1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA V. Case No.: 21 -cr-78 (EGS) JOHN SULLIVAN MOTION TO DISMISS COUNT EIGHT OF THE SUPERSEDING INDIC TMENT AS BEING VOID FOR VAGU ENESS Defendant , John Sullivan, by and through undersigned counsel, does hereby move to Dismiss Count Eight of the superseding indictment. In support thereof, defendant respectfully sets for th as follows: I. FACTUA L BACKGROUND This prosecution arises out of the events that occurred at the United States Capitol on January 6, 2021. A ma ssive and organized investigation arose that in cluded law enforcement agents f rom virtually every state in the country. In fact, th is was one of the mo st intensive and large scale criminal investigations ever co nducted in the United States. On February 23, 2021 , the United States returned an initial indictment against defendant charging as follows: Obstruction of an Official Procee ding, 18 U.S.C. §§1512 (c) (2); Civil Disorder, 18 U.S.C. § 231(a)(3); Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 1 of 72 Entering and Remaining in a Restricted Building or Grounds, 18 U.S.C. § 1752 (a)(2); Disorderly and Disruptive Conduct in a Restricted Buildin g or Grounds, 40 U.S.C. § 5104 (e)(2)(D ); Paradi ng, Demonstrating, or Picketin g in a Capitol Building,§ 5104 (2)(G); Aiding and Abetting, 18 U.S.C. § 2. The indictment was superseded on May 19, 2021 adding a charge of False Statement or Representation to an Agency of the United States in violation of 18 U.S.C. § 1001 (a)(2), Count Eight . II. THE VOID FOR VAGUENESS DOCTRINE “The consti tutional requirement of definiteness is vi olated by a criminal statute th at fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute. The underl ying principle is that no man shall be held criminally responsible for which h e could not reasonably underst and to be proscribed.” United States v. Harris, 347 U.S. 612, 617 ( 1954). “The void -for-vagueness doctrine…gener ally holds that criminal statutes must be sufficiently specific that the y provide ‘fair warning’ of the conduct that is proscribed.” United States v. Kim , 808 F. Supp.2d 44, 50 (D.D.C. 20110 (Kollar -Kotelly, J.) Judge Kollar -Kotelly added, “The Fif th Amend ment ’s guarantee of due process bars enforcement of a statute which either forbids or r equires the do ing of an act in terms so vague that Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 2 of 73 men of common intelligence must necessarily guess at its meaning and differ as to its applicati ons.” Id. at 50, quotin g United States v. Lanier , 520 U.S. 259, 266 (1977). The void -for-vagueness doctrine “requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent ‘arbitrary and discriminatory enforcement. ’’’ Smith v. Georgia , 415 U.S. 566, 572 -73 (1974), citations omitted. “[T]he touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.” Lanier , 520 U.S. at 267. Defendant further notes that the constitutional validity of an indictment must be raised by motion before trial pursuant to Federal Rule of Criminal Procedure 12 (b)(3)(B). See United States v. Brown , No. CRIM.07 75 CKK, 2007 WL 2007513, at *2 ( D.D.C. July 9, 2007 (Kollar -Kotelly, J.). III. 18 USC § 1001 The subject statute states in relevant part as follows: (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislat ive, of judicial branch of the Government of the United States, knowingly and willfully — Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 3 of 74 (1) falsifies, conceals, or covers up by tri ck, scheme, or device a material fact; (2) makes any materi ally false, fictitious, or fraudulen t statement or representat ion; or (3) makes or uses and false writing or document knowing the same to cont ain any materially false, fictitious, or fraudulent statement or entry; Shall be fined under this title, imprisoned not more than 5 years…. In order to sustain a conviction for violation of 18 U.S.C. 1001(a)(2) the government must prove five elements: (1) a statement was made; (2) the statement was false; (3) the statement was made with specific intent; (4) the statement was material; and (5) there was government agency jurisdiction. United States v. Jian g, 476 F.3d 1026, 1029 (9 th Cir. 2007); United States v. Robinson , 505 F. 3d 1208, 1226 (11th Cir. 2007). The question of the materiality of the alleged statement is one that should be clear and unambiguous in or der to pass constitutional scru tiny. “Since materiality is an element of this offense [18 U.S.C. §1001] the prosecution carries the burden of proof.” United States v. Talkington , 589 F.2d 415, 417 (9th Cir. 1978); “A district court may not determine the materiality of a statement as a matter of law. See United States, v. Gaudin, 515 U.S. 506, 512 (1995)”. Rather, “the question of materiality should be Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 4 of 75 submitted to the trier of fact to determine whether the statement has the propensity to influence agency action.” Unite d States v. Facchini, 874 F. 2d 638, 643 (9th Cir. 1989) (en banc). In Kungys v. United States , the Supreme Court provided some guidance concerning the definition of materiality in the context of misrepresentations within the meaning of a statute providin g for denat uraliz ation of citizens whose citizenship orders were procured by conc ealment of a material fact. The Court concluded that “the test of whether Kung ys’ concealments or misrepresent ations were material is whether they h ad a natural tendency to in fluen ce the deci sions of the Immigration and Nat uralization Service.” 485 U.S. 759, 772 (1988) . Defend ant submits that th e term “materiality” in the context of the subject statute is vague and there fore void. T he inve stigation of this case was 100 percent centered around the invasion of the United States Capitol on Janu ary 6, 2021 . The investigation involved the alleged acti ons of defendant related t o his presence on the grounds of the United States Capitol on January 6, 2021. The investigation had absolut ely nothing to do with defend ant’s possession of a knife. Whether or not defendant was in possession of a kni fe on January 6, 2021 h as absolu tely no bearing on the investigation or the involvement of John S ullivan in the invasion. Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 5 of 76 United States v. Bedore , a 9th Circuit opinion related to 18 U.S.C. § 1001 is instructive. The case involved an F.B.I agent who went to Bedore’s home to serve a subpoena directing Bedore to appear at a court proceeding. The F.B.I agent knocked on the door and Bedore identified himself as someone else. Following a convict ion for making a false statement, the Bedore Court ruled that “Congress did not intend section 1001 to apply to Bedore’s g iving a false name to [F.B.I. Agent] Henry, beca use his response was not within the class of false statemen ts that section 1001 was designed to proscribe.” 455 F.2d1109,1110 (9th Cir. 1972) . The Bedore Court explained the types of statements contemplated by the statute. From the statutory history. It is evident that section 1001 was not intended to reach a ll false statements made to Governmental agencies and departments, but only those false statements that might support fraudulent claims against the Government, or that might pervert or corrupt the authorized functions of those agencies to whom the statements were made. Typical of the kind of statements that are within the purview of section 1001 are false reports of crime made to federal law enforcement agencies that may engender groundless federal investigations. Id., 1111. 18 U.S.C. § 1001 does not adequately define “materiality” in general and specifically does any provide any guidance whether a statement that is Case 1:21-cr-00078-EGS Document 47 Filed 09/24/21 Page 6 of 77 outside the scope of the alleged crime that is being investigated comes within the inten ded purpose of the statute. Accordingly, the statute is void for vaguen ess. Wherefor e, the foregoing considered, defendant prays this Ho norable Court f or dismiss al of Count Eight of the Superseding Indictment as it is void for vagueness. Respectfully submitted, _______/s/_______________ Steven R. Kiersh #323329 5335 Wisconsin Avenue, N.W. Suite 440 Washington, D.C. 20015 (202) 347 -0200 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing was served, via the Court’s electronic fili ng system, on this the 24thday of September, 2021 upon Assistant U.S. Attorney Candice Wong, Esquire. ______ /s/____________________ Steven R. 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