04-03-22 - Supplemental MOTION to Dismiss Count re 62 Motion to Dismiss Count in the Supserseding Indictment by JOHN EARLE SULLIVAN..txt

1 
        UNITED STATES DISTRICT COURT  
       FOR THE DISTRICT OF COLUMBIA  
 
 
UNITED STATES OF AMERICA  
 
 
 
  v.                                       Case No. : 21-cr-78(EGS)   
 
 
 
JOHN SULLIVAN  
 
    SUPPLEMENT TO MOTION TO DISMISS  COUN T 1 OF THE   
    SUPERSEDING INDICTMENT  
 
 Defendant , by and though  undersigned  counsel, does her eby 
supplement hi s Motion to Dismiss  Count 1 of the  Superseding  Indictment. 
In support  thereof, defend ant respectfully sets for th as follows:  
 1. On December 3 1, 2021 , defend ant filed a Mot ion to Dismiss C ount 
1 of the Superseding Indictment. Defendant  incorp orate d the Motion to 
Dismiss C ount 2 of the Indi ctment submitted in United States v. Caldwel l, 
21-cr-28 (APM). See E CF 62. On January 10, 2022, the United S tates filed 
an Oppo sition to the Motion to Dismiss. ECF 65.  
 2. On March 7, 2022 , the H onorable Carl J. Nichols  of this U nited 
States District C ourt issued a Memoran dum Opin ion in United States v . 
Garrett Miller , 21-cr-119 (CJN) . The opinion addressed  a Motion to Di smiss Case 1:21-cr-00078-EGS   Document 71   Filed 04/03/22   Page 1 of 32 
 Count Three of the Indictment , violation of 18 U.S.C. Sec. 1512 (c)(2). This 
is the same sta tutory count  that defendan t John Sullivan seeks  to dismiss .  
 3. Miller argued, as d oes defendant  Sullivan,  that Sec. 1512 (c)(2) 
does not make  criminal  his all eged actions  on January 6 . Judge Nichols 
held that “the Court must determi ne what conduct Sec. 1512  (c)(2) prohi bits 
and whether Miller ’s alleged actions  fall within that prohibition. ” Miller, 8. 
Judge Nichols further concluded that  three readin gs of the statute are 
possible , two plausible . Ultimately , the rule of lenity required the C ourt to  
“resolve ambiguities in favor of the defendant. ” Id.11 citing  United  States v.  
Nasir  17 F.4th 459, 473 (3rd Cir. 2021 ) (en banc) . Judge Nichols later 
determined that “the Court is left with a  serious ambiguity in a criminal 
statute. ” Id. 28.  
 4. Judge Nic hols con cluded that “Sec. 1512  (c)(2) must be interpreted  
as limited by subsection (c)(1), and thus requires that the defendant  have 
taken s ome action with respect to a document, record, or other  object in 
order to corruptly obstruct , impede or influence an official proceeding .: Id., 
28, emph asis supplied.  
 5. Finding that M iller is not alleged to have taken such action, Judge 
Nichols dismissed the  felony 1512 count i n the indictment.  Case 1:21-cr-00078-EGS   Document 71   Filed 04/03/22   Page 2 of 33 
  6. Defendant  Sullivan  notes that he , like Miller, is not alleged to have 
taken some action with respect to a document, record, or other object  in 
order to corruptly obstruct, impede or influence an official proceeding.  
 7. Defendant  adopts the analysis  of Judge Nichols in United States v . 
Miller  and supplements his Motion to Di smiss C ount 1 of the Superseding 
Indictment with  the ruling of Judge Nich ols. 
 
______ /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 foregoin g 
was served, via the Court’s electroni c filing system, upon Candice Wong , 
Esquire, Assistant  U.S. Attorney on this the 3rd day of April, 2022,  
 
 
       ______ /s/___________________  
       Steven R. Kier sh 
 
 
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