USA v. Sullivan

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI’I
UNITED STATES OF AMERICA,
Plaintiff,
v.
LEIHINAHINA SULLIVAN,
Defendant.
Case No. 17-cr-00104-JMS-1
ORDER DENYING DEFENDANT
LEIHINAHINA SULLIVAN’S
OCTOBER 25, 2019 MOTION TO
RECUSE JUDGE SEABRIGHT
On October 25, 2019, Defendant Leihinahina Sullivan filed a “Motion to
Recuse Judge Seabright Showing A Constitutional Risk-of-Bias Considering All of
the Circumstances & New Evidence to Show There is an Intolerable Risk of Bias”
(“the motion”). 	Dkt. No. 281. 	On November 4, 2019, Sullivan supplemented
the motion with additional materials (collectively, “supplements”). 	Dkt. Nos.
298-299. 	Pursuant to Local Rule 7.1(c), the Court elects to decide the motion
without a hearing. 	For the reasons discussed below, the motion is DENIED
because, contrary to Sullivan’s contentions, none of the reasons she presents as
requiring recusal demonstrate a potential risk of bias.
THE MOTION AND SUPPLEMENTS
Liberally construing the motion, including its supplements, Sullivan appears
to assert the following reasons why Judge Seabright should be recused from this
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case: (1) he read a substantive ex parte motion filed by the government, which
purportedly disclosed new charges the government may bring against Sullivan; (2)
he appointed an attorney to represent Sullivan as stand-by counsel, and the attorney
has “compromised” Sullivan’s case; (3) he decided that Sullivan could not appeal
her prior attempts to disqualify him from this case; (4) he has “prejudged”
Sullivan; and (5) he has allowed an “IRS Agent” to “harass[]” Sullivan and her
family. 	The Court addresses each of these arguments below.
DISCUSSION
First, Sullivan fails to provide any explanation as to how or why the reading
of an ex parte motion has caused Judge Seabright to be something other than fair
and impartial. 	The referenced ex parte motion, dated January 4, 2018, related to
the government’s appeal of an order granting Sullivan bail. 	Notably, Judge
Seabright not only recused himself from the government’s bail appeal, see Dkt.
No. 56, but also had the ex parte motion stricken from the case, see Dkt. No. 59,
and ordered it to be produced to defendant, see Dkt. No. 281 at 2. 	In addition,
after being assigned to a different judge, the government’s bail appeal was denied
in all material respects. 	See Dkt. No. 86. 1 	This course of events demonstrates,
1 Specifically, the government’s appeal was granted by Judge Leslie Kobayashi to the extent that
the assigned Magistrate Judge was instructed to hold a hearing on imposing additional conditions
of release, but denied to the extent that Sullivan’s release was not revoked. 	Dkt. No. 86.
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if anything, evident impartiality, not partiality adverse to Sullivan. 	To the extent
Sullivan is attempting to suggest that, after reading the ex parte motion, Judge
Seabright’s subsequent decisions over the past 20 months have been somehow
affected in a manner adverse to her, as discussed further below, there is simply no
evidence of that in Sullivan’s submissions.
Second, Sullivan fails to explain how the appointment of Criminal Justice
Act (CJA) counsel, Richard Gronna, represents bias on Judge Seabright’s part.
Sullivan asserts that Judge Seabright “hand selected” Gronna, and Gronna
subsequently “compromise[ed]” an earlier motion for recusal. 	As for the latter
assertion, the actions Gronna has taken (or not taken) since his appointment are
simply not ascribable to Judge Seabright. 	Otherwise, every judge who appoints
an attorney in a criminal case would be required to consider recusal when a
defendant is displeased with the attorney’s performance. 	As for the former
assertion, the record reflects that the assigned Magistrate Judge, not Judge
Seabright, appointed Gronna pursuant to the CJA. 	See Dkt. No. 222. 	Even if
Judge Seabright had a hand in Gronna's selection, there is nothing improper about
him doing so. 	Attorney Gronna is a member of this Court’s CJA Panel and, as
such, must have significant experience with criminal procedural, evidentiary, and
sentencing rules, and, once appointed, must conform to the highest standards for
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professional conduct. 	There was, thus, no impropriety or bias in Gronna’s
appointment.23
Third, contrary to Sullivan’s assertion, Judge Seabright has never entered an
order preventing her from appealing one of his decisions, including the order
Sullivan relies upon. 	In that order, Dkt. No. 272, Judge Seabright merely
explained that he retained jurisdiction over this case despite Sullivan’s filing of
two interlocutory notices of appeal. 	That much was explained to Sullivan in a
subsequent EO that Judge Seabright entered. 	See Dkt. No. 283 (“As a matter of
clarification, this court did not, and cannot, enter an order not allowing defendant
to file a notice of appeal to the Ninth Circuit.”). 	As a result, this argument
presents no cause to suggest any form of bias on Judge Seabright’s part.
Fourth, Sullivan fails to explain how Judge Seabright has “prejudged” her in
this case. 	Sullivan cites an exhibit that she has attached to the motion, Exhibit R-
7. 	According to Sullivan, this exhibit shows that “Judge Seabright prejudges
people like in the case of Katherine Kealoha where he prejudged her to be Alison
2 The Court notes that one of the supplements, Dkt. No. 299, is dedicated to Gronna’s purported
“compromising” of Sullivan’s case that extends beyond any single decision or event.
3 The Court further notes that, in the supplement discussed in the preceding footnote, Sullivan
appears to request a “subpoena for audio tape” of a conversation between her and one of her
former attorneys. 	Dkt. No. 299 at 1-2. 	Pursuant to the orders referring this recusal motion,
Dkt. Nos. 285, 290, the undersigned only has jurisdiction to rule on the arguments pertaining to
Judge Seabright’s alleged bias. 	To the extent Sullivan seeks, through her recusal motion,
criminal discovery, she must file a separate motion for such relief.
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Lee Wong….” 	Motion at 5 (quotation marks omitted), Dkt. No. 281. 	To be
clear, the exhibit does not show that Judge Seabright “prejudges” anyone,
including Sullivan. 	The exhibit, Dkt. No. 281-7, shows, at most, that Katherine
Kealoha was charged by the government as having the alias of “Alison Lee Wong,”
id. at 2. 4 	It does not evidence a judgment or decision by Judge Seabright of
anything.
Fifth, in one of the supplements, Dkt. No. 298, Sullivan asserts that an
Internal Revenue Service Agent, Mark MacPherson, has “harass[ed]” Sullivan, her
neighbors, and her family. 	Sullivan asserts that Judge Seabright is aware of
MacPherson’s conduct but has done “nothing” about it. 	Id. at 2. 5 	From what the
Court can discern, the “evidentiary” basis for Sullivan's harassment contention is
herself. 	She appears to be citing to her own comments from earlier court
proceedings that have not been supported by anyone, including by the neighbors
and family to whom she refers. 	Moreover, even if the Court was willing to
assume that Judge Seabright was aware of MacPherson’s alleged conduct and
4 The Court adds that the business card in the exhibit is, contrary to Sullivan’s assertion, not that
of Alison Lee Wong, but, rather, that of Alison Wong. 	See Dkt. No. 281-7 at 1.
5 In support of the contention that Judge Seabright is “aware” of MacPherson’s conduct, Sullivan
cites a page in a supplemental response she filed to a government motion for sanctions. 	Dkt.
No. 298 at 2 (citing Dkt. No. 246 at 8). 	The government motion, however, was referred to a
Magistrate Judge, Dkt. No. 196, and, on September 24, 2019, the Magistrate Judge terminated
the same, Dkt. No. 250. 	In this light, it is far from clear whether Judge Seabright was “aware”
of the information disclosed in Sullivan’s supplemental response.
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opted to do “nothing” about it, as Sullivan has been told before, judicial rulings,
whether adverse or not, are “almost never” a basis for finding bias. 	See
10/4/2019 Order Denying Motion to Reconsider Denial of Motion to Recuse Judge
Seabright at 5 (quotation and citation omitted), Dkt. No. 259. 	That is equally so
here. 6
Finally, Sullivan asserts that all of the above arguments should be
considered together, and, when doing so, they represent a “probability of
unfairness” in this case. 	Sullivan’s “totality of the circumstances” approach is
silly. 	None of her claims individually has any merit and grouping them does not
alter that fact.
The motion to recuse Judge Seabright, Dkt. No. 281, is DENIED.
IT IS SO ORDERED.
DATED: November 6, 2019 at Honolulu, Hawai‘i.
6 The Court notes that, one of the two exhibits attached to Sullivan’s relevant supplement, Dkt.
No. 298-2, is difficult to read because the margins are cut-off. 	From what the Court can
decipher, the exhibit does not provide any support for the proposition that MacPherson has
harassed Sullivan or her family because the exhibit simply has nothing to do with Sullivan. 	The
only other exhibit offered in support, Dkt. No. 298-1, fares little better. 	It is a partially redacted
copy of the government's ex parte motion, Dkt. No. 51, discussed supra, which includes a report
of investigation prepared by IRS investigators. 	The exhibit documents an IRS interview of a
third-party witness to Sullivan's tax preparation activities, not harassment.
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