United States v. Sullivan

MEMORANDUM OPINION

Emmet G. Sullivan United States District Judge

Defendant John Sullivan (“Mr. Sullivan”) is charged in a multi-count Superseding Indictment arising from his alleged participation in the events at the U.S. Capitol on January 6, 2021. See Superseding Indictment, ECF No. 56. Now pending before the Court is Mr. Sullivan's motion to release the seizure order related to his bank account in Utah and to forbid seizures of other accounts. See Def.'s Mot., ECF No. 25. Mr. Sullivan requests 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.” Id. at 1.^[1] In conjunction with his motion, Mr. Sullivan has also requested a “post-deprivation, pretrial hearing” to challenge the

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sufficiency of the government's evidence supporting the seizure of assets. Id. at 4.

Upon consideration of the motion, the response, and reply thereto, the applicable law, and the entire record herein, the Court DENIES Mr. Sullivan's motion.

I. Procedural History

On February 3, 2021, Mr. Sullivan was charged in a six-count Indictment alleging the following violations of law: (1) obstruction of an official proceeding and aiding and abetting, in violation of 18 U.S.C. §§ 1512(c)(2) and 2; (2) civil disorder and aiding and abetting, in violation of 18 U.S.C. §§ 231(a)(3) and 2; (3) entering and remaining in a restricted building or grounds, in violation of 18 U.S.C. § 1752(a)(1); (4) disorderly and disruptive conduct in a restricted building or grounds, in violation of 18 U.S.C. § 1752(a)(2); (5) disorderly conduct in a Capitol building, in violation of 40 U.S.C. § 5104(e)(2)(D); and (6) parading, demonstrating, or picketing in a Capitol Building, in violation of 40 U.S.C. 5104(e)(2)(G). See Indictment, ECF No. 8.

On April 28, 2021, a magistrate judge approved two sealed warrants authorizing the government's seizure of $89, 875 in Mr. Sullivan's bank account ending in 7715 and $1, 000 in the Venmo account linked to Mr. Sullivan's bank account. See Gov't's Opp'n, ECF No. 29 at 10. The magistrate judge found probable

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cause to believe that the assets were forfeitable based on the supporting affidavit stating that the “funds Sullivan obtained by filming and selling footage of the January 6, 2021 Capitol riots . . . would not have existed but for Sullivan's illegal participation in and encouragement of the riots, property destruction, and violence inside the U.S. Capitol in violation of 18 U.S.C. § 1512(c).” Id. The warrants were served on April 29, 2021, and the government seized a balance of $62, 813.76 from the bank account ending in 7715. Id.

On May 19, 2021, Mr. Sullivan was charged in a Superseding Indictment that included two further charges and a forfeiture allegation. In addition to the charges in the initial Indictment, the Superseding Indictment charged Mr. Sullivan with the following new violations: (1) unlawful possession of a dangerous weapon on Capitol grounds or buildings, in violation of 40 U.S.C. § 5104(e)(1)(A)(i); and (2) false statement or representation made to an agency of the United States, in violation of 18 U.S.C. § 1001(a)(2). See Superseding Indictment, ECF No. 26. The Superseding Indictment also sought, upon conviction of the offense of obstruction of an official proceeding, in violation of 18 U.S.C. §§ 1512(c)(2), forfeiture of “any property, real and personal, which constitutes or is derived from proceeds traceable to the commission of the offense alleged.” Id. The forfeiture allegation specified, as property

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to be sought upon such a conviction, $89, 875 in Mr. Sullivan's bank account ending in 7715 and $1, 000 in the Venmo account ending in 2020 linked to Mr. Sullivan's bank account. Id. Mr. Sullivan was charged in a further Superseding Indictment on November 10, 2021. See Superseding Indictment, ECF No. 56.

On May 7, 2021, Mr. Sullivan filed a motion to release the seizure order related to his bank account in Utah and to forbid seizures of other accounts. See Def.'s Mot., ECF No. 25. The government filed its opposition on May 21, 2021, see Gov't's Opp'n, ECF No. 29; and Mr. Sullivan filed his reply brief on June 2, 2021, see Def.'s Reply, ECF No. 31. The motion is ripe for adjudication.

II. Analysis

Mr. Sullivan seeks a hearing on the government's seizure of assets he claims he needs to pay his rent and other “household necessities.” Def.'s Mot., ECF No. 25 at 5. He does not argue that access to the seized assets is necessary for an effective exercise of the Sixth Amendment right to counsel. See Def.'s Reply, ECF No. 31 at 1. He does, however, argue that “the proceeds of the seized bank account are not the product of criminal activity alleged in the indictment, ” and that he “is being deprived of his needed [assets] . . . in violation of the Due Process Clause of the United States Constitution.” Def.'s Mot., ECF No. 25 at 5.

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The government opposes Mr. Sullivan's request for the release of the seized assets and for a pretrial hearing. The government argues that there is a “dearth of caselaw supporting a pretrial hearing to contest the seizure where, as here, no Sixth Amendment right is at stake and the claimed basis is a need to pay household expenses.” Gov't's Opp'n, ECF No. 29 at 17. Moreover, even if a pretrial hearing was appropriate in such a context, the government contends that “[m]ore than conclusory allegations of a need to pay rent and unspecified household expenses is required as a condition precedent.” Id. at 18. Finally, the government argues that, even if the Court reaches the issues, the seized assets are sufficiently connected to Mr. Sullivan's alleged obstruction of an official proceeding on January 6, 2021. Id. at 22.

For the reasons discussed below, the Court concludes that a hearing is not warranted in this case and denies Mr. Sullivan's motion.

A. Legal Framework

“Forfeitures help to ensure that crime does not pay: They at once punish wrongdoing, deter future illegality, and ‘lessen the economic power' of criminal enterprises.” Kaley v. United States, 571 U.S. 320, 323 (2014) (quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 631 (1989)). Accordingly, the Supreme Court has long recognized the “strong

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governmental interest in obtaining full recovery of all forfeitable assets.” Id. (quoting Caplin & Drysdale, 491 U.S. at 631).

The pretrial seizure of forfeitable property is authorized by 21 U.S.C. § 853.^[2] See United States v. Bikundi, 125 F.Supp.3d 178, 184 (D.D.C. 2015). Under Section 853, the government may request a warrant from a federal court authorizing the pretrial seizure of property subject to forfeiture “in the same manner as provided for a search warrant.” 21 U.S.C. § 853(f). “Once the government has obtained a seizure warrant pursuant to 21 U.S.C. § 853(f), the Federal Rules of Criminal Procedure provide for no further inquiry into the property's forfeitability until

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disposition of the criminal charges on which the forfeiture is predicated.” Bikundi, 125 F.Supp.3d at 184 (citing Fed. R. Crim. P. 32.2(b)(1)(A)). At a post-trial or post-plea hearing, “[i]f the government seeks forfeiture of specific property, the court must determine whether the government has established the requisite nexus between the property and the offense.” Fed. R. Crim. P. 32.2(b)(1)(A).

“Notwithstanding the post-conviction process provided by Rule 32.2, the Supreme Court [in Kaley v. United States, 571 U.S. 320 (2014)] has made clear that pretrial seizure, pursuant to 21 U.S.C. § 853(f), necessarily requires two probable cause findings: (1) that ‘the defendant has committed an offense permitting forfeiture;' and (2) that ‘the property at issue has the requisite connection to that crime.'” Bikundi, 125 F.Supp.3d at 184 (quoting Kaley, 571 U.S. at 324). In Kaley, the Supreme Court addressed “‘whether the Due Process Clause requires a [pretrial] hearing' to establish either or both . . . aspects of forfeitability.” 571 U.S. at 324. The Supreme Court explained that a defendant is not entitled to a pretrial hearing on the first requirement-whether there is probable cause that the defendant has committed an offense permitting forfeiture- because “[t]he grand jury's determination is conclusive.” Id. at 331; see also Id. at 322. However, the court declined to decide whether a pretrial hearing should be provided when the defendant

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challenges the second requirement-whether there is probable cause that the property at issue is traceable to the crime. Id. at 324 n.3.

Though the Supreme Court declined to opine on whether a hearing is required to establish traceability, lower courts, including the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), “have generally provided a hearing to any indicted defendant seeking to lift an asset restraint to pay for a lawyer.” Id. at 324. For example, in United States v. E-Gold, Ltd., 521 F.3d 411 (D.C. Cir. 2008), the D.C. Circuit recognized that when the Sixth Amendment right to counsel is implicated, a pre-trial hearing on the forfeitability of the property at issue is required under the three-pronged test set out in Mathews v. Eldridge, 424 U.S. 319 (1976), for “determining the due process rights of citizens who were subjected to the seizure of their property or other constitutionally protected interests.” E-Gold, 521 F.3d at 416.

However, the D.C. Circuit has never addressed the question at issue in this case: whether the due process rights of a defendant require a pretrial evidentiary hearing “when the assets are not necessary to obtaining counsel of choice.” Id. at 421 (declining to consider “whether the due process rights of the defendants...