01-03-22 - Memorandum in Opposition by USA as to JOHN EARLE SULLIVAN re 61 MOTION for Reconsideration Motion for Reconsideration of December 6, 2021.txt

1 
  UNITED STATES DISTRICT COURT  
 FOR THE DISTRICT OF COLUMBIA 
 
 UNITED STATES OF AMERICA  :   
 :   
 :  
             v.  :  No. 21- CR-78-EGS  
 :  
 : 
JOHN EARLE SULLIVAN,  : 
 : 
                   Defendant.           : 
    
GOVERNMENT ’S MEMORANDUM  IN OPPOSITION TO  
DEFENDANT’S “MOTION FOR RECONSIDERATION OF DECEMBER 6, 2021 
DENIAL OF MOTION TO RELEASE SEIZURE ORDER AND SUPPLEMENT TO 
MOTION TO RELEASE SEIZURE ORDER” 
 
The United States of America, by and through its attorney, the United States Attorney f or 
the District of Columbia, respectfully submits this memorandum in opposition to the defendant’s 
“Motion for Reconsideration of December 6, 2021 Denial of Motion to Release Seizure Order and 
Supplement to Motion to Release Seizure Order.”  D.E. 61.1  The motion should be denied.   
The Court’s well -reasoned, 16- page ruling was thorough and correct .   
Motions to reconsider “apply only to ‘extraordinary situations’ and ‘should be only 
sparingly used.’”  United States v. Pollard, 290 F. Supp. 2d 153, 157 (D.D.C . 2003).  Such 
extraordinary contexts include, for instance, “ whether the Court ‘patently’ misunderstood the 
parties, made a decision beyond the adversarial issues presented, made an error in failing to 
consider controlling decisions or data, or whether a controlling or significant change in the law has 
 
1 Due to the holiday , the undersigned previously obtained defense couns el’s consent  to respond to defendant ’s 
motion, filed on December 17, 2021, on Monday, January 3, 2022,  rather than Friday , December 31, 2021,  and 
notified Chambers  in advance .    Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 1 of 92 
 occurred.”   Isse v. Am. Univ., 544 F.Supp.2d 25, 29 (D.D.C. 2008).  “‘ [W]hile the law of the case 
doctrine does not necessarily apply to interlocutory orders, district courts generally consider the 
doctrine ’s underlying rationale when deciding whether to reconsider an earlier decision’”; thus, 
motions for reconsideration are “‘subj ect to the caveat that, where litigants have once battled for 
the Court's decision, they should neither be required, nor without good reason permitted, to battle 
for it again.’”   United  States  v. Sunia, 643 F. Supp. 2d 51, 61 (D.D.C. 2009).  The defendant’ s 
motion – which attempts  to supplement his claim of financial need, and makes no claim of a change 
in law or clear error – falls well short of the demanding standard  that reconsideration merits . 
The defendant ’s motion for reconsideration seeks to revive h is request  “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’” and hold a “‘post -deprivation, pretrial hearing’ to 
challenge the sufficiency  of the government’s evidence supporting the seizure of assets.”  D.E. 
60, at 1- 2 (quoting Deft’s Motion).  Specifically, the motion attempts to fill in certain illustrative 
gaps highlighted by the Court in discussing the defendant’s deficient threshold showing of 
financial need.  But as discussed at greater length below, even if the defendant’s newest factual 
claims were to be credited, they are non- responsive to much of the Court’s reasoning undergirding 
the denial:  T he defendant’s  threshold showing remains, at best, incomplete .  Even if the 
defendant were found to have made a threshold showing, this Court ’s denial  of his motion 
unambiguously relied on reasons in the alternative  to that deficient threshold showing.  And the 
motion offers no su pplement whatsoever to his conclusory challenge to traceability – the ultimate 
issue on which the defendant claims a pretrial hearing is required to contest – a matter on which 
this Court ’s opinion already observed that his argument “carries little weight. ”   Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 2 of 93 
 First, it remains questionable whether the defendant  has carried his burden of “clearly 
establish[ing]” a need for seized assets to satisfy rent or other “ household necessities .”  Cf. United 
States v. E -Gold , Ltd., 521 F.3d 411, 417, 421 (D.C. Cir. 2008) ; United States v. Unimex , Inc., 991 
F.2d 546, 551 (9th Cir. 1993) (“To determine whether a hearing is required, the court must decide 
whether the moving papers filed, including affidavits, are sufficiently definite, specific, detailed, and nonconjectura l”).  There remain factual gaps and issues raised by the defendant’s shifting, 
conjectural , and otherwise vague representations .
2  As an initial matter, upon his January 14, 
2021 arrest and ensuing Pretrial Services interview, the defendant put his monthly expenses at 
“$2,000- $2,250.”  The defendant’s reply to his motion for release of funds then placed his 
monthly household needs at $4,800.  The defendant’s reconsideration motion now again increases  his monthly household needs to $6,018.44 ($72,221 per year)  – over three times what he 
reported upon arrest .   
The government also notes that the defendant reported to Pretrial Services upon his January 
14, 2021 arrest that he had $51,000 of funds in his bank accounts.  The defendant earned at least 
$90,875 in proceeds from his January 6 footage, all of which was deposited into his bank account 
after his Pretrial Services interview .  The government in late April 2021 seized only $62,813.76 
from a single ba nk account of the defendant, raising reasonable questions  about where and how 
the defendant apparently handled or expended the remaining approximately $80,000 in that time.  
In any event, t his Court ’s 16-page opinion observed that “Mr. Sullivan has submitt ed a 
 
2Certain questions are raised by the defendant’s latest representations .  For instance, he attributes 
his credit score falling to 559 since June 2020 to the April 2021 seizure.  I n fact, his report shows 
that on April 23, 2021, days  before the seizure warrants  were served , his credit score already 
dipped to 566.  He also char acterizes the entirety of his credit card statement balances from one 
month, December 2021 , as “credit card debt” without explanation or unpacking. Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 3 of 94 
 declaration to the Court that merely provides a ‘summary’ of his ‘monthly household needs’ 
totaling $4,800 a month, as well as a ‘ partial  listing of sources of … income’” without “any 
information regarding … the value of any assets he may have.”  D.E. 60 at 11.  As noted, t he 
defendant has now proffered another such “summary”  listing needs totaling $6,018.44.  It is not 
self-evident that various line items  encompassed in his summaries – e.g., $250 in monthly 
“subscriptions” ; a “minimum credit card payments” expense on top of his enumerated household 
expenses ; or $250 in “entertainment,” $100 in “shopping,” $150 in “savings,” or $300 in “self 
care” as in his original listing – comprise bona fide  “household necessities.”   It is al so unclear 
why t he defendant ’s summary  has now, without explanation, dropped two “sources of income” he 
previously noted (“Google ad sense deposits” and “401 K Deposits” ).  N or is it explained what 
happened to the “approximately $450 per month from previous contracts he obtained while working as a freight broker” that he told Pretrial Services he was “still receiv[ing]” upon his arrest .  
And the defendant still has not provided any comprehensive listing of his “liquid and non- liquid 
assets,” even as he ackn owledges that he has been able to sell certain non -liquid assets this year 
“to pay expenses.”  D.E. 61 at 15; cf. D.E. 60 at 12 (comparing defendant’s declaration to detailed 
proffers about assets made by the defendants in E -Gold ).   
Second, this Court’s denial unambiguously relied on reasons in the alternative to, and in 
addition to, his deficient “threshold showing ” of financial need – alternat ive reasons that the 
reconsideration motion does not address.  T his Court went on to rule, “Second, even if the Court 
proceeded to  ‘ascertaining the requirements of the due process clause’ by ‘look[ing] … to the 
Supreme Court’s declarations in Mathews v. Eldridge ’ … the result would remain the same .”  
D.E. 60 at 13 (em phasis added) .  The Court proceeded to observe that “Mr. Sullivan’s interest in Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 4 of 95 
 acquiring access to the seized funds for rent and household necessities ‘is obviously far less 
pressing’ than a defendant’s exercise of his Sixth Amendment right.”  D.E. 60 at 14.  Inde ed, 
courts have contrasted the extraordinary permanence of injury in a trial tainted by a violation of 
the defendant’s Sixth Amendment right – a “right that must be addressed before trial, if it is to be 
addressed at all” – with “a defendant’s wis h to use his property in whatever manner he sees fit.” 
United States v. Monsanto, 924 F.2d 1186, 1193 (2d Cir. 1991).  And “as for the “risk of 
erroneous deprivation”  under Mathews , this Court noted that the defendant’s “conclusory 
allegation that the proc eeds of the seized bank account are not the product of the criminal activity 
alleged in the indictment carries little weight,” observing that in his declaration even the defendant 
acknowledged that assets of his were “‘ obtained from sale of videotape from January 6, 2021.’ ”  
D.E. 60 at 15 (emphasis added) .  Those reasons remain fully intact, and the balancing of 
considerations – even if the defendant’s additional claims about his finances are to be credited –  
still weighs in favor of adjudicating his arguments at a post -trial proceeding in the ordinary course.  
See Kaley v. United States , 571 U.S. 320, 334 (2014) (finding that no pretrial hearing was 
warranted “[e]ven if Mathews applied” ; because “a seizure o f the Kaleys’ property is erroneous 
only if unsupported by probable cause, the added procedure demanded here is not sufficiently likely to make any difference” ); id. at 327 (“With probable cause, a freeze is valid” and nothing 
about even a “defendant ’s interest in retaining a lawyer with the disputed assets change[s] the 
equation”) .   
At bottom, the reconsideration motion makes additional financial representations, but cites 
no additional legal  authority.  T he defendant does not dispute , not could he, the legal framework 
laid out by this Court’s opinion.  Accordingly, i t is not disputed that once the government has Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 5 of 96 
 obtained a seizure warrant, “the Federal Rules of Criminal Procedure provide for no further inquiry 
into the property’s forfeitability unti l disposition of the criminal charges on which the forfeiture is 
predicated.”  D.E. 60 at 6.  It is not disputed that the Supreme Court has “declined to opine” on 
whether a pretrial hearing should be provided to challenge traceability to the crime , nor that, while 
lower courts have afforded a qualified right to such hearings when the seized assets implicate the 
right to counsel of choice , “the D.C. Circuit has never addressed the question” outside that right -
to-counsel context.  D.E. 60 at 8.  Nor is it in dispute that one decision in this district, United 
States v. Bikundi, 125 F. Supp. 3d 178 (D.D.C. 2015), found “pretrial judicial review  of the 
challenged seizure warrants” ( and not a pretrial hearing) to be warranted despite  the absence of a 
Sixth Amendme nt claim, but in so holding, found “[c]ritical to its decision … the defendant’s 
substantial evidence regarding ‘near -term financial obligations and his apparent inability to meet 
those obligations without release of the seized assets ’ as well as express d isclaimers regarding the 
traceability of the assets in the government’s affidavit supporting the seizure warrant .”  D.E. 60 
at 9 (emphasis added) .   
The pretrial hearing the defendant has requested (as compared to the more limited review  
of the seizure aff idavit undertaken in Bikundi ) has no precedent in this district beyond the right -
to-counsel context .  And the defendant has not pointed to any traceability gaps  or disclaimers in 
the seizure warrants  to flesh out red flags remotely analogous to the “critical” second consideration 
in Bikundi .  That bears emphasis because, as noted, the Court  already found this defendant’s 
traceability claim – the very issue on which he argues he was erroneously deprived his assets – to be “conclusory”  and “carr[y] little weight.”  D.E. 60 at 15.  It thus remains the case that the 
defendant  has not even satisfied the premises of Bikundi  – a decision which, in any event, this Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 6 of 97 
 Court did not hold that it was adopting.  Cf. D.E. 60 at 10 (“Even if the Court  agreed with the 
reasoning of Bikundi  ….”).  
 In short, as the magistrate judge in this case found in signing two seizure warrants, there is 
ample probable cause to believe the seized funds – a portion of the $90,875 in profits that the 
defendant reaped from selling his video footage from his storming and breach of the U.S. Capitol 
on January 6, 2021 – are forfeitable proceeds.  As this Court appropriately recognized, “[t]he 
pretrial seizure of forfeitable property is authorized” by statute, and part and parcel of the “‘strong governmental interest in obtaining full recovery of all forfeitable assets.’” D.E. 60 at 5 -6.  T he 
defendant is free to contest the forfeitability of the seized funds, but should be limited to doing so 
in the manner prescribed by Federal Rule of Criminal Procedure 32.2(b)(1)(A) – at trial.  That is the process he is due and the Constitution demands nothing more. 
CONCLUSION 
WHEREFORE, th e United States respectfully requests that the  Court deny the defendant’s 
motion for reconsideration of its December 6, 2021 opinion denying the defendant’s motion to 
release the seizure order and forbid seizures of other accounts .   
     
 Respectfully submitted,  
 
      MATTHEW M. GRAVES  
UNITED STATES ATTORNEY  
 
 
            
   by:   Candice C. Wong  
      D.C. Bar No. 990903 
Assistant United States Attorney  
555 4th Street, N.W., room 4816 
Washington, D.C. 20530 (202) 252-7849 Candice.wong@usdoj.gov 
Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 7 of 98 
  
  Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 8 of 99 
 CERTIFICATE OF SERVICE  
 
I hereby certify that on January 3, 2022, I caused a copy of the foregoing motion  to be 
served on counsel of record via electronic filing.  
 
 
   ______________  
Candice C. Wong  
Assistant United States Attorney  
 
 
Case 1:21-cr-00078-EGS   Document 63   Filed 01/03/22   Page 9 of 9