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