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UNITED STATES DISTRICT COURT |
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FOR THE DISTRICT OF COLUMBIA |
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UNITED STATES OF AMERICA, |
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v. |
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JOHN EARLE SULLIVAN, |
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Defendant. |
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Crim. Action No. 21-78 (EGS) |
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MEMORANDUM OPINION |
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Defendant John Sullivan (“Mr. Sullivan”) is charged in a |
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multi-count Superseding Indictment arising from his alleged |
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participation in the events at the U.S. Capitol on January 6, |
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2021. See Superseding Indictment, ECF No. 56.1 Pending before the |
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Court is Mr. Sullivan’s Motion for Reconsideration of the Court’s December 6, 2021 Denial of Motion to Release Seizure |
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Order and Supplement to Motion to Release Seizure Order. Def.’s Mot., ECF No. 61. |
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Upon careful consideration of the motion and opposition |
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thereto, the applicable law, and the entire record herein, the |
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Court hereby DENIES Mr. Sullivan’s motion for reconsideration. |
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1 When citing electronic filings throughout this Memorandum |
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Opinion, the Court cites to the ECF page number, not the page |
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number of the filed document. Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 1 of 122 |
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I. Background |
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As described in the Court’s December 6, 2021 Memorandum |
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Opinion, on April 28, 2021, a magistrate judge approved two sealed warrants authorizing the government’s seizure of $89,875 |
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in Mr. Sullivan’s bank account ending in 7715 and $1,000 in the |
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Venmo account linked to Mr. Sullivan’s bank account. See Mem. |
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Op., ECF No. 60 at 2-3; Gov’t’s Opp’n, ECF No. 29 at 10. The |
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magistrate judge found probable cause to believe that the assets |
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were forfeitable based on the supporting affidavit stating that |
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the “funds Sullivan obtained by filming and selling footage of |
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the January 6, 2021 Capitol riots . . . would not have existed |
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but for Sullivan’s illegal participation in and encouragement of |
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the riots, property destruction, and violence inside the U.S. |
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Capitol in violation of 18 U.S.C. § 1512(c).” Mem. Op., ECF No. |
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60 at 2-3; Gov’t’s Opp’n, ECF No. 29 at 10. The warrants were |
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served on April 29, 2021, and the government seized a balance of |
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$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. |
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On May 7, 2021, Mr. Sullivan filed a motion to release the |
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seizure order related to his bank account in Utah and to forbid |
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seizures of other accounts. See Def.’s Mot., ECF No. 25. Mr. |
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Sullivan requested that the Court issue an order “discharging |
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the seizure of his bank account in Utah and to prevent any |
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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 |
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Id. at 1. In conjunction with the motion, Mr. Sullivan also |
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requested a “post-deprivation, pretrial hearing” to challenge |
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the sufficiency of the government’s evidence supporting the |
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seizure of assets. Id. at 4. The government filed its opposition |
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on May 21, 2021, see Gov’t’s Opp’n, ECF No. 29; and Mr. Sullivan |
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filed his reply brief on June 2, 2021, see Def.’s Reply, ECF No. |
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31. |
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On December 6, 2021, the Court denied Mr. Sullivan’s |
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motion. First, the Court held that a pretrial hearing was not warranted in this case because Mr. Sullivan had not made the |
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threshold showing that he could not pay for rent or other |
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household necessities without access to the seized assets. |
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2 See |
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Mem. Op., ECF No. 60 at 10. Second, the Court held that, even if Mr. Sullivan had met the threshold showing and the Court |
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proceeded to “ascertaining the requirements of the due process |
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2 In so holding, the Court assumed without deciding that the |
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reasoning in United States v. Bikundi, 125 F. Supp. 3d 178 |
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(D.D.C. 2015), applied in this case. In Bikundi, the district |
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court found that Federal Rule of Criminal Procedure 32.2 did not |
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“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 |
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187-88. Though the defendant’s request was based upon the |
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alleged need to access seized funds to pay for household necessities, and not the alleged need to obtain counsel, the |
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court weighed the Mathews v. Eldridge factors and found that due |
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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 |
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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 |
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clause by looking to the Supreme Court’s declarations in Mathews |
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v. Eldridge,” the Mathews factors would not weigh in his favor. |
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Mem. Op., ECF No. 60 at 14 (cleaned up). The Mathews factors |
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require a court to weigh “(1) the burdens that a requested |
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procedure would impose on the Government against (2) the private |
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interest at stake, as viewed alongside (3) the risk of an |
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erroneous deprivation of that interest without the procedure and |
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the probable value, if any, of the additional procedural |
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safeguard.” Kaley v. United States, 571 U.S. 323, 333 (2014) |
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(quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)) |
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(internal quotations and alterations omitted). The Court found |
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that the first Mathews factor weighed against Mr. Sullivan |
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because, though courts have found that the government’s |
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interests may be “outweighed by a criminal defendant’s interest |
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in obtaining the counsel of his or her choice,” Sunrise Academy |
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v. United States, 791 F. Supp. 2d 200, 207 (D.D.C. 2011) (citing |
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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 |
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seized funds for rent and household necessities was “obviously |
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far less pressing” than a defendant’s exercise of his Sixth |
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Amendment right, see id. The Court also found that the second |
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factor weighed against Mr. Sullivan because he had not “provided |
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any evidence demonstrating that he [was] unable to pay for rent |
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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 |
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Op., ECF No. 60 at 15. And finally, the Court found that the |
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third factor did not weigh in Mr. Sullivan’s favor because |
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“[w]hile there may inevitably be ‘some risk’ that the ‘probable |
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cause finding reached in a non-adversarial context by a |
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magistrate judge’ is erroneous, Sunrise Academy, 791 F. Supp. 2d |
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at 206; Mr. Sullivan’s conclusory allegation that the proceeds |
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of the seized bank account are not the product of the criminal |
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activity alleged in the indictment carries little weight.” Mem. |
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Op., ECF No. 60 at 15. Indeed, Mr. Sullivan had “acknowledge[d] |
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that some of [his] assets were obtained from the sale of |
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videotape from January 6, 2021.” Id. at 16. |
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Mr. Sullivan filed a motion for reconsideration of the |
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Court’s Order and a “supplement” to his initial motion on |
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December 17, 2021. See Def.’s Mot., ECF No. 61. The government |
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filed its opposition on January 3, 2022. See Gov’t’s Opp’n, ECF |
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No. 63. The motion is ripe for adjudication. |
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II. Legal Standard |
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“Although the Federal Rules do not specifically provide for |
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motions for reconsideration in criminal cases, the Supreme Court |
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has recognized, in dicta, the utility of such motions.” United |
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States v. Ferguson, 574 F. Supp. 2d 111, 113 (D.D.C. 2008) |
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(citing United States v. Dieter, 429 U.S. 6, 8 (1976)). Courts |
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in this District have “adopted such a philosophy by regularly |
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entertaining motions for reconsideration in a criminal context, Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 5 of 126 |
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applying the analogous Federal Rules of Civil Procedure.” In re |
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Extradition of Liuksila, 133 F. Supp. 3d 249, 255 (D.D.C. 2016); |
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see also United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. |
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2009) (listing criminal cases applying standards from Federal |
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Rules of Civil Procedure in reconsideration context). |
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Motions for reconsideration of interlocutory orders may be |
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granted at any time before the entry of a final judgment “as |
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justice requires.” Cobell v. Jewell, 802 F.3d 12, 25 (D.C. Cir. |
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2015). This “abstract phrase” is generally interpreted |
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“narrowly” to permit reconsideration “only when the movant |
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demonstrates: (1) an intervening change in the law; (2) the |
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discovery of new evidence not previously available; or (3) a |
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clear error in the first order.” King & Spalding LLP v. U.S. |
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Dep’t of Health & Hum. Servs., 395 F. Supp. 3d 116, 119–20 |
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(D.D.C. 2019); see also United States v. Sutton, No. 21-598 |
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(PLF), 2021 WL 5999407, at *2 (D.D.C. Dec. 20, 2021) (“In |
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evaluating what ‘justice requires,’ the Court considers ‘whether it patently misunderstood a party, has made a decision outside |
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the adversarial issues presented to the Court by the parties, |
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has made an error not of reasoning but of apprehension, or |
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[whether] a controlling or significant change in the law or |
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facts [has occurred] since the submission of the issue to the |
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Court.’”). Further, “for justice to require reconsideration, |
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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 |
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will result if reconsideration is refused. That is, the movant |
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must demonstrate that some harm . . . would flow from a denial |
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of reconsideration.” Cobell v. Norton, 355 F. Supp. 2d 531, 540 |
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(D.D.C. 2005). |
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“Beyond these circumstances, a motion for reconsideration |
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should not be used as a vehicle for relitigating issues on which |
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the court already ruled because the party disagrees.” United |
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States v. Worrell, No. 21-cr-292-RCL, 2021 WL 2366934, at *10 |
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(D.D.C. June 9, 2021). Moreover, “[a]rguments that could have |
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been, but were not, raised previously and arguments that the |
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court has already rejected are not appropriately raised in a |
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motion for reconsideration.” United States v. Booker, 613 F. |
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Supp. 2d 32, 34 (D.D.C. 2009). |
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III. Analysis |
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Mr. Sullivan does not argue that the Court’s December 6, |
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2021 ruling included legal error or that there has been an |
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intervening change in the law. Instead, he offers for the Court’s consideration additional facts regarding his financial |
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situation and financial outlook. See Def.’s Mot., ECF No. 61. |
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Specifically, Mr. Sullivan’s motion for reconsideration includes |
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further details regarding the vehicles he owns; the salary he |
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earned while working for his father in 2021; his monthly rent; |
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the approximate amount of money his parents give him to assist |
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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 |
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in his bank accounts; and the current status of his car |
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insurance and health insurance. Id. at 3-4, 15-17. In addition, |
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he provided the Court with a notice of eviction he received on |
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November 17, 2021; credit score reports; credit card statements; |
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a declaration from his father including information about Mr. |
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Sullivan’s salary and the extent to which he and his wife assist |
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Mr. Sullivan with additional resources; and a declaration from |
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Mr. Sullivan summarizing his monthly expenses. Id. at 8-17. |
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Mr. Sullivan, however, offers no explanation for why he |
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could not have presented these additional facts to the Court |
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prior to the entry of judgment. See Miller v. Rosenker, No. 05- |
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2478 (GK), 2008 WL 11403193, at *1 (D.D.C. Sept. 4, 2008) (“A |
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fact is not ‘new’ simply because the [party] has neglected to |
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use it as the basis for an argument in a previous filing. |
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Rather, to be considered ‘new,’ a previously unavailable fact |
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must become available.”); Hentif v. Obama, 883 F. Supp. 2d 97, |
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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 |
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to entry of judgment.”). Nor does Mr. Sullivan assert that the |
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additional information he wishes the Court to consider was |
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previously unavailable despite the exercise of due diligence. |
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See Ctr. for Pub. Integrity v. FCC, 515 F. Supp. 2d 167, 169 n.1 |
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(D.D.C. 2007) (“Plaintiff’s failure to investigate a possible |
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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 |
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research ‘new evidence’ . . . .”). Because it is well- |
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established that a party may not use a motion for |
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reconsideration to introduce additional facts not raised prior |
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to the entry of judgment—and because there is no argument that |
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the Court committed error or that there has been a significant |
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change in the law—Mr. Sullivan’s arguments are not appropriately |
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before the Court in a motion for reconsideration. See, e.g., |
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Carter v. Wash. Metro. Area Transit Auth., 503 F.3d 143, 145 n.2 |
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(D.C. Cir. 2007) (“Reconsideration is not an appropriate forum |
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for rehashing previously rejected arguments or arguing matters |
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that could have been heard during the pendency of the previous |
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motion.” (quoting Caisse Nationale de Credit Agricole v. CBI |
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Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996)). |
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Moreover, even if the Court accepted that the additional |
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details constituted new evidence not previously available, Mr. |
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Sullivan’s arguments would still fail. |
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As the government points out, there are multiple |
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inconsistencies or unexplained gaps in the financial information provided. See Gov’t’s Opp’n, ECF No. 63 at 3. For example, it is |
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unclear why Mr. Sullivan reported his monthly expenses to be |
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“$2,000-$2,250” on January 14, 2021, but in his most recent |
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motion for reconsideration, he reports that his monthly |
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household expenses have increased substantially to “$6,018.44.” |
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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 |
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three times what he reported upon arrest”); see also Def.’s |
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Mot., ECF No. 61 at 16. In addition, Mr. Sullivan’s motion for |
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reconsideration excludes, without explanation, sources of income |
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that he had previously reported, such as his Google ad deposits, |
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401K deposits, and freight broker contracts. See Def.’s Mot., |
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ECF No. 61 at 3 (claiming that Mr. Sullivan “has no other |
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sources of income” other than the money he earns while working |
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with his father and the money he borrows from his family); |
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Gov’t’s Opp’n, ECF No. 63 at 4 (noting the sources of income |
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that have been “dropped” from the motion for reconsideration). |
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And even assuming that the new information Mr. Sullivan |
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provides in his motion is credible and meets the threshold |
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showing of financial need, thereby addressing the Court’s first |
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holding in its December 6, 2021 Memorandum Opinion, the motion |
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for reconsideration still fails address the Court’s alternative |
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holding that the Mathews balancing test3 does not weigh in Mr. |
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Sullivan’s favor. At most, the details in Mr. Sullivan’s motion |
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would impact the Court’s analysis of the second Mathews factor, |
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which concerns the private interest at stake. However, Mr. |
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3 As stated in Section II, the Mathews factors require a court to |
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weigh “(1) the burdens that a requested procedure would impose |
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on the Government against (2) the private interest at stake, as |
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viewed alongside (3) the risk of an erroneous deprivation of |
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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 |
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alterations omitted). Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 10 of 1211 |
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Sullivan has not provided any arguments or case law casting |
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doubt on the Court’s finding that the first and third Mathews |
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factors—the burden on the government and the risk of erroneous |
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deprivation, respectively—weigh against him. Thus, the new |
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information provided in the motion for reconsideration would not |
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change the result of the balancing inquiry. |
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In view of the above, the Court shall deny Mr. Sullivan’s |
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request for a post-deprivation, pretrial hearing to challenge |
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the seizure of his assets. In line with the Federal Rules of |
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Criminal Procedure, Mr. Sullivan’s arguments shall therefore be |
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addressed at a post-trial or post-plea hearing. See United |
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States Bikundi, 125 F. Supp. 3d 178, 184 (D.D.C. 2015) (“Once |
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the government has obtained a seizure warrant pursuant to 21 |
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U.S.C. § 853(f), the Federal Rules of Criminal Procedure provide |
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for no further inquiry into the property’s forfeitability until |
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disposition of the criminal charges on which the forfeiture is |
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predicated.” (citing Fed. R. Crim. P. 32.2(b)(1)(A))). |
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Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 11 of 1212 |
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IV. Conclusion |
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For the reasons stated above, the Court DENIES Mr. |
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Sullivan’s motion for reconsideration. An appropriate Order |
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accompanies this Memorandum Opinion. |
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SO ORDERED. |
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Signed: Emmet G. Sullivan |
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United States District Judge |
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August 1, 2022 Case 1:21-cr-00078-EGS Document 81 Filed 08/01/22 Page 12 of 12 |
