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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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+Case 1:21-cr-00078-EGS Document 63 Filed 01/03/22 Page 1 of 9
+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 for
+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 counsel’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.
+1Case 1:21-cr-00078-EGS Document 63 Filed 01/03/22 Page 2 of 9
+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 “‘subject 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 his 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: The 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 supplement 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.”
+2Case 1:21-cr-00078-EGS Document 63 Filed 01/03/22 Page 3 of 9
+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 nonconjectural”). 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 bank 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, this Court’s 16-page opinion observed that “Mr. Sullivan has submitted 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. In 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 characterizes the entirety of his credit card statement balances from one
+month, December 2021, as “credit card debt” without explanation or unpacking.
+3Case 1:21-cr-00078-EGS Document 63 Filed 01/03/22 Page 4 of 9
+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, the
+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 also unclear
+why the defendant’s summary has now, without explanation, dropped two “sources of income” he
+previously noted (“Google ad sense deposits” and “401 K Deposits”). Nor 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 acknowledges 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 – alternative reasons that the
+reconsideration motion does not address. This 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 (emphasis added). The Court proceeded to observe that “Mr. Sullivan’s interest in
+4Case 1:21-cr-00078-EGS Document 63 Filed 01/03/22 Page 5 of 9
+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. Indeed,
+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 wish 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 proceeds 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 of 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. The defendant does not dispute, not could he, the legal framework
+laid out by this Court’s opinion. Accordingly, it is not disputed that once the government has
+5Case 1:21-cr-00078-EGS Document 63 Filed 01/03/22 Page 6 of 9
+obtained a seizure warrant, “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.” 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 Amendment 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 disclaimers 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 affidavit 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
+6Case 1:21-cr-00078-EGS Document 63 Filed 01/03/22 Page 7 of 9
+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. The
+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, the 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
+7Case 1:21-cr-00078-EGS Document 63 Filed 01/03/22 Page 8 of 9
+8Case 1:21-cr-00078-EGS Document 63 Filed 01/03/22 Page 9 of 9
+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
+9

01-10-22 - RESPONSE by USA as to JOHN EARLE SULLIVAN re 64 MOTION for Joinder United States' Motion to Adopt and Join Three Pleadings in 21-CR-28 and Opposition to Defendan.txt

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+Case 1:21-cr-00078-EGS Document 65 Filed 01/10/22 Page 1 of 3
+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’ MOTION TO ADOPT AND JOIN THREE PLEADINGS IN 21-CR-28
+AND 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 December 31, 2021, the defendant, John Earle Sullivan, filed a “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.” D.E. 62. As
+noted in the motion, the Caldwell court denied the motions to dismiss on December 20, 2021, and
+a defense motion to reconsider, filed on December 24, 2021, is pending. The defendant’s motion
+sought “the joinder and adoption” of arguments made by Caldwell defendants seeking dismissal
+of counts charging violations of 18 U.S.C. § 1512(c)(2) in “the interests of judicial economy.”
+D.E. 62 at 3. That is, the motion sought to join and adopt those arguments to seek dismissal of
+Count 1 of the superseding indictment in this case.
+At the status hearing on January 4, 2022, the undersigned noted her intent to file the
+government’s responsive pleadings from 21-CR-28 in opposition to the defendant’s motion to
+dismiss Count 1. The Court decided to stay all briefing. On January 5, 2022, the Court entered
+a minute order lifting the stay and requesting a response. The United States hereby moves,
+1Case 1:21-cr-00078-EGS Document 65 Filed 01/10/22 Page 2 of 3
+consistent with the representations at the January 4, 2022 hearing, to oppose dismissal of Count 1
+by adopting and joining the arguments opposing dismissal of the § 1512(c)(2) counts as advanced
+in three government pleadings from Caldwell: (1) the “Government’s Omnibus Opposition to
+Defendants’ Motions to Dismiss and for Bill of Particulars,” D.E. 313, the relevant portion of
+which is on pages 5-29, and (2) the “Government’s Supplemental Brief on 18 U.S.C. § 1512(c)(2),
+D.E. 437, and (3) the “Government’s Opposition to Motion to Reconsider Order Denying Motions
+to Dismiss Counts 1 and 2,” D.E. 573. Those three pleadings are attached as exhibits, and unless
+directed by the Court to respond otherwise, the government respectfully submits the arguments
+therein in opposition to the arguments adopted and joined by the defendant’s motion to seek
+dismissal of Count 1.
+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
+2Case 1:21-cr-00078-EGS Document 65 Filed 01/10/22 Page 3 of 3
+CERTIFICATE OF SERVICE
+I hereby certify that on January 10, 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
+3

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

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+Case 1:21-cr-00078-EGS Document 66 Filed 01/24/22 Page 1 of 8
+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) 252-7849Case 1:21-cr-00078-EGS Document 66 Filed 01/24/22 Page 2 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 AttorneyCase 1:21-cr-00078-EGS Document 66 Filed 01/24/22 Page 3 of 8
+EXHIBITCCaassee 1 1:2:211--ccrr--0000002788--AEPGMS DDooccuummeenntt 56966 F Filieledd 0 011/2/244/2/222 P Paaggee 4 1 o of f8 5
+UNITED 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 Superseding 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., United 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 presentedCCaassee 1 1:2:211--ccrr--0000002788--AEPGMS DDooccuummeenntt 56966 F Filieledd 0 011/2/244/2/222 P Paaggee 5 2 o of f8 5
+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 reconsideration 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.
+DynCorp, 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 which 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
+2CCaassee 1 1:2:211--ccrr--0000002788--AEPGMS DDooccuummeenntt 56966 F Filieledd 0 011/2/244/2/222 P Paaggee 6 3 o of f8 5
+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, sections 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.
+3CCaassee 1 1:2:211--ccrr--0000002788--AEPGMS DDooccuummeenntt 56966 F Filieledd 0 011/2/244/2/222 P Paaggee 7 4 o of f8 5
+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) “modifies” 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 modify 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
+4CCaassee 1 1:2:211--ccrr--0000002788--AEPGMS DDooccuummeenntt 56966 F Filieledd 0 011/2/244/2/222 P Paaggee 8 5 o of f8 5
+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 as 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
+5

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

@@ -0,0 +1,86 @@
+Case 1:21-cr-00078-EGS Document 69 Filed 03/02/22 Page 1 of 4
+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’ CONSENT 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 moves this
+Court for an 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 states as follows:
+1. The parties last convened 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 included 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 defendants recently obtained access to the FPD Relativity workspace. As
+noted, many of the materials previously produced via filesharing, including those in the
+production described in paragraph 1, are currently available to search, review, and
+1Case 1:21-cr-00078-EGS Document 69 Filed 03/02/22 Page 2 of 4
+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 the
+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 parties 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 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
+2Case 1:21-cr-00078-EGS Document 69 Filed 03/02/22 Page 3 of 4
+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 attorneys’ schedules”).
+WHEREFORE, the parties respectfully request that this Court grant the motion for an
+approximately 45-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), and (iv), and failure to grant such a continuance would result in a
+3Case 1:21-cr-00078-EGS Document 69 Filed 03/02/22 Page 4 of 4
+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., Room 4816
+Washington, D.C. 20530
+(202) 252-7849
+candice.wong@usdoj.gov
+4

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

@@ -0,0 +1,474 @@
+Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 1 of 26
+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 defendant, John Earle Sullivan, 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
+stringent 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 serious 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
+1Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 2 of 26
+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
+2Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 3 of 26
+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, the 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. At 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 enforcement 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.
+3Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 4 of 26
+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 of 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 through 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! 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.”
+Later, Sullivan’s video includes footage of individuals climbing a wall to reach a plaza just
+4Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 5 of 26
+outside the Capitol Building 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.”
+5Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 6 of 26
+In addition, several times during the video, Sullivan encounters law enforcement officers
+who are trying to prevent further advancement through the building 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 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, Sullivan enters an office 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
+6Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 7 of 26
+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’, break 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
+7Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 8 of 26
+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 yelling, “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 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).
+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
+8Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 9 of 26
+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
+insufficient 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 location 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 Program.”
+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 January 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 logins 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 only under his father’s supervision; had been
+admonished that he could use the Internet only for work or employment purposes; and had been
+9Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 10 of 26
+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 defendant 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. At 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
+10Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 11 of 26
+this Court’s consideration. The magistrate judge nonetheless scheduled a February 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 email was sent from “John Sullivan” 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 defendant 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 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).
+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
+contemplates that, at least in some circumstances, the “judicial officer” to enter the order of
+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
+11Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 12 of 26
+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 statute thus contemplates
+the very type of considerations of practicality 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 defendant’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. The defendant is alleged to have willfully participated in a massive and
+momentous obstruction 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
+12Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 13 of 26
+with the official duties of a law enforcement officer. The defendant, according to his own video
+footage, apparently exhorted others to “burn 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 others 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 informed by past actions, and
+here defendant has engaged in marked obstruction of both official proceedings and officers that
+reflects a brazen disrespect for the orderly administration of justice.
+The defendant’s apparent violations of his court-imposed release 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 today 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.”
+13Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 14 of 26
+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 conditions 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
+exhortations 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 footage
+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
+14Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 15 of 26
+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 apparently 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, the United States respectfully requests that the Court grant the
+15Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 16 of 26
+government’s motion to detain the defendant pending trial.
+Respectfully submitted,
+Michael 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
+16Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 17 of 26
+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
+17Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 18 of 26
+EXHIBIT ACase C2a:2s1e- m1:j2-010-c0r1-040-D07A8O-E GDSo c u Dmoecnutm 8e n Ft i6le d F 0il1e/d1 50/22/10 4 /P2a1g e PIDag.3e6 1 9 P oafg 2e6 1 of 5
+IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
+United States,
+RELEASE ORDER
+Plaintiff,
+v.
+John Earle Sullivan, Case No. 2:21mj14-DAO
+Defendant. Magistrate Judge Daphne A. Oberg
+The court orders John Earle Sullivan’s release in this case, based on a finding that the
+government did not establish a basis to hold a detention hearing. Mr. Sullivan made his initial
+appearance at a transfer hearing, conducted pursuant to Rule 5 of the Federal Rules of Criminal
+Procedure. Mr. Sullivan has been charged with federal offenses in Washington, D.C., and the
+Rule 5 hearing was held for purposes 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 for 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 certainly cannot delay such hearing on the government’s motion—
+detaining the defendant all the while.Case C2a:2s1e- m1:j2-010-c0r1-040-D07A8O-E GDSo c u Dmoecnutm 8e n Ft i6le d F 0il1e/d1 50/22/10 4 /P2a1g e PIDag.3e7 2 0 P oafg 2e6 2 of 5
+LEGAL STANDARDS
+The court can only hold a detention hearing (hence, can only detain 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 hearing in effect serve to limit the types of
+cases in which detention may be ordered prior to trial.” 797 F.2d 156, 160 (3d Cir. 1986).
+“Congress did not intend to authorize preventive detention unless the judicial 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) (unpublished). “At the first step, the
+judicial officer must decide whether there is any basis to hold a detention hearing.” Id. at 821.
+Only if the “government establishes a basis for a detention hearing,” 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 establish a basis for the detention hearing. When
+asked at the hearing on what statutory 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 finds the case qualifies for a detention hearing. The government then
+indicated the case qualified under § 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
+2Case C2a:2s1e- m1:j2-010-c0r1-040-D07A8O-E GDSo c u Dmoecnutm 8e n Ft i6le d F 0il1e/d1 50/22/10 4 /P2a1g e PIDag.3e8 2 1 P oafg 2e6 3 of 5
+attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or
+intimidate, a prospective witness or juror.” Id. This is a forward-looking inquiry, requiring a
+showing of a serious risk the defendant will obstruct justice in the future. Although the standard
+of proof under this section is not well-developed, some courts have determined that where the
+government seeks detention under this 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 interference in the administration of justice. For
+instance, a common federal criminal statute prohibiting 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 endeavored to influence the due administration of justice. 18 U.S.C.
+§ 1503. Although the government obviously need not make any statutory showing of
+obstruction, this overall concept of obstruction is instructive.
+In this case, the government made no attempt 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, the government focused on the risk of obstruction. In support of its
+claim, the government pointed to Mr. Sullivan’s alleged behavior at a riot in Utah, wherein he
+allegedly threatened to harm another person, while 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 charged 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
+3Case C2a:2s1e- m1:j2-010-c0r1-040-D07A8O-E GDSo c u Dmoecnutm 8e n Ft i6le d F 0il1e/d1 50/22/10 4 /P2a1g e PIDag.3e9 2 2 P oafg 2e6 4 of 5
+hearing in this Utah state case via internet video conference, while he was in Washington, D.C.,
+the day before the conduct alleged in this federal case. The 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, unrelated, incident in Oregon.
+The government offered no date for this Oregon event, only asserting that it occurred “while he
+was facing” the riot-related charges in Utah. The government indicated it was still attempting to
+obtain footage related to this alleged event.
+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 fact that Mr. Sullivan allegedly
+appeared in a Utah state court proceeding via internet video conference—while in Washington,
+D.C., just before becoming involved in the federal 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 internet 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 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 by clear and convincing evidence. And this was the
+only proffer made in support of this threshold question.
+After the court declined to continue the detention hearing on the grounds that the
+government failed to first establish the case even qualified for a detention hearing, the
+government asked the court to delay its threshold determination, but to detain Mr. Sullivan
+during this delay. The court invited the government to provide any legal authority allowing the
+4Case C2a:2s1e- m1:j2-010-c0r1-040-D07A8O-E GDSo c u Dmoecnutm 8e n Ft i6le d F 0il1e/d1 50/22/10 4 /P2a1g e PIDag.4e0 2 3 P oafg 2e6 5 of 5
+temporary detention of a defendant when the threshold 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 declined to do so, finding that where the government failed to even
+meet the threshold for a detention hearing, it could not detain 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 order. As stated at the hearing, the government
+is invited to file a detention motion in an attempt to meet its burden to establish the threshold for
+a detention hearing. In addition, defense counsel is invited to file any motion to amend
+conditions of release, if needed.
+DATED this 15th day of January, 2021.
+BY THE COURT:
+Daphne A. Oberg
+United States Magistrate Judge
+5Case 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 24 of 26
+EXHIBIT BCase 1:21-cr-00078-EGS Document 6 Filed 02/04/21 Page 25 of 26
+From: 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 26 of 26
++1 551 285 US
++1 646 828 US (New York)
+Meeting ID: 160
+Passcode:
+Thanks,
+John Sullivan
+Phone:
+Email:
+Website:
+Insurgence USA:
+--
+You received this message because you are subscribed to the Google Groups "Event List" group.
+To unsubscribe from this group and stop receiving emails from it, send an email to

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

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

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+Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 1 of 17
+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 this 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
+1Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 2 of 17
+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 Session 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” rally 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).
+2Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 3 of 17
+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 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 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
+3Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 4 of 17
+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 of18 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 prejudice
+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 local 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
+4Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 5 of 17
+whether the prospective 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 States 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.
+5Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 6 of 17
+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 necessity, 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
+6Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 7 of 17
+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,” Skilling, 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 (fraud 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. Unlike Rideau, where the murder “was committed
+7Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 8 of 17
+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 attention 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 salacious
+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 co-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 January 6 by conducting a careful voir dire and properly instructing the
+jury about the need to determine a defendant’s individual guilt.
+8Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 9 of 17
+And, in any event, any threat of such spillover prejudice is not limited to Washington, D.C.
+because much of the news coverage 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 influence 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. This 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,” Skilling, 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
+9Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 10 of 17
+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 supports 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 actually 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 verdicts in other January 6 jury
+trials resulted from the strength of the government’s evidence. Moreover, juries in two recent
+January 6 trials 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 argues (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
+10Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 11 of 17
+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 which
+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) supports 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
+11Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 12 of 17
+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 similarly
+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. The court of appeals 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 “if 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,
+12Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 13 of 17
+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 United 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. Reffitt’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
+13Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 14 of 17
+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 facts).
+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).
+14Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 15 of 17
+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.” Webster, No. 21-cr-208, ECF No. 113 at 19. During individual voir dire, the 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 for 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); ECF 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
+15Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 16 of 17
+actually relatively low” and therefore “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 partiality-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 “excused 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 displayed 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).
+16Case 1:21-cr-00078-RCL Document 86 Filed 02/21/23 Page 17 of 17
+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 actually 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
+17

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

@@ -0,0 +1,28 @@
+Case 1:21-cr-00078-EGS Document 20 Filed 03/26/21 Page 1 of 1
+UNITED STATES DISTRICT COURT
+FOR THE DISTRICT OF COLUMBIA
+UNITED STATES OF AMERICA :
+:
+v. : Crim No. 1:21-CR-00078-EGS
+:
+JOHN EARLE SULLIVAN, :
+:
+Defendant. :
+UNOPPOSED MOTION FOR PROTECTIVE ORDER
+The 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 Defendant
+does not oppose this motion or the entry of the attached protective order.
+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

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

@@ -0,0 +1,248 @@
+Case 1:21-cr-00078-RCL Document 87 Filed 05/05/23 Page 1 of 11
+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 acts 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 trigger 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 acts 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.
+1Case 1:21-cr-00078-RCL Document 87 Filed 05/05/23 Page 2 of 11
+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 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 of18 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 to 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 attend and film varying rallies
+on the 5th and 6th. On January 6th, Sullivan attended the “Stop the Steal” rally on January 6, 2021.
+Afterwards, Sullivan joined rioters at the U.S. Capitol grounds 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 excitedly saying at various points: “There are so many people. Let’s go. This shit is ours!
+2Case 1:21-cr-00078-RCL Document 87 Filed 05/05/23 Page 3 of 11
+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 then 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 6th, 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
+3Case 1:21-cr-00078-RCL Document 87 Filed 05/05/23 Page 4 of 11
+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, promoted, and recruited
+attendees for differing protests, counter protests, and events. In addition to his physical
+participation, Sullivan utilized several social media platforms to provide commentary 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 inflame protests or riots.
+a. Prior Protests 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 threatening 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,
+4Case 1:21-cr-00078-RCL Document 87 Filed 05/05/23 Page 5 of 11
+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 protests
+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. Later 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 organization.
+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.
+5Case 1:21-cr-00078-RCL Document 87 Filed 05/05/23 Page 6 of 11
+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 revealed similar intent. On December 26, 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 retweeted a Tiktok of Senate
+Minority Leader Mitch McConnell and added the caption “Definitely don’t surround his house…”
+with the hashtag #fuckMcConnell. 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 Trump 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
+6Case 1:21-cr-00078-RCL Document 87 Filed 05/05/23 Page 7 of 11
+#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 ‘framed 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 States 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
+7Case 1:21-cr-00078-RCL Document 87 Filed 05/05/23 Page 8 of 11
+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 prejudicial; 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 “unfair.”); 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 dispute 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 may anticipate the defense and introduce it in its case-in-chief”);
+8Case 1:21-cr-00078-RCL Document 87 Filed 05/05/23 Page 9 of 11
+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 charge 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 engage 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.
+9Case 1:21-cr-00078-RCL Document 87 Filed 05/05/23 Page 10 of 11
+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 from 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 January 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) (quoting 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, distinct 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
+10Case 1:21-cr-00078-RCL Document 87 Filed 05/05/23 Page 11 of 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, its admission is appropriate.
+VI. CONCLUSION
+For the foregoing 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 St. N.W, Washington, DC
+20530
+Tel. No. (202) 252-7012
+rebekah.lederer@usdoj.gov
+11

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

@@ -0,0 +1,616 @@
+Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 1 of 28
+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 memorandum 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 Superseding 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 Court
+“determine what property is subject to forfeiture” and “whether the government has established
+1Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 2 of 28
+the requisite nexus between the property and the offense.” Fed. R. Crim. P. 32.2(b)(1)(A).
+Against that backdrop, the defendant’s motion claims a right to a pretrial hearing and
+cursorily asserts 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. Those bare-bones assertions do not meet the threshold required for a pretrial hearing,
+which is generally only appropriate where there 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 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
+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.
+2Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 3 of 28
+On January 9, 2021, the defendant provided a link to download his video to law
+enforcement.
+Throughout the video, the 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 of 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.”
+3Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 4 of 28
+Later, the defendant’s video shows individuals climbing a wall to reach a plaza just outside
+the Capitol Building entrance. The defendant 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:
+4Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 5 of 28
+The video follows as the defendant roams the Capitol Building with other individuals who
+unlawfully entered. At various points, the 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, the 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 an 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, the 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
+5Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 6 of 28
+another individual present at this scene, which captures the 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 officers. 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, the
+defendant can be heard saying, “Haul that motherfucker out this bitch.”
+At another point in the video, the 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
+6Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 7 of 28
+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 His 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, the defendant has claimed to be a journalist. The defendant admitted to law
+enforcement, however, that he has no press credentials and the investigation has not revealed any
+connection between the defendant and any journalistic organizations prior to the events of January
+6, 2021.
+7Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 8 of 28
+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, the 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 defendant 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’re 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.”
+8Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 9 of 28
+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. On
+January 10, 2021, the 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. On 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, the defendant’s
+counsel filed a pleading with the Court attaching “receipts for services documenting defendant’s
+employment.” D.E. 13, at 6. Specifically, the 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 the
+defendant’s personal bank account ending in 7715. A $1,000 payment 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/
+9Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 10 of 28
+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 the 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 “traceable to” the 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. The government seized in total a balance
+of $62,813.76 from the defendant’s bank account ending in 7715.
+10Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 11 of 28
+On May 19, 2021, a grand jury returned a Superseding Indictment that added weapons
+charges, a false statements charge, and a forfeiture allegation. 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
+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 Agency 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, the 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,
+11Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 12 of 28
+$89,875 in the defendant’s bank account ending in 7715 and $1,000 in the Venmo account ending
+in 2020 linked to the 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 listed 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
+12Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 13 of 28
+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 cause supports 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 likewise 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).
+13Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 14 of 28
+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 obstructive 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 Caselaw 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 consider “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 as with search warrants, advance notice is not required given the
+risk that the property will be moved or dissipated. The government, moreover, has merely seized,
+not forfeited, the property. In any event, the Forfeiture Allegation in the Superseding Indictment
+fulfills notice under Federal Rule of Criminal Procedure 32.2(a).
+14Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 15 of 28
+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 frozen assets are tainted or
+15Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 16 of 28
+not” and not whether there was probable cause for the offense). These 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 “interest 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 … whether 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).
+16Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 17 of 28
+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 review 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 erroneous 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
+17Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 18 of 28
+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 household expenses is required as a condition precedent.
+As courts have emphasized in the 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 decide 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 income, his liquid and non-liquid assets (including cars), his debts (including
+18Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 19 of 28
+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
+19Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 20 of 28
+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 seized 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 information 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
+20Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 21 of 28
+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 notwithstanding 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 lie 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.
+21Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 22 of 28
+II. The Seized Funds Are “Traceable to” and Sufficiently Connected to the
+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 question6 – 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 between 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 bears 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), aff'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 “fraudulent beginnings” of the
+operation); United States v. Hoffman-Vaile, 568 F.3d 1335, 1344 (11th Cir. 2009) (health care
+22Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 23 of 28
+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 articulates 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 affidavit, 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 confrontation; 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 fraudulent 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).
+23Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 24 of 28
+that brought Congress’s Electoral College vote certification proceeding to a halt. And it 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, the 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 exploited 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 another 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 enforcement 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
+24Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 25 of 28
+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, the defendant’s statements before, during, and after the Capitol attack support
+the inference that he sought to encourage mayhem and capture it on film. The affidavit recounts
+a video in which the 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 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.”
+The defendant also posted a livestream on social media on or about January 4, 2021, in
+which he announced 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, the 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.”
+25Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 26 of 28
+As noted, moreover, the 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 better 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 that 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 itself 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).
+26Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 27 of 28
+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, this 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, the 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
+27Case 1:21-cr-00078-EGS Document 29 Filed 05/21/21 Page 28 of 28
+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
+28

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

@@ -0,0 +1,452 @@
+Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 1 of 18
+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. Judge 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 analysis 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 issues 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
+1Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 2 of 18
+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-
+examination 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 witnesses. 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
+2Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 3 of 18
+through affirmative evidence presented during his own case-in-chief. See United States v. Lin,
+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 rights, because the exact positions of cameras, the camera map,
+and U.S. Secret Service protocols, implicate national security concerns, are of marginal 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 Sensitive 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
+3Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 4 of 18
+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 these 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 outweighed 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
+4Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 5 of 18
+trial, or in any trial, it would become available to the general public and foreign adversaries.
+Immediately, anyone could learn 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 security
+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,
+5Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 6 of 18
+cross-examination should not be permitted to extend to (1) Secret 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 and 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 interest 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 Secret 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 compromise 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
+6Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 7 of 18
+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, the 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 presidential 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”); United 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 United 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).
+7Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 8 of 18
+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 Cir. 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) (speeches advocating civil disobedience).2
+2 The court in 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 conspiracy.” Id.
+8Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 9 of 18
+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 otherwise constitute speech protected by the First Amendment.
+2. Defendant Should Be 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 is 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 States 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 anticipates 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 6th, were those who had been “vetted by their company, 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,
+9Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 10 of 18
+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 because 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 Amendment 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 exercise 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,
+10Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 11 of 18
+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 to
+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 argument 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 defendants may not provide
+evidence of possessing a generally good character. See, e.g., United States v. Hill, 40 F.3d 164,
+11Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 12 of 18
+168 (7th Cir. 1994) (court properly excluded “classic character evidence offered to prove that
+[defendant] had a good character and 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.
+12Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 13 of 18
+1985) (holding “patriotism” was not a relevant trait to the charged offense).
+E. Defendant’s Claimed Ignorance of the Law
+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 exception 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
+13Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 14 of 18
+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); see, e.g., United States v. Greer, 620 F.2d 1383, 1384 (10th Cir. 1980) (“The
+authorities are unequivocal in 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 Cannot Circumvent the Rule Against Hearsay
+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
+14Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 15 of 18
+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 contemporaneously 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 qualify 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 offered 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 are 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.
+15Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 16 of 18
+B. Law Enforcement Testimony Cannot Circumvent the Rule Against Hearsay
+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 asserted, 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. Palestinian 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 methodology to the inadmissible materials,’ rather than
+simply ‘transmit’ the hearsay to the jury.” (alterations omitted) (quoting Mejia, 545 F.3d at 197)).
+16Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 17 of 18
+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, the 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 Law
+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 proceed 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 II, 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 “without 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
+17Case 1:21-cr-00078-RCL Document 88 Filed 06/02/23 Page 18 of 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 memorialized 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 President 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 St. N.W, Washington, DC
+20530
+(202) 252-7012
+rebekah.lederer@usdoj.gov
+18

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

@@ -0,0 +1,284 @@
+Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 1 of 12
+UNITED STATES DISTRICT COURT
+FOR THE DISTRICT OF COLUMBIA
+UNITED STATES OF AMERICA,
+v. Crim. Action No. 21-78 (EGS)
+JOHN EARLE SULLIVAN,
+Defendant.
+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
+C ourt 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.
+1Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 2 of 12
+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.”
+2Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 3 of 12
+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.
+3Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 4 of 12
+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.
+4Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 5 of 12
+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,
+5Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 6 of 12
+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’
+6Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 7 of 12
+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
+7Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 8 of 12
+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
+8Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 9 of 12
+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
+9Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 10 of 12
+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).
+10Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 11 of 12
+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
+p redicated.” (citing Fed. R. Crim. P. 32.2(b)(1)(A))).
+11Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 12 of 12
+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
+12

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

@@ -0,0 +1,28 @@
+Case 1:21-cr-00078-EGS Document 42 Filed 08/18/21 Page 1 of 2
+UNITED STATES DISTRICT COURT
+FOR THE DISTRICT OF COLUMBIA
+UNITED STATES OF AMERICA
+V. Case No.: 21-cr-78 (EGS)
+JOHN SULLIVAN
+RESPONSE TO MINUTE ORDER OF COURT
+(Receipt of search warrants)
+Defendant, by and through undersigned counsel, pursuant to the
+August 16, 2012 Minute Order of tis Court, does hereby state as follows:
+Defendant has received all 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
+1Case 1:21-cr-00078-EGS Document 42 Filed 08/18/21 Page 2 of 2
+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, Candice
+Wong, Esquire, Assistant U.S Attorney.
+______/s/____________________
+Steven R. Kiersh
+2

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

@@ -0,0 +1,39 @@
+Case 1:21-cr-00078-EGS Document 43 Filed 08/19/21 Page 1 of 2
+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 Order of
+the Court concerning the availability of the parties for the next status
+hearing.
+The parties are available on the following dates: 9/20/21; 9/22/21;
+9/24/21.
+Counsel for defendant notes as follows: Counsel is scheduled to start
+a lengthy trial before the Honorable Milton Lee in the Superior Court of the
+District of Columbia on September 8, 2021. At the present time, the
+expectation is that because of the anticipated length of the trial proceedings
+the Court will try to sit on Fridays. However, it is not at all yet clear that the
+Court will be able to sit on Fridays. Accordingly, counsel for defendant
+1Case 1:21-cr-00078-EGS Document 43 Filed 08/19/21 Page 2 of 2
+believes that the best date for a status hearing in this case is Friday,
+September 24, 2021.1
+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.
+2

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

@@ -0,0 +1,89 @@
+Case 1:21-cr-00078-RCL Document 82 Filed 08/22/22 Page 1 of 4
+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 Representation 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 toCase 1:21-cr-00078-RCL Document 82 Filed 08/22/22 Page 2 of 4
+Dismiss Count Eight of the Superseding Indictment as Being Void for Vagueness [DE 47], and a
+Motion to Suppress Custodial 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 its case-in-chief; and (3) Brady materials not already
+disclosed by August 23, 2022. The parties propose the below accordingly.
+B. Proposed Pretrial 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 Pretrial 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 toCase 1:21-cr-00078-RCL Document 82 Filed 08/22/22 Page 3 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 motion 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 paragraphs 2and 3 the week of September 11, 2023.
+5. On or before October 13, 2023, counsel shall file a Joint Pretrial 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 4 of 4
+Respectfully submitted,
+COUNSEL FOR THE GOVERNMENT
+MATTHEW GRAVES
+United States Attorney
+DC Bar No. 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
+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

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 +1,320 @@
+Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 1 of 14
+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 questions 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 himself 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 arguments run contrary to established caselaw. No evidentiary hearing is
+1Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 2 of 14
+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 defendant, John Earle Sullivan, 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 others 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 defendant 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 the U.S. Capitol to law enforcement authorities.
+On January 9, 2021, another 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 individual climbing a wall to reach a plaza just outside the Capitol Building
+entrance, saying “You guys are fucking savage. Let’s go!” The defendant’s ballistics gear and
+gas mask was visible, and the defendant was captured climbing through a broken window to enter
+2Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 3 of 14
+the Capitol Building. The video further recorded several encounters between the defendant and
+law enforcement officers, including 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 caring 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, the 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, the defendant then
+approaches the doorway to the Speaker’s Lobby, a hallway which connects to the House Chamber.
+There too, the defendant can be heard – but again not seen – saying, “I have a knife…. Let me
+through I got a knife, I got a knife, I got a knife.”
+On January 11, 2021, FBI Special Agent Matthew 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:
+3Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 4 of 14
+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:
+4Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 5 of 14
+As reflected on the recording,1 Agent Foulger and a colleague, an FBI Task Force 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.
+5Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 6 of 14
+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—
+6Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 7 of 14
+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 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). 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 when 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.
+7Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 8 of 14
+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 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 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
+8Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 9 of 14
+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)
+(quoting 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
+9Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 10 of 14
+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. 31, 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 called and
+texted the defendant in advance – calls that the defendant appeared to acknowledge receiving
+10Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 11 of 14
+(“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.” The presence of the two agents, moreover, one
+of whom remained 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 interview” 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 to be,” and the defendant said, “Yeah, of course.” Exh. A (approx. 7:40).
+11Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 12 of 14
+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, approximately 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 have 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
+12Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 13 of 14
+requirement of warnings 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). The entirety of the defendant’s engagement with the two
+agents was recorded, leaving no significant factual 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., Room 4816
+Washington, D.C. 20530
+(202) 252-7849
+candice.wong@usdoj.gov
+13Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 14 of 14
+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
+14