USA v. Sullivan

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
vs.
LEIHINAHINA SULLIVAN,
Defendant.
CR. NO. 17-00104 JMS-KJM
CR. NO. 21-00096 JMS-KJM
ORDER: (1) DENYING “MOTION
FOR LEAVE TO FILE THIS
MOTION TO DISMISS FOURTH
SUPERSEDING INDICTMENT
FOR VIOLATION OF MY 1ST,
5TH, 6TH, AND 14TH
AMENDMENT RIGHTS TO THE
UNITED STATES
CONSTITUTION,” ECF NO. 1306;
AND (2) TO SHOW CAUSE WHY
PRO SE STATUS SHOULD NOT
BE REVOKED
ORDER: (1) DENYING “MOTION FOR LEAVE TO FILE THIS MOTION
TO DISMISS FOURTH SUPERSEDING INDICTMENT FOR VIOLATION
OF MY 1ST, 5TH, 6TH, AND 14TH AMENDMENT RIGHTS TO THE
UNITED STATES CONSTITUTION,” ECF NO. 1306; AND (2) TO SHOW
CAUSE WHY PRO SE STATUS SHOULD NOT BE REVOKED
I. INTRODUCTION
Pro se Defendant Leihinahina Sullivan (“Defendant”) has filed a
“Motion for Leave to File This Motion to Dismiss Fourth Superseding Indictment
for Violation of My 1st, 5th, 6th, and 14th Amendment Rights to the United States
Constitution” (“Motion to Dismiss”). 	ECF No. 1306.1 Defendant seeks dismissal
1 The court refers to the docket in Crim. No. 17-00104 JMS .
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 1 of 14
PageID.<pageID>

2
of the charges against her based on a court-ordered exam to determine if she was
competent to stand trial and to represent herself pursuant to Indiana v. Edwards,
554 U.S. 164 (2008). Because the court has ruled on this very issue several times,
and because Defendant has been informed that she cannot raise constitutional
challenges arising prior to her conviction now that she has entered a plea of guilty
and pending sentencing, the Motion to Dismiss is DENIED.
Further, Defendant has been warned, many times, that her continued
abusive filings may result in a revocation of her pro se status. In a September 15,
2021 Order, this court stated, “Defendant is one step away from this court entering
an order to show cause why her pro se status should not be terminated. She has
been warned repeatedly about her abusive conduct. . . . This is a final warning.”
ECF No. 1248 at PageID # 12981. Therefore, based on Defendant’s continued
abusive filings with the court and her inability to follow court orders, the court
issues an ORDER TO SHOW CAUSE why Defendant’s pro se status should not
be revoked and counsel appointed to represent her for sentencing.
II. BACKGROUND
On September 11, 2019, after an exhaustive two-day inquiry pursuant
to Faretta v. California, 422 U.S. 806 (1975), the court permitted Defendant to
represent herself and also appointed standby counsel. See ECF Nos. 229, 236.
Since that time, Defendant has proceeded pro se and has filed numerous motions
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 2 of 14
PageID.<pageID>

3
seeking relief, including many motions seeking dismissal of the charges against
her.2 Given the long and complex history of this case, the court provides in this
Order only the background necessary to place into context Defendant’s instant
Motion to Dismiss, and the court’s previous rulings and orders relating to the same
issues she now raises.
During a September 21, 2020 status conference, Defendant stated that
she intended to offer psychiatric testimony at trial on the issue of her mental health.
ECF No. 1057 at PageID # 10747.3 Defendant’s stand-by counsel explained that
Defendant has long suffered from a bipolar disorder, she receives treatment from
Dr. Nathan Pien, and that Dr. Pien opined at one point that Defendant may not be
able to go through a trial without having a breakdown. Id. at PageID ## 10747-49.
2 In a June 14, 2021 Order, the court recognized that
since August 2019 [Defendant] has sought to dismiss the operative
Indictment three dozen times, reasserting arguments previously
considered by the court, in piecemeal fashion, and without regard
to the court’s prior decisions, and for any and all perceived slights,
big or small.
ECF No. 1151 at PageID # 12099 (citing ECF Nos. 217, 218, 223, 224, 255, 256, 295, 296, 306,
328, 345, 420, 519, 520, 578, 581, 603, 646, 675, 728, 749, 765, 803, 812, 830, 835, 927, 929,
943, 1122, 1126, 1128, 1129, 1137, 1143, 1149). That number is now thirty-eight. See ECF
Nos. 1217, 1306.
3 The portion of the September 21, 2020 status conference that addressed Defendant’s
mental health is under seal. The court cites only those portions of the discussion necessary to
place Defendant’s Motion to Dismiss in context.
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 3 of 14
PageID.<pageID>

4
Pursuant to 18 U.S.C. § 4241, on September 28, 2020, the court
ordered Defendant to undergo a competency examination by a local expert, not by
the Bureau of Prisons. See ECF Nos. 1008, 1011. The exam was to determine
whether (1) Defendant was competent to stand trial; and (2) she was competent to
represent herself within the meaning of Indiana v. Edwards, 554 U.S. 164 (2008).
ECF No. 1011. Based on the agreement of the parties, the court appointed Dr.
Reneau Kennedy to conduct the examination. See ECF Nos. 1013, 1018.
Upon review of Dr. Kennedy’s report, it became clear to the court that
critical information regarding whether Defendant suffered from any “severe mental
illness to the point where [she] is not competent to perform the more arduous task
of representing [herself] [under Edwards],” United States v. Johnson, 610 F.3d
1138, 1145 (9th Cir. 2010), was not provided to Dr. Kennedy, ECF No. 1041.
During a January 15, 2021 hearing to determine Defendant’s ability to represent
herself at trial, the court stated that:
So, my thought is based on where we are that there needs
to be a disclosure of Dr. [Pien’s] records to Dr. Kennedy.
Dr. Kennedy needs to have, if she wishes, further access
to Ms. Sullivan for further discussion and then an
amended report, is what I’m thinking would be prudent
here. But I’m happy to talk to all of you about your
views on this.
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 4 of 14
PageID.<pageID>

5
Id. at PageID # 10650.4 Defendant objected to the disclosure of Dr. Pien’s records
to Dr. Kennedy, and the court overruled that objection. Id. at PageID ## 10653,
10656.
On January 27, 2021, the court entered an order directing Dr. Pien to
provide to the court his medical records relating to Defendant. ECF No. 1048.5
On February 4, 2021, the court provided Dr. Kennedy with the Dr. Pien records,
after an in-camera review and making certain redactions. ECF No. 1052. On
March 4, 2021, Dr. Kennedy submitted her final report to the court. See ECF No.
1063. The court reviewed the final report, redacted it as necessary, and docketed
both the redacted and unredacted report. See id.; see also ECF Nos. 1061, 1062.
The United States received a copy of Dr. Kennedy’s report and the records
submitted by Dr. Pien.6
4 The portion of the January 15, 2021 hearing that addressed Defendant’s mental health is
under seal. The court cites only those portions of the discussion necessary to place Defendant’s
Motion to Dismiss in context.
5 In the January 27, 2021 Order, the court found that Defendant has waived the
psychotherapist-patient privilege, and that in any event a narrow exception applied to the
privilege given the ongoing competency evaluation concerning Defendant’s ability to proceed
pro se. ECF No. 1048 at PageID # 10691.
6 Defendant describes the release of the Pien records to the AUSA as follows: “As Dr.
Kennedy (a contractor) hired by Judge Seabright, further caused me more injury (constitutional
violations) . . . when Dr. Kennedy could not follow directions given to her by Judge Seabright,
and released all of my subpoenaed records given to her by Judge Seabright to [the AUSA].”
ECF No. 1137 at PageID # 12010.
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 5 of 14
PageID.<pageID>

6
III. ANALYSIS
A. 	The Motion to Dismiss Is Denied
Defendant’s Motion to Dismiss centers on her claim that the release of
her medical information was unconstitutional. Specifically, she alleges:
“(1) violation of attorney client privilege—standby counsel breaching
confidentiality;
(2) violation of patient-psychotherapy privilege—Judge Seabright
ordering my treating providers records sua sponte over my objection;
(3) [t]hen all of my patient-psychology privilege records given to
Plaintiff in my case giving AUSA an inside look at all of my defense weaknesses.”
ECF No. 1306 at PageID # 13464. That is, Defendant claims that her
constitutional rights were violated when standby counsel disclosed her mental
health status to the court; when the court ordered the Pien records to be provided to
Dr. Kennedy for her to consider in the evaluation of Defendant’s competency to
represent herself; and when Dr. Kennedy disclosed the Pien records to the AUSA.
The Motion is DENIED for two independent reasons: (1) the court has
already ruled—many times—on the very issues that Defendant now raises; and
(2) having entered a plea of guilty and pending sentencing, Defendant cannot raise
these alleged violations that occurred prior to her plea of guilty.
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 6 of 14
PageID.<pageID>

7
Defendant has repeatedly raised, and the court has repeatedly rejected,
the very arguments she now makes. First, on May 12, 2021, Defendant filed a
motion seeking dismissal of the operative indictment based, in part, on the same
three allegations that she now raises. See ECF No. 1108 at PageID ## 11772-79.
The court denied that motion by order dated May 13, 2021, stating that the
conduct, as alleged, did not warrant dismissal of the indictment. ECF No. 1112 at
PageID # 11793.
Then, on May 28, 2021, Defendant filed a motion that raises, along
with several other issues, the same three allegations that she now raises. ECF No.
1137 at PageID # 12010. The court denied the motion on June 7, 2021, finding
that “[w]hether considered individually or cumulatively, these allegations do not
warrant dismissal of the operative indictment.” ECF No. 1140 at PageID # 12025.
Defendant did not wait for the court’s ruling on her May 28 motion before filing
two additional motions raising the same allegations. First, in a motion she dated
June 3, 2021, Defendant sought dismissal of the operative indictment against her
based, in part, on the allegations that standby counsel breached the attorney-client
privilege, and that Dr. Kennedy provided the Pien records to the AUSA
prosecuting the case. ECF No. 1143 at PageID # 12048. Three days later, in a
motion she dated June 6, 2021, Defendant again sought dismissal of the operative
indictment, and yet again raised the same issues. ECF No. 1149 at PageID
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 7 of 14
PageID.<pageID>

8
# 12072-76. 	In a single order dated June 14, 2021, the court denied Defendant’s
June 3 and June 6 motions (ECF Nos. 1143 and 1149). ECF No. 1151. The order
points out that both motions “raise the same arguments made in other recent
motions” and “violate numerous court rules including raising arguments previously
considered, failing to establish good cause for seeking leave to file a motion past
the motions deadline, and inundating the court with repetitive and piecemeal
filings because she disagrees or is unhappy with the court’s decision.” Id. at
PageID # 12096. Defendant was warned that her “behavior will not be tolerated
further, and future violations may result in imposition of sanctions, including
revocation of her right to self-representation.” Id. at PageID # 12097. In
conclusion, the court denied both motions, stating that they “raise issues previously
ruled on by the court and are without any merit.” Id. at PageID # 12102.
Then, after Defendant entered a plea of guilty on July 20, 2021, she
filed a July 29, 2021 Motion to Withdraw her guilty plea and again raised these
same issues. ECF No. 1210 at PageID # 12463. The court denied that motion,
finding that none of the issues concerning the release of her medical records was
newly discovered. ECF No. 1218 at PageID ## 12617-18. Defendant then filed a
motion for reconsideration, again arguing the same points regarding the release of
her medical records. ECF No. 1229 at PageID ## 12727-28. And, again, that
motion was denied. ECF No. 1238. Defendant then raised these same issues again
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 8 of 14
PageID.<pageID>

9
in a September 14, 2021 motion. ECF No. 1244 at PageID ## 12962-63 (asserting,
among other things, breach of various rights due to standby counsel’s “Notice of
Intent” and the handling of Defendant’s psychiatric records) (motion denied by
ECF No. 1246).
Independent of the fact that the court has ruled several times on the
issues raised in the Motion to Dismiss, Defendant cannot raise these alleged
constitutional violations now that she has entered a plea of guilty. “‘As a general
rule, a guilty plea erases claims of constitutional violation arising before the plea.’”
United States v. Chavez-Diaz, 949 F.3d 1202, 1207 (9th Cir. 2020) (quoting United
States v. Montilla, 870 F.2d 549, 552 (9th Cir. 1989), amended 907 F.2d 115 (9th
Cir. 1990)).
As stated by the Supreme Court:
When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise
independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the
guilty plea. He may only attack the voluntary and
intelligent character of the guilty plea.
Tollett v. Henderson, 411 U.S. 258, 267 (1973). And as explained by the Ninth
Circuit:
As we have thus held, “it is well-settled that an
unconditional guilty plea constitutes a waiver of the right
to appeal all nonjurisdictional antecedent rulings and
cures all antecedent constitutional defects.” United
States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir.
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 9 of 14
PageID.<pageID>

10
2005); see also United States v. Brizan, 709 F.3d 864,
866-67 (9th Cir. 2013); United States v. Jackson, 697
F.3d 1141, 1144 (9th Cir. 2012); United States v. Bohn,
956 F.2d 208, 209 (9th Cir. 1992) (per curiam).
This principle of law inheres in the nature and function of
the guilty plea itself, which “represents a break in the
chain of events which has preceded it in the criminal
process.” Tollett, 411 U.S. at 267. By pleading guilty, a
defendant “‘foregoes not only a fair trial, but also other
accompanying constitutional guarantees.’” [Class v.
United States, 138 S. Ct. 798, 805 (2018)]. Allowing a
defendant to plead guilty unconditionally, but
nevertheless to raise on appeal the very constitutional
challenges that a guilty plea is designed to relinquish,
would give the defendant the benefits of a guilty plea
without the attendant waiver of rights that a plea
necessarily entails. That is why the Supreme Court has
explained that a valid guilty plea “renders irrelevant—
and thereby prevents the defendant from appealing—the
constitutionality of case-related government conduct that
takes place before the plea is entered.” Id. at 805.
Consistent with the foregoing, we have routinely held
that defendants who pleaded guilty unconditionally
cannot raise on appeal various claims of antecedent legal
error. See, e.g., Brizan, 709 F.3d at 866 (alleged
deprivation of ability to raise Fifth Amendment self-
incrimination defense); Jackson, 697 F.3d at 1144
(alleged Speedy Trial Act violation); Lopez-Armenta, 400
F.3d at 1175 (alleged Fourth Amendment violation and
subsequent denial of motion to suppress); Bohn, 956 F.2d
at 209 (alleged Speedy Trial Act and right to counsel
violations).
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 10 of 14
PageID.<pageID>

11
Chavez-Diaz, 949 F.3d at 1206-07.7 This rule was explained to Defendant in a
September 8, 2021 Order. ECF No. 1234 at PageID ## 12749-50.
In short, the court has previously rejected—many times—the very
arguments that Defendant makes in her Motion to Dismiss. Further, given
Defendant’s plea of guilty, she may not raise these claims now. Accordingly, the
Motion to Dismiss is DENIED.
B. 	Defendant Is Ordered to Show Cause Why Her Pro Se Status
Should Not Be Revoked
During the Faretta inquiry, the court warned Defendant that she must
abide by procedural rules and follow orders. See Faretta Hr’g Tr., ECF No. 466 at
PageID ## 4991 (“The Court: And do you promise me you will abide by my
orders and the rules of procedure and protocol here in court to the best of your
ability? The Defendant: Yes, Your Honor.”); id. at PageID # 4995 (“If [the court]
let[s] you represent yourself . . . you can’t just ignore [the court’s] orders.”).
Defendant’s pro se status does not permit her to file vexatious filings. See id. at
PageID # 4991 (warning Defendant she must follow rules, in part, because she had
previously violated court rules); id. at PageID # 4992 (acknowledging the
7 The sole exception to this rule “allows for constitutionally-based appeals—despite an
unconditional guilty plea—where the appeal, if successful, would mean that the government
cannot prosecute the defendant at all.” Chavez-Diaz, 949 F.3d at 1207-08; see also Class, 138
S. Ct. at 805.
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 11 of 14
PageID.<pageID>

12
additional difficulties Defendant has while being incarcerated but noting that she
still has to “follow [court] rules”).
As early as March 2020, the court warned Defendant—and gave her
specific examples—of her many filings that “have violated court rules, deadlines,
and orders.” See, e.g., ECF No. 783 at PageID ## 8462-64. And she has been
warned that “by repeatedly ignoring court orders and warnings, Defendant is
deliberately engaging in conduct that inches ever closer” to the type of conduct that
would warrant termination of her right to self-representation. Id. at PageID
# 8464.
But since that warning, Defendant has continued to violate court rules
or orders. See, e.g., ECF Nos. 772, 783, 807, 858, 859, 861, 865, 866, 873, 874,
915, 931 1151, 1248. For example, Defendant has been warned that her conduct of
continuously raising issues previously considered by the court in piecemeal fashion
is abusive. See, e.g., ECF Nos. 743, 772, 811, 874. In a June 14, 2021 Order, the
court warned Defendant that raising arguments previously ruled on by the court
was abusive and that “this behavior will not be tolerated further, and future
violations may result in imposition of sanctions, including revocation of her right
to self-representation under Faretta.” ECF No. 1151 at PageID # 12097. Most
recently, by Order dated September 15, 2021, the court denied a motion seeking
certain discovery, even though “Defendant has been told many times that she is not
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 12 of 14
PageID.<pageID>

13
entitled to [that] discovery.” ECF No. 1248 at PageID # 12978. The court
concluded:
Defendant is one step away from this court entering an
order to show cause why her pro se status should not be
terminated. She has been warned repeatedly about her
abusive conduct. See, e.g., ECF Nos. 783, 1151 (notice,
and continued notice, that abuse of court process may
result in termination of self-representation). This is a
final warning.
Id. at PageID # 12981.
Defendant was also warned multiple times that, after the motions
deadline passed in November 25, 2019, her filing of any motions without
establishing good cause is also disallowed. See, e.g., ECF Nos. 393, 683, 742, 743,
1095; see ECF No. 618 at PageID # 6989; see also ECF No. 957 at PageID # 9792
(“The Motions deadline for both trials has passed and is closed.”), and ECF No.
1010 at PageID # 10435 (“The parties’ motions deadline has passed and will not be
reopened.”), and ECF No. 1115 at PageID # 11870 (same).
In short, Defendant was told that filing repetitive motions was
disallowed and abusive, and that she could not, after her plea of guilty, file a
motion seeking relief for alleged violations known to her prior to her change of
plea. Nonetheless, Defendant filed the Motion to Dismiss.
Given this history, Defendant is ORDRED TO SHOW CAUSE, no
later than January 28, 2022, why her pro se status should not be revoked and
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 13 of 14
PageID.<pageID>

14
counsel appointed to represent her. See, e.g., United States v. Engel, 968 F.3d
1046, 1051 (9th Cir. 2020) (“A district court ‘may terminate self-representation by
a defendant who deliberately engages in serious and obstructionist misconduct,’ or
who is unable or unwilling ‘to abide by rules of procedure and courtroom
protocol’”) (quoting Faretta, 422 U.S. at 834 n.46, and McKaskle v. Wiggins, 465
U.S. 168, 173 (1984)). The United States is requested to provide the court with its
position on the ORDER TO SHOW CAUSE no later than January 28, 2022.
IV. CONCLUSION
(1) 	Defendant’s Motion to Dismiss, ECF No. 1306, is DENIED.
(2) 	Defendant is ORDERED TO SHOW CAUSE, no later than
January 28, 2022, why her pro se status should not be revoked and counsel
appointed to represent her. The United States is requested to provide the court
with its position on the ORDER TO SHOW CAUSE no later than January 28,
2022.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 14, 2022.
United States v. Sullivan, Cr. Nos. 17-00104 JMS-KJM,21-0009S6 JMS, Order: (1) Denying “Motion for
Leave to File This Motion to Dismiss Fourth Superseding Indictment for Violation of My 1st, 5th, 6th,
and 14th Amendment Rights to the United States Constitution,” ECF No. 1306; and (2) to Show Cause
Why Pro Se Status Should Not Be Revoked
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Case 1:17-cr-00104-JMS-KJM Document 1312 Filed 01/14/22 Page 14 of 14
PageID.<pageID>