johnearlesullivan/capitol · Datasets at Hugging Face

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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


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :
: v. : Criminal No. 1:21- cr-00078- EGS
: JOHN EARLE SULLIVAN, :
Defendant. :

UNITED STATES’ SUPPLEMENT TO OPPOSITION TO DEFENDANT’S “MOTION
TO ADOPT AND JOIN RELEVANT PORTIONS OF MOTION TO DISMISS COUNT 2
OF THE INDICTMENT IN UNITED STATES V. CALDWELL, 21 -CR-28 (APM) AND
TO DISMISS COUNT 1 OF THIS SUPERSEDING INDICTMENT”

On January 10, 2022, the government ’s opposition to the defendant ’s “Motion to Adopt
and Join Relevant Portions of Motion to Dismiss Count 2 of the Indictment in United States v.

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

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :

: v. : Criminal No. 1:21- cr-00078- EGS

: JOHN EARLE SULLIVAN, :

Defendant. :

UNITED STATES’ SUPPLEMENT TO OPPOSITION TO DEFENDANT’S “MOTION

TO ADOPT AND JOIN RELEVANT PORTIONS OF MOTION TO DISMISS COUNT 2

OF THE INDICTMENT IN UNITED STATES V. CALDWELL, 21 -CR-28 (APM) AND

TO DISMISS COUNT 1 OF THIS SUPERSEDING INDICTMENT”

On January 10, 2022, the government ’s opposition to the defendant ’s “Motion to Adopt

and Join Relevant Portions of Motion to Dismiss Count 2 of the Indictment in United States v.