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

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