08-01-22 - MEMORANDUM OPINION as to JOHN EARLE SULLIVAN..txt

1 
 UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
 
UNITED STATES OF AMERICA, 
 
v.  
 
JOHN EARLE SULLIVAN,  
  
Defendant.  
 
 Crim. Action No. 21-78 (EGS) 
 
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. Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 1 of 122 
 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.” Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 2 of 123 
 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.  Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 3 of 124 
 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. Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 4 of 125 
 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, Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 5 of 126 
 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’ Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 6 of 127 
 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 Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 7 of 128 
 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 Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 8 of 129 
 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 Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 9 of 1210 
 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 test3 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). Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 10 of 1211 
 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))). 
  Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 11 of 1212 
 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 Case 1:21-cr-00078-EGS   Document 81   Filed 08/01/22   Page 12 of 12