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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 |
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