johnearlesullivan/capitol · Datasets at Hugging Face

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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

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