Case 1:21-cr-00078-EGS Document 13 Filed 02/15/21 Page 1 of 8




                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA



     V.                                   Case No.: 21-cr-78 (EGS)



JOHN SULLIVAN

            MEMORANDUM CONCERNING CONDITIONS OF
                    PRETRIAL RELEASE

     Defendant, by and through undersigned counsel, does hereby

provide the following memorandum concerning conditions of his pretrial

release.

I. Defendant strenuously opposes any restrictions regarding his use
of the Internet, Twitter, Facebook and other forms of social media.

     “A prior restraint on expression is a content-based restriction of

speech. A prior restraint exists when the enjoyment of protected expression

is contingent upon the approval of government officials.” Near v.

Minnesota, 283 U.S. 697, 711-13 (1931); White v. Baker, 696 F. Supp 2d

1289, 1306 (N.D. Georgia 2010) In Ward v. Rock Against Racism, 491

U.S. 781, 795 n.5, the Supreme Court held that “A prior restraint on

expression exists when the government can deny access to a forum for

expression before the expression occurs.”
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      As a condition of defendant’s pre-trial relelase, the government is

seeking to limit his use of the internet and to expressly prohibit him from

using the following: Twitter, Facebook, encrypted platforms.

      The requests by the United States to limit defendant’s ability to

communicate the way the vast majority of Americans communicate is

oppressive, overbroad and unconstitional.

      While courts have broad discretion to prescribe conditions of release,

The “conditions of supervised release may not restrict more liberty than

reasonably necessary, including constitutional liberty.” See United States v.

Holena, --F.3d--, 2018 WL 4905748, at *5 (3rd Cir. 2018). The Court in Hoena

further noted that computer and internet usage restrictions potentially “limit

an array of First Amendment activity,” and accordingly cautioned district

courts to ensure that any such restrictions “not…restrict (defendants) First

Amendment Rights more than reasonably necessary or appropriate to

protect the public.” See also Packingham v. North Carolina, 137 S. Ct. 1730,

1736 (2017) (Striking down state statute barring sex offenders from using

social media for violating First Amendment.).

      The government’s request for limitations on defendant’s right to use

social media is not reasonably related to the crimes for which he has been

indicted. To the contrary, the sweeping restrictions requested to be placed


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on Mr. Sullivan are completely unmoored from the conduct that is ostensibly

what is necessary to protect the community. The entirely overboard request

by the government would effectively ban hm from communicating with

friends, interacting, with his family, writing his thoughts, keeping up with the

news, checking on the weather, reading a newspaper outline or any of the

typical reasons why the vast majority of the polukatin uses these social

media platforms. The breadth of the requested restrictions have no

relationship to the conduct for which Mr. Sullivan has been indicted.

      Packingham v. United States in instructive. The case involved a

challenge to statute making it a felony for registered sex offenders to access

commercial social networking websites where the sex offender knows that

the site permits minor children to become members. Petitioner was indicted

for violating the subject state law. The specific charge was Petitioner posted

a statement on his Facebook profile about a positive experience in traffic

court. Petitioner challenged the law on grounds that it violated free speech.

The trial court denied the challenge. The State Court of Appeals struck the

statute down on grounds that it cioated the First Amendment. The State

appealed the ruling.

      The Supreme Court struck the sstaue down as being violative of rights

guaranteed by the First Amendment. “A fundamental principle is that all


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persons have access to places where they can speak and listen, and then,

after reflection, speak and listen once more. Today, one of the most

important places to exchange views is cyberspace, particularly social

media….” 137 S. Ct. at 1732. Justice Kennedy added, “It is well established

that, as a general rule, the Government “may not suppress lawful speech as

the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition,

122 S. Ct. 1389 (2002). That is what North Carolina has done here. Its law

must be held invalid.” supra, 1738.

      The government’s argument in support of detention is completely

contradicted by the facts before this Court. The government has argued,

“there are serious risks that this defendant will obstruct or attempt to obstruct

and that he continues to pose a recurring threat to the safety of the

community.” PACER Document,6, page 2.

      There is no evidence to support this unfounded claim. Defendant has

not in any manner whatsoever attempted to obstruct justice. His request to

have people attend his release hearing in Utah was a perfectly reasonable

and constitutionally protected request to invite people to his court

proceeding. It is inconceivable that he be punished for this completely lawful

request.




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     United States Magistrate Judge Daphne A. Oberg of the United

States District Court for the District of Utah debunked the government’s

argument as to John Sullivan’s alleged obstruction of justice.

           The government’s proffer simply fails to establish a serious
           risk Mr. Sullivan will obstruct justice or attempt to obstruct
           justice in the future…The allegation that Mr. Sullivan might
           have incited others to resist police officers in a separate
           Oregon event adds little to the inquiry. These allegations
           are insufficient to meet the government’s burden of establishing
           § 3142 (f)(2)(B) applies in this case, even by a preponderance
           of the evidence, let alone clear and convincing evidence.

United States v. Sullivan, Case No. 21-mj14 (U.S. District Court Utah),
PACER DOCUMENT, page 4.

II. Defendant should not be restricted from earning his income
through Insurgence USA

     Insurgence USA is not charged with any offense in this matter.

Insurgence is not deemed to have been involved in any criminal activity.

Defendant is legitimately self-employed as a documentarian and it is

oppressive to require that he not be allowed to continue his primary area of

employment for an extended period of time. Attached to this pleading are

receipts for services documenting defendant’s employment.


  1. Contract with Australian Broadcasting.

  2. Contract with Left/Right, LLC;




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   3. Agreement to release video footage with Rocky Mountain Public

      Media.

   4. License Agreement with CNN


III. Defendant should not required to wear an ankle bracelet pending
trial
      There is absolutely no question that John Sullivan has faithfully

appeared for very court appearance remotely. He is actively engaged with

his trial counsel in preparing a defense to the charges in the indictment.

      There is not a reasonable argument that he is a danger of flight. The

government is not making this argument. This begs the question: Why does

John Sullivan have to wear an electronic monitoring device?

      John Sullivan has substantial ties to the community. His father is a

retired Army officer having spent 21 years in the military. Defendant’s

parents reside approximately one hour away from him in Utah and are

actively involved in his life.

      “Release pending trial is governed by the Bail Reform Act of 1984

which, like its predecessor, the Bail Reform Act of 1966, 18 U.S.C.

Sections 3146-3152 (1982)(repealed October 18, 1984) mandates release

of a person facing trial under the least restrictive conditions or combination

of conditions that will reasonably assure the appearance of the person….”

Banks v. United States, 414 F.2d 1150,1153 (D.C. Cir. 1969).
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            The ankle monitor is an overly restrictive and unnecessary

restriction\ on defendant.

                             CONCLUSION

      Defendant is a decent, honest young man who has been utterly

mischaracterized by pleadings filed in this Court and comments attributed

to him have been taken out of context. There is no reason to conclude he is

risk of flight or that he will attempt to obstruct justice. He has promptly

appeared for every court appearance in Utah and the District of Columbia

and there is nothing in the record to reasonably suggest that he will not

continue to abide by conditions of relelease. The government seeks

unconstitutional and oppressive conditions that defendant respectfully

submits should not be permitted by this Court.



                                            Respectfully submitted,



                                            _______/s/_______________

                                            Steven R. Kiersh #323329
                                            5335 Wisconsin Avenue, N.W.
                                            Suite 440
                                            Washington, D.C. 20015
                                            (202) 347-0200




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                          CERTIFICATE OF SERVICE

     I HEREBY CERTIFY that a true and accurate copy of the foregoing
was served, via the Court’s electronic filing system, on this the
____15th____day of February, 2021 upon all counsel of record.


                                  ______/s/____________________
                                  Steven R. Kiersh




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