United States v. Sullivan

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Crim. Action No. 21-78
(EGS)

JOHN SULLIVAN,

Defendant.

MEMORANDUM OPINION

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

1
When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF page number, not the page
number of the filed document.
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

2 According to the government, the funds at issue are subject to
seizure under 18 U.S.C. § 981(a)(1)(C), used in conjunction with
28 U.S.C. § 2461(c), because Mr. Sullivan is charged with
obstruction of an official proceeding in violation of 18 U.S.C.
§ 1512. See Gov’t’s Opp’n, ECF No. 29 at 12. Section 2461(c)
states that “[i]f the defendant is convicted of the offense
giving rise to the forfeiture, the court shall order the
forfeiture of the property as part of the sentence in the
criminal case.” See Gov’t’s Opp’n, ECF No. 29 at 12 (quoting 28
U.S.C. § 2461(c)). By application of Section 2461(c), forfeiture
of property is mandated for an “obstruction of an official
proceeding” violation because it is a racketeering activity
identified in 18 U.S.C. § 1961(1), which is in turn a “specified
unlawful activity” under 18 U.S.C. § 1956(c)(7)(A). Forfeiture
is imposed through Section 981(a)(1)(C), which provides for
forfeiture of “any property, real or personal, which constitutes
or is derived from proceeds traceable to . . . any offense
constituting ‘specified unlawful activity’ (as defined in
[S]ection 1956(c)(7) of this title).” United States v. Clark,
165 F. Supp. 3d 1215, 1218 (S.D. Fla. 2016).

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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 compel such a hearing when the assets are not

necessary to obtaining counsel of choice”). But while the

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question in this case remains undecided before the D.C. Circuit

and Supreme Court, at least one court in this District has taken

up the issue. In United States v. Bikundi, 125 F. Supp. 3d 178

(D.D.C. 2015), the district court found that Rule 32.2 did not

“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.” Id. at 187-88.

Though the defendant’s request was based upon the alleged need

to access seized funds to pay for household necessities, the

court weighed the Mathews factors and found that due 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

implicates his right to counsel.” Id. at 183, 191. Critical to

its decision were 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 disclaimers regarding the traceability of the

assets in the government’s affidavit supporting the seizure

warrant. Id.

Set against this legal backdrop, the Court now turns to the

parties’ arguments.

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 B. A Pretrial Hearing Is Not Warranted

Even if the Court agreed with the reasoning of Bikundi and

concluded that Rule 32.2 did not preclude a pretrial hearing

where access to the assets is necessary to pay for household

necessities, a pretrial hearing would not be warranted in this

case.

First, Mr. Sullivan has not made the threshold showing that

he cannot pay for rent or other household necessities without

access to the seized assets. See United States v. Edwards, 856

F. Supp. 2d 42, 45 (D.D.C. 2012) (denying motion for release of

funds where defendant failed to make “threshold showing” that he

could not obtain counsel without the seized funds); United

States v. Emor, 794 F. Supp. 2d 143, 149-50 (D.D.C. 2011)

(same). “Every court that has addressed the issue has found that

a defendant’s merely conclusory allegation that he lacks the

funds to retain counsel of choice is insufficient to trigger the

need for a . . . hearing; in order to obtain a hearing the

defendant must present some evidence that he will be deprived of

counsel of choice if he cannot access the seized assets.” United

States v. Emor, 794 F. Supp. 2d 143, 149 (D.D.C. 2011) (citing

cases); see also E-Gold, 521 F.3d at 417, 421 (stating that a

defendant has right to hearing where “need is clearly

established,” and where “access to assets is necessary for an

effective exercise of the Sixth Amendment right to counsel”).

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 Here, Mr. Sullivan has submitted a 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.” Sullivan Decl., ECF No. 31-1 at 1

(emphasis added). Mr. Sullivan does not provide any further

information relevant to his ability to pay rent, including what

his other sources of income may entail. For example, the Court

is aware that Mr. Sullivan is currently employed by his father,

see Status Report, ECF No. 38 at 2; yet he provides no

documentation regarding this employment and it is not listed as

a source of income in his declaration. Nor does the Court have

any information regarding how much Mr. Sullivan earns or the

value of any assets he may have. Without such information, the

Court cannot determine whether Mr. Sullivan lacks the funds

necessary to provide for his household needs, or whether he is

presently able to pay his monthly expenses via other methods.

Cf. Emor, 794 F. Supp. 2d at 150 (“[N]o legal authority of which

the Court is aware can be read to suggest that due process

requires a hearing whenever a defendant merely prefers to use

restrained funds rather than untainted assets to pay his counsel

of choice.” (internal quotation marks omitted)).

The cases Mr. Sullivan primarily relies upon in support of

his motion only serve to emphasize the deficiencies in his

declaration. For example, in Bikundi, the district court granted

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pretrial review of the seizure warrants partially based on

evidence that the defendant “[was] unable to pay his utility

bills, such that he must rely on borrowed funds to do so”;

“evidence that he [was] unable to pay for his children’s

preschool education and ha[d] recently lost private insurance

coverage”; and evidence regarding his “property taxes, such that

his home [was] subject to a tax sale.” Bikundi, 125 F. Supp. 3d

at 190. Similarly in E-Gold, the D.C. Circuit found sufficient

an affidavit from one of the defendants “detailing his status as

a potential beneficiary of a trust, his lack of other sources of

income, his liquid and non-liquid assets (including cars), his

debts (including credit cards and monthly rent), his wife’s

income, and his dependents and assets held in the name of the

dependents.” Edwards, 856 F. Supp. 2d at 54 (summarizing the

facts of E-Gold). Another defendant in the same case “likewise

outlined his monthly expenses, gross and net income from his law

practice, all assets and their values, as well as his other

outstanding debts.” Id. (summarizing the facts of E-Gold).

And significantly, Mr. Sullivan does not address

information included within a pretrial services agency report

documenting “multiple vehicles owned by the defendant,” as well

as “significant funds in unspecified bank accounts of the

defendant – funds that wholly predate, and lie entirely outside

the scope of, the government’s seizure warrants.” See Gov’t’s

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Opp’n, ECF No. 29 at 21. Mr. Sullivan also does not dispute the

government’s contention that he has “at least one other bank

account . . . with America First Credit in which he retained a

positive balance as of March 19, 2021.” Gov’t’s Opp’n, ECF No.

29 at 21. At the least, this information suggests that Mr.

Sullivan enjoys assets beyond those seized by the government

that he could use toward paying for rent and his other household

necessities. Thus, absent more information, the Court finds that

Mr. Sullivan has not met the threshold standard for a pretrial

hearing relating to his seized assets. See, e.g., Edwards, 856

F. Supp. 2d at 45 (finding defendant failed to make threshold

showing for a hearing where defendant submitted a declaration

stating only that “[b]eyond the money seized, I do not have any

available funds to pay Attorney Balarezo’s retainer”); Emor, 794

F. Supp. 2d at 149 (finding declaration insufficient to trigger

a hearing where defendant submitted a declaration stating “that

he lacks any income or investments, that his spouse is not

employed, that he has six dependents, and that he has only

between $22,000 and $50,000 in cash on hand or money in savings

or checking accounts”).

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,” E-

Gold, 521 F.3d at 415; the result would remain the same. The

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Mathews factors, as articulated by Kaley, require a court to

weigh “(1) the burdens that a requested procedure would impose

on the Government against (2) the private interest at stake, as

viewed alongside (3) the risk of an erroneous deprivation of

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

alterations omitted). Regarding the first factor, the Court

notes that even assuming that “the requested pretrial hearing

would necessarily impose some burden of time and resources on

the government to preview how” the seized assets were tracked to

the alleged offense, Bikundi, 125 F. Supp. 3d at 190; courts

have found that these interests may be “outweighed by a criminal

defendant’s interest in obtaining the counsel of his or her

choice,” Sunrise Academy v. United States, 791 F. Supp. 2d 200,

207 (D.D.C. 2011) (citing E-Gold, 521 F.3d at 419). Here,

however, Mr. Sullivan’s interest in 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. See id. And regarding the second factor—Mr.

Sullivan’s private interest—the Court acknowledges that Mr.

Sullivan does not “expect[] that this matter will be tried in

the near future” due to the complex nature of discovery in this

case and his anticipated “numerous pretrial motions.” Def.’s

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Reply, ECF No. 31 at 5. But, as stated above, Mr. Sullivan has

not provided any evidence demonstrating that he is unable to pay

for rent or other household necessities without the seized

assets. Put simply, the Court has no reason to believe that Mr.

Sullivan will be significantly harmed if adjudication of his

claim is delayed until a post-trial proceeding pursuant to

Federal Rule of Criminal Procedure 32.2. Finally, the third

factor—risk of erroneous deprivation—also does not fall in Mr.

Sullivan’s favor. While there may inevitably be “some risk” that

the “probable cause finding reached in a nonadversarial context

by a magistrate judge” is erroneous, Sunrise Academy, 791 F.

Supp. 2d at 206; Mr. Sullivan’s conclusory allegation that the

proceeds of the seized bank account are not the product of the

criminal activity alleged in the indictment carries little

weight. Indeed, in the declaration attached to his reply brief,

Mr. Sullivan “acknowledge[s] that some of [his] assets were

obtained from sale of videotape from January 6, 2021.” See

Sullivan Decl., ECF No. 31-1 at 2. Based on the above, the Court

thus finds that Mr. Sullivan has fallen short of the showing

required to justify the holding of a pretrial hearing.

II. Conclusion

For the reasons stated above, Mr. Sullivan’s motion to

release the seizure order related to his bank account in Utah

15
and to forbid seizures of other accounts, ECF No. 25, is DENIED.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
December 6, 2021

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