Sullivan posted on his YouTube account Jayden X (which shares the 
+same name as the watermark on his recordings of January 6th), dressed in all black while donning 
+a bullet proof vest and balaclava with the caption “Here is a full guide on how to keep yourself 
+safe during protests and Direct Actions.” At differing points in the video Sullivan brandishes a 
+legally owned semi -automatic handgun, rifle, and knife. The same day he also posted a YouTube  
+video captioned “Outstanding job protesters in Paris keep making them notice and burn it all!” On 
+December 29, 2020, Sullivan posted a how -to guide on making Molotov cocktails.   
+ 
+iii. Twitter  
+Sullivan’s Twitter accounts reveal ed similar intent.  On December 2 6, 2020, Sullivan tweeted 
+“Riots are meant to bring change, so purge the world with fire.”  On December 27, 2020, Sullivan 
+tweeted a photo of himself, holding a legally owned firearm, at his one -man protest with the 
+caption “An armed revolution is the only  way to bring about change effectively.”  He also used 
+the hashtags #Fuck12 and #Acab.  On December 30, 2021, Sullivan re tweeted  a Tiktok of Senate 
+Minority Leader Mitch McConnel l and added the caption “Definitely don’t  surround his house…” 
+with the hashta g #fuckMcConnel l.  On December 31, 2020, Sullivan tweeted a photo of himself 
+in a bullet proof fest and armed with the caption “I’m already ready to go Nazi Hunting in 2021, 
+are you?”  On January 1, 2021, Sullivan retweeted a tweet from then President Trum p and urged 
+counter protesters to show up to Trump’s January 6th rally. The very next day Sullivan tweeted 
+“Fuck The System -Time To Burn It All Down” with several hashtags including #burn and Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 6 of 11 
+ 7 #abolishcapitalism. The tweet was accompanied by a Tiktok showing masked figures and ominous 
+music . 
+IV.    LEGAL STANDARD  
+Rule 404(b)  Crimes, Wrongs, or Other Acts  
+Federal Rule of Evidence 404(b)(2)(A) requires that the government must provide 
+“reasonable notice of the general nature of any such evidence that the prosecutor intends to offer 
+at trial; and (B) do so before trial.”   Rule 404(b) provides that evidence of “other crimes, wrongs, 
+or acts” is not admissible to prove a defendant’s character, but is admissible for any non- propensity 
+purpose, including motive , intent, common scheme or  plan, knowledge,  and absence of mistake, 
+or accident .  See United States v. Bowie , 232 F.3d 923, 926, 930 (D.C. Cir. 2000) (citing Fed. R. 
+Evid. 404(b)).  As the United States Court of Appeals for the D.C. Circuit has instructed, Rule 
+404(b) is a rule of “inclusion rather than exclusion.”  Bowie , 232 F.3d at 929.  Additionally, 
+evidence of a defendant’s prior crimes may also be admissible where such evidence (1) is direct 
+and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the 
+charged crime, or (3) is necessary to place the charged crime in an understandable context.   Jackson  
+v. United  States , 856 A.2d 1111, 1115 (D.C. 2004) .  Specifically, “[a]lthough the first sentence of 
+Rule 404(b) is ‘fr amed restrictively,’ the rule itself ‘is quite permissive,’ prohibiting the admission 
+of ‘other crimes’ evidence ‘in but one circumstance’ — for the purpose of proving that a person’s 
+actions conformed to his character.” Id. at 929- 30 (quoting United State s v. Crowder, 141 F.3d 
+1202, 1206 (D.C. Cir. 1998) ( en banc ) (“Crowder II ”)); accord United States v. Cassell , 292 F.3d 
+788, 792 (D.C. Cir. 2002) (“[A]ny purpose for which bad- acts evidence is introduced is a proper Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 7 of 11 
+ 8 purpose so long as the evidence is not offered solely  to prove character”) (quoting United States v. 
+Miller , 895 F.2d 1431, 1436 (D.C. Cir. 1990) (emphasis in original)). 
+There is a two -pronged test for determining whether evidence of prior crimes is admissible 
+under Rule 404(b).  First, the evidence must be “probative of a material issue other than character.”  
+Miller , 895 F.2d at 1435.  Second, the evidence is subject to the balancing test of Federal Rule of 
+Evidence 403, which renders  it inadmissible only if the prejudicial effect of admitting the evidence 
+“substantially outweighs” its probative value.  Id.  Furthermore, it is not enough that the evidence 
+is simply prejud icial; the prejudice must be “unfair.”  Cassell , 292 F.3d at 796 (quoting Dollar v. 
+Long Mf’g, N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977) for the proposition that “[v]irtually all 
+evidence is prejudicial or it isn’t material.  The prejudice must be “unf air.”); United States v. 
+Pettiford , 517 F.3d 584, 590 (D.C. Cir. 2008) (“[T]he Rule focuses on the danger of unfair  
+prejudice, and gives the court discretion to exclude evidence only if that danger substantially  
+outweigh[s] the evidence’s probative value.” ) (citations and punctuation omitted) (emphasis in 
+original).  
+Admission of Rule 404(b) evidence is permitted in the government’s case -in-chief. 
+Specifically, the government is entitled to anticipate the defendant’s denial of intent and 
+knowledge and to introduce similar act evidence as part of its case -in-chief.  See United States v. 
+Inserra , 34 F.3d 83, 90 (2d Cir. 1994) (“[Rule 404(b) other crimes evidence] is admissible during 
+the government’s case -in-chief if it is apparent that the defendant will disp ute that issue”); United 
+States v. Lewis , 759 F.2d 1316, 1349 n.14 (8th Cir. 1985) (“It was not necessary for the government 
+to await defendant’s denial of intent or knowledge before introducing [Rule 404(b) other crimes] 
+evidence; instead the government m ay anticipate the defense and introduce it in its case- in-chief”); Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 8 of 11 
+ 9 United States v. Bussey , 432 F.2d 1330, 1333 n.13 (D.C. Cir. 1970) (noting that Rule 404(b) other 
+crimes evidence to prove identity and to prove that prior and subsequent offenses are so identical 
+as to mark them as handiwork of the defendant should be introduced in the government’s case -in-
+chief).   For a prior act to be probative of intent, the act must “ usually must involve an offense 
+similar in kind and reasonably close in time to the cha rge at trial.” Thomas  v. United  States , 59 
+A.3d 1252, 1261 (D.C. 2013); Boyer  v. United  States , 132 F.2d 12, 13  (D.C. Cir. 1942) ( “[T]he 
+fact that intent is in issue is not enough to let in evidence of similar acts, unless they are so 
+connected with the offense charged in point of time and circumstances as to throw light upon the 
+intent.” ). 
+V. ARGUMENT  
+In this case, the evidence of the defendant’s prior acts provides the basis for his motive, the 
+absence of mistake, direct and substantial proof of the charged crime, and is so closely intertwined 
+with the crime charged that a common scheme or plan is apparent.  Defendant Sullivan ’s conduct 
+at the U.S. Capitol on January 6, 2021, was done knowingly, willfully , and with purpose .  Based 
+on some of his  statements  claiming to be a journalist , Defendant Sullivan  will presumably deny he 
+intentionally breached the  Capitol  to engag e in wrongdoing.  Defendant Sullivan  prior statements 
+and acts are probative that his actions, on January 6th, were not the result of self -proclaimed 
+journalist’s inadvertence, mistake, or accident .  Sullivan  had knowledge  the Capitol was not open 
+to those without credentials, so it was no mistake he went inside. Therefore, his “defense” that he was simply in/at the Capitol to document and protect police is questionable and directly contradicted by his prior actions and words.   Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 9 of 11 
+ 10 The evidence of the prior acts and statements are close enough in time, provides direct evidence 
+of each other,  and shows his continued common plan and scheme .  Sullivan did not go inside to 
+document the events, his intentions and motives are made clear fr om his prior acts and statements: 
+fuck the system, burn it all down.  The government intends  to introduce  video and present social 
+media posts , through investigating witnessing, from  the prior acts as well as present  the posts from  
+the days leading up to J anuary 6, 2021  This will be done  to prove his intent to enter, disrupt, and 
+obstruct which was done in order advance his true motive: upheaving the system. 
+Last, the highly probative value of the government’s proffered 404(b) evidence is not 
+substantially  outweighed by potential prejudice to Defendant  Sullivan .  Any potential prejudice is 
+not unique to this case —where the government has shown a permissible non- propensity purpose —
+but is simply that endemic to all Rule 404(b) evidence.  Such evidence “almost  unavoidably raises 
+the danger that the jury will improperly ‘conclude that because [the defendant] committed some 
+other crime, he must have committed the one charged in the indictment.’”  United States v. 
+Douglas , 482 F.3d 591, 601 (D.C. Cir. 2007) (quoti ng Crowder II , 141 F.3d at 1210).  Prejudice 
+in this attenuated sense cannot justify a per se  rule of exclusion.  See Crowder II , 141 F.3d at 1210.   
+The defense must instead show “compelling or unique” evidence of prejudice, Mitchell, 49 
+F.3d at 777, dist inct from the probative value of the evidence and distinct from the intrinsic 
+prejudicial potential of any Rule 404(b) evidence.  The D.C. Circuit has consistently minimized the residual risk of prejudice not by exclusion but by instead issuing limiting instructions to the jury.  See, e.g. , Douglas, 482 F.3d at 601 (emphasizing the significance of the district court’s 
+instructions to jury on the permissible and impermissible uses of the evidence); Pettiford , 517 F.3d 
+at 590 (same); Crowder II , 141 F.3d at 1210 (stating that mitigating  jury instructions enter  the Rule Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 10 of 11 
+ 11 403 balancing analysis).  Thus, because the government’s Rule 404(b) evidence is not unduly 
+prejudicial and any minimal prejudice can be addressed through an appropriate limiting instruction, i ts admission is appropriate.  
+VI. CONCLUSION
+For the fore going reasons, the government respectfully requests that the Court permit at 
+trial the introduction of its proffered “ other acts” evidence , pursuant to Fed. Rule Evid. 404(b) . 
+ 
+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 Tel. No. (202) 252- 7012  
+rebekah.lederer@usdoj.gov 
+  
+ 
+    Case 1:21-cr-00078-RCL   Document 87   Filed 05/05/23   Page 11 of 11

05-07-21 -MOTION TO RELEASE SEIZURE ORDER RELATED To Defendants Bank Account In Utah JOHN EARLE SULLIVAN.txt

@@ -0,0 +1 @@
+  1         UNITED STATES DISTRICT COURT         FOR THE DISTRICT OF COLUMBIA      UNITED STATES OF AMERICA    v.         Cr. 21-cr-78 (EGS)  JOHN SULLIVAN  MOTION TO RELEASE SEIZURE ORDER RELATED  TO DEFENDANT’S BANK ACCOUNT IN UTAH AND                         TO FORBID SEIZURES OF OTHER ACCOUNTS    Defendant, by and through undersigned counsel, does hereby seek an Order from this Court discharging the seizure of his bank account in Utah and to prevent any further seizures of other bank accounts belonging to defendant. In support thereof, defendant respectfully sets forth as follows:  Defendant was arrested in connection with the events of January 6, 2021 at the United States Capitol. Defendant has been indicted for the following offenses: Obstruction of an Official Proceeding, 18 U.S.C. Sec. 1512 (c)(2); Civil Disorder, 18 U.S.C. Sec. 231 (a)(3); Entering and Remaining in a Restricted Building, 18 U.S.C. Sec. 1752 (a)(1); Disorderly and Disruptive Conduct in a Restricted Building or Grounds, 420 U.S.C. Case 1:21-cr-00078-EGS   Document 25   Filed 05/07/21   Page 1 of 6  2 Sec. 5104 and Disorderly Conduct in Capitol Building, 40 U.S.C. Sec. 5104 (e)(2)(d).   On or about April 29, 2012 defendant learned that his personal bank account in Utah was seized by the United States. 1 Neither defendant nor his counsel were given prior notice of the seizure of his account. Defendant has confirmed that his account was seized by federal authorities pursuant to a sealed warrant issued by a United States Magistrate. The signed warrant is due to be provided to undersigned counsel with the release of other discoverable items of evidence.   Criminal forfeiture proceedings, including pretrial seizure of property subject to forfeiture upon conviction, are governed by 21 U.S.C. Sec. 853, see 18 U.S.C. Sec. 982 (b)(1), as well as Federal Rule of Criminal Procedure 32.2. Under 21 U.S.C. Sec. 853, the government may request a warrant from a federal court authorizing the pretrial seizure of property subject to forfeiture in the “same manner as provided for a search warrant.” 21 U.S.C. Sec. 853(f).   It is well recognized that a pretrial seizure of assets in a criminal  1 The name of defendant’s bank and his bank account number will be provided, if necessary, under seal. Case 1:21-cr-00078-EGS   Document 25   Filed 05/07/21   Page 2 of 6  3 case constitutes an impairment on property triggering the Due Process Clause of the Fifth Amendment to the Constitution, which provides that “no person…shall be deprived of life, liberty, or property, without due process of law.” See, Connecticut v. Doehr, 501 U.S. 1, 12 (1991); The Supreme Court has characterized pretrial asset restraints as “the nuclear weapon of the law.” Grupo Mexicano de Deasarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S., 308,332 (1999).  The federal courts have consistently recognized that particular attention must be paid when dealing with this “severe remedy.” United States v. Razmilovic, 419 F. 3d 134,137 (2d. Cir. 2005). This is particularly so because asset restraints are imposed on an ex parte basis and without the benefit of an adversarial process and because the government has a strong interest in the outcome. See, United States v. James Daniel Good Real Property, 501 U.S. 43, 56 n.2 (1993) (extent of government’s financial stake in forfeiture has produced a concomitant lack of neutrality); Krimstock v. Kelly, 306 F.3d 40, 63 (2nd. Cir 2002) (there is need for greater procedural safeguards—here, and early, pretrial adversary hearing—where the government has a pecuniary interest in the outcome of forfeiture proceedings), cert, denied, 539 U.S. 969 (2003). Case 1:21-cr-00078-EGS   Document 25   Filed 05/07/21   Page 3 of 6  4  The protection afforded by the Due Process Clause’s plain text applies whenever the government has deprived a person “of…property.” U.S. Cons. Amen V. Nothing in that clause limits the Fifth Amendment’s protections to only those persons who need to use their seized property or who are indigent. Accordingly, the federal courts have held that when the government restrains a criminal defendant’s assets before trial on the assertion that they may be subject to forfeiture, due process requires that the defendant be afforded a post-deprivation, pretrial hearing to challenge the restraint. If certain minimal conditions are satisfied, “[t]he wholesale use of…forfeiture proceedings [should cause] grave concern when the Government has clearly focused its law enforcement energies and resources upon a person and attempts to restrain his property….” United States v. $39,000 in Canadian Currency.” 801 F.2d 1210, 1219 n.7 (10th Cir. 1986).   The United States Supreme Court has made clear that pretrial seizure, pursuant to 21 U.S.C. Sec. 853 (f) requires two probable cause findings: (1) that the defendant committed an offense permitting forfeiture and (2) that the property at issue has the requisite connection to that crime.” Kaley v. United States, 134 S. Ct 1090,1095 (2014). Case 1:21-cr-00078-EGS   Document 25   Filed 05/07/21   Page 4 of 6  5   At the outset, defendant notes that he needs the funds in the seized bank account in order to pay his rent and household necessities. Additionally, the proceeds of the seized bank account are not the product of criminal activity alleged in the indictment. Defendant is being deprived of his needed asserts is in violation of the Due Process Clause of the United States Constitution.  Wherefore, the foregoing considered, defendant prays this Honorable Court to discharge the Order of Seizure related to his bank in Utah and for an Order preventing the United States from seizing any other bank accounts belonging to defendant.        Re3spectfully submitted,        ______/s/__________________       Steven R. Kiersh#323329       5335 Wisconsin Avenue, N.W.       Suite 440       Washington D.C.  20015       (202) 347-0200         Case 1:21-cr-00078-EGS   Document 25   Filed 05/07/21   Page 5 of 6  6           CERTIFICATE OF SERVICE   I HEREBY CERTIFY that a true and accurate copy of the foregoing was served, via the COURT’S ELECTRONIC FILING SYSTEM, upon all counsel of record on this the 7th  day of May, 2021.         ______/s/_____________________       Steven R. Kiersh          Case 1:21-cr-00078-EGS   Document 25   Filed 05/07/21   Page 6 of 6

05-16-22 - Supplement re 47 Motion to Dismiss Count 8 of the Indictment by JOHN EARLE SULLIVAN..txt

@@ -0,0 +1,182 @@
+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

05-19-21 -SUPERSEDING INDICTMENT as to JOHN EARLE SULLIVAN.txt

@@ -0,0 +1 @@
+Case 1:21-cr-00078-EGS   Document 26   Filed 05/19/21   Page 1 of 6Case 1:21-cr-00078-EGS   Document 26   Filed 05/19/21   Page 2 of 6Case 1:21-cr-00078-EGS   Document 26   Filed 05/19/21   Page 3 of 6Case 1:21-cr-00078-EGS   Document 26   Filed 05/19/21   Page 4 of 6Case 1:21-cr-00078-EGS   Document 26   Filed 05/19/21   Page 5 of 6Case 1:21-cr-00078-EGS   Document 26   Filed 05/19/21   Page 6 of 6

05-20-21 - NOTICE OF DISCOVERY by USA as to JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,69 @@
+ 
+ 
+  U.S. Department of Justice  
+ Channing D. Phillips  
+Acting United States Attorney  
+ District of Columbia  
+       Judiciary Center  
+555 Fourth St., N.W.  
+Washington, D.C.  20530  
+ 
+       May 20, 2021 
+ 
+Via Email 
+Steven Kiersh  
+Counsel for John Earle Sullivan 5335 Wisconsin Avenue, N.W., Suite 440 Washington, D.C. 20015 skiersh@aol.com  
+  Re: United States v. John Earle Sullivan 
+ Case No.  1:21- cr-00078- EGS  
+ Dear Counsel:  
+  The enclosed letter memorializes the provision of the following preliminary discovery in 
+this case, via filesharing, on May 19, 2021:  
+ 
+1. Video provided by link by Defendant on 1/9  
+2. 302 for Defendant’s interview 1/11 
+3. HIGHLY SENSITIVE: CCTV- US Capitol Police surveillance footage (24 
+videos, 2 screenshots)  
+4. One audio recording from Defendant’s voice recorder  
+5. Grand jury transcript and four exhibits from 2/3/2021  
+6. Documentation of footage transactions (9 files)  
+7. Square/website subpoena returns (12 files)  
+8. Google/website subpoena returns (7 files)  
+9. Google -Blogger subpoena returns (4 files)  
+10. Apple subpoena returns (8 files)  
+11. BB&T subpoena returns (2 files)  
+12. AFCU subpoena returns (4 files)  
+13. JP Morgan Chase subpoena returns (3 files)  
+14. Paypal -Venmo subpoena returns (29 files)  
+15. Discover subpoena return (1 file)  
+16. Twitter subpoena returns and 3 screenshots (27 files)  
+17. Amazon subpoena returns (3 files)  
+Case 1:21-cr-00078-EGS   Document 28-1   Filed 05/20/21   Page 1 of 22 
+ 18. Amazon second subpoena returns (3 files) 
+19. Apple iCloud search warrant and returns (142 files) 
+20. Twitter search warrant and returns (1,347 files) 
+21. HIGHLY SENSITIVE: Architect of Capitol damaged window estimate  (1 
+file) 
+22. Intercept Article 1/14  
+23. Metropolitan Police  Department body camera footage (17 files)  
+ 
+In addition, the following additional discovery ma terials  were disclosed in this case, via 
+filesharing , on May 20, 2021: 
+ 
+1. Two unredacted seizure warrants, two supporting affidavits, and two 
+returns  
+2. W-1 recordings (97 files)  
+3. Screenshot of knife 
+ 
+ The discovery is unencrypted .  Please contact me if you have any issues accessing the 
+information, and to confer regarding pretrial discovery as provided in Fed. R. Crim. P. 16.1.  
+  This material  is being provided pursuant to the Protective Order issued in this case.   
+Please adhere to sensitivity markings.   I will forward additional discovery as it becomes available.  If you have any questions,  please feel free to contact me.  
+  
+ Sincerely,  
+    
+    _______________________ 
+ Candice C. Wong 
+ Assistant United States Attorney  
+ 202-252-7849 
+ Candice.wong@usdoj.gov 
+Case 1:21-cr-00078-EGS   Document 28-1   Filed 05/20/21   Page 2 of 2

05-21-21 - Memorandum in Opposition by USA as to JOHN EARLE SULLIVAN re 25 MOTION for Release of Funds Motion.txt

@@ -0,0 +1,578 @@
+1 
+  UNITED STATES DISTRICT COURT  
+ FOR THE DISTRICT OF COLUMBIA 
+ 
+ UNITED STATES OF AMERICA  :   
+ :   
+ :  
+             v.  :  No. 21- CR-78-EGS  
+ :  
+ : 
+JOHN EARLE SULLIVAN,  : 
+ : 
+                   Defendant.           : 
+    
+GOVERNMENT ’S MEMORANDUM  IN OPPOSITION TO  
+DEFENDANT’S MOTION TO RELEASE SEIZURE ORDER AND FORBID SEIZURES 
+OF OTHER ACCOUNTS 
+ 
+The United States of America, by and through its attorney, the Acting United States 
+Attorney for the District of Columbia, respectfully submits this memorandu m in opposition to the 
+defendant’s “Motion to Release Seizure Order and Forbid Seizures of Other Accounts.”   D.E. 25.    
+The current issue comes to the Court in a specific posture:  A magistrate judge has signed 
+two warrants authorizing seizure of the funds  at issue, finding probable cause both (1) that the 
+defendant has committed an offense permitting forfeiture – namely, a violation of 18 U.S.C. § 1512 
+– and (2) that ‘the property at issue has the requisite connection to that crime.  A grand jury has 
+twice  found probable cause that the defendant violated § 1512, an offense for which forfeiture is 
+statutorily mandated.  That grand jury has likewise included a Forfeiture Allegation finding 
+probable cause that the funds at issue are forfeitable based on the Su perseding Indictment.  
+Meanwhile, Federal Rule of Criminal Procedure 32.2(b)(1)(A) provides no avenue for inquiry into 
+the forfeitability of seized proceeds until “after a verdict,” presuming that only then will the C ourt 
+“determine what property is subjec t to forfeiture ” and “ whether the government has established Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 1 of 282 
+ the requisite nexus between the property and the offense. ”  Fed. R. Crim. P. 32.2(b)(1)(A) .   
+  Against that backdrop, t he defendant’s motion claims a right to a pretrial hearing and 
+cursorily as serts that he “needs the funds in the seized bank account to pay his rent and household 
+necessities” and that the seized funds “are not the product of criminal activity alleged.”  D.E. 25 
+at 4-5.  Th ose bare- bones assertions do not meet the threshold requi red for a pretrial hearing, 
+which is generally only appropriate where t here is a specific claim that the seizure interferes with 
+the Sixth Amendment right to counsel .  Here, in any event , no financial need has been 
+demonstrated , and there is ample probable cause to believe the seized funds – a portion of the 
+$90,875 in profits that the defendant reaped from selling his video footage from his breach of the 
+U.S. Capitol on January 6, 2021 – are forfeitable proceeds .  The motion should be denied.  
+BACKGROUND 
+Sullivan’s  Video of Storming the U.S. Capitol  
+On January 7, 2021, the defendant , John Earle Sullivan, participated in a voluntary 
+interview with law enforcement in Washington, D.C.  The defendant stated that he was at the 
+U.S. Capitol on January 6, 2021, followed the crowd as it pushed past Capitol Police , and entered 
+the U.S. Capitol Building with others through a broken window.  The defendant  stated he was 
+wearing a ballistic s vest and gas mask.  The defendant  further stated that he had been present at 
+the shooting of a woman by a Capitol Police officer and that he had filmed the incident.  The 
+defendant  showed the interviewing agent the footage he had taken, which he stated that he had 
+uploaded to the Internet.1   
+ 
+1 https://www.youtube.com/watch?v=PfiS8MsfSF4&t=537s. Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 2 of 283 
+ On January 9, 2021, the defendant  provided a link to download his  video to law 
+enforcement.   
+Throughout the video, t he defendant ’s voice can be heard narrating and speaking to other 
+individuals.  At one point, the camera pans to his tactical vest and gas mask.  
+ 
+ 
+The video captures the defendant  filming at the front of a crowd as they pushed through 
+police barriers on the west side o f the U.S. Capitol.  After the crowd broke through the last 
+barricade, and as he and the others approach the Capitol Building, the defendant  can be heard 
+saying at various points: “There are so many people. Let’s go. This shit is ours! Fuck yeah,” “We 
+accomplished this shit. We did this together. Fuck yeah! We are all a part of this history,” and 
+“Let’s burn this shit down.”  
+Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 3 of 284 
+  
+Later, the defendant ’s video shows individuals climbing a wall to reach a plaza just outside 
+the Capitol Building entrance.  The def endant  can be heard saying, “You guys are fucking savage.  
+Let’s go!”   The defendant  extends his hand and helps pull up one individual . 
+ 
+The video records the defendant ’s entrance into the U.S. Capitol building as he climbs 
+through a window  from which the  glass has been broken out : 
+ 
+Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 4 of 285 
+ The video follows as t he defendant  roam s the Capitol Building with other individuals who 
+unlawfully entered.  At various points, t he defendant  can be heard saying, “We gotta get this shit 
+burned,”  “it’s our house motherfuckers ,” and “we are getting this shit.”  
+Several times during the video, t he defendant  encounters law enforcement officers who are 
+trying to prevent further advancement by those who entered unlawfully.  Shortly after entering, 
+officers try to direct the defendant  and others out of a n exit, but he tells them, “we’re just recording, 
+there’s too many people to be acting like this.  Like you’re not solving anything.  I’m just 
+recording events, it’s not worth it; I’m just trying to record, I’m just filming. No freedom of press?”  
+At other points, the defendant  tells the officers to stand down.  Among other things, the defendant  
+can be heard telling officers, “you are putting yourself in harm’s way,” “the people have spoken,” and “there are too many people , you gotta stand down, the people out there that tried to do that 
+shit, they got hurt, I saw it, I’m caring about you.”  
+At one point  in the video, the defendant  enters an office within the Capitol Building.  The 
+defendant  approaches a window and states, “ We did this shit.  We took this shit.”   The defendant  
+also appears to break a window and says , “I broke it.  My bad, my apologies.  Well they already 
+broke a window, so, you know, I didn’t know I hit it that hard.  No one got that on camera.”   
+Later, the defendant  can be heard saying, “I am ready bro.  I’ve been to too many riots.  
+I’ve been in so many riots.”  
+At another point in the video, t he defendant  joins a crowd gathered before the main entrance 
+to the House Chamber in the U.S. Capitol.  The defendant  can be heard telling other individuals, 
+“there’s officers at the door.”  The defendant  can also be heard saying, “Hey guys, I have a knife. 
+I have a knife.  Let me up.”  (Separately, law enforcement was provided with a video from Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 5 of 286 
+ another  individual present  at this scene, which captures t he defendant  holding up the apparent 
+handle of a black knife .)  
+The defendant ’s video captures someone in the crowd near the main entrance to the House 
+Chamber describing how people are “getting arrested”  by office rs.  The defendant  can be heard 
+saying, “ That’s why I’m a photographer.  That’s why you gotta have ID… It’s ok though, you’ll 
+be fine, it’s only a little jail time… I do this all the time.”   
+ 
+Eventually, individuals in the crowd outside the doors announce that the officers are 
+leaving and “giving us the building.”  As the crowd begins to part so the officers can leave, t he 
+defendant  can be heard saying, “Haul that motherfucker out this bitch.”  
+At another point in the video, t he defendant  walks down a hallway in the U.S. Capitol with 
+a large group of people.  The defendant  pans to a closed door and can be heard saying, “Why 
+don’t we go in there.”  After someone lunges their body against the door, the defendant  can be 
+heard saying, “That’s what I’m sayin’, break that shit.”  Further down the hall, he can be heard 
+saying, “It would be fire if someone had revolutionary music and shit.”  
+The defendant  then approaches the doorway to the Speaker’s Lobby, a hallway which 
+connects to the House Chamber.  The defendant  can be heard on the video saying, “I have a 
+Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 6 of 287 
+ knife…. Let me through I got a knife, I got a knife, I got a knife.”  He can also be heard telling 
+one of the law enforcement officers guarding the doors, “We want you to go home.  I’m recording 
+and there’s so many people and they’re going to push their way up here.  Bro, I’ve seen people out there get hurt.  I don’t want to see you get  hurt.”   
+ 
+ 
+ 
+ 
+Eventually, the law enforcement officers begin to move to the adjacent wall  and individuals 
+within the crowd move toward the doors.  The defendant  can be heard yelling after the officers, 
+“I want you to go home,” and then yelling, “Go!  Go!  Get this shit!” as other  members of the 
+crowd try to break out the glass panes in the door.  Shortly thereafter, the video includes footage of a female getting shot as she tries to climb  through a glass pane that has been smashed.  
+Sullivan’s  Selling of H is Video Footage  
+At various times in his statements to law enforcement, the defendant  has claimed he was 
+at the U.S. Capitol only to document and report.  In addition, at various times since the events of January 6, 2021, t he defendant  has claimed to be a j ournalist.  The defendant  admitted to law 
+enforcement, however, that he has no press credentials and the investigation has not revealed any connection between t he defendant  and any journalistic organizations prior to the events of January 
+6, 2021.  
+Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 7 of 288 
+ The defendant  posted on January 6, 2021, a video from on or about January 5, 2021 in 
+Washington, D.C., in which he states to the camera, “I mean, didn’t I kind of make up a background 
+though, on the fly a little bit. I think I made up, uh —what did I say I was?   Oh, yeah, I was just a 
+journalist, but I use that all the time. ‘Yeah, I’m just a journalist.  I’m here recording.  I got my camera on my shoulder.’  Literally, I have my big- ass camera on my shoulder right here and I 
+have my gimbal, so it kind of looks like it.  ‘Yeah, I’m just here recording the situation.  Yeah. 
+Livestreaming.  Look, I have —I have people on my live stream.’  That’s why I pulled it back 
+out.”   
+The defendant  also said on a livestream video that he posted on or about December 11- 13, 
+2020, “Uh, I don’t make money off it so I don’t consider myself a journalist. But as far as like reporting stuff like I am now, I’m an activist too, so like it kinda plays hand in hand. But as far as like being a journalist, it would be cool to be one, I don’t  have anything against it.”  
+On January 6, 2021, however, t he defendant  was captured in recordings by another 
+individual , shortly after exiting the U.S. Capitol Building , expressing excitement that he captured 
+the shooting of the woman on film .  The defenda nt stated , “Everybody’s gonna want this.  
+Nobody has it. I’m selling it, I could make millions of dollars.”  The defendant  also spoke to 
+someone on speakerphone, stating , “I brought my megaphone to instigate shit.  I was like, guys 
+we’re going inside, we’r e fucking shit up…. I’m gonna make these Trump supporters f —all this 
+shit up…. But I mean you’ll see.  I have it all, I have everything, everything on camera, everything I just told you, and I mean everything.  Trust me when I say my footage is worth like a million of dollars, millions of dollars.  I’m holding on to that shit.”   Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 8 of 289 
+ Open-source news reporting, moreover, has detailed how in the days after January 6, 2021, 
+the defendant  repeatedly changed the self -description on the homepage of his website .  O n 
+January 10, 2021, t he defendant  changed the description from “Activist. Athlete. Motivational 
+Speaker” to “Activist. Video Journalist. Athlete.” over a photograph of himself protesting in 
+tactical gear with an assault rifle outside the Utah state Capitol last summer .  O n January 11, 
+2021, he again updated that text to “Video Journalist.  Activist.  Athlete.”   On January 12, 
+2021, he changed the image to a loop from his video of the U.S. Capitol and further updated the 
+text to just “Video Journalist.”2   
+On February 15, 2021, prior to a hearing on pretrial release conditions, t he defendant ’s 
+counsel  filed a pleading with the Court attaching “receipts for services documenting defendant’s 
+employment .”  D.E. 13, at 6.  Specifically, t he defendant  attached  numerous invoices and 
+licensing agreements from various media organizations for the rights to use the defendant ’s U.S. 
+Capitol footage from January 6, 2021.  D.E. 14.   
+Based on those pleadings and the government’s investigation, the government determined 
+that the defendant  received at least $90,875 in payments from at least six companies for the rights 
+to use his video footage  of the events at the U.S. Capitol .  $89,875 of the payments went to t he 
+defendant ’s personal bank  account ending in 7715 .  A $1,000 pa yment went to a Venmo account 
+ending in 2020 that is registered to the defendant ’s phone number  and former residence and 
+connected to his bank account ending in 7715. 
+  
+ 
+2 https://theintercept.com/2021/01/14/capitol -riot-john- the defendant -ashli -babbitt/  Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 9 of 2810 
+ Procedural History  
+On February 3, 2021, a grand jury in the District of Columbia returned an indictment 
+against the defendant  charging violations of 18 U.S.C. §§ 1512(c)(2) & 2 (Obstruction of an 
+Official Proceeding and Aiding and Abetting); 18 U.S.C. §§ 231(a)(3) & 2 (Civil  Disorders and 
+Aiding and Abetting); 18 U.S.C. §§ 1752(a)(1) (Entering or Remaining in a Restricted Building 
+or Grounds) and 1752(a)(2) (Disorderly and Disruptive Conduct in a Restricted Building or Grounds); and 40 U.S.C. §§ 5104(e)(2)(D) (Disorderly Conduct in a Capitol Building) and 5104(e)(2)(G) (Parading, Demonstrating, or Picketing in a Capitol Building).   
+On April 28, 2021, D.C. Magistrate Judge G. Michael Harvey issued two sealed seizure 
+warrants as to $89,875 in the defendant ’s bank  account  ending in 7715 and $1,000 in the Venmo 
+account linked to t he defendant ’s bank account .  See 21-SZ-1; 21- SZ-2.  The supporting 
+affidavit alleged probable cause to believe those funds were subject to both civil and criminal forfeiture as property “t raceable to” t he defendant ’s obstruction of an official proceeding in 
+violation of 18 U.S.C. § 1512(c)(2),  pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461.  
+Specifically, the affidavit noted that caselaw has defined “proceeds” broadly “to include  any 
+property that would not have been obtained but for the underlying violation of law,” and reasoned that the “funds Sullivan obtained by filming and selling footage of the January 6, 2021 Capitol riots … would not have existed but for Sullivan’s illegal  participation in and encouragement of the 
+riots, property destruction, and violence inside the U.S. Capitol in violation of 18 U.S.C. § 1512(c) .” 
+On April 29, 2021, the warrants were served.  T he government seized in total a balance 
+of $62,813.76 from t he defendant ’s bank account ending in 7715.   Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 10 of 2811 
+ On May 19, 2021, a grand jury returned a S uperseding Indictment that added weapons 
+charges, a false statements charge, and a forfeiture allegation.  The Superseding Indictment 
+charges violation s of 18 U.S.C. §§ 1512(c)(2) & 2 (Obstruction of an Official Proceeding and 
+Aiding and Abetting); 18 U.S.C. §§ 231(a)(3) & 2 (Civil Disorders and Aiding and Abetting); 18 
+U.S.C. §§ 1752(a)(1)  and 1752(b)(1)(A)  (Entering or Remaining in a Restricted Buildin g or 
+Grounds  with a Dangerous Weapon ); 18 U.S.C. §§ 1752(a)(2) and 1752(b)(1)(A) (Disorderly and 
+Disruptive Conduct in a Restricted Building or Grounds  with a Dangerous Weapon); 40 U.S.C. 
+§ 5104(e)(1)(A)(i) (Unlawful Possession of a Dangerous Weapon on Capitol Grounds or Buildings); 40 U.S.C. § 5104(e)(2)(D) (Disorderly Conduct in a Capitol Building) ; 40 U.S.C. 
+§ 5104(e)(2)(G) (Parading, Demonstrating, or Picketing in a Capitol Building) ; and 18 U.S.C. 
+§ 1001(a)(2) (False Statement or Representation to an A gency of the United States) .  Count One , 
+the lead charge, provides that:  
+On or about January 6, 2021, within the District of Columbia and elsewhere, JOHN 
+EARLE SULLIVAN, attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, by entering and remaining in the United States Capitol without authority and committing an act of civil disorder and engaging in disorderly and disruptive conduct.  
+(Obstruction of an Official Proceeding and Aiding and Abetting, in violation of Title 18, United States Code, Sections 1512(c)(2) and 2)  
+D.E. 26 at 2.   
+Pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461, t he Superseding Indictment  
+seeks , upon conviction of  Count One , forfeiture of “any property, real and personal, which 
+constitutes or is derived from proceeds traceable to the commission of the offense alleged.”  D.E. 
+26 at 5.  The Forfeiture Allegation specifies,  as property to be sought upon such a conviction, Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 11 of 2812 
+ $89,875 in t he defendant ’s bank account ending in 7715 and $1,000 in the Venmo account ending 
+in 2020 linked to t he defendant ’s bank account .  
+LEGAL AUTHORITIES  
+Title 18, United States Code, Section  981(a)(1)(C) provides that “ [a]ny property, real or 
+personal, which constitutes or is derived from  proceeds  traceable to a violation of … any offense 
+constituting ‘specified unlawful activity’ (as defined in section 1956(c)(7) of [Title 18 of the U .S. 
+Code])” is “subject to forfeiture to the United States.”  The provision thus subjects “ proceeds ” 
+traceable to violations of specified unlawful activities (“SUAs”) to civil forfeiture.  Meanwhile, 
+criminal forfeiture is authorized when 18 U.S.C. § 981(a )(1)(C) is used in conjunction with 28 
+U.S.C. § 2461(c), which holds that “[i]f the defendant is convicted of the offense giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the criminal case.”   
+In turn, 18 U.S.C. § 1956(c)(7)  – which was cross -referenced in §  981(a)(1)(C) – 
+incorporates as SUAs all predicate offenses under the Racketeer Influenced and Corrupt 
+Organizations ( “RICO ”) statute – that is, “any act or activity constituting an offense li sted in 
+section 1961(1) of this title [Title 18] except an act which is indictable under subchapter II of 
+chapter 53 of title 31.”  
+Finally , 18 U.S.C. § 1961(1) sets forth the RICO predicates  and expressly includes , among 
+those  predicates, 18 U.S.C. § 1512.
+3  Thus , “[b]y application of § 2461(c), forfeiture of property 
+ 
+3 There is a limited number of forfeiture allegations paired with §  1512 as the SUA. Section 1512 
+prohibits (a) killing or assaulting someone with intent to prevent their participation in an official 
+proceeding, (b) intimidating someone to influence their testimony in such a proceeding, (c) corrupting records or obstructing, impeding, or influencing such a proceeding, and (d) harassing or delaying someone’s participation in such a proceeding – crimes that do not often generate 
+profits.  Nonetheless, the government has identified at least nine indictments where a § 1512 Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 12 of 2813 
+ is mandated for a violation of 18 U.S.C. § 1512, since it is a racketeering activity identified in 18 
+U.S.C. § 1961(1), which is a specified unlawful activity under 18 U.S.C. § 1956(c)(7)(A) .” United 
+States v. Clark , 165 F. Supp. 3d 1215, 1218 (S.D. Fla. 2016)  (emphasis added) . 
+ARGUMENT  
+ It is well- established that there is a ‘strong governmental interest in obtaining full recovery 
+of all forfeitable assets.”  Caplin & Drysdale, Chartered v. United States , 491 U.S. 617, 631 
+(1989) (noting that that “strong governmental interest …. overrides any Sixth Amendment interest in permitting criminals to use assets adjudged forfeitable to pay for their defense”).  The Supreme Court has long recognized, accordingly, that the government can properly restrain property before trial as long as there is probable cause to believe the assets are subject to forfeiture.  United States 
+v. Monsanto, 491 U.S. 600, 615- 16 (1989).  Where such probable cause exists, a criminal 
+defendant has no right to the restrained property.   
+ The defendant  requests a pretrial hearing to challenge a seizure of funds that a magistrate 
+judge deemed forfeitable based on probable cause , and that a grand jury has found probable cause 
+to believe are criminal proceeds, asserting that he needs to pay household necessities  and that the 
+funds are not traceable to criminal activity.  Neither bare assertion  is adequate to warrant a pretrial 
+hearing , and in any event, ample probable c ause support s the forfeitability of the funds .  This case 
+ 
+count was a basis for the forfeiture allegation.  See United States v. Clark, 4:13- cr-10034 (S.D. 
+Fla.); United States v. Eury , 1:20CR38- 1 (M.D.N.C.); United States v. Ford and Prinster , 3:14- cr-
+45 (D. Or.); United States v. Shabazz , 2:14- cr-20339 (E.D. Mich.); United States v. Cochran, 4:14-
+cr-22-01-HLM (N.D. Ga.); United States v. Adkins and Meredith, 1:13cr17- 1 (N.D. W. Va.); 
+United States v. Faulkner , 3:09- CR-249-D (N.D. Tex.); United States v. Hollnagel , 10 CR 195 
+(N.D. Ill.); United States v. Bonaventura, 4:02- cr-40026 (D. Mass.).  Congress likewis e included 
+some of § 1512’s surrounding obstruction- related statutes as SUAs, and forfeiture allegations have 
+also referenced these  sister statutes.  E.g., United States v. Fisch , 2013 WL 5774876 (S.D. Tex. 
+2013) (§ 1503 as SUA); United States v. Lustyik , 2015 WL 1401674 (D. Utah 2015) (same).  Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 13 of 2814 
+ crystallizes the overriding purpose of forfeiture – to “help to ensure that crime does not pay.”  
+Kaley v. United States , 571 U.S. 320, 323 (2014) .  Where a criminal defendant profits to the tune 
+of $90,875 from his charged crime – proceeds that, based on the totality of facts and evidence 
+specific to this particular case and this particular defendant , would not have obtained but for  the 
+defendant’s  obstructi ve acts on January 6, 2021 at the U.S. Capitol  – there is a strong governmental  
+interest in taking the profits out of the crime , and removing the financial incentives for such 
+behavior going forward.  
+I. The Defendant’s Bare -Bones Assertion that Funds are Needed for Household 
+Expenses Does Not Merit a Pretrial Hearing.  
+ 
+A. A Dearth of Case law Supports a Pretrial Hearing Based on a Claimed Need to 
+Pay Household Expenses.  
+The defendant’s motion states that he “needs the funds in the seized bank account to pay 
+his rent and household necessities.”  D.E. 25 at 4- 5.4  To the extent the motion claims a due 
+process right to a pretrial evidentiary hearing to challenge the seizure  based on that bare- bones  
+assertion , it is unsupported by caselaw.  Even setting aside the defendant’s deficient showing of 
+need , no decision of  the Supreme Court or D.C. Circuit, or by any judge of this Court, has ever 
+required  a pretrial evidentiary hearing based on a claimed need to pay household expenses .  See  
+United States v. E -Gold, Ltd., 521 F.3d 411, 421 (D.C. Cir. 2008) (declining to cons ider “whether 
+ 
+4 The defendant  also notes that he did not receive prior notice of the seizure .  21 U.S.C. § 853(f) 
+permits the government to request a warrant authorizing pretrial seizure of forfeitable property in 
+the “same manner as provided for a search warrant.”  Here, a magistrate judge found probable 
+cause to grant the request , and a s with search warrant s, advan ce notice is not required given the 
+risk that the property will be moved or dissipate d.  T he government , moreover, has merely seized , 
+not forfeited , the property.  In any event, the Forfeiture Allegation in the S uperseding Indictment 
+fulfills notice under Federal Rule of Criminal Procedure 32.2(a).   Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 14 of 2815 
+ the due process rights of the defendants compel such a hearing when the assets are not necessary 
+to obtaining counsel of choice”).  
+The Supreme Court and D.C. Circuit have, however, laid down several strictures that 
+substantially limit the circumstances under which pretrial hearings are merited for movants to test 
+the probable -cause determinations underlying pretrial seizures of property.  In Kaley v. United 
+States , the Supreme Court noted that pretrial seizure requires probable cause both “(1) that ‘the 
+defendant has committed an offense permitting forfeiture;’ and (2) that ‘the property at issue has 
+the requisite connection to that crime.’”  571 U.S. at 323- 24.  The Court made clear, however, 
+that indicted defendants are not entitled to a pretrial hearing on the first of the two requirements.  
+On this issue – probable cause that the defendant has committed an offense permitting forfeiture  – 
+“[t]he grand jury’s determination is conclusive.”  Id. at 322, 331.  
+As to the second of the two requirements  – probable cause that the property at issue has 
+the requisite connection to the crime , namely , traceability  – the Supreme Court in Kaley declined 
+to opine .  But  lower courts  have generally permitted pretrial hearings on traceability in 
+circumstances where the specific claim is that the seizure interferes with the Sixth Amendment 
+right to counsel .  Even in this Sixth Amendment context, moreover, they have only required such 
+hearings when the defendant has made a sufficient threshold showing to “clearly establish[]” that 
+“access to [seized] assets is necessary for an effective exercise of the Sixth Amendment right to counsel.”  E -Gold, 521 F.3d at 417, 421; see, e.g., United States v. Hernandez -Gonzalez , 2017 
+WL 2954676, at *5 (S.D. Fla. June 26, 2017), report and recommendation adopted, No. 16- 20669-
+CR, 2017 WL 3446815 (S.D. Fla. Aug. 10, 2017) (finding insufficient threshold showing to warrant hearing, which would have been “limited solely to whether the froze n assets are tainted or Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 15 of 2816 
+ not” and not whether there was probable cause for the offense ).  T hese cases have each stressed 
+the uniquely weighty and time -sensitive nature of Sixth Amendment  right -to-counsel  concerns.  
+Where “[t]he private interest at stake is not merely a defendant’s wish to use his property in 
+whatever manner he sees fit,” but the “right, under the sixth amendment, to counsel of choice,” that right must be addressed before trial, if it is to be addressed at all.  United States v. Monsanto, 
+924 F.2d 1186, 1193 (2d Cir. 1991); see also E -Gold , 521 F.3d at 416- 19 (emphasizing the 
+“permanen[ce]” of injury in “a trial tainted by the violation of the defendant’s Sixth Amendment rights”).  The extraordinary nature of the injury – a trial without counsel of choice – is what courts 
+have noted to justify deviation from Rule 32.2’s plain- letter provision for only post -conviction 
+review.
+5 
+In effect, the defendant asks to extend that qualified right to pretrial hearings from the right -
+to-counsel context to household expenses.  But the Sixth Amendment concerns do not necessarily 
+translate.  Although deferring the forfeiture litigation until after trial through the established 
+procedures in Rule 32.2 surely  exerts some economic pressure on a defendant, it does not threaten 
+permanent, irreversible deprivation of his interests  akin to a trial without counsel of choice .  Cf. 
+Sunrise Academy  v. United States , 791 F. Supp. 2d 200, 206 (D.D.C. 2011) (deeming “inte rest in 
+unfettered use of the assets allegedly belonging to [third parties] during the months preceding [the] 
+ 
+5 The Rule 32.2(b) procedures provide the defendant with “a meaningful opportunity to contest 
+the deprivation of his property rights, as due process require[s].”  United States v . Shakur , 691 
+F.3d 979, 988 -89 (8th Cir. 2012); see also United States v. Christensen, 2012 WL 5354745, at *4 
+(D. Neb. Oct. 29, 2012).  If a defendant is convicted of the relevant offense, the Court must 
+determine “as soon as practical after a verdict … wh ether the government has established the 
+requisite nexus between the [specific] property” and the offense.  Fed. R. Crim. P. 32.2(b)(1)(A).  The parties may submit “additional evidence or information” to the record.  Id. § (b)(1)(B).  
+Either party may request a hearing.  Id.  And the parties may suggest revisions or modifications 
+to any preliminary order of forfeiture.  Id. § (b)(2)(B).
+  Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 16 of 2817 
+ trial” to be “obviously far less pressing than the right of an accused to counsel of his or her choice ,” 
+and finding absence of a Sixth Amendment claim to tip the balance against the motion ).  The 
+private interest at stake is qualitatively different.   
+In United States v. Bikundi , 125 F. Supp. 3d 178 (D.D.C. 2015), Chief Judge Howell found 
+a pretrial evidentiary hearing on traceability “not warranted” where the defendant claimed a need 
+for the seized funds to pay household expenses .  Id. at 190.  Chief Judge Howell did, however, 
+find that the strong threshold showing of financial need by that defendant, coupled with express 
+disclaimers of traceability in the government’s affidavit supporting the seizure warrant, warranted a “pretrial judicial revie w of the [seizure] Affidavit itself.”  Id.  The defendant, Chief Judge 
+Howell  emphasized , had provided extensive “evidence of both his near -term financial obligations 
+and his apparent inability to meet those obligations without release of the seized assets ,” such that 
+“[t]he Court is not persuaded that the defendant’s showing is insufficient to warrant some  
+procedural safeguard to reduce ‘the risk of erroneous deprivation,’”  albeit not a full- fledged 
+hearing.  Id. at 187, 190.  And she called the risk of er roneous deprivation “particularly acute” 
+in light of “apparent gaps in the challenged affidavits regarding … traceability.”  Id. at 190- 91.  
+Chief Judge Howell thus conducted her own review of the affidavit, and upon finding certain 
+“gaps” where portions of funds lacked the requisite connection to the crimes , ordered the release 
+of those portions .  Id. at 191- 95. 
+Accordingly, there is a dearth of caselaw supporting a pretrial hearing to contest the seizure 
+where, as here, no Sixth Amendment right is at stake and the claimed basis is a need to pay household expenses.  At best – and setting aside the defendant’s inadequate threshold showing 
+of need , see infra  I.B – the defendant’s claims merit judicial review of the affidavit supporting the Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 17 of 2818 
+ seizure warrants to  review the probable cause for the connection between the property and the 
+crime.   
+B. In Any Event, the Defendant ’s Threshold Showing of Necessity for the Seized 
+Funds is “Undoubtedly Inadequate .” 
+Whatever the legal merits of extending the Sixth Amendment cases on pretrial hearings to 
+the household expenses context, the  defendant has not as a factual  matter made a sufficient 
+showing to trigger any such hearing.  More than conclusory allegations of a need to pay rent and 
+unspecified house hold expenses  is required as a condition precedent .   
+As courts have emphasized in t he Sixth Amendment context, “[e]very court that has 
+addressed the issue has found that a defendant’s merely conclusory allegation that he lacks the 
+funds to retain counsel of choice is insufficient to trigger the  Monsanto hearing.”  United States 
+v. Emor , 794 F. Supp. 2d 143, 149 (D.D.C. 2011) (collecting cases).  Instead, “the defendant must 
+present some evidence that he will be deprived of counsel of choice if he cannot access the seized assets.”  Id. ; see also E -Gold, 521 F.3d at 417, 421 (defendant has right to hearing where “need 
+is clearly  established,” and where “access to assets is necessary for an effective exercise of the 
+Sixth Amendment right to counsel”); United States v. Unimex , Inc., 991 F.2d 546, 551 (9th Cir. 
+1993) (“To determine whether a hearing is required, the court must decid e whether the moving 
+papers filed, including affidavits, are ‘sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented.’”).   
+The defendant’s single -sentence assertion falls short of showings  that have previously 
+passed muster.  In E -Gold, a defendant demonstrated that he had no assets available to obtain 
+counsel by submitting an affidavit “detailing his status as a potential beneficiary of a trust, his lack of other sources of inco me, his liquid and non- liquid assets (including cars), his debts (including Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 18 of 2819 
+ credit cards and monthly rent), his wife’s income, and his dependents and assets held in the name 
+of the dependents ,” and another defendant did so with an affidavit showing “his monthly expenses, 
+gross and net income from his law practice, all assets and their values, as well as his other outstanding debts.”  United States v. Edwards , 856 F. Supp. 2d 42, 45 (D.D.C. 2012)  
+(summarizing facts in E -Gold ); see also Bikundi , 125 F. Supp. 3d at 190 ( “Through exhibits and 
+representations … the defendant has presented evidence that he is unable to pay his utility bills, such that he must rely on borrowed funds to do so, and property taxes, such that his home is subject to a tax sale…. Defendant likewise has presented evidence that he is unable to pay for his children’s preschool education and has recently lost private insurance coverage.”).  
+The defendant’s assertion falls short even of what Judge Kollar -Kotelly deemed 
+“undoubtedly inadequate” in Edwards , where the defendant attested in a sworn declaration that 
+“‘[b]eyond the money seized, I do not have any available funds to pay Attorney Balarezo’s retainer.’”  856 F. Supp. 2d at 45.  Judge Kollar -Kotelly noted that Emor had likewise rejected 
+as inadequate  a comparatively more detailed declaration by a defendant asserting “that he lacks 
+any income or investments, that his spouse is not employed, that he has six dependents, and that he has only between $22,000 and $50,000 in cash on hand or money in savings or checking 
+accounts.”  Id.; cf. Emor , 794 F. Supp. 2d at 149- 50 (concluding that the “bare -bones” declaration 
+left the record “bare of any evidence suggesting that Mr. Emor’s defense is endangered by a lack 
+of funds”).  As Judge Kollar -Kotelly  explained, Edwards “ failed to provide any detailed 
+information as to his assets, liabilities, and sources of income ,” including his “ ability to use other 
+assets, liquid and non- liquid, to pay his legal fees .”  856 F. Supp. 2d at 45- 46.  And Edwards 
+likewise “ failed to provide any information regarding funds previously paid to his counsel, and Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 19 of 2820 
+ any additional funds that counsel is requesting in order to proceed to trial in this matter ,” leaving 
+“simply not enough information in the record for the Court  to find Defendant cannot retain counsel 
+without the seiz ed assets.”  Id.; see also  United  States  v. Kirschenbaum , 156 F.3d 784, 792 (7th 
+Cir. 1998)  (affirming  ruling that defendant  failed  to show  need  for seized  assets where his “bare-
+bones affidavit ” gave no information about whether “other members of his family would fund his 
+defense”); Hernandez -Gonzalez , 2017 WL 2954676, at *6–7 (“Complete financial disclosure 
+requires that the Defendant identify his assets, liabilities, sources of income , net worth, whether 
+he has access to financial accounts, and the expected costs of his defense team,” and why “his 
+family members … are unable to help pay for defense costs.”) ; United States v. Jamieson , 189 F. 
+Supp. 2d 754, 757 (N.D. Ohio 2002) (defendant must show he has no access to funds “from family 
+and friends”) . 
+Here, the defendant has submitted no declaration, financial affidavit, or banking 
+statements.  He has not provided any information about his assets outside his bank account ending 
+in 7715, the only account from which funds were seized.  He has not provided infor mation about 
+his short - or long- term liabilities .  He has not detailed his sources of income , despite being, to the 
+government’s understanding, currently employed by his father .  He has not described his ability 
+to use other assets, liquid and non- liquid, to pay basic necessities, including the assistance of family 
+members and friends .  He has not provided information regarding what funds he has recently 
+expended toward household expenses and what any additional funds are requested, nor detailed 
+what the “household expenses” entail.  Such specification is particularly essential where 
+expenditures can dramatically vary, irrespective of necessity, based on a defendant’s typical 
+lifestyle.   Cf. United States v. Egan, 2010 WL 3000000, at *2 (S.D.N.Y. July 29, 2010) (“The Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 20 of 2821 
+ Court does not take lightly a request to release funds allegedly stolen from former customers in 
+order to finance luxuries” such as high- end vehicles or a multimillion -dollar home”).   
+A more fulsome showing is particularly warranted in light of the defendant’s Pretrial 
+Services Report from the arresting jurisdiction, which was prepared from an interview conducted 
+on January 15, 2021 and, according to D.C. Pretrial Services,  submitted to this Court with the Rule 
+5 papers .  That document reported significant funds in unspecified bank accounts of the defendant  
+– funds that wholly predate, and lie entirely outside the scope of , the government’s seizure 
+warrants .  The government’s seizure warrants  instead surgically targeted the defendant’s $90,875 
+in proceeds from sales of his video footage from the U.S. Capitol  – all of which was deposited into 
+his bank account subsequent to January 15.  The Pretrial Services Report further noted multiple 
+vehicles owned by  the defendant.  And it provided a specific estimate of the defendant’s monthly 
+expenses to include rent, groceries, cell phone, auto insurance, and other incidentals – which, if 
+extrapolated, should mean that the defendant retains substantial assets notwi thstanding the 
+government’s seizure of the $62,813.76 on April 29, 2021. 
+The government , moreover, is aware of at least one other bank account of the defendant 
+with America First Credit Union in which he retained a positive balance as of March 19, 2021.  
+Again, this account and the funds therein l ie wholly outside the scope of the government’s seizure 
+warrants.    
+In any event, the defendant bears the burden of persuasion to establish bona fide financial 
+need to use the seized funds to maintain basic and essential household necessities .  The motion’s 
+conclusory statements fall well short.  
+  Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 21 of 2822 
+ II. The Seized Funds Are “Traceable to” and Sufficiently Connected to t he 
+Defendant ’s Obstruction of an Official Proceeding on January 6, 2021. 
+The defendant’s motion additionally asserts that “the proceeds of the seized bank account 
+are not the product of the criminal activity alleged in the indictment.”  D.E. 25 at 5.  Magistrate 
+Judge Harvey found otherwise in issuing the two seizure warrants.  The 19- page affidavit on 
+which he relied , moreover, contains no disclaimers of traceability akin to what was identified in 
+Bikundi .  Should this Court reach the issue , there is, based on the totality of facts and evidence 
+specific to this particular case and this particular defendant , a strong nexus between these proceeds 
+and the crime.  See Kaley , 571 U.S. at 338 -39 (probable cause requires only a “fair probability”; 
+it is “not a  high bar,” and serves “only a gateway function”); United States v. Brock, 747 F.2d 761, 
+763 (D.C. Cir. 1984) (“Circumstantial evidence and inferences therefrom are good grounds for a 
+finding of probable cause in a forfeiture proceeding.”).  Regardless of which party bears the burden of persuasion – an apparently unsettled question
+6 – the facts of this case readily satisfy 
+probable cause for the requisite connection between the proceeds and the crime. 
+The governing standard for the causal connection betwee n the forfeitable proceeds and the 
+crime is a “but -for” test.7  Under the “but -for” test, which has been expressly adopted by the D.C. 
+ 
+6 Compare United States v. Bonventre , 720 F.3d 126, 131 (2d Cir. 2013) (government bears 
+“relatively modest burden”); with United States v. Kaley , 579 F.3d 1246, 1257 (11th Cir. 2009) 
+(“defendant, as the movant, would have the burden of proof”); United States v. Farmer , 274 F.3d 
+800, 805 (4th Cir. 2001) (defendant has “opportunity . . . to prove by a preponderance of the 
+evidence that the government seized untainted assets without probable cause”); and E -Gold , 521 
+F.3d at 418 (suggesting that defendant bear s the burden of making a “successful showing”).   
+7 E.g., United States v. Farkas , 474 F. App’ x 349, 360 (4th Cir. June 20, 2012) (“funds are 
+considered proceeds and therefore deemed forfeitable if ‘a person would not have [the funds] but 
+for the criminal offense’”; collecting cases);  United States v. Nicolo, 597 F.Supp.2d 342, 346 
+(W.D.N.Y.2009), a ff'd, 421 Fed.Appx. 57 (2d Cir. 2011) (same);  United States v. Warshak , 631 
+F.3d 266, 329- 330 (6th Cir. 2010) (even if a part of the business was legitimate, the proceeds of 
+that part are forfeitable if the legitimate side would not exist but for “fraudule nt beginnings” of the 
+operation);  United States v. Hoffman- Vaile , 568 F.3d 1335, 1344 (11th Cir. 2009) (health care Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 22 of 2823 
+ Circuit, “‘proceeds’ means the property that a person would not have obtained or retained but for 
+the commission of the offense .”  Stefan D. Cassella, Asset Forfeiture Law in the United States  
+(1st ed. 2012), at § 25- 4, p. 10 (emphasis added); see also United  States  v. DeFries , 129 F.3d 1293,  
+1313 (D.C.  Cir. 1997)  (“Because the but -for test usefully articu lates the requirement of a nexus 
+between the targeted property and the [criminal] activity, we adopt it.”).  Here, the relevant 
+proceeds are the $90,875 in profits that the defendant reaped from selling video footage of his 
+participation in the storming of  the U.S. Capitol on January 6, 2021.   
+The facts of this case present compelling evidence that this defendant would not – and 
+could not – have obtained the $90,875 in proceeds but for  his attempt to “obstruct, influence , and 
+impede [the] proceeding before Congress, by entering and remaining in the United States Capitol 
+without authority and committing an act of civil disorder and engaging in disorderly and disruptive conduct”  – that is, his violation of Count One.  As recounted in the affi davit, there is evidence 
+that the defendant came to the U.S. Capitol prepared to both film and instigate mayhem; that he 
+exploited his posture of recording to cajole and resist officers inside the Capitol and to make his way to the front lines of confronta tion; and that shortly after leaving, he boasted of his intent to 
+make “millions of dollars” from his footage of the “revolution” he had just witnessed and participated in.  There is strong evidence that the defendant was no mere bystander but rather an 
+active participant –wielding a gimbal and recording device alongside his tactical gear –  in the siege 
+ 
+provider is liable to forfeit funds she received from Medicare and private insurers because she 
+would not have received either but for her f raudulent billings);  United States v. Cekosky , 171 Fed. 
+Appx. 785 (11th Cir. 2006) (because defendant would not have been able to open his bank account but for having committed an identity theft offense, the interest earned on the deposits represented proceeds of the offense, even though the deposits were made with legitimate funds); United States 
+v. Horak , 838 F.2d 1235, 1242- 43 (7th  Cir. 1987) (originating the but -for test).  Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 23 of 2824 
+ that brought Congress’s  Electoral College vote certification proceeding to a halt .  And i t is clear 
+that this was $90,875 in proceeds that the defendant would not have earned but for his obstructive 
+acts on January 6.  Prior to January 6, the defendant had no known connections to journalistic 
+organizations , nor payments by such organizations for his livestreams ; indeed, he had admitted 
+just weeks earlier that  “I don’t make money off it.”   
+The defendant  would not have obtained footage inside the Capitol at all had he not 
+unlawfully breached and remained in the building.  More fundamentally, t he defendant  would 
+not have obtained the footage he got – with the proximity and front -line vantage points he 
+achieved , nor of the length and scope he captured  – had he not engaged in the very conduct for 
+which he is being charged in Count One .  The defendant  exploite d the fact that he was filming in 
+the course of his obstructive acts .  His footage showed him repeatedly invoking how he was 
+“recording” as he resisted and cajoled law enforcement officers to stand down:  At one point, he 
+tells officers trying to usher him  and others out of an exit, “we’re just recording, there’s too many 
+people to be acting like this.  Like you’re not solving anything.  I’m just recording events, it’s 
+not worth it; I’m just trying to record, I’m just filming.  No freedom of press?”  At ano ther point, 
+he tells someone by the main House Chamber entrance who is describing how others are getting arrested  by law enforcement , “That’s why I’m a photographer.  That’s why you gotta have ID.”  
+By the Speaker’s Lobby doors, he tells one of the law enf orcement officers guarding that doorway, 
+“We want you to go home.  I’m recording and there’s so many people and they’re going to push 
+their way up here.”  Moreover, the defendant evidently has his gimbal and recording device in 
+hand as he successfully winds his way to the front of multiple mobs  (“Let me through”) throughout 
+the building.  In short , the defendant ’s very actions underlying his § 1512 charge positioned him Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 24 of 2825 
+ to get the footage he got , and the footage itself is inculpatory of that very crime .   
+Meanwhile, the commercial value of his footage was substantially the result of his 
+proximity as a front -line participant in the storming of the Capitol , including in the aggressive 
+onslaught on the Speaker’s Lobby doors that culminated in the shooting.  One of his licensing 
+agreements specifically describes the footage as an “Eyewitness video  of the shooting.”  D.E. 14 
+at 2.   
+Beyond that, t he defendant ’s statements before, during, and after the Capitol attack support 
+the inference that he sought to encoura ge mayhem and capture it on film.   The affidavit recounts 
+a video in which t he defendant , on January 6, said to a friend shortly after he exits the Capitol, “I 
+brought my megaphone to instigate shit.  I was like, guys we're going inside, we're fucking shi t 
+up.  … I’m gonna make these Trump supporters f -- all this shit up…. But I mean you’ll see.  I 
+have it all, I have everything, everything on camera.”   
+The defendant also posted a livestream on social media on or about January 4, 2021, in 
+which he announc ed that he was in “DC for the January 6 protests, it’s going to be massively 
+insane… Trump people?  Damn. Damn.  If it’s a mixture of Trump people and Black Lives 
+Matter people, damn, that’s even more intense for me, that’s something I want to see.  I’ll be a part of it, sure , I’ll be in it, but I don’t do illegal stuff guys.  John’s a peaceful protester, I just 
+record and show you guys the world.”  In that same video, t he defendant  stated, “Yeah I record 
+the popo all the time, and guess what, guess what my lady, I got this nice new camera that shoots 
+very high quality video, and I have a gimbal for that too, so you’re gonna have steady shots.  That being said I’ll be uploading to Twitter.”   Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 25 of 2826 
+ As noted, moreover, t he defendant  boasted at least twice upon leaving the Capitol on 
+January 6 that he would make “millions of dollars” from his footage.  That the defendant  was 
+immediately thinking about cashing in supports an inference that he recognized on January 6 that 
+the more disorder he captured around him, the b etter footage, and more money, he stood to get .   
+It bears mention that although this defendant’s proceeds happen to pertain to video footage 
+and to entail transactions with media organizations, the government’s theory of forfeiture is 
+content -neutral and serves content -neutral purposes.  See Ward v. Rock Against Racism , 491 U.S. 
+781, 791 (1989) (“Government regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech.’”).  The seizure warrant and 
+Forfeiture Allegation rely on the  ordinary legal mechanism for civil forfeiture, which authorizes 
+forfeiting “proceeds” of crimes wholly irrespective of their expressive or non- expressive nature.
+8  
+That mechanism  could equally apply to, for instance, proceeds from a hypothetical riot shield 
+wrestled from a Capitol Police officer and then auctioned off on eBay, or the sale of information from a Representative’s stolen laptop , for $90,875 in profits – factual scenarios not present here.  
+The mechanism is not being deployed because of disagreement with the video’s content or 
+message; indeed, it has no bearing on the continued distribution of that video at all .  The seizure 
+imposes no prior restraint on the defendant’s ability to engage in expressive activities; it simply seeks to head off any dissipation of proceeds that, by but -for causation , were traceable to his 
+ 
+8 The seizure thus does not implicate any “Son of Sam” law – content -based laws t hat specifically 
+targeted proceeds from speech  about crimes because of disagreement with its message, and have 
+been  disfavored since Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 
+et al. , 502 U.S. 105 (1991).  The Supreme Court it self has emphasized that First Amendment 
+concerns are misplaced where the forfeiture statute is “oblivious to the expressive or nonexpressive 
+nature of the assets forfeited.”  Alexander v. United States , 509 U.S. 544, 551 (1993) .   Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 26 of 2827 
+ violation of Count One. 
+In sum , should this Court reach the issue, there is ample probable cause supporting the 
+traceability of the defendant’s proceeds to the crime.  By targeting the defendant’s $90,875 in 
+gross profits, t his case encapsulates the core purpose of forfeiture – to “help to ensure that crime 
+does not pay.”  Kaley, 571 U.S. at 323.  Where an indicted criminal defendant is enriched by  
+profits that he would not have obtained but for his charged crime , there is a strong governmental 
+interest in seizing those allegedly ill- gotten gains , and in ultimately removing the financial 
+incentives for this behavior.  Seizure of this defendant’s profits from his obstructive acts on 
+January 6 reflects a straightforward attempt to remove the profits from the crime.   
+CONCLUSION 
+WHEREFORE, th e United States respectfully requests that the  Court deny the Defendant’s 
+motion to release seizure order and forbid seizure of other accounts  pending trial  and deny a pretrial 
+evidentiary hearing at this time . 
+     
+ Respectfully submitted,  
+ 
+      CHANNING D. PHILLIPS    
+ACTING UNITED STATES ATTORNEY  
+ 
+ 
+            
+   by:   Candice C. Wong  
+      D.C. Bar No. 990903 
+Assistant United States Attorney  
+555 4th Street, N.W., room 4816 
+Washington, D.C. 20530 (202) 252-7849 Candice.wong@usdoj.gov 
+ 
+  
+Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 27 of 2828 
+ CERTIFICATE OF SERVICE  
+ 
+I hereby certify that on May 21, 2021, I caused a copy of the foregoing motion  to be served 
+on counsel of record via electronic filing.  
+ 
+ 
+   ______________  
+Candice C. Wong  
+Assistant United States Attorney  
+ 
+ 
+Case 1:21-cr-00078-EGS   Document 29   Filed 05/21/21   Page 28 of 28

06-02-21 - REPLY TO OPPOSITION TO MOTION TO DISCHARGE John Earle Sullivan.txt

@@ -0,0 +1 @@
+1           UNITED STATES DISTRICT COURT          FOR THE DISTRICT OF COLUMBIA  UNITED STATES OF AMERICA    v.       21-cr-78(EGS)   JOHN SULLIVAN   REPLY TO OPPOSITION TO MOTION TO DISCHARGE           SEIZURE WARRANT  I. Defendant’s Motion is Based Exclusively on the Fifth Amendment Right to Due Process and not the Sixth Amendment Right to Counsel  Defendant does not seek discharge of the seizure Order in order for him to retain counsel. Thus, his motion is not based upon a claim pursuant to the Sixth Amendment to the United States Constitution. Rather, his argument is based upon the Fifth Amendment right to due process of law. The government’s arguments concerning the Sixth Amendment should be disregarded. II. Defendant should have the benefit of a pretrial due process hearing to determine whether the seized assets should be released.    In E-Gold v. United States  521 F. 3d 411 (D.C. 2008), the D.C. Circuit determined that “[i]n ascertaining the requirements of the due process clause in affording a hearing to those who whose assets are the Case 1:21-cr-00078-EGS   Document 31   Filed 06/02/21   Page 1 of 92  subject of seizure,” the Court must “look first to the Supreme Court’s declarations in Matthews v. Eldridge.” (internal citations omitted).1  E-Gold, cited by the United States, involved corporate defendants charged with operating an unlicensed money transmitting business. Based upon the indictment, the government obtained an ex parte seizure warrant obtaining funds in accounts of the named defendants. A request was made to discharge the seizure order and a request for an evidentiary hearing was made. The grounds for the motion were based upon the Fifth Amendment and the Sixth Amendment to the United States Constitution. The district court denied the requests. An interlocutory appeal was filed and the D.C. Circuit vacated the order of the district court.  The E-Gold Court concluded that the issue was one of first impression in this jurisdiction and ruled that “[a] fundamental norm of the due process clause jurisprudence requires that before the government can constitutionally deprive a person of the protected liberty or property interest, it must afford him notice and hearing.” Id., 314, citing National Council of Resistance v. Dep’t of State, 251 F.3d 192, 205 (D.C. 2001); Matthews v. Eldridge, 424 U.S. 319, 334-35 (1976).  1  Matthews v. Eldridge, 424 U.S. 319 (1976) held that “Due Process is flexible and calls for such procedural protections as the particular situation demands.” citing Morrissey v. Brewer, 408 U.S. 471 (1972). Case 1:21-cr-00078-EGS   Document 31   Filed 06/02/21   Page 2 of 93   Defendant acknowledges that a portion of E-Gold was abrogated by Kaley v. United States, 571 U.S. 320 (2014) wherein the Supreme Court concluded that a pretrial hearing is not necessary within the context of a Sixth Amendment claim and where probable cause has been established by an indictment. However, the Kaley opinion was limited to one area of inquiry when probable cause has been established. “This case raises the question whether an indicted individual has a constitutional tight to contest the grand jury’s prior determination of that matter.” Id. 324.   In general, and specifically in this case, there is a two-part inquiry that must be satisfied including a determination of the source of the seized funds.   That determination [related to pretrial forfeiture of assets]   has two parts, reflecting the requirements for forfeiture   under federal law. There must be probable cause to think   (1) that the defendant has committed an offense permitting   forfeiture, and (2) that the property at issue has the requisite   connection to the crime.  Id. 323-24.    Kaley is therefore limited to situations involving challenges only to the   first inquiry, probable cause. “[T]he Kaleys cannot challenge the grand jury’s conclusion that probable cause supports the charges against them.” Id. 341. Case 1:21-cr-00078-EGS   Document 31   Filed 06/02/21   Page 3 of 94   Chief Judge Roberts, writing in dissent to the Kaley majority, noted that “[t]he Solicitor General concedes—and all Courts of Appeals to have considered the issue have held—that defendants are entitled to show that the assets that are restrained are not actually the proceeds of the charged criminal offense; that is, that the second prong of the required showing is not satisfied…If the Kaleys are to have any opportunity to meaningfully challenge that deprivation, they must have it before the trial begins.” Id. 357.   Other federal circuits have resolved the issue in favor of a pretrial hearing related to seizure of assets. In United States v. Moss, a challenge was made to a pretrial seizure of assets for legal and living expenses. Citing Mathews v. Eldridge, 424 U.S. 319 (1976) the 10th Circuit held,   To determine whether due process requires some form   of a post-restraint, pretrial hearing we consider the private   interest affected by the restraint; the risk of an erroneous   deprivation of that interest through the procedures used,   as well as the probative value of an adversarial hearing;   and the government’s interest, including the administrative   burden that an adversarial hearing would impose.  160 F.3d 641, 645 (10th Cir. 1998).   Following consideration of the factors articulated above, the Moss Court ruled in favor of the defendant. “Also, of importance is [defendant’s] interest in paying for ordinary and necessary expenses (food, shelter, and Case 1:21-cr-00078-EGS   Document 31   Filed 06/02/21   Page 4 of 95  the like) until the conclusion of the trial. A restraining order that prevents a defendant from supporting herself and her family pending and during trial would likely work an injustice with constitutional implications.” Id. 646, citations omitted. III. Defendant has a particularized need for assets to pay for his personal necessities of life and should not be deprived access to his resources pending trial.   This matter is by all accounts a complex proceeding with a vast amount of discovery to be produced and reviewed by defendant with counsel. There will be numerous pretrial motions that will require thorough briefing and argument. The government has indicated there are thousands of hours of videotape discovery as well as other discovery to be produced. Accordingly, it is not expected that this matter will be tried in the near future.  Defendant is young man with no criminal record who has legally supported himself in the past. However, similarly to all adults, defendant has monthly expenses that he must meet. The continued restraint on defendant’s bank assets will prevent him from satisfying his monthly financial obligations. The following is a summary of defendant’s monthly financial responsibilities: 1. Rent: $2,100.00 Case 1:21-cr-00078-EGS   Document 31   Filed 06/02/21   Page 5 of 96  2. Water: $100.00 3. Electric: $100.00 4. Automobile: $700.00 5. Automobile insurance: $150.00 6. Food: $600.00 7. Entertainment: $250.00 8. Shopping: $100.00 9. Subscription: $250.00 10. Savings: $150.00 11.Self care: $300.00 Total monthly expenses:4,800.00  Defendant’s sources of income other than from the sale of videotape of the January 6, 2021 event includes as follows: 1. Google deposits 2. 401 K Deposits 3. Severance pay from prior employer (Proofpoint) 4. Priority 1 Logistics payouts2  2  Attached to this pleading is Exhibit #1 which is an endorsed declaration from defendant confirming the monthly expenses and other sources of income described herein. Case 1:21-cr-00078-EGS   Document 31   Filed 06/02/21   Page 6 of 97  IV. Chief Judge Beryl Howell ordered relief to a defendant who sought discharge of a pre-trial seizure of assets based upon household need    The United States is correct in its assertion that “no decision of the Supreme Court or D.C. Circuit, or by any judge of this Court, has ever required a pretrial evidentiary hearing based on a claimed need to pay household expenses.” Gov’t opposition, page 14. However, Chief Judge Beryl Howell did order a partial discharge of a seizure warrant based upon a Fifth Amendment due process claimed need for household expenses.3  Michael Bikundi v. United States, 14-00030-BAH, 2016 WL 912169, was a multiple count, multiple indictment charging, inter alia, conspiracy to commit health care fraud in violation of 18 U.S.C. § 1347. The case involved the misappropriation of 80 million dollars in funds from Medicaid. Defendant requested a pretrial hearing to challenge the seizure of his assets from multiple bank accounts. The Court denied the request for an evidentiary hearing but did partially grant the motion.  Bikundi was not seeking funds to pay for counsel. Rather, as is the situation herein, his request was exclusively for release of funds to pay household expenses.4 BIkundi requested discharge of funds in order to pay  3 The Order was entered based upon the pleadings. A pre-trial hearing was not required. 4 Chief Judge Howell noted that Bikundi’s motion “squarely raises an issue left unresolved by the Supreme Court in both the Kaley and Monsanto opinions, and by the D.C. Circuit in E-Gold, regarding an indicted defendants’ entitlement to pre-trial review Case 1:21-cr-00078-EGS   Document 31   Filed 06/02/21   Page 7 of 98  utility bills and other household expenses. He had to rely on borrowed funds and was unable to pay his children’s preschool education. Citing Kaley v. United States, Chief Judge Howell determined, “[h]e has demonstrated a substantial need for the funds at issue to provide for household necessities. The Court is not persuaded that the defendant’s showing is insufficient to warrant some procedural safeguard to reduce the risk of erroneous deprivation.” Id. page 15.  In Bikundi the Court made specific findings and ordered a sum certain of amount funds released in support of defendant’s claims that the funds were necessary for household expenses.  In conclusion, defendant submits that has demonstrated an adequate and specific identification of funds that are necessary to be used for essential household expenses. In addition, defendant has sources of income that are independent of the events of January 6, 2021. Accordingly, Defendant respectfully prays this Honorable Court for an evidentiary hearing to determine whether to discharge the seizure warrant.    of the forfeitability, or traceability, of assets seized pursuant to a probable cause warrant—which probable cause finding in this case is bolstered by a grand jury finding—when no Sixth Amendment right to counsel is implicated.” Id., page 12, (emphasis supplied). Case 1:21-cr-00078-EGS   Document 31   Filed 06/02/21   Page 8 of 99  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 upon Assistant U.S. Attorney, Candice Wong, Esquire, via the Court’s electronic filing system on this the 2nd day of June 2, 2021.         ______/s/_________________       Steven R. Kiersh              Case 1:21-cr-00078-EGS   Document 31   Filed 06/02/21   Page 9 of 9

06-02-21 - REPLY TO OPPOSITION to Motion by JOHN EARLE SULLIVAN re 25 MOTION for Release of Funds Motion.txt

@@ -0,0 +1,33 @@
+      UNITED STATES DISTRICT COURT
+      FOR THE DISTRICT OF COLUMBIA
+UNITED STATES OF AMERICA
+v. 21-cr-78(EGS)
+JOHN SULLIVAN
+Declaration of John Sullivan
+I, John Sullivan, under the penalties of perjury, do hereby provide the 
+following summary of my monthly household needs and a partial listing of 
+sources of my income:
+1. Rent: $2,100.00
+2. Water: $100.00
+3. Electric: $100.00
+4. Automobile: $700.00
+5. Automobile insurance: $150.00
+6. Food: $600.00
+7. Entertainment: $250.00
+8. Shopping: $100.00
+9. Subscription: $250.00
+1Case 1:21-cr-00078-EGS   Document 31-1   Filed 06/02/21   Page 1 of 210. Savings: $150.00
+11.Self care: $300.00
+Total monthly expenses:4,800.00
+Defendant’s sources of income other than from the sale of videotape 
+of the January 6, 2021 event include as follows:
+1.Google ad sense deposits
+2. 401 K Deposits
+3. Severance pay from prior employer (Proofpoint)
+4. Priority 1 Logistics payouts
+I acknowledge that some of my assets were obtained from sale of 
+videotape from January 6, 2021.
+______________________
+John Sullivan
+June 2, 2021
+2Case 1:21-cr-00078-EGS   Document 31-1   Filed 06/02/21   Page 2 of 2

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

@@ -0,0 +1,420 @@
+ 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 
+ 
+ Case 1:21-cr-00078-RCL   Document 88   Filed 06/02/23   Page 18 of 18

06-11-21 - NOTICE Of DISCOVERY by USA as to JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,50 @@
+ 
+ 
+  U.S. Department of Justice  
+ Channing D. Phillips  
+Acting United States Attorney  
+ District of Columbia  
+       Judiciary Center  
+555 Fourth St., N.W.  
+Washington, D.C.  20530  
+ 
+       June 11, 2021 
+ 
+Via Email 
+Steven Kiersh  
+Counsel for John Earle Sullivan 5335 Wisconsin Avenue, N.W., Suite 440 Washington, D.C. 20015 skiersh@aol.com  
+  Re: United States v. John Earle Sullivan 
+ Case No.  1:21- cr-00078- EGS  
+ Dear Counsel:  
+  The enclosed letter memorializes the provision of the following discovery in this case , via 
+filesharing : 
+ 
+1. Grand Jury transcript and exhibits A -1-P for Super seding Indictment  
+2. Provo case documents ( x4) 
+3. Defendant ’s Discord posts (x2)  
+4. Defendant ’s Facebook posts (x4)  
+5. Defendant ’s Tiktok videos (x2)  
+6. Defendant ’s Youtube video of looting  
+7. Social media posts of others regarding D efendant (x2)  
+8. SEN SITIVE: 302 for Witness  
+9. 302 for W -2 (redacted)  
+10. 302 for W -3 (redacted)  
+11. Reco rded conversation by W -3 
+12. Open -source video of defendant ( “minuta dogman ”) 
+ 
+ The discovery is unencrypted .  Please contact me if you have any issues accessing the 
+information, and to confer regarding pretrial discovery as provided in Fed. R. Crim. P. 16.1.  
+  This material  is being provided pursuant to the Protective Order issued in this case.   
+Please adhere to sensitivity markings. 
+Case 1:21-cr-00078-EGS   Document 32-1   Filed 06/11/21   Page 1 of 22 
+  
+ I will forward additional discovery as it becomes available.  If you have any questions,  please feel free to contact me.  
+  
+ Sincerely,  
+    
+    _______________________ 
+ Candice C. Wong 
+ Assistant United States Attorney  
+ 202-252-7849 
+ Candice.wong@usdoj.gov 
+Case 1:21-cr-00078-EGS   Document 32-1   Filed 06/11/21   Page 2 of 2

07-14-21 - NOTICE OF DISCOVERY by USA as to JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,57 @@
+ 
+ 
+  U.S. Department of Justice  
+ Channing D. Phillips  
+Acting United States Attorney  
+ District of Columbia  
+       Judiciary Center  
+555 Fourth St., N.W.  
+Washington, D.C.  20530  
+ 
+       July 14, 2021 
+ 
+Via Email 
+Steven Kiersh  
+Counsel for John Earle Sullivan 5335 Wisconsin Avenue, N.W., Suite 440 Washington, D.C. 20015 skiersh@aol.com  
+  Re: United States v. John Earle Sullivan 
+ Case No.  1:21- cr-00078- EGS  
+ Dear Counsel:  
+  The enclosed letter memorializes the provision of the following additional  discovery in 
+this case, via filesharing, on July 14, 2021:  
+ 
+1. Excerpts of Metropolitan Police Department body worn camera footage from Upper House Door exit (24 videos)  
+2. Open -source videos of shooting ( 6 files):  
+a. ITV video  
+b. 2 videos of shooting 
+c. CSPAN video  excerpt from https://www.c -
+span.org/video/?507745- 1/protesters -breach -us-capitol -security  
+d. Rumble N emos News video  
+e. Unblocked video excerpt  from Youtube  link 
+https://www.youtube.com /watch?v=CSF5FHIGlbg  
+3. MARKED SENSITIVE: Videos obtained from other Capitol 
+investigations (15 files):  
+a. D-2 – 3 photographs, 1 video 
+b. D-3 – 3 videos  
+c. D-4 – 1 video  
+d. D-5 – 1 video  
+e. D-6 – 1 video  
+f. D-7 – 1 video  
+Case 1:21-cr-00078-EGS   Document 36-1   Filed 07/14/21   Page 1 of 22 g. D-8 – 1 video
+h. W-4 – 2 videosi.W-5 – 1 video
+4.MARKED SENS ITIVE: Officer interview transcripts (2 files)
+The
+ discovery is unencrypted .  Please contact me if you have any issues accessing the 
+information, and to confer regarding pretrial discovery as provided in Fed. R. Crim. P. 16.1.  
+Thi
+s material  is being provided pursuant to the Protective Order issued in this case.   
+Please adhere to sensitivity markings. 
+I 
+will forward additional discovery as it becomes available.  If you have any questions, 
+please feel free to contact me.  
+Si
+ncerely,  
+_______________________ C
+andice C. Wong 
+Assistant United States Attorney  
+202-252-7849Candice.wong@usdoj.gov
+Case 1:21-cr-00078-EGS   Document 36-1   Filed 07/14/21   Page 2 of 2

08-01-22 - MEMORANDUM OPINION as to JOHN EARLE SULLIVAN..txt

@@ -0,0 +1,267 @@
+1 
+ UNITED STATES DISTRICT COURT 
+FOR THE DISTRICT OF COLUMBIA 
+ 
+ 
+UNITED STATES OF AMERICA, 
+ 
+v.  
+ 
+JOHN EARLE SULLIVAN,  
+  
+Defendant.  
+ 
+ Crim. Action No. 21-78 (EGS) 
+ 
+MEMORANDUM OPINION 
+ Defendant John Sullivan (“Mr. Sullivan”) is charged in a 
+multi-count Superseding Indictment arising from his alleged 
+participation in the events at the U.S. Capitol on January 6, 
+2021. See Superseding Indictment, ECF No. 56.1 Pending before the 
+Court is Mr. Sullivan’s Motion for Reconsideration of the Court’s December 6, 2021 Denial of Motion to Release Seizure 
+Order and Supplement to Motion to Release Seizure Order. Def.’s Mot., ECF No. 61.  
+Upon careful consideration of the motion and opposition 
+thereto, the applicable law, and the entire record herein, the 
+Court hereby DENIES Mr. Sullivan’s motion for reconsideration.   
+ 
+1 When citing electronic filings throughout this Memorandum 
+Opinion, the Court cites to the ECF page number, not the page 
+number of the filed document. Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 1 of 122 
+ I. Background 
+ As described in the Court’s December 6, 2021 Memorandum 
+Opinion, on April 28, 2021, a magistrate judge approved two sealed warrants authorizing the government’s seizure of $89,875 
+in Mr. Sullivan’s bank account ending in 7715 and $1,000 in the 
+Venmo account linked to Mr. Sullivan’s bank account. See Mem. 
+Op., ECF No. 60 at 2-3; Gov’t’s Opp’n, ECF No. 29 at 10. The 
+magistrate judge found probable cause to believe that the assets 
+were forfeitable based on the supporting affidavit stating that 
+the “funds Sullivan obtained by filming and selling footage of 
+the January 6, 2021 Capitol riots . . . would not have existed 
+but for Sullivan’s illegal participation in and encouragement of 
+the riots, property destruction, and violence inside the U.S. 
+Capitol in violation of 18 U.S.C. § 1512(c).” Mem. Op., ECF No. 
+60 at 2-3; Gov’t’s Opp’n, ECF No. 29 at 10. The warrants were 
+served on April 29, 2021, and the government seized a balance of 
+$62,813.76 from the bank account ending in 7715. Mem. Op., ECF No. 60 at 2-3; Gov’t’s Opp’n, ECF No. 29 at 10.  
+On May 7, 2021, Mr. Sullivan filed a motion to release the 
+seizure order related to his bank account in Utah and to forbid 
+seizures of other accounts. See Def.’s Mot., ECF No. 25. Mr. 
+Sullivan requested that the Court issue an order “discharging 
+the seizure of his bank account in Utah and to prevent any 
+further seizures of other bank accounts belonging to defendant.” Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 2 of 123 
+ Id. at 1. In conjunction with the motion, Mr. Sullivan also 
+requested a “post-deprivation, pretrial hearing” to challenge 
+the   sufficiency of the government’s evidence supporting the 
+seizure of assets. Id. at 4. The government filed its opposition 
+on May 21, 2021, see Gov’t’s Opp’n, ECF No. 29; and Mr. Sullivan 
+filed his reply brief on June 2, 2021, see Def.’s Reply, ECF No. 
+31. 
+On December 6, 2021, the Court denied Mr. Sullivan’s 
+motion. First, the Court held that a pretrial hearing was not warranted in this case because Mr. Sullivan had not made the 
+threshold showing that he could not pay for rent or other 
+household necessities without access to the seized assets.
+2 See 
+Mem. Op., ECF No. 60 at 10. Second, the Court held that, even if Mr. Sullivan had met the threshold showing and the Court 
+proceeded to “ascertaining the requirements of the due process 
+ 
+2 In so holding, the Court assumed without deciding that the 
+reasoning in United States v. Bikundi, 125 F. Supp. 3d 178 
+(D.D.C. 2015), applied in this case. In Bikundi, the district 
+court found that Federal Rule of Criminal Procedure 32.2 did not 
+“preclude[] an indicted defendant from invoking his due process rights before trial to test the sufficiency of probable cause for the forfeitability of seized property.” 125 F. Supp. 3d at 
+187-88. Though the defendant’s request was based upon the 
+alleged need to access seized funds to pay for household necessities, and not the alleged need to obtain counsel, the 
+court weighed the Mathews v. Eldridge factors and found that due 
+process required it to provide “pretrial judicial review of the challenged seizure warrants,” even though the defendant raised “no Sixth Amendment claim that the seizure of the Disputed Funds 
+implicates his right to counsel.” Id. at 183, 191.  Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 3 of 124 
+ clause by looking to the Supreme Court’s declarations in Mathews 
+v. Eldridge,” the Mathews factors would not weigh in his favor. 
+Mem. Op., ECF No. 60 at 14 (cleaned up). The Mathews factors 
+require a court to weigh “(1) the burdens that a requested 
+procedure would impose on the Government against (2) the private 
+interest at stake, as viewed alongside (3) the risk of an 
+erroneous deprivation of that interest without the procedure and 
+the probable value, if any, of the additional procedural 
+safeguard.” Kaley v. United States, 571 U.S. 323, 333 (2014) 
+(quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)) 
+(internal quotations and alterations omitted). The Court found 
+that the first Mathews factor weighed against Mr. Sullivan 
+because, though courts have found that the government’s 
+interests may be “outweighed by a criminal defendant’s interest 
+in obtaining the counsel of his or her choice,” Sunrise Academy 
+v. United States, 791 F. Supp. 2d 200, 207 (D.D.C. 2011) (citing 
+United States v. E-Gold, Ltd., 521 F.3d 411, 419 (D.C. Cir. 2008)), here, Mr. Sullivan’s interest in acquiring access to the 
+seized funds for rent and household necessities was “obviously 
+far less pressing” than a defendant’s exercise of his Sixth 
+Amendment right, see id. The Court also found that the second 
+factor weighed against Mr. Sullivan because he had not “provided 
+any evidence demonstrating that he [was] unable to pay for rent 
+or other household necessities without the seized assets.” Mem. Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 4 of 125 
+ Op., ECF No. 60 at 15. And finally, the Court found that the 
+third factor did not weigh in Mr. Sullivan’s favor because 
+“[w]hile there may inevitably be ‘some risk’ that the ‘probable 
+cause finding reached in a non-adversarial context by a 
+magistrate judge’ is erroneous, Sunrise Academy, 791 F. Supp. 2d 
+at 206; Mr. Sullivan’s conclusory allegation that the proceeds 
+of the seized bank account are not the product of the criminal 
+activity alleged in the indictment carries little weight.” Mem. 
+Op., ECF No. 60 at 15. Indeed, Mr. Sullivan had “acknowledge[d] 
+that some of [his] assets were obtained from the sale of 
+videotape from January 6, 2021.” Id. at 16. 
+ Mr. Sullivan filed a motion for reconsideration of the 
+Court’s Order and a “supplement” to his initial motion on 
+December 17, 2021. See Def.’s Mot., ECF No. 61. The government 
+filed its opposition on January 3, 2022. See Gov’t’s Opp’n, ECF 
+No. 63. The motion is ripe for adjudication. 
+II. Legal Standard 
+“Although the Federal Rules do not specifically provide for 
+motions for reconsideration in criminal cases, the Supreme Court 
+has recognized, in dicta, the utility of such motions.” United 
+States v. Ferguson, 574 F. Supp. 2d 111, 113 (D.D.C. 2008) 
+(citing United States v. Dieter, 429 U.S. 6, 8 (1976)). Courts 
+in this District have “adopted such a philosophy by regularly 
+entertaining motions for reconsideration in a criminal context, Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 5 of 126 
+ applying the analogous Federal Rules of Civil Procedure.” In re 
+Extradition of Liuksila, 133 F. Supp. 3d 249, 255 (D.D.C. 2016); 
+see also United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 
+2009) (listing criminal cases applying standards from Federal 
+Rules of Civil Procedure in reconsideration context). 
+Motions for reconsideration of interlocutory orders may be 
+granted at any time before the entry of a final judgment “as 
+justice requires.” Cobell v. Jewell, 802 F.3d 12, 25 (D.C. Cir. 
+2015). This “abstract phrase” is generally interpreted 
+“narrowly” to permit reconsideration “only when the movant 
+demonstrates: (1) an intervening change in the law; (2) the 
+discovery of new evidence not previously available; or (3) a 
+clear error in the first order.” King & Spalding LLP v. U.S. 
+Dep’t of Health & Hum. Servs., 395 F. Supp. 3d 116, 119–20 
+(D.D.C. 2019); see also United States v. Sutton, No. 21-598 
+(PLF), 2021 WL 5999407, at *2 (D.D.C. Dec. 20, 2021) (“In 
+evaluating what ‘justice requires,’ the Court considers ‘whether it patently misunderstood a party, has made a decision outside 
+the adversarial issues presented to the Court by the parties, 
+has made an error not of reasoning but of apprehension, or 
+[whether] a controlling or significant change in the law or 
+facts [has occurred] since the submission of the issue to the 
+Court.’”). Further, “for justice to require reconsideration, 
+logically, it must be the case that[] some sort of ‘injustice’ Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 6 of 127 
+ will result if reconsideration is refused. That is, the movant 
+must demonstrate that some harm . . . would flow from a denial 
+of reconsideration.” Cobell v. Norton, 355 F. Supp. 2d 531, 540 
+(D.D.C. 2005).  
+“Beyond these circumstances, a motion for reconsideration 
+should not be used as a vehicle for relitigating issues on which 
+the court already ruled because the party disagrees.” United 
+States v. Worrell, No. 21-cr-292-RCL, 2021 WL 2366934, at *10 
+(D.D.C. June 9, 2021). Moreover, “[a]rguments that could have 
+been, but were not, raised previously and arguments that the 
+court has already rejected are not appropriately raised in a 
+motion for reconsideration.” United States v. Booker, 613 F. 
+Supp. 2d 32, 34 (D.D.C. 2009). 
+III. Analysis 
+ Mr. Sullivan does not argue that the Court’s December 6, 
+2021 ruling included legal error or that there has been an 
+intervening change in the law. Instead, he offers for the Court’s consideration additional facts regarding his financial 
+situation and financial outlook. See Def.’s Mot., ECF No. 61. 
+Specifically, Mr. Sullivan’s motion for reconsideration includes 
+further details regarding the vehicles he owns; the salary he 
+earned while working for his father in 2021; his monthly rent; 
+the approximate amount of money his parents give him to assist 
+in paying his expenses; the approximate amount of money he has Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 7 of 128 
+ in his bank accounts; and the current status of his car 
+insurance and health insurance. Id. at 3-4, 15-17. In addition, 
+he provided the Court with a notice of eviction he received on 
+November 17, 2021; credit score reports; credit card statements; 
+a declaration from his father including information about Mr. 
+Sullivan’s salary and the extent to which he and his wife assist 
+Mr. Sullivan with additional resources; and a declaration from 
+Mr. Sullivan summarizing his monthly expenses. Id. at 8-17.  
+ Mr. Sullivan, however, offers no explanation for why he 
+could not have presented these additional facts to the Court 
+prior to the entry of judgment. See Miller v. Rosenker, No. 05-
+2478 (GK), 2008 WL 11403193, at *1 (D.D.C. Sept. 4, 2008) (“A 
+fact is not ‘new’ simply because the [party] has neglected to 
+use it as the basis for an argument in a previous filing. 
+Rather, to be considered ‘new,’ a previously unavailable fact 
+must become available.”); Hentif v. Obama, 883 F. Supp. 2d 97, 
+100 (D.D.C. 2012) (“Evidence is not ‘newly discovered’ if a party had the ability to present it to the finder of fact prior 
+to entry of judgment.”). Nor does Mr. Sullivan assert that the 
+additional information he wishes the Court to consider was 
+previously unavailable despite the exercise of due diligence. 
+See Ctr. for Pub. Integrity v. FCC, 515 F. Supp. 2d 167, 169 n.1 
+(D.D.C. 2007) (“Plaintiff’s failure to investigate a possible 
+argument prior to the judgment does not make the results of its Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 8 of 129 
+ research ‘new evidence’ . . . .”). Because it is well-
+established that a party may not use a motion for 
+reconsideration to introduce additional facts not raised prior 
+to the entry of judgment—and because there is no argument that 
+the Court committed error or that there has been a significant 
+change in the law—Mr. Sullivan’s arguments are not appropriately 
+before the Court in a motion for reconsideration. See, e.g., 
+Carter v. Wash. Metro. Area Transit Auth., 503 F.3d 143, 145 n.2 
+(D.C. Cir. 2007) (“Reconsideration is not an appropriate forum 
+for rehashing previously rejected arguments or arguing matters 
+that could have been heard during the pendency of the previous 
+motion.” (quoting Caisse Nationale de Credit Agricole v. CBI 
+Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996)). 
+ Moreover, even if the Court accepted that the additional 
+details constituted new evidence not previously available, Mr. 
+Sullivan’s arguments would still fail.  
+As the government points out, there are multiple 
+inconsistencies or unexplained gaps in the financial information provided. See Gov’t’s Opp’n, ECF No. 63 at 3. For example, it is 
+unclear why Mr. Sullivan reported his monthly expenses to be 
+“$2,000-$2,250” on January 14, 2021, but in his most recent 
+motion for reconsideration, he reports that his monthly 
+household expenses have increased substantially to “$6,018.44.” 
+See id. (noting that Mr. Sullivan’s current expenses are “over Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 9 of 1210 
+ three times what he reported upon arrest”); see also Def.’s 
+Mot., ECF No. 61 at 16. In addition, Mr. Sullivan’s motion for 
+reconsideration excludes, without explanation, sources of income 
+that he had previously reported, such as his Google ad deposits, 
+401K deposits, and freight broker contracts. See Def.’s Mot., 
+ECF No. 61 at 3 (claiming that Mr. Sullivan “has no other 
+sources of income” other than the money he earns while working 
+with his father and the money he borrows from his family); 
+Gov’t’s Opp’n, ECF No. 63 at 4 (noting the sources of income 
+that have been “dropped” from the motion for reconsideration).  
+And even assuming that the new information Mr. Sullivan 
+provides in his motion is credible and meets the threshold 
+showing of financial need, thereby addressing the Court’s first 
+holding in its December 6, 2021 Memorandum Opinion, the motion 
+for reconsideration still fails address the Court’s alternative 
+holding that the Mathews balancing test3 does not weigh in Mr. 
+Sullivan’s favor. At most, the details in Mr. Sullivan’s motion 
+would impact the Court’s analysis of the second Mathews factor, 
+which concerns the private interest at stake. However, Mr. 
+ 
+3 As stated in Section II, the Mathews factors require a court to 
+weigh “(1) the burdens that a requested procedure would impose 
+on the Government against (2) the private interest at stake, as 
+viewed alongside (3) the risk of an erroneous deprivation of 
+that interest without the procedure and the probable value, if any, of the additional procedural safeguard.” Kaley, 571 U.S. at 333 (quoting Mathews, 424 U.S. at 335) (internal quotations and 
+alterations omitted). Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 10 of 1211 
+ Sullivan has not provided any arguments or case law casting 
+doubt on the Court’s finding that the first and third Mathews 
+factors—the burden on the government and the risk of erroneous 
+deprivation, respectively—weigh against him. Thus, the new 
+information provided in the motion for reconsideration would not 
+change the result of the balancing inquiry.  
+In view of the above, the Court shall deny Mr. Sullivan’s 
+request for a post-deprivation, pretrial hearing to challenge 
+the seizure of his assets. In line with the Federal Rules of 
+Criminal Procedure, Mr. Sullivan’s arguments shall therefore be 
+addressed at a post-trial or post-plea hearing. See United 
+States Bikundi, 125 F. Supp. 3d 178, 184 (D.D.C. 2015) (“Once 
+the government has obtained a seizure warrant pursuant to 21 
+U.S.C. § 853(f), the Federal Rules of Criminal Procedure provide 
+for no further inquiry into the property’s forfeitability until 
+disposition of the criminal charges on which the forfeiture is 
+predicated.” (citing Fed. R. Crim. P. 32.2(b)(1)(A))). 
+  Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 11 of 1212 
+ IV. Conclusion 
+For the reasons stated above, the Court DENIES Mr. 
+Sullivan’s motion for reconsideration. An appropriate Order 
+accompanies this Memorandum Opinion. 
+ SO ORDERED. 
+Signed: Emmet G. Sullivan 
+  United States District Judge 
+  August 1, 2022 Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 12 of 12

08-01-22 - ORDER denying 61 Motion for Reconsideration as to JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,26 @@
+UNITED STATES DISTRICT COURT 
+FOR THE DISTRICT OF COLUMBIA 
+ 
+ 
+UNITED STATES OF AMERICA, 
+ 
+v.  
+ 
+JOHN EARLE SULLIVAN,  
+  
+Defendant.  
+ 
+ Crim. Action No. 21-78 (EGS) 
+ 
+ORDER 
+ For the reasons stated in the accompanying Memorandum 
+Opinion, it is hereby  
+ORDERED that Mr. Sullivan’s motion for reconsideration of 
+the Court’s December 6, 2021 denial of motion to release seizure 
+order and supplement to motion to release seizure order, ECF No. 
+61, is DENIED. 
+SO ORDERED. 
+Signed: Emmet G. Sullivan 
+  United States District Judge 
+  August 1, 2022 
+ Case 1:21-cr-00078-EGS   Document 80   Filed 08/01/22   Page 1 of 1

08-03-21 - STATUS REPORT Status report concerning conditions of release by JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,67 @@
+1 
+                                  UNITED STATES DISTRICT COURT  
+               FOR THE DISTRICT OF COLUMBIA  
+ 
+UNITED STATES OF AMERICA  
+ 
+ V.      Case No.: 21 -cr-78 (EGS)  
+ 
+ 
+JOHN SULLIVAN  
+ 
+  STATUS REPORT CONCERNING CONDITIONS OF   
+         PRETRIAL RELEASE  
+ 
+ Undersigned counsel does hereby submit the following status rep ort  
+ 
+concerning the conditions of defendant’s release:  
+ 
+ 1. Defend ant, his Utah pro bation officer, Mr. Cahoon , and 
+undersigned counsel had a three way telephone conference  on August 2, 
+2021. De fendant and Mr. Cahoon agreed as follows:  
+ a. Employment:   Defend ant’s father/employer wil l submit to Mr. 
+Cahoon a once a month e -mail confirming the work hours of defendant . 
+Defend ant will  also keep track of his work hours and will provide notice of 
+his hours to Mr. Cahoon. This is bei ng done in order to provide Mr. Cahoon 
+with verification  of employment and defend ant’s work schedule.  
+ b. Home visits : Mr. Cahoon will conduct random  home  visits which 
+will occur  periodically  every couple of months. At the visit, Mr . Cahoon will Case 1:21-cr-00078-EGS   Document 40   Filed 08/03/21   Page 1 of 32 
+ not have any disc ussion wi th defendant about the status of his pending 
+case.  
+ c. Contact  with probation office : Defendant will telephone, e -mail or 
+have  text contact with Mr. Cahoon on a weekly basis. The com municati ons 
+will contai n substantive in formation and provide updates on employment 
+activities. On e time every other mon th defendant  will have an in -person 
+meeting with Mr. Cahoon at his office  
+ d. Computer monitoring : When Mr. Cahoon reaches out to 
+defendant  conc erning monitoring issues, defend ant will reply in  a 
+reasonable amo unt of time to address the issues . Defend ant will initiate 
+contact with Mr. Cahoon if he believes there are any additional issues with 
+computer monitoring.  
+ 2. The parties ag ree to cooperate with each other  going forward an d 
+will advi se each other i f there are any  conc erns or questions regarding 
+pretrial release.    
+        
+ 
+ 
+ 
+        Case 1:21-cr-00078-EGS   Document 40   Filed 08/03/21   Page 2 of 33 
+        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 filing system, on this the 
+____ 3rd____day of August , 2021 upon counsel of record, Candice Wong, 
+Esquire, Assistant U.S. Attorney   
+ 
+               
+      ______ /s/____________________  
+      Steven R. Kiersh  Case 1:21-cr-00078-EGS   Document 40   Filed 08/03/21   Page 3 of 3

08-18-21 - RESPONSE TO ORDER OF THE COURT by JOHN EARLE SULLIVAN re Order on Motion for Miscellaneous Relief.txt

@@ -0,0 +1,75 @@
+1 
+                                  UNITED STATES DISTRICT COURT  
+               FOR THE DISTRICT OF COLUMBIA  
+ 
+UNITED STATES OF AMERICA  
+ 
+ V.      Case No.: 21 -cr-78 (EGS)  
+ 
+ 
+JOHN SULLIVAN  
+ 
+      RESPONSE TO M INUTE OR DER OF COURT  
+          (Receipt of search warrants ) 
+ 
+ Defend ant, by and through  undersigned counsel , pursuant to the  
+ 
+August 16, 2012 Minute Order of tis Court, does hereby state as follows : 
+ 
+ Defend ant has received al l relevant information related to the Motion  
+ 
+to Release Seizure Order. 
+  
+        
+       Respectfully submitted,  
+ 
+       _______/s/_______________  
+       Steven R. Kiersh #323329  
+       5335 Wisconsin Avenue, N.W.  
+       Suite 440  
+       Washington, D.C. 20015  
+       (202) 347 -0200  
+ 
+  
+ 
+ 
+                      Case 1:21-cr-00078-EGS   Document 42   Filed 08/18/21   Page 1 of 22 
+                                      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 
+____ 18th____day of August , 2021 upon all counsel of record, Candic e 
+Wong, Esquire, Assistant U.S Attorney.   
+ 
+               
+      ______ /s/____________________  
+      Steven R. Kiersh  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ Case 1:21-cr-00078-EGS   Document 42   Filed 08/18/21   Page 2 of 2

08-19-21 - RESPONSE TO ORDER OF THE COURT by JOHN EARLE SULLIVAN re Order on Motion to Exclude.txt

@@ -0,0 +1,59 @@
+1 
+                                  UNITED STATES DISTRICT COURT  
+               FOR THE DISTRICT OF COLUMBIA  
+ 
+UNITED STATES OF AMERICA  
+ 
+ V.      Case No.: 21 -cr-78 (EGS)  
+ 
+ 
+JOHN SULLIVAN  
+ 
+              RESPONSE TO ORDER OF COURT  
+       (Availability of the parties for status hearing)  
+ 
+ Undersigned counsel respond to the August 16, 2020 Minute Ord er of  
+ 
+the Court  conce rning the availability of the parties for the next status   
+ 
+hearing.  
+ 
+ The parties are available o n the f ollowing da tes: 9/20/21; 9/22/21;  
+ 
+9/24/ 21. 
+ 
+ Counsel for defendant notes as follows: Counsel is schedul ed to start 
+a length y trial  before the H onorable Milton Lee  in the Superior Court of the 
+District of Columbia  on September 8, 2021. At the present time, the 
+expect ation  is that because of the anticipated  length of the trial proceedings 
+the Court wil l try to sit on Fridays. Howeve r, it is not at all yet clear t hat th e 
+Court will be able to sit on Fridays. Accordingly, counsel for defendant Case 1:21-cr-00078-EGS   Document 43   Filed 08/19/21   Page 1 of 22 
+ believes that the best date  for a status hearing in this case is Friday, 
+September 24, 202 1.1 
+ 
+   
+ 
+    
+ 
+       Respectfully submitted,  
+        
+ 
+       ______ /s/_____________  
+       Candice Wong # 990903  
+       Assistant U.S. Attorney  
+       555 4th Street, N.W.  
+       Washington, D.C. 20530  
+       (202) 252-7849  
+ 
+       _______/s/_______________  
+       Steven R. Kiersh #323329  
+       5335 Wisconsin Avenue, N.W.  
+       Suite 440  
+       Washington, D.C. 20015  
+       (202) 347 -0200  
+ 
+                    
+                                                           
+1 Counsel for defendant believes that Judge Lee will accommodate  a 
+request  with advance notice  that is made for the scheduling of a status 
+hearing in this matter.  Case 1:21-cr-00078-EGS   Document 43   Filed 08/19/21   Page 2 of 2

08-22-22 - Joint STATUS REPORT and Proposed Pretrial Deadlines by USA as to JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,98 @@
+ 
+ UNITED STATES DISTRICT COURT  
+FOR THE DISTRICT OF COLUMBIA 
+ 
+UNITED STATES OF AMERICA   : 
+:   
+v.    : Criminal No. 1:21- cr-00078- EGS  
+:  
+JOHN EARLE SULLIVAN,   :  
+   :  
+Defendant.   : 
+ 
+JOINT STATUS REPORT AND PROPOSED PRETRIAL DEADLINES  
+ 
+The United States of America , with concurrence of defense counsel, hereby respectfully 
+submits this status report to the Court regarding the above -captioned case.  
+A. Background  
+The grand jury returned on November 10, 2021, a Superseding Indictment charging 
+Defendant with violation of 18 U.S.C. §§ 1512(c)(2) (Obstruction of an Official Proceeding) in 
+addition to other charges including 18 U.S.C. §§ 231(a)(3)(Civil Disorder), 1752( a)(1) and 
+(b)(1)(A)(Entering and Remaining in a Restricted Building or Grounds with a Dangerous Weapon), 1752(a)(2) and (b)(1)(A) (Disorderly and Disruptive Conduct in a Restricted Building with a Dangerous Weapon) and 1001(a)(2)(False Statement or Represe ntation to an Agency of 
+the United States) and 40 U.S.C. §§ 5104(e)(1)(A)(i)(Unlawful Possession of a Dangerous Weapon on Capitol Grounds or Buildings), 5104(e)(2)(D)(Disorderly Conduct in a Capitol Building), and 5104(e)(2)(D)(Parading, Demonstrating, or Picketing in a Capitol Building).  
+The defendant is not in custody. Additionally, the parties note that there are numerous 
+substantive motions pending before the Court that toll the speedy trial clock.  These include 
+Defendant’s Motion to Dismiss Count 1 of  the Superseding Indictment and Motion to Adopt and 
+Join Motion in 21- cr-28 [DE 62] and a Supplemental Motion to Dismiss Count [71], Motion to Case 1:21-cr-00078-RCL   Document 82   Filed 08/22/22   Page 1 of 4 
+ Dismiss Count Eight of the Superseding Indictment as Being Void for Vagueness [DE 47], and a 
+Motion to Suppress C ustodial Statements [DE 46]. 
+The Court set a trial date of October 25, 2023, and directed the parties to propose a 
+pretrial deadlines for (1) expert disclosure; (2) grand jury and Jenks Act disclosures at to each witness the Government expects to call in i ts case -in-chief; and (3) Brady materials not already 
+disclosed by August 23, 2022. The parties propose the below accordingly.  
+B. Proposed Pret rial Deadlines  
+1. The United  States  shall  make any required  expert  disclosures  pursuant  to 
+Rule  16(a)(1)(G) by July 17, 2023;  any reciprocal  expert  disclosure  by Defendant 
+pursuant to Rule 16(b)(1)(C) shall be made by July 31, 2023. 
+2. The United States  will endeavor  to make grand jury and Jencks Act  disclosures 
+as to each witness it expects to call in its case- in-chief on or before September 
+2, 2023. Any Brady material not already disclosed also must be disclosed by this 
+date. 
+C. Additional Pre trial Deadlines  
+ To assist the Court further, the parties also proposed the following pretrial deadlines for 
+the Court’s consideration. 
+1. The United States shall notify Defendant of its intention to introduce any Rule 404(b) evidence not already disclosed on or before May 5, 2023. 
+2. Motions  in limine  shall  be filed on or before June 2 , 2023; oppositions shall be 
+filed on or June 16, 2023;  and replies  shall  be filed on or before  June 23, 2023.
+ 
+If the United  States wishes to file a motion in limine  with respect to any defense 
+expert, it may do so by filing  a motion  by August 25 , 2023;  any opposition  to Case 1:21-cr-00078-RCL   Document 82   Filed 08/22/22   Page 2 of 4 
+ such motion  shall  be filed by September 1 , 2023. 
+3. Defendant  shall  satisfy  his reciprocal  discovery  obligations, if any, under  
+Rule  16(b) (except as to experts, as noted above) by July 3, 2023. The court 
+will consider any motion in limine with respect to reciprocal discovery after 
+such discovery is received. Any such motion shall be filed by August  25, 2023; 
+any opposition to such moti on shall be filed by September 1 , 2023. 
+4. The parties request that a hearing be  scheduled to present argument as to any 
+motions filed pursuant to paragraph s 2and 3 the week of September 11 , 2023.  
+5. On or before October 1 3, 2023, counsel shall file a Joint Pre trial Statement that 
+contains the following:  
+a. Proposed voir  dire questions .  
+ 
+b. Proposed jury instructions .  
+ 
+c. List of witnesses .   
+ 
+d. Exhibit  lists.   
+ 
+e. Stipulations .   
+ 
+f. Proposed verdict  form .   
+ 
+  Case 1:21-cr-00078-RCL   Document 82   Filed 08/22/22   Page 3 of 4 
+  
+ 
+Respectfully submitted,  
+COUNSEL FOR THE GOVERNMENT  
+MATTHEW GRAVES  
+United States Attorney  
+DC Bar No. 4 81052  
+ 
+ 
+     By: /s/ Joseph H. Huynh   
+JOSEPH H. HUYNH  
+D.C. Bar No. 495403  
+Assistant United States Attorney (Detailed)  
+405 East 8th Avenue, Suite 2400 
+Eugene, Oregon 97401- 2708 
+Telephone: (541) 465 -6771 
+Joseph.Huynh@usdoj.gov    
+   
+       
+       COUNSEL FOR THE DEFENDANT  
+       /s/ Steven Roy Kiersh           
+STEVEN ROY KIERSH  
+DC Bar # 323329 Law Offices of Steven R. Kiersh  
+5335 Wisconsin Avenue, NW  
+Suite 440 Washington, DC 20015 Telephone (202) 347- 0200 
+skeirsh@aol.com  
+  Case 1:21-cr-00078-RCL   Document 82   Filed 08/22/22   Page 4 of 4

09-23-21 - RESPONSE TO ORDER OF THE COURT by JOHN EARLE SULLIVAN re Order on Motion to Exclude.txt

@@ -0,0 +1,172 @@
+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

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

@@ -0,0 +1,158 @@
+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 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

10-06-22 - PRETRIAL ORDER as to JOHN EARLE SULLIVAN. Signed by Judge Emmet G. Sullivan.txt

@@ -0,0 +1,335 @@
+1  UNITED STATES DISTRICT COURT 
+FOR THE DISTRICT OF COLUMBIA 
+ 
+ 
+ 
+  
+Criminal No. 21-cr-0078 (EGS) 
+  
+ 
+  
+ 
+ 
+PRETRIAL ORDER 
+ 
+It is by the Court hereby 
+ ORDERED that the United States shall make any required expert 
+disclosures by no later than July 17, 2023; and it is further 
+ORDERED that Defendant shall make any required reciprocal 
+expert disclosure by no later than July 31, 2023; and it is 
+further 
+ORDERED that the United States shall notify Defendant of its 
+intention to introduce any Rule 404(b) evidence not already 
+disclosed by no later than May 5, 2023; and it is further 
+ORDERED that the United States shall make grand jury and 
+Jenks Act disclosures as to each witness it expects to call in its 
+case-in-chief by no later than September 2, 2023. Any Brady 
+material not already disclosed must also be disclosed by this 
+date; and it is further 
+ORDERED that the parties shall file their pretrial motions by  
+UNITED STATES OF AMERICA,  
+ 
+v. 
+ 
+JOHN EARLE SULLIVAN, 
+ 
+Defendant. Case 1:21-cr-00078-EGS   Document 83   Filed 10/06/22   Page 1 of 122  no later than June 2, 2023; oppositions shall be filed by no later 
+than June 16, 2023; and replies shall be filed by no later than June 23, 2023. If the United States wishes to file a motion in 
+limine with respect to any defense expert, it may do so by filing 
+a motion by no later than August 25, 2023; any opposition to such motion shall be filed by no later than September 1, 2023; and any reply by no later than September 7, 2023; and it is further 
+ORDERED that Defendant shall satisfy his reciprocal discovery 
+obligations, if any, under Rule 16(b) (except as to experts, as noted above) by July 3, 2023. The Court will consider any motion in limine with respect to reciprocal discovery after such discovery is received. Any such motion shall be filed by no later 
+than August 25, 2023; any opposition to such motion shall be filed by no later than September 1, 2023; and any reply by no later than September 7, 2023; and it is further 
+ORDERED that the Court will hold a motions hearing and 
+pretrial conference on September 14, 2023 at 10:30 am. In light of the public health emergency, the hearing shall take place via ZOOM, and the parties shall contact Mr. Mark Coates, the Courtroom Deputy Clerk, for the dial-in information; and it is further 
+ORDERED that jury selection shall commence on October 25, 
+2023 at 9:00 am in Courtroom 24A and trial shall commence on 
+October 25, 2023 at 10:00 am in Courtroom 24A; and it is further 
+ORDERED that the parties are directed to review the jury voir Case 1:21-cr-00078-EGS   Document 83   Filed 10/06/22   Page 2 of 123  dire questions attached hereto as Attachment A and confer in good 
+faith in an effort to submit a joint list of any  additional voir 
+dire questions that they wish to propose. Additional voir dire 
+questions shall be filed via electronic case filing (“ECF”), with 
+an additional copy submitted via email to 
+sullivan_chambers@dcd.uscourts.gov in Word or Word Perfect format 
+(not PDF), by no later than September 7, 2023. In the event that 
+counsel are unable to agree on a joint list of additional voir 
+dire questions, counsel shall file individual lists of additional 
+voir dire questions via ECF, with an additional copy submitted via 
+email in Word or Word Perfect format (not PDF), by no later than 
+September 7, 2023. The parties shall also inform the Court if 
+there are any of the listed standard voir dire questions in 
+Attachment A that they do not wish the Court to use or that they 
+wish to change in some way and propose alternatives, as appropriate; and it is further 
+ORDERED that the parties are directed to confer in good faith 
+in an effort to file a joint, concise, neutral statement of the 
+case to the Court via ECF, with an additional copy submitted via 
+email in Word or Word Perfect format (not PDF), by no later than September 7, 2023. If counsel are unable to agree on a statement 
+of the case, counsel shall file individual proposed statements of 
+facts, including a preliminary jury instruction regarding the defendant’s theory of the case, via ECF, with an additional copy submitted via email in Word or Word Perfect format (not PDF), by Case 1:21-cr-00078-EGS   Document 83   Filed 10/06/22   Page 3 of 124  no later than September 7, 2023; and it is further 
+ORDERED that the Court uses standard preliminary instructions 
+that will be provided to the parties in advance of trial. For final 
+jury instructions, the Court uses the latest edition (September 
+2018 - Release 16) of the Criminal Jury Instructions for the 
+District of Columbia (the “Red Book”). A list of the Court’s standard final jury instructions is attached to this Order as Attachment B. The parties are directed to confer in good faith in 
+an effort to file a joint list of any additional proposed final 
+jury instructions to the Court via ECF, with an additional copy submitted via email in Word or Word Perfect format (not PDF), by 
+no later than September 7, 2023. If counsel are unable to agree on 
+a joint list of proposed jury instructions, counsel shall file 
+individual proposed jury instructions via ECF, with an additional 
+copy submitted via email in Word or Word Perfect format (not PDF), 
+by no later than September 7, 2023. The parties may list any additional standard Red Book instructions by the Red Book instruction number in their submission to the Court. The parties 
+are directed, however, to include the full text of all substantive 
+offense instructions and any additional proposed standard 
+instructions not found in the Red Book. The parties shall also inform the Court if there are any of the listed standard instructions in Attachment B that they do not wish the Court to use 
+or that they wish to change in some way and propose alternatives, 
+as appropriate; and it is further Case 1:21-cr-00078-EGS   Document 83   Filed 10/06/22   Page 4 of 125  ORDERED that  the parties shall file a list of proposed trial 
+exhibits by no later than September 7, 2023. Each party’s numbered 
+list of trial exhibits, other than impeachment exhibits, shall set 
+forth a description of each exhibit the party may offer in 
+evidence (other than those created at trial), separately 
+identifying those which the party expects to offer and those which 
+the party may offer if the need arises, and should identify 
+concisely the evidentiary basis for admissibility. The parties shall include a brief proffer of the specific evidentiary basis 
+for any objections to an opposing party’s exhibit. In noting the 
+objections, if any, the following codes should be used:  
+A- Authenticity  I- Contains inadmissible matter  
+R- Relevancy 
+H- Hearsay  
+UP- Unduly prejudicial- probative value outweighed by undue 
+prejudice.  
+Other abbreviations may be used provided counsel identifies 
+such codes in the exhibit listing them. The parties shall submit 
+their exhibit lists in the format provided in Attachment C to this 
+Order; and it is further  
+ORDERED that the parties shall file a witness list 
+identifying the names of the witnesses they will call, or may 
+call, to testify at trial by no later than September 7, 2023. The 
+parties shall designate each witness as one they "will call" or Case 1:21-cr-00078-EGS   Document 83   Filed 10/06/22   Page 5 of 126  "may call." The parties shall also include in their notices the 
+constitutional issues, if any, implicated by the testimony of any 
+particular witness. The parties are advised of their obligation to 
+update the notices if a new potential witness is discovered after 
+the date of the filing; and it is further 
+ORDERED that the Court will utilize the Jury Evidence 
+Recording System (JERS) to provide the jury with electronic access 
+to the evidence in this case during their deliberations. The 
+parties are directed to contact Daniel Barrett at (202) 354-3217 
+for more information and training on the use of JERS; and it is 
+further 
+ORDERED that to the extent the parties raise objections in 
+the joint pretrial statement or to the proposed substantive 
+offense jury instructions, the parties shall state the basis for each objection and include citations to the controlling principles 
+and legal authorities. 
+Prior to the commencement of trial in this case, the Court 
+will issue a further Order containing information regarding COVID-19 protocols in the courtroom. 
+SO ORDERED. 
+Signed: Emmet G. Sullivan 
+United States District Judge  
+October 6, 2022 Case 1:21-cr-00078-EGS   Document 83   Filed 10/06/22   Page 6 of 12 ATTACHMENT A – LIST OF STANDARD VOIR DIRE QUESTIONS 
+ 
+1. Have you heard about the alleged offenses that are charged 
+in this case? 
+ 
+2. Do you live or work near the immediate area where the 
+offenses are alleged to have occurred or are you familiar 
+with that area for some other reason? 
+ 
+3. As I stated, I am Judge Emmet Sullivan. My courtroom clerk 
+is Mr. Mark Coates. The Court Reporter is [Name]. My law clerk is [Name]. Do you know me or any member of my staff? 
+Do you know any of the attorneys or the defendant in this 
+case? 
+ 
+4. The Assistant U.S. Attorney in this case is [AUSA’s name]. 
+Do you know or recognize [AUSA’s name]? 
+ 
+5. The defendant in this case is [defendant’s name]. He is 
+being represented by attorney [defense counsel’s name]. Do 
+you know or recognize [defendant’s name] or [defense 
+counsel’s name]? 
+ 
+6. [The government will then introduce its witnesses followed 
+by the defendant introducing his witnesses. Law enforcement 
+witnesses will be identified by their name, rank, and duty assignment. Lay witnesses will be identified by their name, 
+address, and place of employment. Expert witnesses will be 
+identified by their name, title, and place of employment.] Do you know any of the witnesses that have just been 
+introduced to you? 
+ 
+The next several questions apply to each of you, members of your 
+immediate family, and close friends. 
+ 
+7. Is anyone in that group either presently or previously 
+employed by any law enforcement agency, or currently have 
+pending at such an agency an application for employment? Law enforcement agencies include any police department, in or outside the District of Columbia, special police officers, prosecutors’ offices, Park Police, FBI, Department of Justice, Sheriffs’ Departments, Secret Service, Department of Corrections, or any other law enforcement 
+agency. 
+8. Is any member of that group either presently or previously 
+employed by a public defender office or by a criminal Case 1:21-cr-00078-EGS   Document 83   Filed 10/06/22   Page 7 of 12 defense attorney or group of criminal defense attorneys or 
+investigators, or currently have pending an application for 
+employment with such a person or organization? 
+ 
+9. Is any member of that group a lawyer or has any member of 
+that group studied law in a law school or worked for or with 
+a lawyer? 
+ 
+10. Has any member of that group been the victim of, witness to, 
+or accused of, whether convicted or not, a criminal offense? 
+ 
+11. Have you or a member of your immediate family – either 
+personally or in connection with a business – been involved in any legal action or dispute with the United States, or 
+any officers, employees, or agents of the United States? 
+ 
+12. (If law enforcement officer testimony expected.) I will be 
+instructing the jury at the end of the trial that the 
+testimony of a law enforcement officer should be treated the 
+same as the testimony of any other witness and that the jury should not give either greater or lesser weight to the testimony of a witness simply because the witness is a law enforcement officer. Do you have such strong feelings about 
+law enforcement, either positive or negative, that you would 
+have difficulty following that instruction? 
+ 
+13. This is a case about  . Would the nature of th e   
+charges themselves make it difficult for you to render a 
+fair and impartial judgment in this case? 
+ 
+14. (If a drug crime.) Are you now or have you in the past been 
+a member of any group which advocates either for or against the legalization of drugs? 
+ 
+15. Have you formed special opinions concerning defense 
+attorneys, prosecutors, or accused persons that would affect you in deciding this case? 
+ 
+16. Do you feel that the defendant has to testify or present 
+evidence before you could find him not guilty? 
+ 
+17. If selected as a juror, would you have difficulty accepting 
+and applying the rule of law that the defendant is presumed Case 1:21-cr-00078-EGS   Document 83   Filed 10/06/22   Page 8 of 12 innocent unless the government proves guilt beyond a 
+reasonable doubt? 
+ 
+18. There has been an indictment in this case.  An indictment 
+is not evidence of a crime. It merely initiates a case and 
+is a formal way of presenting the charges. The indictment here informs [defendant], the Court, and the members of the jury of the charge against him.  Would the fact that an 
+indictment charged [defendant] with a crime lead you to 
+believe that he is guilty or make it difficult for you to apply the presumption of innocence? 
+ 
+19. The law requires that jurors weigh the evidence in a case 
+and reach a verdict based solely upon the admitted evidence 
+and instructions of law, without regard whatsoever for what 
+the potential punishment might or might not be. Would you 
+have any difficulty at all following this principle? 
+ 
+20. Do you have such strong moral or religious convictions that 
+it would prevent you from passing judgment on another person? 
+ 
+21. Do you know any of the other members of the jury panel from 
+before today? 
+ 
+22. Are you suffering from any sight, hearing, or health 
+problems that would make it difficult for you to give your full time and attention to this trial, and render a fair and 
+impartial verdict? 
+ 
+23. Have you ever served as a grand juror or juror in the trial of a criminal case in federal court, a District of Columbia Court, or in a court located in another state? 
+ 
+24. I expect this case to take approximately [number of days] 
+to try. Do you have any pressing commitment that would make sitting on this jury an extreme hardship?  
+ 
+25. Is there any reason you can think of, whether or not it has 
+been covered by a previous question, why you could not sit fairly, attentively, or impartially as a juror in this case? Case 1:21-cr-00078-EGS   Document 83   Filed 10/06/22   Page 9 of 12 ATTACHMENT B – LIST OF STANDARD FINAL JURY INSTRUCTIONS 
+ 
+These instructions are taken from the current edition (September 
+2018 - Release 16) of the Criminal Jury Instructions for the District of Columbia (the “Red Book”). 
+ 
+General Instructions 
+ 
+2.101 Function of the Court  
+2.102 Function of the Jury  
+2.103 Jury’s Recollection Controls  
+1.105(B)  Final Instruction When Notetaking is Permitted  
+2.107 Burden of Proof - Presumption of Innocence  
+2.108 Reasonable Doubt  
+2.110 Nature of Charges Not to Be Considered  
+2.104 Evidence in Case [testimony, exhibits, stipulations]  
+1.104 Question Not Evidence  
+2.105 Statements of Counsel  
+2.106 Indictment or Information Not Evidence  
+2.112 Inadmissible and Stricken Evidence  
+ 
+Evaluation of Testimony and Other Evidence 
+ 
+2.109 Direct and Circumstantial Evidence  
+2.200 Credibility of Witnesses  
+2.207 Police Officer’s Testimony (if applicable)  
+2.208 Right of Defendant Not to Testify (if applicable)  
+2.209 Defendant as Witness (if applicable)  
+ 
+Definitions, Proof, Offenses, Defenses 
+ 
+3.103 “On or About” - Proof Of 
+3.101 Proof of State of Mind 
+ 
+Substantive Offense Instructions 
+[To be submitted by the parties.] 
+ 
+Closing Remarks 
+ 
+2.505 Possible Punishment Not Relevant  
+2.502 Selection of Foreperson  
+2.405 Unanimity of Verdict  
+2.509 Communications Between Court and Jury During  
+ Jury’s Deliberations  
+2.501 Exhibits During Deliberations  
+2.100 Furnishing the Jury with a Copy of the Instructions  
+  Case 1:21-cr-00078-EGS   Document 83   Filed 10/06/22   Page 10 of 12Objections: (A) - Authenticity,  (I)- Contains inadmissible matter, (R) - Relevancy, (H) - Hearsay, (UP) - Unduly prejudicial- probative value 
+outweighed by undue prejudice  ATTACHMENT C – SAMPLE EXHIBIT LIST 
+UNITED STATES DISTRICT COURT  
+FOR THE DISTRICT OF COLUMBIA 
+ 
+ 
+ UNITED STATES OF AMERICA  
+ 
+       v. 
+ [DEFENDANT]  
+                                                                                                                                                          Case No. XX- cr-XXXX (EGS)  
+ 
+   
+[PARTY’S] EXHIBIT LIST  
+ 
+U.S. 
+No. Def. 
+No. Description /Basis for Admissibility  Doc 
+Date  Objections  Use (Will 
+or May)  Marked  Admitted  Witness  
+         
+         
+         
+         
+         
+         
+         
+         
+         
+         
+         
+         
+         
+         
+ Case 1:21-cr-00078-EGS   Document 83   Filed 10/06/22   Page 11 of 12Objections: (A) - Authenticity,  (I) - Contains inadmissible matter, (R) - Relevancy, (H) - Hearsay, (UP) - Unduly prejudicial - probative value 
+outweighed by undue prejudice   U.S. 
+No. Def. 
+No. Description /Basis for Admissibility  Doc 
+Date  Objections  Use (Will 
+or May)  Marked  Admitted  Witness  
+         
+         
+         
+         
+         
+         
+         
+         
+         
+         
+         
+         
+         
+         
+ 
+ 
+ 
+  
+ 
+ Case 1:21-cr-00078-EGS   Document 83   Filed 10/06/22   Page 12 of 12

10-07-21 - Memorandum in Opposition by USA as to JOHN EARLE SULLIVAN re 46 MOTION to Suppress Motion to Suppress Custodial Statements.txt

@@ -0,0 +1,278 @@
+1 
+ UNITED STATES DISTRICT COURT  
+ FOR THE DISTRICT OF COLUMBIA 
+       
+UNITED STATES OF AMERICA   : 
+      : 
+ v.     :      
+: No. 21- CR-78-EGS  
+:     
+JOHN EARLE SULLIVAN    : 
+  :  
+  Defendant.    : 
+ 
+GOVERNMENT’S OPPOSITION  TO DEFENDANT’S MOTION  TO SUPPRESS   
+ 
+ The United States of America, by and through its attorney, the United States Attorney for 
+the District of Columbia, respectfully opposes the defendant’s “Motion to Suppress Custodial 
+Statements .”  The defendant, John Earle Sullivan, specifically seeks to suppress pre -arrest 
+statements he voluntarily made to an FBI agent while at his own home on January 11, 2021 – days 
+before Sullivan was charged  – when the agent asked him some questi ons during a visit to obtain 
+video footage that Sullivan had previously offered to provide the FBI .  Specifically, Sullivan made 
+statements acknowledging that while he knew he could be heard stating that he had a knife in the 
+publicly posted video of himse lf inside the Capitol Building, he did not in fact have a knife or 
+weapon; Sullivan alternately claimed that he was just responding to something the person next to 
+him had said, that he was joking, and that he was trying to fit in with the crowd when he so  stated . 
+The defendant now seeks suppression on grounds that he should have been Mirandized 
+because his January 11, 2021 statements were “custodial .”  This contention is unsupported by both 
+the facts and the law.  The circumstances of the defendant’s statements, as reflected on a recording 
+of the entire visit, refute the defendant’s claim of “custodial interrogation” as a factual matter, and 
+the defendant’s argument s run contrary to established caselaw .  No evidentiary hearing is Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 1 of 142 
+ warranted as the entire visit was captured on video, which is hereby proffered to the Court as an 
+exhibit for its review.  The defendant’s motion to suppress should be denied on the briefs.  
+FACTUAL BACKGROUND 
+On January 7, 2021, the defendan t, John Earle Sull ivan, participated in a voluntary 
+interview with an FBI agent in Washington, D.C.  The defendant stated that he was at the U.S. 
+Capitol on January 6, 2021, followed the crowd as it pushed past Capitol Police, and entered the U.S. Capitol Building with othe rs through a broken window.  The defendant stated he was wearing 
+a ballistics vest and gas mask.  The defendant further stated that he had been present at the shooting of a woman by a Capitol Police officer and that he had filmed the incident.  The defenda nt showed 
+the interviewing agent the footage he had taken, which he stated that he had uploaded to the Internet.  At the conclusion of the interview, the defendant stated that he was willing to voluntarily provide a copy of all footage he recorded within t he U.S. Capitol to law enforcement authorities. 
+On January 9, 2021, an other  FBI officer made contact with Sullivan at one of the phone 
+numbers Sullivan provided during his interview to follow up on Sullivan’s offer to voluntarily 
+provide his footage.  Sullivan sent a link to download a single video that he had taken on January 6.  The video was similar to a video Sullivan had publicly posted on his YouTube account. 
+As recounted at greater length in the charging documents and previous pleadings, the video 
+captured the defendant saying at various points: “There are so many people. Let’s go. This shit is 
+ours! Fuck yeah,” “We accomplished this shit. We did this together. Fuck yeah! We are all a part of this history,” and “Let’s burn this shit down.”   It showed the defendant extending his hand to 
+help pull up an individua l climbing a wall to reach a plaza just outside the Capitol Building 
+entrance, saying “You guys are fucking savage.  Let’s go!”  T he defendant’s ballistics gear and 
+gas mask was visible, and the defendant was captured climbing through a broken window to enter Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 2 of 143 
+ the Capitol Building.  The video further recorded several encounters between the defendant and 
+law enforcement officers, inclu ding ones where the defendant told the officers that “you are putting 
+yourself in harm’s way,” “the people have spoken,” and “there are too many people, you gotta stand down, the people out there that tried to do that shit, they got hurt, I saw it, I’m car ing about 
+you.”   At a later point, after someone lunges their body against a door, the defendant can be heard 
+saying, “That’s what I’m sayin’, break that shit.”   
+As relevant here, the video showed the defendant joining a crowd gathered before the main 
+entrance to the House Chamber in the U.S. Capitol.  There, t he defendant could be heard telling 
+other individuals, “there’s officers at the door ,” and then could be heard –  but not seen – saying, 
+“Hey guys, I have a knife. I have a knife.  Let me up.”  Later in the video, t he defendant then 
+approaches the doorway to the Speaker’s Lobby, a hallway which connects to the House Chamber.  There too, t he defendant can be heard – but again not seen – saying, “I have a knife…. Let me 
+through I got a knife, I got a kni fe, I got a knife.”   
+On January 11, 2021, FBI Special Agent Matt hew Foulger from the Salt Lake City Field 
+Office – the defendant’s home district – sought to visit the defendant  to receive the remaining 
+footage.  Agent Foulger called the defendant on his two numbers multiple times  between 12:28pm 
+and 1:03pm before heading to Sullivan’s home : Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 3 of 144 
+  
+Agent Foulger also texted the defendant  at 12:30 pm – a text that the defendant himself  
+later posted on his Twitter account, “realjaydenx,”  redacting the agent’s name : 
+ 
+Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 4 of 145 
+ As reflected on the recording,1 Agent Foulger and a colleague, an FBI T ask F orce Officer , 
+knocked on the defendant’s door and waited for him to open it before greeting him and identifying 
+themselves as law enforcement officials.  Defendant immediately and repeatedly invited Agent 
+Foulger and his colleague in:  
+John Sullivan (“ JS”): Hello?  
+Agent Foulger (“ AF”): John Sullivan?  
+JS: Yeah.  
+AF: How are you?  
+JS: Good, how are you?  
+AF: I’m Matt Foulger with the FBI.  
+JS: Well, come on in.  
+AF: This is Jen.  
+JS: Yeah, come on in.  
+AF: Do you know why we’re here?  
+JS: Probably. Capitol stuff?  
+AF: Yeah. So, last week you spoke with our colleagues in D.C., right? And, they said you 
+had additional video.  
+JS: I do, yeah.  
+AF: Do you mind if we come in?  
+JS: Yeah, yeah. [ Defendant motions  them in .] 
+See Exh, A (approx. 5: 14-5:40).  Once inside, they exchanged pleasantries .  Agent Foulger asked, 
+“Do you mind if we ask you a couple questions?” and the defendant agreed (“Yeah.”) .  See Exh. 
+A (approx. 8:05).   The ensuing conversation lasted approximately 35 minutes.   
+Throughout the approximately 35-minute  dialogue , the tone and demeanor of all parties 
+was cordial and the defendant readily answered the agent’s questions while copying his video files 
+onto a thumb drive the agent had brought . 
+ 
+1 See Exh . A (1 -11-2021 Recording), transmitted to the courtroom deputy through USAFx.  Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 5 of 146 
+ In the course of the interview , the agent asked the defendant whether he had a weapon on 
+January 6, 2021, while inside the Capitol Building: 
+AF: Did you have a wea —a gun on you or anything?  
+JS: No, I had no gun. No guns, no weapons  
+AF: No knife or anything like that?  
+JS: It is illegal to carry that—all of that stuff.  
+AF: Oh, for sure. I just want —I mean, if I’m not a pro -Trumper, and, you know, 
+I’m going into— the lion’s den, I would wanna, you know, at least feel secure, so.  
+JS: Yeah. I mean, I flew in so, like, I can’t bring a gun on the plane — or anything 
+like that, so yeah.  
+… 
+AF: Okay. Um, I just ask the weapons question cause I think you sent a link to one 
+of our agents —um, of a fifty- minute clip when you guys go in. I think in there —I 
+wanna say, uh—  
+JS: I know what you’re talking about.  
+AF: —it was probably your voice —about having a knife.  
+JS: Yeah, I do know what you’re talking about. So, I’m talking to the person next 
+to me, like, words you can’t hear because, like, all the camera can hear is my voice. 
+You really can’t hear anybody outside or around me. So, he’s talking to me about 
+something like that. But, I do remember that part of, like, me saying like, “Oh, yeah, I have a knife on me.” I think it was more in a joking manner, like, not literally have a knife on me. Like, at no point do I plan to, like, stab somebody. Um, so like I just don’t have a knife on me on that —in that instance.  
+AF: Okay.  
+JS: But it was more like —I mean I said a lot of things throughout that entire video.  
+AF: Yeah.  
+JS: But it was only, like, to relate to the person next to me, so that they don’t feel 
+the need to, like, just start fucking me up.  
+See Exh. A (approx. 14: 45-16:35). 
+The defendant and Agent Foulger remained cordial as they parted ways:  
+AF: Thank you, sir.  
+JS: Let me know if you need anything else.  
+AF: Okay.  
+JS: I’ll be happy to—  Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 6 of 147 
+ AF: Awesome.  
+JS: Thank you guys.  
+Task force officer: Appreciate it.  
+AF: Yeah, thank you guys.  
+JS: Take care.  
+AF: Likewise.  
+See Exh. A (approx. 43:45-44:00).  
+ On January 13, 2021, the defendant was charged by complaint with violations of 18 U.S.C. 
+§§ 231(a)(3) & 2 (Civil Disorders); 18 U.S.C. § 1752(a) (Knowingly Entering or Remaining in a 
+Restricted Building or Grounds without Lawful Authority); and 40 U.S.C. § 5104(e)(2) (Violent 
+Entry and Disorderly Conduct on Capitol Grounds) , and the defendant was arrested the following 
+day.  The defendant was not charged with any weapons count.   
+On February 3, 2021, a grand jury in the District of Columbia returned a n indictment 
+against the defendant charging violations of 18 U.S.C. §§ 1512(c)(2) & 2 (Obstruction of an Official Proceeding and Aiding and Abetting); 18 U.S.C. §§ 231(a)(3) & 2 (Civil Disorders and 
+Aiding and Abetting); 18 U.S.C. §§ 1752(a)(1) (Entering or Remaining in a Restricted Building or Grounds) and 1752(a)(2) (Disorderly and Disruptive Conduct in a Restricted Building or Grounds); and 40 U.S.C. §§ 5104(e)(2)(D) (Disorderly Conduct in a Capitol Building) and 5104(e)(2)(G) (Parading, Demonstrating, or Picketing in a Capitol Building).  Again, the defendant was not indicted on any weapons count.  
+Subsequent to that date, law enforcement obtained and reviewed video from an individual 
+present at the scene whe n Sullivan stood before the main entrance to the House Chamber and was 
+heard – but not seen – saying, “Hey guys, I have a knife. I have a knife.  Let me up.”  The 
+individual’s video showed the defendant holding up the black handle to a knife  at the very moment 
+that he made the statement about having a knife .   Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 7 of 148 
+ On May 19, 2021, based on that video as well as additional evidence gathered in the course 
+of the investigation, a grand jury returned a Superseding Indictment that added, inter alia , weapons 
+charges  and a false statements charge against the defendant.  The Superseding Indictment charges 
+violations of 18 U.S.C. §§ 1512(c)(2) & 2 (Obstruction of an Official Proceeding and Aiding and 
+Abetting); 18 U.S.C. §§ 231(a)(3) & 2 (Civil Disorders and Aiding and Abetting); 18 U.S.C. §§ 1752(a)(1) and 1752(b)(1)(A) (Entering or Remaining in a Restricted Building or G rounds with a 
+Dangerous Weapon); 18 U.S.C. §§ 1752(a)(2) and 1752(b)(1)(A) (Disorderly and Disruptive Conduct in a Restricted Building or Grounds with a Dangerous Weapon); 40 U.S.C. § 5104(e)(1)(A)(i) (Unlawful Possession of a Dangerous Weapon on Capitol G rounds or Buildings); 
+40 U.S.C. § 5104(e)(2)(D) (Disorderly Conduct in a Capitol Building); 40 U.S.C. § 5104(e)(2)(G) (Parading, Demonstrating, or Picketing in a Capitol Building); and 18 U.S.C. § 1001(a)(2) (False Statement or Representation to an Agency of the United States).   
+ARGUMENT  
+The defendant’s motion argues that his statements denying having a knife , and justifying 
+why he had stated that he had a knife despite not having a knife, should be suppressed because 
+they were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966) .  Specifically, the 
+defendant’s motion contends that he made the statements in the course of a “ custodial 
+interrogation”  on January 11, 2021 by Agent Foulger  at his home.  ECF 46, at 4.  The claim is 
+meritless and should be denied.  Moreover, because the entire visit was captured on a recording that leaves no significant factual issues as to what transpired, the defendant’s motion does not require  an evidentiary  hearing . 
+I. The Defendant Did Not Undergo “Custodial Interrogation ” on January 11, 2021.  
+ As is well -established, Miranda warnings are only required “where a suspect in custody is 
+subjected to interrogation.”  United States v. Vinton, 594 F.3d 14, 26 (D.C.  Cir. 2010)  (emphasis Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 8 of 149 
+ added).  The protections offered by Miranda only apply in the instance of “ custodial 
+interrogation,”  which is when a reasonable person in the defendant’s position would have 
+understood that he was subject to a “formal arrest or restraint on freedom of movement of the 
+degree associated with a formal arrest.”  Stansbury v. California, 511 U.S. 318, 322 (1994) (quoti ng  California v. Beheler , 463 U.S. 1121, 1125 (1983)).  As the Supreme Court has 
+explained, “[v]olunteered statements of any kind are not barred by the Fifth Amendment” and “any 
+statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence” without Miranda warnings.  Miranda, 384 U.S. at 478; see also United States v. 
+Sheffield, 799 F. Supp. 2d 22 (D.D.C. 2011), aff'd,  832 F.3d 296 (D.C. Cir. 2016);  United  States 
+v. Samuels, 938 F.2d 210, 214 (D.C. Cir. 1991).  The crux of the issue is thus whether , given the 
+circumstances, “a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation.”  Thompson v. Keohane , 516 U.S. 99, 112 (1995). “Relevant factors include the 
+location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.”  Howes v. Fields , 565 U.S. 499, 509 (2012) (internal citations omitted). 
+As far as the location of questioning, interviews in a suspect ’s home are generally non-
+custodial.  Beckwith v. United States , 425 U.S. 341 (1976) ; see also 2 WAYNE R. LAFAVE, 
+CRIMINAL PROCEDURE § 6.6(e) (3d ed. 2007)  (“courts are much less likely to find the 
+circumstances custodial when the interrogation occurs in familiar or at least neutral surroundings ”); United States v. Faux , 828 F.3d 130, 135- 36 (2d Cir. 2016) (“[C] ourts rarely 
+conclude, absent a formal arrest, that a suspect questioned in her own home is ‘ in custody.’”); see  
+also United States v. Mitchell , 966 F.2d 92, 98–99 (2d Cir. 1992) (reversing district court where 
+in–home interview was “cooperative” and there was no speech or action that could reasonably be Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 9 of 1410 
+ taken as intimidating, coercive, or restricting defendant's freedom of action) .  In Faux , for instance, 
+the Second Circuit found the circumstances to be noncustodial because the tone of the questioning 
+was largely conversational; there was no indication that the agents raised their voices, showed 
+firearms, or made threats ; the individual’s movements were monitored but not restricted, certainly 
+not to the degree of a person under formal arrest ; and she was thus never “completely at the mercy 
+of” the agents in her home. 828 F.3d at  139; see also United States v. Luck , 2017 WL 1192899 
+(6th Cir. Mar. 3 1, 2017) (agents did not brandish weapons or block exits, encounter calm and 
+relatively short); United States v. Lamy , 521 F.3d 1257 (10th Cir. 2008) (questioning in the 
+“common area of his home, during which his mother came and went from the room ” was not 
+custodial) .  Courts in this jurisdiction have similarly found, in situations where the interview takes 
+place in a familiar or neutral setting, that defendants were not “in custody.”  See, e.g., Vinton, 594 
+F.3d at 27 (“Most of the statements Vinton claims were improperly admitted were made by him while he was sitting in his car…. At the time he made these statements, Vinton was not ‘in custody’ 
+and faced an ‘ordinary,’ ‘noncoercive’ traffic stop.”); United States v. Robinson, 256 F. Supp. 3d 15, 26 (D.D.C. 2017)  (interview setting “was not a police statement or any other characteristically 
+police -dominated or coercive location, but was instead an office inside of Defendant’s own place 
+of work”) .  
+ Here, a reasonable person in the defendant’s position “ would have understood that he was 
+not subject to a formal arrest or restraint of the degree associated with a formal arrest, and would have felt free to terminate the interview.”  Robinson, 256 F. Supp. 3d at 25.  At the outset,  the 
+defendant had himself created the opening for such a visit by previously offering to provide his footage.  Agent Foulger did not arrive wholly “unannounced,” ECF 46, at 6, but rather call ed and 
+texted the defendant in advance – calls that the defendant appeared to ackno wledge receiving Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 10 of 1411 
+ (“Was that you calling me?”) and a text the defendant admitted receiving by later posting it on 
+Twitter.  In any event, when the two agents arrived in the afternoon of January 11, 2021, they clearly identified themselves as law enforcement , and the defendant chose to invite and wave them 
+in, repeatedly, into his own home.  The defendant himself appeared unsurprised by the visit and posited that they must be there for “Capitol stuff.”  T he presence of the two agents, moreover, one 
+of whom re mained largely silent throughout, cannot be characterized as transforming the 
+defendant’s home into a “police -dominated environment.”  ECF 46, at 5.  There were no threats , 
+intimidating conduct, promises, or brandishing of weapons by the two agents , and the defendant’s 
+motion does not suggest otherwise .
+2   No physical restraints were imposed on the defendant, and 
+the defendant was not placed under arrest at the end of the interview. The defendant does not 
+contend otherwise.   
+As in Robinson – a case where an interview at the suspect’s workplace was deemed non -
+custodial, even as authorities were executing a search warrant at that time – the defendant was not 
+“ordered to submit to an int erview” but rather “asked .”  Id.  (emphasis in original).  The defendant 
+here not only agreed to proceed when the agent asked, “Do you mind if we ask you a couple 
+questions?” but he appeared, as in Robinson, “willing, even eager, to engage in the interview,” 
+responding with some enthusiasm and giving answers of substantial length with little prompting.  
+Id. at 26.  The parties were amicable in tone , “calm and patient throughout the interview.”  Id.  The 
+defendant “had a thorough opportunity to reconsider his decision to be interviewed” but stayed.  Id.  The 35-minute interview was “not particularly long.”  See id. (“ The interview was not 
+ 
+2 The defendant himself stated that he was armed : “There’s a gun right here by the way.  Just so 
+you know.  So that you don���t feel too concerned.”  The agent responded, “Thanks.  Okay.  We’re 
+also armed but…”  The defendant stated, “Oh, you’re armed, too?  Okay, cool.”  The agent stated, “Yeah, we have t o be,” and the defendant said, “Yeah, of course.”  Exh. A (approx. 7:40).
+ Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 11 of 1412 
+ particularly long, lasting somewhere between 45 minutes and a little over an hour….”) ; United 
+States v. Levenderis , 806 F.3d 390, 400 (6th Cir. 2015) (defendant was not in custody; “the length 
+of questioning during the first interview was relatively brief, approximatel y thirty minutes”)  
+compare United States v. Patterson, 393 F. Supp. 3d 456, 469  (E.D. La. 2019)  (hours -long 
+interview by agents was still non- custodial due to ability of defendant to leave, among other 
+factors). And at the conclusion of the questions, the defendant thanked the agents and told them to 
+let him know if they needed anything else.   
+To be sure, as the defendant states, courts hav e found in certain  exceptional  cases  that in-
+home interviews have had sufficient indicia of compulsion to be rendered “custodial.”  E .g., United 
+States v. Savoy , 889 F.Supp.2d 78, 106–10 (D.D.C. 2012)  (finding custody wherein 16 armed  law 
+enforcement in “tactical gear” forcibly entered defendant’s home in early morning and proceeded 
+to handcuff defendants and his family);  Orozco v. Texas , 394 U.S. 324 (1969) ( finding custody 
+when four officers entered defendant’s bedroom at 4:00 a.m. after being told he was asleep and 
+instructed him that he was “not free to go where he pleased but was ‘under arrest’”).  But those 
+circumstances are wholly inapposite and distinguishable  to the facts of this case.  
+Nor is it significant if the agent  – in addition to his bona fide interest in following up on 
+the defendant’s offer to provide additional footage – had already “identified John Sullivan as a 
+participant in the events of January 6, 2021” ( based on video that Sullivan himself had already 
+posted online and voluntarily provided to the FBI ).  ECF 46, at 5.  As the Supreme Court has said, 
+“‘It was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to custodial questioning.’”   Beckwith , 425 U.S. at 346–47 
+(emphasis added) ; see also Oregon v. Mathiason, 429 U.S. 492, 495 (1977)  (“Nor is the Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 12 of 1413 
+ requirement of war nings to be imposed simply … because the questioned person is one whom the 
+police suspect.  Miranda warnings are required only where there has been such a restriction on a 
+person’ s freedom as to render him ‘ in custody.’”).   Here, however “active” the “investigation into 
+the events of January 6, 2021,” ECF 46, at 6, and whatever suspicions were harbored, the hallmarks 
+of custodial interrogation were not present.   
+II. No Evidentiary Hearing is Warranted.  
+ The defendant’s requested evidentiary hearing is not warranted because for more than fifty 
+years, the law in this Circuit has been that “[a] defendant is entitled to an evidentiary hearing on his motion to suppress ‘only upon factual allegations which, if established, would warrant relief.’” United States v. Thornton , 454 F.2d 957, 967 n. 65 (D.C. Cir. 1971) ; accord United States v. Law , 
+528 F.3d 888, 903–04 (D.C. Cir. 2008).  T he entirety of the d efendant’s engagement with the two 
+agents was recorded, leaving no significant factua l issues as to what transpired.  The facts as 
+reflected on that video recording make plain that no Miranda violation occurred . 
+CONCLUSION  
+WHEREFORE, the United States respectfully requests that the defendant’s Motion to 
+Suppress  be denied.  
+Respectfully submitted,  
+CHANNING D. PHILLIPS  
+      United States Attorney  
+      D.C. Bar No. 415793  
+ 
+      /s/ Candice C. Wong     
+     By: Candice C. Wong  
+      D.C. Bar No. 990903  
+Assistant United States Attorney  
+555 4th Street, N.W., R oom 4816 
+Washington, D.C. 20530 
+(202) 252- 7849  
+candice.wong@usdoj.gov  Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 13 of 1414 
+ CERTIFICATE OF SERVICE  
+I hereby certify that on October 7, 2021, I caused a copy of the foregoing motion to be 
+served on counsel of record via electronic filing. 
+      /s/ Candice C. Wong     
+      Candice C. Wong  
+      Assistant United States Attorney  
+ 
+ Case 1:21-cr-00078-EGS   Document 48   Filed 10/07/21   Page 14 of 14

10-13-21 - NOTICE OF DISCOVERY by USA as to JOHN EARLE SULLIVAN.txt

@@ -0,0 +1,53 @@
+ 
+ 
+ 
+  U.S. Department of Justice  
+ Channing D. Phillips  
+Acting United States Attorney  
+ District of Columbia  
+       Judiciary Center  
+555 Fourth St., N.W.  
+Washington, D.C.  20530  
+ 
+       October 13, 2021  
+ 
+Via Email 
+Steven Kiersh  
+Counsel for John Earle Sullivan 5335 Wisconsin Avenue, N.W., Suite 440 Washington, D.C. 20015 skiersh@aol.com  
+  Re: United States v. John Earle Sullivan 
+ Case No. 1:21- cr-00078- EGS  
+ Dear Counsel:  
+  The enclosed letter memorializes the provision of the following additional  discovery in 
+this case, via filesharing, on October 13, 2021:  
+ 
+1. Intuit subpoena  returns  (41 files)  
+2. YouTube search warrant and return  
+3. MARKE D SENSITIVE: Videos obtained from other Capitol 
+investigations ( 8 files):  
+a. D-9 – 1 video  
+b. D-11 – 2 videos  
+c. D-12 – 4 videos   
+d. D-13 – 1 video  
+4. MARKED SENSITIVE: Officer interview transcripts (2 files)  
+5. FBI e xhibits used in February 10, 2021 officer interviews  (2 files)  
+6. Deseret article with interview of defendant  
+7. Petitio n by defendant  
+8. Open -source CSPAN video excerpt from Statuary Hall  
+ 
+ The discovery is unencrypted .  Please contact me if you have any issues accessing the 
+information, and to confer regarding pretrial discovery as provided in Fed. R. Crim. P. 16.1.  
+ 
+Case 1:21-cr-00078-EGS   Document 50-1   Filed 10/13/21   Page 1 of 22 
+  This material  is being provided pursuant to the Protective Order issued in this case.   
+Please adhere to sensitivity markings. 
+  I will forward additional discovery as it becomes available.  If you have any questions,  please feel free to contact me.  
+  
+ Sincerely,  
+    
+    _______________________ 
+ Candice C. Wong 
+ Assistant United States Attorney  
+ 202-252-7849 
+ Candice.wong@usdoj.gov 
+ 
+Case 1:21-cr-00078-EGS   Document 50-1   Filed 10/13/21   Page 2 of 2

10-20-21 - Joint MOTION to Continue October 28, 2021 Status Hearing for Sixty Days by JOHN EARLE SULLIVAN.txt

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+1 
+                                  UNITED STATES DISTRICT COURT  
+               FOR THE DISTRICT OF COLUMBIA  
+ 
+UNITED STATES OF AMERICA  
+ 
+ V.      Case No.: 21 -cr-78 (EGS)  
+ 
+ 
+JOHN SULLIVAN  
+ 
+         JOINT MOTION TO CONTINUE OC TOBER 28, STATUS HEARING  
+ 
+ The parties  hereby respectfully request the Court to continue the 
+October 28, 2021 status hearing  for approximately 60 days . In support 
+thereof, the pa rties set forth as follows:  
+ 1. This case involves a multi -count indictment with a vast amount of 
+discovery. The process of receiving and reviewing  the discovery is 
+proceeding in an orderly and cooperative fashion  
+ 2. There have recently  been very large files of di scovery produced 
+consisting of , among other items , thousa nds of hours of videotapes. The  
+files require a very signi ficant amount of time to be reviewed and evaluated.  
+ 3. While the process of discovery review is on -going , the parties do 
+not presently  have additional informati on to present to the Court at a formal 
+status hearing.   Case 1:21-cr-00078-EGS   Document 51   Filed 10/20/21   Page 1 of 42 
+  4. Counsel for th e respective parti es have conferred and believe that 
+an approximately 60 -day continua nce of the October 28, 2021 status 
+hearing is the best way in which to proceed.  
+ 5. The parties rel y upon the discretionary powers of this H onorable 
+Court in seek ing the r elief requested here in. 
+ WHEREFORE, the foreg oing considered, the parti es pray this 
+Honorable Court to continue the Octob er 28, 2021 statu s hearing  for 
+approximately 60 days . 
+     
+       Respectfully submitted , 
+ 
+       _______/s/_______________  
+       Steven R. Kiersh #323329  
+       5335 Wisconsin Avenue, N.W.  
+       Suite 440  
+       Washington, D.C. 20015  
+       (202) 347 -0200  
+ 
+       _______ /s/__________________  
+       Candice  C. Wong  #990903  
+       Assistant U.S. Attorney  
+       555 4th Street, N.W.  
+       Washington, D.C. 20530  
+       (202) 252 -7849  
+  
+ 
+ 
+                      
+                                      
+ 
+ Case 1:21-cr-00078-EGS   Document 51   Filed 10/20/21   Page 2 of 43 
+  
+ 
+    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 20th day of 
+October , 2021 upon all counsel of record, including Candice Wong, 
+Esquire, Assistant U.S Attorney.   
+ 
+               
+      ______ /s/____________________  
+      Steven R. Kiersh  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ Case 1:21-cr-00078-EGS   Document 51   Filed 10/20/21   Page 3 of 44 
+  Case 1:21-cr-00078-EGS   Document 51   Filed 10/20/21   Page 4 of 4

10-26-21 - REPLY TO OPPOSITION to Motion by JOHN EARLE SULLIVAN re 46 MOTION to Suppress Motion to Suppress.txt

@@ -0,0 +1 @@
+ 1            UNITED STATES DISTRICT COURT            FOR THE DISTRICT OF COLUMBIA  UNITED STATES OF AMERICA      v.     21-cr-78(EGS)     JOHN SULLIVAN      REPLY TO OPPOSITION TO DEFENDANT’S MOTION TO SUPPRESS   Defendant, by and through undersigned counsel, in reply to the Government’s Opposition to Motion to Suppress Statements, does hereby state as follows:  Defendant agrees that the relevant chronology of interaction with law enforcement commences with an interview on January 7, 2021 in Washington, D.C. and consists of another interview with the F.B.I. in Salt Lake City on January 11, 2021. However, the purpose of the second interview was simply to provide video footage to law enforcement taken by defendant of events at the United States Capitol on January 6, 2021. It was not the intention of defendant to submit to interrogation during the second interview on January 9, 2021. As set forth in the Government’s Opposition, “On January 11, 2021, FBI Special Agent Mathew Foulger from the Salt Case 1:21-cr-00078-EGS   Document 53   Filed 10/26/21   Page 1 of 6 2 Lake City Filed Office, -the defendant’s home district-sought to visit the defendant to receive the remaining footage.” ECF 48, page 3.  Defendant emphasizes the specific dialogue between the two FBI agents and defendant while inside his home. FBI: Do you know why we’re here? JS: Probably Capitol Stuff? FBI: Yeah. So. Last week you spoke with our colleagues in DC., right? And, they said you had additional video. JS. I do, yeah.  The “Capitol stuff” that was discussed in the District of Columbia on January 7, 2021 was exclusively related to the filming of events that occurred inside the United States Capitol. The interrogation that occurred in the District of Columbia had absolutely nothing to do with whether  defendant had a weapon in his possession on January 6, 2021.  The dialogue on January 11, 2021 in Salt Lake City lasted approximately 35 minutes and initially related to the videotape. At one point during the conversation, the FBI switched topics and asked defendant an intentionally incriminating statement concerning whether he had a weapon in his possession. The question was intentionally incriminating for the following reasons: Case 1:21-cr-00078-EGS   Document 53   Filed 10/26/21   Page 2 of 6 3  The FBI had previously seen video footage and supposedly heard defendant speaking about possessing a knife. Therefore, there was no reason to ask the question about a weapon other than to have defendant make a potentially incriminating statement by agreeing to possessing a weapon or by making an incriminating statement denying he had a knife as that could lead to the additional charge of making a false statement to law enforcement. The latter is precisely what happened as defendant’s response to interrogation initiated by the F.B.I. resulted in the superseding indictment and the addition of Count 8 in the superseding indictment.  It is absolutely clear that the multiple FBI agents who went to defendant’s home on January 11, 29021 did not arrive with the sole intent  of acquiring a videotape. They went with the specific intent and purpose to obtain an incriminating statement from defendant.  Defendant was under the very reasonable belief that he was a target of the investigation of criminal activities that occurred at the United States Capitol on January 6, 2021. He was interrogated in Washington, D.C. on January 7, 2021 and then interrogated by other law enforcement officials in Salt Lake City on January 11, 2021. He was confronted my multiple FBI agents at his home on January 11, 2021 and was not informed he could deny speaking with the FBI agents. Defendant was under the impression  Case 1:21-cr-00078-EGS   Document 53   Filed 10/26/21   Page 3 of 6 4 that the agents were at his home to acquire a videotape and the agents initiated the conversation about a weapon. The conversation that the FBI initiated regarding weapons was not spontaneous. It was a planned out decision designed to obtain incriminating evidence from defendant.   Custody is an acknowledged predicate for the requirement of Miranda warnings. However, it is well established that custody is not limited to formal arrests but includes “restraints on freedom of movement that are the functional equivalent of a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983).  The Supreme Court has phrased the inquiry as “whether a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). Further, it is established that questioning in one’s own home can constitute a custodial interrogation., See Orozco v. Texas, 394 U.S. 324,(1969).  The fact that the questioning took place in defendant’s home is significant. The 2nd Circuit has noted, “The home is ‘the most constitutionally protected place on earth; thus the right to terminate the interrogation and be free to leave is hollow if one place that the individual cannot retreat to, or exclude law enforcement from, is her home.” United Case 1:21-cr-00078-EGS   Document 53   Filed 10/26/21   Page 4 of 6 5 States v. Faux, 828 F.3d 130,13 (2nd Cir. 2016), citing United States v. Craighead, 539 F.3d 1073, 1082-83 (9th Cir. 2008).  In Howes v. Fields, the Supreme Court sought to define custody for purposes of Miranda and concluded in part that, “in order to determine how a suspect would have gauged his freedom of movement, courts must examine all of the circumstances surrounding the interrogation.” 566 US 499, 509 (2012).  In sum, custody is to be decided on a case-by-case basis. Several factors suggest that defendant reasonably believed he was in custody at the second interview: a. This was his second interrogation that went beyond the agreed upon reason for the meeting to turn over a videotape; b. Defendant was alone at the time of interrogation which involved two experienced F.B.I. agents; c. Turning over a videotape would ordinarily take a matter of seconds. The questioning went on for 35 minutes; d. Defendant was not on verbal notice the agents were going to arrive at his house; Case 1:21-cr-00078-EGS   Document 53   Filed 10/26/21   Page 5 of 6 6 e. The purpose of the interview was to obtain incriminating information from defendant with the Agent asking: “Did you have a wea—a gun or anything on you?” and “No knife or anything like that?”  For the foregoing reasons, and for those set forth in defendant’s opening Motion to Suppress Statements, defendant seeks suppression of all statements made to the F.B.I. in his home on January 11, 2021.        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 truce and accurate copy of the foregoing was served via the Court’s electronic system, on this the 26th day of October, 2021 upon the Office of the U.S. Attorney, Candice Wong, Esquire, Assistant U.S. Attorney.         _______/s/_______________        Steven R. Kiersh      Case 1:21-cr-00078-EGS   Document 53   Filed 10/26/21   Page 6 of 6