Datasets:

johnearlesullivan
/

capitol

The United States of America, by and through its attorney, the United States Attorney for
the District of Columbia, respectfully opposes the defendant’s “Motion to Suppress Custodial
Statements .” The defendant, John Earle Sullivan, specifically seeks to suppress pre -arrest
statements he voluntarily made to an FBI agent while at his own home on January 11, 2021 – days
before Sullivan was charged – when the agent asked him some questi ons during a visit to obtain
video footage that Sullivan had previously offered to provide the FBI . Specifically, Sullivan made
statements acknowledging that while he knew he could be heard stating that he had a knife in the
publicly posted video of himse lf inside the Capitol Building, he did not in fact have a knife or
weapon; Sullivan alternately claimed that he was just responding to something the person next to
him had said, that he was joking, and that he was trying to fit in with the crowd when he so stated .
The defendant now seeks suppression on grounds that he should have been Mirandized
because his January 11, 2021 statements were “custodial .” This contention is unsupported by both
the facts and the law. The circumstances of the defendant’s statements, as reflected on a recording
of the entire visit, refute the defendant’s claim of “custodial interrogation” as a factual matter, and
the defendant’s argument s run contrary to established caselaw . No evidentiary hearing is Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 1 of 142
warranted as the entire visit was captured on video, which is hereby proffered to the Court as an
exhibit for its review. The defendant’s motion to suppress should be denied on the briefs.
FACTUAL BACKGROUND
On January 7, 2021, the defendan t, John Earle Sull ivan, participated in a voluntary
interview with an FBI agent in Washington, D.C. The defendant stated that he was at the U.S.
Capitol on January 6, 2021, followed the crowd as it pushed past Capitol Police, and entered the U.S. Capitol Building with othe rs through a broken window. The defendant stated he was wearing
a ballistics vest and gas mask. The defendant further stated that he had been present at the shooting of a woman by a Capitol Police officer and that he had filmed the incident. The defenda nt showed
the interviewing agent the footage he had taken, which he stated that he had uploaded to the Internet. At the conclusion of the interview, the defendant stated that he was willing to voluntarily provide a copy of all footage he recorded within t he U.S. Capitol to law enforcement authorities.
On January 9, 2021, an other FBI officer made contact with Sullivan at one of the phone
numbers Sullivan provided during his interview to follow up on Sullivan’s offer to voluntarily
provide his footage. Sullivan sent a link to download a single video that he had taken on January 6. The video was similar to a video Sullivan had publicly posted on his YouTube account.
As recounted at greater length in the charging documents and previous pleadings, the video
captured the defendant saying at various points: “There are so many people. Let’s go. This shit is
ours! Fuck yeah,” “We accomplished this shit. We did this together. Fuck yeah! We are all a part of this history,” and “Let’s burn this shit down.” It showed the defendant extending his hand to
help pull up an individua l climbing a wall to reach a plaza just outside the Capitol Building
entrance, saying “You guys are fucking savage. Let’s go!” T he defendant’s ballistics gear and
gas mask was visible, and the defendant was captured climbing through a broken window to enter Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 2 of 143
the Capitol Building. The video further recorded several encounters between the defendant and
law enforcement officers, inclu ding ones where the defendant told the officers that “you are putting
yourself in harm’s way,” “the people have spoken,” and “there are too many people, you gotta stand down, the people out there that tried to do that shit, they got hurt, I saw it, I’m car ing about
you.” At a later point, after someone lunges their body against a door, the defendant can be heard
saying, “That’s what I’m sayin’, break that shit.”
As relevant here, the video showed the defendant joining a crowd gathered before the main
entrance to the House Chamber in the U.S. Capitol. There, t he defendant could be heard telling
other individuals, “there’s officers at the door ,” and then could be heard – but not seen – saying,
“Hey guys, I have a knife. I have a knife. Let me up.” Later in the video, t he defendant then
approaches the doorway to the Speaker’s Lobby, a hallway which connects to the House Chamber. There too, t he defendant can be heard – but again not seen – saying, “I have a knife…. Let me
through I got a knife, I got a kni fe, I got a knife.”
On January 11, 2021, FBI Special Agent Matt hew Foulger from the Salt Lake City Field
Office – the defendant’s home district – sought to visit the defendant to receive the remaining
footage. Agent Foulger called the defendant on his two numbers multiple times between 12:28pm
and 1:03pm before heading to Sullivan’s home : Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 3 of 144

Agent Foulger also texted the defendant at 12:30 pm – a text that the defendant himself
later posted on his Twitter account, “realjaydenx,” redacting the agent’s name :

Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 4 of 145
As reflected on the recording,1 Agent Foulger and a colleague, an FBI T ask F orce Officer ,
knocked on the defendant’s door and waited for him to open it before greeting him and identifying
themselves as law enforcement officials. Defendant immediately and repeatedly invited Agent
Foulger and his colleague in:
John Sullivan (“ JS”): Hello?
Agent Foulger (“ AF”): John Sullivan?
JS: Yeah.
AF: How are you?
JS: Good, how are you?
AF: I’m Matt Foulger with the FBI.
JS: Well, come on in.
AF: This is Jen.
JS: Yeah, come on in.
AF: Do you know why we’re here?
JS: Probably. Capitol stuff?
AF: Yeah. So, last week you spoke with our colleagues in D.C., right? And, they said you
had additional video.
JS: I do, yeah.
AF: Do you mind if we come in?
JS: Yeah, yeah. [ Defendant motions them in .]
See Exh, A (approx. 5: 14-5:40). Once inside, they exchanged pleasantries . Agent Foulger asked,
“Do you mind if we ask you a couple questions?” and the defendant agreed (“Yeah.”) . See Exh.
A (approx. 8:05). The ensuing conversation lasted approximately 35 minutes.
Throughout the approximately 35-minute dialogue , the tone and demeanor of all parties
was cordial and the defendant readily answered the agent’s questions while copying his video files
onto a thumb drive the agent had brought .

1 See Exh . A (1 -11-2021 Recording), transmitted to the courtroom deputy through USAFx. Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 5 of 146
In the course of the interview , the agent asked the defendant whether he had a weapon on
January 6, 2021, while inside the Capitol Building:
AF: Did you have a wea —a gun on you or anything?
JS: No, I had no gun. No guns, no weapons
AF: No knife or anything like that?
JS: It is illegal to carry that—all of that stuff.
AF: Oh, for sure. I just want —I mean, if I’m not a pro -Trumper, and, you know,
I’m going into— the lion’s den, I would wanna, you know, at least feel secure, so.
JS: Yeah. I mean, I flew in so, like, I can’t bring a gun on the plane — or anything
like that, so yeah.
…
AF: Okay. Um, I just ask the weapons question cause I think you sent a link to one
of our agents —um, of a fifty- minute clip when you guys go in. I think in there —I
wanna say, uh—
JS: I know what you’re talking about.
AF: —it was probably your voice —about having a knife.
JS: Yeah, I do know what you’re talking about. So, I’m talking to the person next
to me, like, words you can’t hear because, like, all the camera can hear is my voice.
You really can’t hear anybody outside or around me. So, he’s talking to me about
something like that. But, I do remember that part of, like, me saying like, “Oh, yeah, I have a knife on me.” I think it was more in a joking manner, like, not literally have a knife on me. Like, at no point do I plan to, like, stab somebody. Um, so like I just don’t have a knife on me on that —in that instance.
AF: Okay.
JS: But it was more like —I mean I said a lot of things throughout that entire video.
AF: Yeah.
JS: But it was only, like, to relate to the person next to me, so that they don’t feel
the need to, like, just start fucking me up.
See Exh. A (approx. 14: 45-16:35).
The defendant and Agent Foulger remained cordial as they parted ways:
AF: Thank you, sir.
JS: Let me know if you need anything else.
AF: Okay.
JS: I’ll be happy to— Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 6 of 147
AF: Awesome.
JS: Thank you guys.
Task force officer: Appreciate it.
AF: Yeah, thank you guys.
JS: Take care.
AF: Likewise.
See Exh. A (approx. 43:45-44:00).
On January 13, 2021, the defendant was charged by complaint with violations of 18 U.S.C.
§§ 231(a)(3) & 2 (Civil Disorders); 18 U.S.C. § 1752(a) (Knowingly Entering or Remaining in a
Restricted Building or Grounds without Lawful Authority); and 40 U.S.C. § 5104(e)(2) (Violent
Entry and Disorderly Conduct on Capitol Grounds) , and the defendant was arrested the following
day. The defendant was not charged with any weapons count.
On February 3, 2021, a grand jury in the District of Columbia returned a n indictment
against the defendant charging violations of 18 U.S.C. §§ 1512(c)(2) & 2 (Obstruction of an Official Proceeding and Aiding and Abetting); 18 U.S.C. §§ 231(a)(3) & 2 (Civil Disorders and
Aiding and Abetting); 18 U.S.C. §§ 1752(a)(1) (Entering or Remaining in a Restricted Building or Grounds) and 1752(a)(2) (Disorderly and Disruptive Conduct in a Restricted Building or Grounds); and 40 U.S.C. §§ 5104(e)(2)(D) (Disorderly Conduct in a Capitol Building) and 5104(e)(2)(G) (Parading, Demonstrating, or Picketing in a Capitol Building). Again, the defendant was not indicted on any weapons count.
Subsequent to that date, law enforcement obtained and reviewed video from an individual
present at the scene whe n Sullivan stood before the main entrance to the House Chamber and was
heard – but not seen – saying, “Hey guys, I have a knife. I have a knife. Let me up.” The
individual’s video showed the defendant holding up the black handle to a knife at the very moment
that he made the statement about having a knife . Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 7 of 148
On May 19, 2021, based on that video as well as additional evidence gathered in the course
of the investigation, a grand jury returned a Superseding Indictment that added, inter alia , weapons
charges and a false statements charge against the defendant. The Superseding Indictment charges
violations of 18 U.S.C. §§ 1512(c)(2) & 2 (Obstruction of an Official Proceeding and Aiding and
Abetting); 18 U.S.C. §§ 231(a)(3) & 2 (Civil Disorders and Aiding and Abetting); 18 U.S.C. §§ 1752(a)(1) and 1752(b)(1)(A) (Entering or Remaining in a Restricted Building or G rounds with a
Dangerous Weapon); 18 U.S.C. §§ 1752(a)(2) and 1752(b)(1)(A) (Disorderly and Disruptive Conduct in a Restricted Building or Grounds with a Dangerous Weapon); 40 U.S.C. § 5104(e)(1)(A)(i) (Unlawful Possession of a Dangerous Weapon on Capitol G rounds or Buildings);
40 U.S.C. § 5104(e)(2)(D) (Disorderly Conduct in a Capitol Building); 40 U.S.C. § 5104(e)(2)(G) (Parading, Demonstrating, or Picketing in a Capitol Building); and 18 U.S.C. § 1001(a)(2) (False Statement or Representation to an Agency of the United States).
ARGUMENT
The defendant’s motion argues that his statements denying having a knife , and justifying
why he had stated that he had a knife despite not having a knife, should be suppressed because
they were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966) . Specifically, the
defendant’s motion contends that he made the statements in the course of a “ custodial
interrogation” on January 11, 2021 by Agent Foulger at his home. ECF 46, at 4. The claim is
meritless and should be denied. Moreover, because the entire visit was captured on a recording that leaves no significant factual issues as to what transpired, the defendant’s motion does not require an evidentiary hearing .
I. The Defendant Did Not Undergo “Custodial Interrogation ” on January 11, 2021.
As is well -established, Miranda warnings are only required “where a suspect in custody is
subjected to interrogation.” United States v. Vinton, 594 F.3d 14, 26 (D.C. Cir. 2010) (emphasis Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 8 of 149
added). The protections offered by Miranda only apply in the instance of “ custodial
interrogation,” which is when a reasonable person in the defendant’s position would have
understood that he was subject to a “formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest.” Stansbury v. California, 511 U.S. 318, 322 (1994) (quoti ng California v. Beheler , 463 U.S. 1121, 1125 (1983)). As the Supreme Court has
explained, “[v]olunteered statements of any kind are not barred by the Fifth Amendment” and “any
statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence” without Miranda warnings. Miranda, 384 U.S. at 478; see also United States v.
Sheffield, 799 F. Supp. 2d 22 (D.D.C. 2011), aff'd, 832 F.3d 296 (D.C. Cir. 2016); United States
v. Samuels, 938 F.2d 210, 214 (D.C. Cir. 1991). The crux of the issue is thus whether , given the
circumstances, “a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation.” Thompson v. Keohane , 516 U.S. 99, 112 (1995). “Relevant factors include the
location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.” Howes v. Fields , 565 U.S. 499, 509 (2012) (internal citations omitted).
As far as the location of questioning, interviews in a suspect ’s home are generally non-
custodial. Beckwith v. United States , 425 U.S. 341 (1976) ; see also 2 WAYNE R. LAFAVE,
CRIMINAL PROCEDURE § 6.6(e) (3d ed. 2007) (“courts are much less likely to find the
circumstances custodial when the interrogation occurs in familiar or at least neutral surroundings ”); United States v. Faux , 828 F.3d 130, 135- 36 (2d Cir. 2016) (“[C] ourts rarely
conclude, absent a formal arrest, that a suspect questioned in her own home is ‘ in custody.’”); see
also United States v. Mitchell , 966 F.2d 92, 98–99 (2d Cir. 1992) (reversing district court where
in–home interview was “cooperative” and there was no speech or action that could reasonably be Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 9 of 1410
taken as intimidating, coercive, or restricting defendant's freedom of action) . In Faux , for instance,
the Second Circuit found the circumstances to be noncustodial because the tone of the questioning
was largely conversational; there was no indication that the agents raised their voices, showed
firearms, or made threats ; the individual’s movements were monitored but not restricted, certainly
not to the degree of a person under formal arrest ; and she was thus never “completely at the mercy
of” the agents in her home. 828 F.3d at 139; see also United States v. Luck , 2017 WL 1192899
(6th Cir. Mar. 3 1, 2017) (agents did not brandish weapons or block exits, encounter calm and
relatively short); United States v. Lamy , 521 F.3d 1257 (10th Cir. 2008) (questioning in the
“common area of his home, during which his mother came and went from the room ” was not
custodial) . Courts in this jurisdiction have similarly found, in situations where the interview takes
place in a familiar or neutral setting, that defendants were not “in custody.” See, e.g., Vinton, 594
F.3d at 27 (“Most of the statements Vinton claims were improperly admitted were made by him while he was sitting in his car…. At the time he made these statements, Vinton was not ‘in custody’
and faced an ‘ordinary,’ ‘noncoercive’ traffic stop.”); United States v. Robinson, 256 F. Supp. 3d 15, 26 (D.D.C. 2017) (interview setting “was not a police statement or any other characteristically
police -dominated or coercive location, but was instead an office inside of Defendant’s own place
of work”) .
Here, a reasonable person in the defendant’s position “ would have understood that he was
not subject to a formal arrest or restraint of the degree associated with a formal arrest, and would have felt free to terminate the interview.” Robinson, 256 F. Supp. 3d at 25. At the outset, the
defendant had himself created the opening for such a visit by previously offering to provide his footage. Agent Foulger did not arrive wholly “unannounced,” ECF 46, at 6, but rather call ed and
texted the defendant in advance – calls that the defendant appeared to ackno wledge receiving Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 10 of 1411
(“Was that you calling me?”) and a text the defendant admitted receiving by later posting it on
Twitter. In any event, when the two agents arrived in the afternoon of January 11, 2021, they clearly identified themselves as law enforcement , and the defendant chose to invite and wave them
in, repeatedly, into his own home. The defendant himself appeared unsurprised by the visit and posited that they must be there for “Capitol stuff.” T he presence of the two agents, moreover, one
of whom re mained largely silent throughout, cannot be characterized as transforming the
defendant’s home into a “police -dominated environment.” ECF 46, at 5. There were no threats ,
intimidating conduct, promises, or brandishing of weapons by the two agents , and the defendant’s
motion does not suggest otherwise .
2 No physical restraints were imposed on the defendant, and
the defendant was not placed under arrest at the end of the interview. The defendant does not
contend otherwise.
As in Robinson – a case where an interview at the suspect’s workplace was deemed non -
custodial, even as authorities were executing a search warrant at that time – the defendant was not
“ordered to submit to an int erview” but rather “asked .” Id. (emphasis in original). The defendant
here not only agreed to proceed when the agent asked, “Do you mind if we ask you a couple
questions?” but he appeared, as in Robinson, “willing, even eager, to engage in the interview,”
responding with some enthusiasm and giving answers of substantial length with little prompting.
Id. at 26. The parties were amicable in tone , “calm and patient throughout the interview.” Id. The
defendant “had a thorough opportunity to reconsider his decision to be interviewed” but stayed. Id. The 35-minute interview was “not particularly long.” See id. (“ The interview was not

2 The defendant himself stated that he was armed : “There’s a gun right here by the way. Just so
you know. So that you don’t feel too concerned.” The agent responded, “Thanks. Okay. We’re
also armed but…” The defendant stated, “Oh, you’re armed, too? Okay, cool.” The agent stated, “Yeah, we have t o be,” and the defendant said, “Yeah, of course.” Exh. A (approx. 7:40).
Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 11 of 1412
particularly long, lasting somewhere between 45 minutes and a little over an hour….”) ; United
States v. Levenderis , 806 F.3d 390, 400 (6th Cir. 2015) (defendant was not in custody; “the length
of questioning during the first interview was relatively brief, approximatel y thirty minutes”)
compare United States v. Patterson, 393 F. Supp. 3d 456, 469 (E.D. La. 2019) (hours -long
interview by agents was still non- custodial due to ability of defendant to leave, among other
factors). And at the conclusion of the questions, the defendant thanked the agents and told them to
let him know if they needed anything else.
To be sure, as the defendant states, courts hav e found in certain exceptional cases that in-
home interviews have had sufficient indicia of compulsion to be rendered “custodial.” E .g., United
States v. Savoy , 889 F.Supp.2d 78, 106–10 (D.D.C. 2012) (finding custody wherein 16 armed law
enforcement in “tactical gear” forcibly entered defendant’s home in early morning and proceeded
to handcuff defendants and his family); Orozco v. Texas , 394 U.S. 324 (1969) ( finding custody
when four officers entered defendant’s bedroom at 4:00 a.m. after being told he was asleep and
instructed him that he was “not free to go where he pleased but was ‘under arrest’”). But those
circumstances are wholly inapposite and distinguishable to the facts of this case.
Nor is it significant if the agent – in addition to his bona fide interest in following up on
the defendant’s offer to provide additional footage – had already “identified John Sullivan as a
participant in the events of January 6, 2021” ( based on video that Sullivan himself had already
posted online and voluntarily provided to the FBI ). ECF 46, at 5. As the Supreme Court has said,
“‘It was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to custodial questioning.’” Beckwith , 425 U.S. at 346–47
(emphasis added) ; see also Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (“Nor is the Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 12 of 1413
requirement of war nings to be imposed simply … because the questioned person is one whom the
police suspect. Miranda warnings are required only where there has been such a restriction on a
person’ s freedom as to render him ‘ in custody.’”). Here, however “active” the “investigation into
the events of January 6, 2021,” ECF 46, at 6, and whatever suspicions were harbored, the hallmarks
of custodial interrogation were not present.
II. No Evidentiary Hearing is Warranted.
The defendant’s requested evidentiary hearing is not warranted because for more than fifty
years, the law in this Circuit has been that “[a] defendant is entitled to an evidentiary hearing on his motion to suppress ‘only upon factual allegations which, if established, would warrant relief.’” United States v. Thornton , 454 F.2d 957, 967 n. 65 (D.C. Cir. 1971) ; accord United States v. Law ,
528 F.3d 888, 903–04 (D.C. Cir. 2008). T he entirety of the d efendant’s engagement with the two
agents was recorded, leaving no significant factua l issues as to what transpired. The facts as
reflected on that video recording make plain that no Miranda violation occurred .
CONCLUSION
WHEREFORE, the United States respectfully requests that the defendant’s Motion to
Suppress be denied.
Respectfully submitted,
CHANNING D. PHILLIPS
United States Attorney
D.C. Bar No. 415793

/s/ Candice C. Wong
By: Candice C. Wong
D.C. Bar No. 990903
Assistant United States Attorney
555 4th Street, N.W., R oom 4816
Washington, D.C. 20530
(202) 252- 7849
candice.wong@usdoj.gov Case 1:21-cr-00078-EGS Document 48 Filed 10/07/21 Page 13 of 1414
CERTIFICATE OF SERVICE
I hereby certify that on October 7, 2021, I caused a copy of the foregoing motion to be
served on counsel of record via electronic filing.
/s/ Candice C. Wong
Candice C. Wong
Assistant United States Attorney

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