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UNITED STATES DISTRICT COURT |
FOR THE DISTRICT OF COLUMBIA |
UNITED STATES OF AMERICA : |
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v. : No. 21- CR-78-EGS |
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JOHN EARLE SULLIVAN, : |
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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 |
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The task_categories "conversational" is not in the official list: text-classification, token-classification, table-question-answering, question-answering, zero-shot-classification, translation, summarization, feature-extraction, text-generation, text2text-generation, fill-mask, sentence-similarity, text-to-speech, text-to-audio, automatic-speech-recognition, audio-to-audio, audio-classification, voice-activity-detection, depth-estimation, image-classification, object-detection, image-segmentation, text-to-image, image-to-text, image-to-image, image-to-video, unconditional-image-generation, video-classification, reinforcement-learning, robotics, tabular-classification, tabular-regression, tabular-to-text, table-to-text, multiple-choice, text-retrieval, time-series-forecasting, text-to-video, image-text-to-text, visual-question-answering, document-question-answering, zero-shot-image-classification, graph-ml, mask-generation, zero-shot-object-detection, text-to-3d, image-to-3d, image-feature-extraction, other
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