United States v. Sullivan

• Court: District Court, District of Columbia
• Decided: August 1, 2022
• Docket: Criminal No. 2021-0078
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Crim. Action No. 21-78 (EGS)

JOHN EARLE SULLIVAN,

Defendant.

MEMORANDUM OPINION

Defendant John Sullivan (“Mr. Sullivan”) is charged in a

multi-count Superseding Indictment arising from his alleged

participation in the events at the U.S. Capitol on January 6,

2021. See Superseding Indictment, ECF No. 56. 1 Pending before the

Court is Mr. Sullivan’s Motion for Reconsideration of the

Court’s December 6, 2021 Denial of Motion to Release Seizure

Order and Supplement to Motion to Release Seizure Order. Def.’s

Mot., ECF No. 61.

Upon careful consideration of the motion and opposition

thereto, the applicable law, and the entire record herein, the

Court hereby DENIES Mr. Sullivan’s motion for reconsideration.

1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF page number, not the page number of the filed document. 1 I. Background

As described in the Court’s December 6, 2021 Memorandum

Opinion, on April 28, 2021, a magistrate judge approved two

sealed warrants authorizing the government’s seizure of $89,875

in Mr. Sullivan’s bank account ending in 7715 and $1,000 in the

Venmo account linked to Mr. Sullivan’s bank account. See Mem.

Op., ECF No. 60 at 2-3; Gov’t’s Opp’n, ECF No. 29 at 10. The

magistrate judge found probable cause to believe that the assets

were forfeitable based on the supporting affidavit stating that

the “funds Sullivan obtained by filming and selling footage of

the January 6, 2021 Capitol riots . . . would not have existed

but for Sullivan’s illegal participation in and encouragement of

the riots, property destruction, and violence inside the U.S.

Capitol in violation of 18 U.S.C. § 1512(c).” Mem. Op., ECF No.

60 at 2-3; Gov’t’s Opp’n, ECF No. 29 at 10. The warrants were

served on April 29, 2021, and the government seized a balance of

$62,813.76 from the bank account ending in 7715. Mem. Op., ECF

No. 60 at 2-3; Gov’t’s Opp’n, ECF No. 29 at 10.

On May 7, 2021, Mr. Sullivan filed a motion to release the

seizure order related to his bank account in Utah and to forbid

seizures of other accounts. See Def.’s Mot., ECF No. 25. Mr.

Sullivan requested that the Court issue an order “discharging

the seizure of his bank account in Utah and to prevent any

further seizures of other bank accounts belonging to defendant.”

2 Id. at 1. In conjunction with the motion, Mr. Sullivan also

requested a “post-deprivation, pretrial hearing” to challenge

the sufficiency of the government’s evidence supporting the

seizure of assets. Id. at 4. The government filed its opposition

on May 21, 2021, see Gov’t’s Opp’n, ECF No. 29; and Mr. Sullivan

filed his reply brief on June 2, 2021, see Def.’s Reply, ECF No.

31.

On December 6, 2021, the Court denied Mr. Sullivan’s

motion. First, the Court held that a pretrial hearing was not

warranted in this case because Mr. Sullivan had not made the

threshold showing that he could not pay for rent or other

household necessities without access to the seized assets. 2 See

Mem. Op., ECF No. 60 at 10. Second, the Court held that, even if

Mr. Sullivan had met the threshold showing and the Court

proceeded to “ascertaining the requirements of the due process

2 In so holding, the Court assumed without deciding that the reasoning in United States v. Bikundi, 125 F. Supp. 3d 178 (D.D.C. 2015), applied in this case. In Bikundi, the district court found that Federal Rule of Criminal Procedure 32.2 did not “preclude[] an indicted defendant from invoking his due process rights before trial to test the sufficiency of probable cause for the forfeitability of seized property.” 125 F. Supp. 3d at 187-88. Though the defendant’s request was based upon the alleged need to access seized funds to pay for household necessities, and not the alleged need to obtain counsel, the court weighed the Mathews v. Eldridge factors and found that due process required it to provide “pretrial judicial review of the challenged seizure warrants,” even though the defendant raised “no Sixth Amendment claim that the seizure of the Disputed Funds implicates his right to counsel.” Id. at 183, 191. 3 clause by looking to the Supreme Court’s declarations in Mathews

v. Eldridge,” the Mathews factors would not weigh in his favor.

Mem. Op., ECF No. 60 at 14 (cleaned up). The Mathews factors

require a court to weigh “(1) the burdens that a requested

procedure would impose on the Government against (2) the private

interest at stake, as viewed alongside (3) the risk of an

erroneous deprivation of that interest without the procedure and

the probable value, if any, of the additional procedural

safeguard.” Kaley v. United States, 571 U.S. 323, 333 (2014)

(quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976))

(internal quotations and alterations omitted). The Court found

that the first Mathews factor weighed against Mr. Sullivan

because, though courts have found that the government’s

interests may be “outweighed by a criminal defendant’s interest

in obtaining the counsel of his or her choice,” Sunrise Academy

v. United States, 791 F. Supp. 2d 200, 207 (D.D.C. 2011) (citing

United States v. E-Gold, Ltd., 521 F.3d 411, 419 (D.C. Cir.

2008)), here, Mr. Sullivan’s interest in acquiring access to the

seized funds for rent and household necessities was “obviously

far less pressing” than a defendant’s exercise of his Sixth

Amendment right, see id. The Court also found that the second

factor weighed against Mr. Sullivan because he had not “provided

any evidence demonstrating that he [was] unable to pay for rent

or other household necessities without the seized assets.” Mem.

4 Op., ECF No. 60 at 15. And finally, the Court found that the

third factor did not weigh in Mr. Sullivan’s favor because

“[w]hile there may inevitably be ‘some risk’ that the ‘probable

cause finding reached in a non-adversarial context by a

magistrate judge’ is erroneous, Sunrise Academy, 791 F. Supp. 2d

at 206; Mr. Sullivan’s conclusory allegation that the proceeds

of the seized bank account are not the product of the criminal

activity alleged in the indictment carries little weight.” Mem.

Op., ECF No. 60 at 15. Indeed, Mr. Sullivan had “acknowledge[d]

that some of [his] assets were obtained from the sale of

videotape from January 6, 2021.” Id. at 16.

Mr. Sullivan filed a motion for reconsideration of the

Court’s Order and a “supplement” to his initial motion on

December 17, 2021. See Def.’s Mot., ECF No. 61. The government

filed its opposition on January 3, 2022. See Gov’t’s Opp’n, ECF

No. 63. The motion is ripe for adjudication.

II. Legal Standard

“Although the Federal Rules do not specifically provide for

motions for reconsideration in criminal cases, the Supreme Court

has recognized, in dicta, the utility of such motions.” United

States v. Ferguson, 574 F. Supp. 2d 111, 113 (D.D.C. 2008)

(citing United States v. Dieter, 429 U.S. 6, 8 (1976)). Courts

in this District have “adopted such a philosophy by regularly

entertaining motions for reconsideration in a criminal context,

5 applying the analogous Federal Rules of Civil Procedure.” In re

Extradition of Liuksila, 133 F. Supp. 3d 249, 255 (D.D.C. 2016);

see also United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C.

2009) (listing criminal cases applying standards from Federal

Rules of Civil Procedure in reconsideration context).

Motions for reconsideration of interlocutory orders may be

granted at any time before the entry of a final judgment “as

justice requires.” Cobell v. Jewell, 802 F.3d 12, 25 (D.C. Cir.

2015). This “abstract phrase” is generally interpreted

“narrowly” to permit reconsideration “only when the movant

demonstrates: (1) an intervening change in the law; (2) the

discovery of new evidence not previously available; or (3) a

clear error in the first order.” King & Spalding LLP v. U.S.

Dep’t of Health & Hum. Servs., 395 F. Supp. 3d 116, 119–20

(D.D.C. 2019); see also United States v. Sutton, No. 21-598

(PLF), 2021 WL 5999407, at *2 (D.D.C. Dec. 20, 2021) (“In

evaluating what ‘justice requires,’ the Court considers ‘whether

it patently misunderstood a party, has made a decision outside

the adversarial issues presented to the Court by the parties,

has made an error not of reasoning but of apprehension, or

[whether] a controlling or significant change in the law or

facts [has occurred] since the submission of the issue to the

Court.’”). Further, “for justice to require reconsideration,

logically, it must be the case that[] some sort of ‘injustice’

6 will result if reconsideration is refused. That is, the movant

must demonstrate that some harm . . . would flow from a denial

of reconsideration.” Cobell v. Norton, 355 F. Supp. 2d 531, 540

(D.D.C. 2005).

“Beyond these circumstances, a motion for reconsideration

should not be used as a vehicle for relitigating issues on which

the court already ruled because the party disagrees.” United

States v. Worrell, No. 21-cr-292-RCL, 2021 WL 2366934, at *10

(D.D.C. June 9, 2021). Moreover, “[a]rguments that could have

been, but were not, raised previously and arguments that the

court has already rejected are not appropriately raised in a

motion for reconsideration.” United States v. Booker, 613 F.

Supp. 2d 32, 34 (D.D.C. 2009).

III. Analysis

Mr. Sullivan does not argue that the Court’s December 6,

2021 ruling included legal error or that there has been an

intervening change in the law. Instead, he offers for the

Court’s consideration additional facts regarding his financial

situation and financial outlook. See Def.’s Mot., ECF No. 61.

Specifically, Mr. Sullivan’s motion for reconsideration includes

further details regarding the vehicles he owns; the salary he

earned while working for his father in 2021; his monthly rent;

the approximate amount of money his parents give him to assist

in paying his expenses; the approximate amount of money he has

7 in his bank accounts; and the current status of his car

insurance and health insurance. Id. at 3-4, 15-17. In addition,

he provided the Court with a notice of eviction he received on

November 17, 2021; credit score reports; credit card statements;

a declaration from his father including information about Mr.

Sullivan’s salary and the extent to which he and his wife assist

Mr. Sullivan with additional resources; and a declaration from

Mr. Sullivan summarizing his monthly expenses. Id. at 8-17.

Mr. Sullivan, however, offers no explanation for why he

could not have presented these additional facts to the Court

prior to the entry of judgment. See Miller v. Rosenker, No. 05-

2478 (GK), 2008 WL 11403193, at *1 (D.D.C. Sept. 4, 2008) (“A

fact is not ‘new’ simply because the [party] has neglected to

use it as the basis for an argument in a previous filing.

Rather, to be considered ‘new,’ a previously unavailable fact

must become available.”); Hentif v. Obama, 883 F. Supp. 2d 97,

100 (D.D.C. 2012) (“Evidence is not ‘newly discovered’ if a

party had the ability to present it to the finder of fact prior

to entry of judgment.”). Nor does Mr. Sullivan assert that the

additional information he wishes the Court to consider was

previously unavailable despite the exercise of due diligence.

See Ctr. for Pub. Integrity v. FCC, 515 F. Supp. 2d 167, 169 n.1

(D.D.C. 2007) (“Plaintiff’s failure to investigate a possible

argument prior to the judgment does not make the results of its

8 research ‘new evidence’ . . . .”). Because it is well-

established that a party may not use a motion for

reconsideration to introduce additional facts not raised prior

to the entry of judgment—and because there is no argument that

the Court committed error or that there has been a significant

change in the law—Mr. Sullivan’s arguments are not appropriately

before the Court in a motion for reconsideration. See, e.g.,

Carter v. Wash. Metro. Area Transit Auth., 503 F.3d 143, 145 n.2

(D.C. Cir. 2007) (“Reconsideration is not an appropriate forum

for rehashing previously rejected arguments or arguing matters

that could have been heard during the pendency of the previous

motion.” (quoting Caisse Nationale de Credit Agricole v. CBI

Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996)).

Moreover, even if the Court accepted that the additional

details constituted new evidence not previously available, Mr.

Sullivan’s arguments would still fail.

As the government points out, there are multiple

inconsistencies or unexplained gaps in the financial information

provided. See Gov’t’s Opp’n, ECF No. 63 at 3. For example, it is

unclear why Mr. Sullivan reported his monthly expenses to be

“$2,000-$2,250” on January 14, 2021, but in his most recent

motion for reconsideration, he reports that his monthly

household expenses have increased substantially to “$6,018.44.”

See id. (noting that Mr. Sullivan’s current expenses are “over

9 three times what he reported upon arrest”); see also Def.’s

Mot., ECF No. 61 at 16. In addition, Mr. Sullivan’s motion for

reconsideration excludes, without explanation, sources of income

that he had previously reported, such as his Google ad deposits,

401K deposits, and freight broker contracts. See Def.’s Mot.,

ECF No. 61 at 3 (claiming that Mr. Sullivan “has no other

sources of income” other than the money he earns while working

with his father and the money he borrows from his family);

Gov’t’s Opp’n, ECF No. 63 at 4 (noting the sources of income

that have been “dropped” from the motion for reconsideration).

And even assuming that the new information Mr. Sullivan

provides in his motion is credible and meets the threshold

showing of financial need, thereby addressing the Court’s first

holding in its December 6, 2021 Memorandum Opinion, the motion

for reconsideration still fails address the Court’s alternative

holding that the Mathews balancing test 3 does not weigh in Mr.

Sullivan’s favor. At most, the details in Mr. Sullivan’s motion

would impact the Court’s analysis of the second Mathews factor,

which concerns the private interest at stake. However, Mr.

3 As stated in Section II, the Mathews factors require a court to weigh “(1) the burdens that a requested procedure would impose on the Government against (2) the private interest at stake, as viewed alongside (3) the risk of an erroneous deprivation of that interest without the procedure and the probable value, if any, of the additional procedural safeguard.” Kaley, 571 U.S. at 333 (quoting Mathews, 424 U.S. at 335) (internal quotations and alterations omitted). 10 Sullivan has not provided any arguments or case law casting

doubt on the Court’s finding that the first and third Mathews

factors—the burden on the government and the risk of erroneous

deprivation, respectively—weigh against him. Thus, the new

information provided in the motion for reconsideration would not

change the result of the balancing inquiry.

In view of the above, the Court shall deny Mr. Sullivan’s

request for a post-deprivation, pretrial hearing to challenge

the seizure of his assets. In line with the Federal Rules of

Criminal Procedure, Mr. Sullivan’s arguments shall therefore be

addressed at a post-trial or post-plea hearing. See United

States Bikundi, 125 F. Supp. 3d 178, 184 (D.D.C. 2015) (“Once

the government has obtained a seizure warrant pursuant to 21

U.S.C. § 853(f), the Federal Rules of Criminal Procedure provide

for no further inquiry into the property’s forfeitability until

disposition of the criminal charges on which the forfeiture is

predicated.” (citing Fed. R. Crim. P. 32.2(b)(1)(A))).

11 IV. Conclusion

For the reasons stated above, the Court DENIES Mr.

Sullivan’s motion for reconsideration. An appropriate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge August 1, 2022