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