USA v. Sullivan

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
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANT’S MOTION TO
DISMISS FOR VIOLATION OF
THE SPEEDY TRIAL ACT, ECF
NO. 255
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION TO DISMISS FOR VIOLATION OF THE SPEEDY TRIAL ACT,
ECF NO. 255
I. INTRODUCTION
Defendant Leihinahina Sullivan (“Defendant”) moves to dismiss all
charges against her based on alleged violation of the Speedy Trial Act (“STA”),
18 U.S.C. § 3161, et seq. ECF No. 255 (the “Motion”). For the reasons discussed
below, the Motion is GRANTED in part and DENIED in part. There is no STA
violation as to counts 29, 47, 48, and 59 of the Second Superseding Indictment
(which are reasserted as counts 28, 46, 47, and 58 in the Third Superseding
Indictment) and counts 21, 23, 24, 26, 59, and 60 of the Third Superseding
Indictment. That is, there is no STA violation as to counts 21, 23, 24, 26, 28, 46,
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 1 of 25
PageID.<pageID>

2
47, 58, 59, and 60 of the Third Superseding Indictment (which includes counts
that were newly-asserted in the Second Superseding Indictment and reasserted in
the Third Superseding Indictment, and counts that were newly-asserted in the
Third Superseding Indictment). The Government concedes that the STA is
violated as to all other counts and they are DISMISSED without prejudice.
II. BACKGROUND
A. 	Factual Background
Defendant first appeared for arraignment and plea to the Original
Indictment on February 24, 2017, at which time trial was set for April 25, 2017.
ECF No. 8. The parties then stipulated to continue trial and to toll time under the
STA from April 25, 2017 through December 12, 2017. ECF Nos. 17, 19, 25.
A First Superseding Indictment was returned by the grand jury on
November 8, 2017. ECF No. 27. At the November 13, 2017 arraignment and
plea, Defendant’s then-counsel William Harrison, the Assistant United States
Attorney (“AUSA”), and the magistrate judge engaged in the following discussion
regarding resetting the trial date:
MR. HARRISON: And, Your Honor, the Government
and the Defendant have spoken previously to this hearing
and because of substantial discovery we anticipate going
through, we’re asking for additional time on the
superseding indictment until the week of March 26th, but
actually it would be a trial date of March 28, because it’s
a holiday that week.
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 2 of 25
PageID.<pageID>

3
THE COURT: Very well. Ms. Permutter, is that—
[THE AUSA]: The Government’s in agreement, Your
Honor.
THE COURT: Okay. All right. May we have some
deadlines?
Tr. at 3:2-12, ECF No. 450 at PageID #4790. The magistrate judge then set trial
for March 28, 2018. See id. at 3:13-14, ECF No. 450 at PageID #4790. Neither
the parties nor the court discussed tolling time under the STA, and no order
(written or oral) tolled time under the STA from December 12, 2017 through
March 28, 2018.
Then, on February 28, 2018, the parties stipulated to continue trial
and toll time under the STA from March 28, 2018 through August 21, 2018. ECF
No. 93.
On March 28, 2018, a Second Superseding Indictment was returned
by the grand jury. ECF No. 95. During the April 5, 2018 arraignment and plea,
Defendant’s counsel again asked for a new trial date, stating his belief that
Defendant was entitled to an additional thirty days.1 The magistrate
judge agreed and set trial for September 25, 2018:
1 The assumption that Defendant was entitled to an additional thirty days appears to be
based on 18 U.S.C. § 3161(c)(2), which provides that trial “shall not commence less than thirty
days from the date on which the defendant first appears . . . .” As discussed in more detail later
in this order, this assumption was incorrect. See United States v. Rojas-Contreras, 474 U.S.
231, 234 (1985); United States v. Low, 452 F. Supp. 2d 1036, 1042-43 (D. Haw. 2006).
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 3 of 25
PageID.<pageID>

4
MR. HARRISON: . . . Your Honor, Ms. Sullivan has
received a copy of the second superseding indictment in
this matter, would waive a public reading of the charge,
enter a plea of not guilty and, obviously, ask the matters
be reset for trial. I think we have 30 days additional time
that we were entitled to, and we’re going to request that,
Your Honor.
THE COURT: All right. The court will enter a plea of
not guilty for and on behalf of Ms. Sullivan to the second
superseding indictment. And let’s see, this is set for trial
August the 21st. And, Mr. Harrison, you wanted the
additional 30 days?
MR. HARRISON: Yes, Your Honor.
THE COURT: Okay. [AUSA], any objection to that?
[THE AUSA]: The 30 days from August 21st, Your
Honor?
THE COURT: Yeah.
[THE AUSA]: No objection.
THE CLERK: Jury selection/jury trial, September 25,
2018, at 9:00 a.m., before Judge Seabright. . . .
MR. HARRISON: Thank you, Your Honor.
THE COURT: Will that work?
MR. HARRISON: That’s fine.
THE COURT: Okay. Very well. Well, then we’ll go
with the new trial setting pursuant to Defendant’s
request. . . .
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 4 of 25
PageID.<pageID>

5
Tr. at 2:14-3:18, ECF No. 451 at PageID #4808-09. Again, neither the parties nor
the court discussed tolling time under the STA, and no order (written or oral)
tolled time under the STA from August 21, 2018 through September 25, 2018.
During an August 21, 2018 status conference, the court again
continued trial, tolled time under the STA from September 25, 2018 through April
30, 2019, and directed the Government to prepare a stipulation, which was filed on
February 7, 2019. ECF Nos. 137, 159. Pursuant to a sixth stipulation (entered
February 7, 2019) and two court orders (issued May 2, 2019 and June 21, 2019),
trial was again continued, and time was again tolled under the STA from April 30,
2019 to January 22, 2020. ECF Nos. 160, 167, 181. On July 25, 2019, a Third
Superseding Indictment was returned by the grand jury. ECF No. 188. And
following the July 29, 2019 arraignment and plea, trial remains set for January 22,
2020. See ECF No. 197.
B. 	Procedural Background
Defendant filed the instant Motion on September 30, 2019. ECF No.
255. The Government filed its Opposition on November 1, 2019. ECF No. 291.
On November 8, 2019, this court issued an order identifying “December 12, 2017
to March 28, 2018” and “August 21, 2018 to September 25, 2018” as “periods of
time for which the parties did not request, and the court did not make, findings
pursuant to [18 U.S.C.] § 3161(h)(7) tolling time for purposes of the STA” and
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 5 of 25
PageID.<pageID>

6
directing the parties to submit supplemental briefing. ECF No. 313. Defendant
filed supplemental briefs on November 19, 25, and 27, and December 2, 3, and 6,
2019, addressing the Government’s Opposition and/or in response to the court’s
November 8 order. ECF Nos. 344, 365, 374-75, 395, 399, 427. The Government
filed a supplemental brief on November 29, 2019. ECF No. 386. A hearing was
held on December 17, 2019.
III. DISCUSSION
At issue is whether the periods of time from December 12, 2017 to
March 28, 2018 and August 21, 2018 to September 25, 2018, or any portions
thereof, are excludable under the STA.2 Concluding that portions of those times
are not excludable and that the STA was violated, the court then addresses which
2 At the August 21, 2018 status conference, this court directed counsel to obtain
Defendant’s signature on the stipulation to continue trial from September 25, 2018 to April 30,
2019. See ECF No. 170 at PageID #1577. Defendant contends that because she did not sign the
stipulation, failure to exclude the period from September 25, 2018 to April 30, 2019 violates her
constitutional right to a speedy trial. See ECF No. 255 at PageID #2183-84. Defendant is
mistaken. First, although the court directed counsel to obtain Sullivan’s signature, her signature
was not required as a matter of law. See, e.g., United States v. Krouse, 2009 WL 537494, at *4
(C.D. Cal. Mar. 3, 2009) (“Even absent defendant’s consent, counsel’s stated need for trial
preparation in the stipulation provided the Court an adequate factual basis for [“ends of justice”]
finding.”). Second, despite the court’s instruction, Defendant was represented by counsel who
signed the stipulation to exclude the period of September 25, 2018 to April 30, 2019. Because
Defendant is bound by her counsel’s actions, her claim fails. See United States v. Guerra de
Aguilera, 600 F.2d 752, 753 (9th Cir. 1979) (“Litigants are generally bound by the conduct of
their attorneys, absent egregious circumstances.”); United States v. Gallardo, 773 F.2d 1496,
1505-06 (9th Cir. 1985) (rejecting violation of STA claim where defendant’s counsel requested
trial continuances and stipulated to facts supporting exclusion of time under the STA); Robles-
Castro v. Ryan, 2017 WL 741147, at *7 (D. Ariz. Jan. 31, 2017) (finding that because his
defendant’s counsel failed to assert claim of speedy trial violation, defendant waived such
claim) (citing Guerra de Aguilera).
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 6 of 25
PageID.<pageID>

7
counts must be dismissed and whether dismissal should be with or without
prejudice.
A. 	STA Legal Standard
Under the STA, a criminal trial must commence “within seventy days
from the filing date (and making public) of the information or indictment, or from
the date the defendant has appeared before a judicial officer of the court is which
such charge is pending, whichever date last occurs.” 18 U.S.C.
§ 3161(c)(1). Time may be tolled under the STA, thereby allowing continuances
of the trial date, for various reasons including when the court “find[s] that the ends
of justice served by [granting a continuance] . . . outweigh the best interest of the
public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). Time is
not excludable under § 3161(h)(7)(A), however, “unless the court sets forth, in the
record of the case, either orally or in writing, its reasons for [an] ends of justice
[finding].” Id.; see Zedner v. United States, 547 U.S. 489, 507 (2006) (“[W]ithout
on-the-record findings, there can be no exclusion under § 3161(h)[(7)].”).
The STA sets forth factors a court must consider in determining
whether to grant a § 3161(h)(7)(A) “ends of justice” continuance. See id.
§ 3161(h)(7)(B)(i)-(iv). And because the STA requires a court to weigh
consideration of the public’s interest in a speedy trial, neither a defendant’s waiver
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 7 of 25
PageID.<pageID>

8
of the STA nor agreement by the parties alone is sufficient to support an “ends of
justice” finding. See Zedner, 547 U.S. at 500-01.
In addition, time is automatically tolled from speedy trial calculation
pursuant to § 3161(h)(1)(D), for delay resulting from “any pretrial motion, from
the filing of the motion through the conclusion of the hearing on, or other prompt
disposition of, such motion,” and § 3161(h)(1)(H), for “any period, not to exceed
thirty days, during which any proceeding concerning the defendant is actually
under advisement by the court.” See United States v. Sutter, 340 F.3d 1022, 1027
(9th Cir. 2003) (“Exclusion of pre-trial motion delay is automatic.”), opinion
amended on denial of reh’g, 348 F.3d 789 (9th Cir. 2003); see also Henderson v.
United States, 476 U.S. 321, 329-32 (1986) (distinguishing pre-trial motions that
require a hearing from those that do not, and holding that courts must read
§ 3161(h)(1)(D) and (H) together in determining what periods of delay are tolled
for each type of pre-trial motion).
B. 	December 12, 2017 to March 28, 2018
During the November 13, 2017 arraignment and plea, Defendant’s
counsel represented to the court that the parties anticipated substantial discovery
and agreed to continue trial to the week of March 26, 2018. The AUSA
confirmed her agreement to a trial continuance and without further comment, the
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 8 of 25
PageID.<pageID>

9
magistrate judge set a new trial date of March 28, 2018. ECF No. 450 at PageID
#4790.
The Ninth Circuit has held that although a court need not “recite
specific statutory language to satisfy § 3161(h)(7)(A) . . . its reasoning [must be]
sufficient to justify excluding the continuance from the [STA’s] seventy-day
limit.” United States v. McCarns, 900 F.3d 1141, 1145 (9th Cir. 2018). A court’s
“ends of justice” finding is sufficient where the record shows that the court
considered the requisite § 3161(h)(7)(B) factors and continued trial based on
applicable factors. See id. (citation omitted).
Here, the record does not include findings by the magistrate judge
that “the ends of justice served by granting the continuance” from December 12,
2017 to March 28, 2018 “outweigh the public’s and defendant’s interests in a
speedy trial.” Zedner, 547 U.S. at 498-99. Nor does the record show that the
magistrate judge considered the requisite factors, let alone continued trial based on
those factors. Rather, the record shows only that upon confirming that the parties
were in agreement, the magistrate judge set a new trial date. On such a thin
record, this court finds that the period from December 12, 2017 to March 28, 2018
is not excluded from speedy trial calculation pursuant to § 3161(h)(7)(A). See id.
at 498-99; McCarns, 900 F.3d at 1145.
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 9 of 25
PageID.<pageID>

10
But other provisions of the STA toll portions of this period. On
November 21, 2017, the Government filed a pre-trial motion for evidentiary
hearing regarding bail review and for revocation of pre-trial release. ECF No. 37.
On December 22, 2017, the court held an evidentiary hearing, and that same day,
issued an order denying the Government’s motion for revocation of pre-trial
release. ECF Nos. 45, 46. Thus, the period from November 21, 2017 to
December 22, 2017 is automatically tolled from speedy trial calculation pursuant
to § 3161(h)(1)(D).
In addition, on January 4, 2018, the Government appealed the order
denying its motion for revocation of pre-trial release. ECF No. 48. The appeal
was heard on February 12, 2018, and an order was issued on February 14, 2018.
ECF Nos. 84, 86. The order directed the magistrate judge to hold a further
hearing, which occurred on February 22, 2018, regarding modification of
Defendant’s conditions of pre-trial release. ECF Nos. 86, 91. The period from
January 4 to February 12, 2018 is automatically tolled from speedy trial
calculation pursuant to § 3161(h)(1)(D). The period from February 12 to
February 22, 2018 is automatically tolled from speedy trial calculation pursuant to
§ 3161(h)(1)(H).3
3 In addition, there are overlapping periods subject to tolling. The period from January
(continued . . . )
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 10 of 25
PageID.<pageID>

11
C. 	August 21, 2018 to September 25, 2018
The Government concedes, correctly, that because Defendant was not
entitled to a thirty-day continuance of the trial date based on the Second
Superseding Indictment, the period from August 21, 2018 to September 25, 2018
generally is not excludable for purposes of the STA. See ECF No. 386 at PageID
#3961; see also Rojas-Contreras, 474 U.S. at 234 (“Congress did not intend that
the 30-day trial preparation period begin to run from the date of filing of a
superseding indictment.”); Low, 452 F. Supp. 2d at 1042-43 (“[A] court may not
rely on Section 3161(c)(2) as the basis for excluding time from the speedy trial
period when a superseding indictment is filed[.]”); cf. Zedner, 547 U.S. at 500
(“[T]he [STA] demands that defense continuance requests fit within one of the
specific exclusions set out in subsection (h).”).
However, one day, from September 18 to 19, 2018 is automatically
tolled pursuant to § 3161(h)(1)(H)—the time during which a pre-trial motion
(Sullivan’s sealed ex parte motion, ECF No. 138) was under advisement by the
court (order on motion, ECF No. 141).
5, 2018, when the Government filed a motion for protective order, ECF No. 55, to February 15,
2018, when a hearing was held, ECF No. 87, would also be automatically tolled pursuant to
§ 3161(h)(1)(D). And pursuant to § 3161(h)(1)(H), the period from February 15 to 20, 2018,
when the magistrate judge issued an order granting the motion and a protective order was filed,
ECF Nos. 88, 89, would also be automatically tolled.
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 11 of 25
PageID.<pageID>

12
D. 	STA Calculations
“Charges in a superseding indictment not required to be joined with
the original charges come with a new seventy-day clock under the Speedy Trial
Act.” United States v. Thomas, 726 F.3d 1086, 1091 (9th Cir. 2013). But the
filing of a superseding indictment does not impact STA calculations for offenses
charged in the original indictment and reasserted in the superseding indictment or
for new charges that are required to be joined with those in the original
indictment. Id.; see United States v. Karsseboom, 881 F.2d 604, 606 (9th Cir.
1989). Charges that are “required to be joined” are those that the Double
Jeopardy Clause of the Constitution requires be tried together. Thomas, 726 F.3d
at 1091 (citations omitted).
The “same-elements” test established in Blockburger v. United
States, 284 U.S. 299 (1932), applied in the double jeopardy context, is used to
determine whether new charges are required to be joined with charges from prior
indictments. This test provides that two offenses are separate if they both require
“proof of an additional fact which the other does not.” United States v. Garlick,
240 F.3d 789, 794 (9th Cir. 2001) (quoting Blockburger, 284 U.S. at 304); see
also Lemke v. Ryan, 719 F.3d 1093, 1099 (9th Cir. 2013).
Nor does the filing of a superseding indictment invalidate an existing
court order excluding time under the STA. See, e.g., Sylvester v. United States,
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 12 of 25
PageID.<pageID>

13
110 F. Supp. 3d 738, 749 (E.D. Mich. 2015) (finding that where the court
excluded a period of time under the STA and a superseding indictment was filed
prior to the end of that period, the speedy trial clock did not restart until after the
time previously excluded had run), aff’d, 868 F.3d 503 (6th Cir. 2017); cf. United
States v. Fabian, 798 F. Supp. 2d 647, 672-73 (D. Md. 2011) (rejecting argument
that an existing court order excluding time under the STA does not apply to new
counts charged in a superseding indictment).
Applying these principles and the court’s findings regarding time
tolled pursuant to the STA, the court sets forth the following speedy trial
calculations, calculating the time based on the time elapsed applicable to each
indictment.
1. 	Original Indictment
Sixty days under the STA clock (with no tolling) elapsed from
Sullivan’s February 24, 2017 initial appearance until April 25, 2017. Time from
April 25, 2017 through December 12, 2017 is excluded from the STA clock
pursuant to § 3161(h)(7)(A) based on the first, second, and third stipulations (ECF
Nos. 17, 19, 25). And time from December 12 to 22, 2017 is automatically tolled
from the STA clock pursuant to § 3161(h)(1)(D) based on the filing of a pre-trial
motion (ECF No. 37) through the hearing/order on that motion (ECF No. 46).
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 13 of 25
PageID.<pageID>

14
The STA clock restarted on December 22, 2017. Another 13 days
elapsed from December 22, 2017 to January 4, 2018, bringing the total time
elapsed to 73 days. Because more than 70 total days have elapsed, the STA is
violated as to offenses charged in the Original Indictment.4 And during the
December 17, 2019 hearing, the Government conceded that the STA was violated
based on the untolled period from December 22, 2017 through March 28, 2018.
2. 	First Superseding Indictment
A new STA clock began on November 13, 2017 for charges newly
asserted in the First Superseding Indictment.5 The period of time from November
13, 2017 through December 22, 2017 was already excluded from this STA clock
however, pursuant to § 3161(h)(7)(A) and § 3161(h)(1)(D), as set forth above.
Thirteen days under the STA clock elapsed from December 22, 2017
through January 4, 2018.
Time from January 4, 2018 through February 22, 2018 is
automatically tolled from the STA clock pursuant to §§ 3161(h)(1)(D), (H) as set
forth above.
4 Once more than 70 days have elapsed for a particular indictment, the court stops its
STA calculation for that indictment.
5 Because the STA is violated for all counts charged in the First Superseding Indictment,
the court need not determine whether any of the newly-asserted counts are required to be joined
with reasserted counts from the Original Indictment and are therefore barred from a new STA
clock.
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 14 of 25
PageID.<pageID>

15
Thirty-four days under the STA clock elapsed from February 22,
2018 to March 28, 2018, bringing the total elapsed time under the STA clock to
47 days.
Time from March 28, 2018 through August 21, 2018 is excluded
from the STA clock pursuant to § 3161(h)(7)(A).
Thirty-four days from August 21, 2018 to September 25, 2018
elapsed under the STA clock,6 bringing the total time elapsed under the STA to 81
days. Because more than 70 total days had elapsed, the STA was violated as to all
offenses charged in the First Superseding Indictment. And during the December
17, 2019 hearing, the Government conceded that the STA was violated based on
untolled time between December 22, 2017 and March 28, 2018, and between
August 21, 2018 and September 25, 2018.
3. 	Second Superseding Indictment
A new STA clock began on April 5, 2018 for charges newly asserted
in the Second Superseding Indictment.7 Time from April 5, 2018 through August
21, 2018 was already excluded from this STA clock, however, pursuant to
6 Although there are 35 days between August 21, 2018 and September 25, 2018,
pursuant to § 3161(h)(1)(H), one day, from September 18 to September 19, 2018, is tolled under
the STA.
7 Charges newly asserted in the Second Superseding Indictment include count 29 (false
claim in violation of 18 U.S.C. § 287), counts 47 and 48 (wire fraud in violation of 18 U.S.C.
(continued . . .)
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 15 of 25
PageID.<pageID>

16
§ 3161(h)(7)(A).
Thirty-four days elapsed from August 21, 2018 to September 25,
2018 (35 days less the one day tolled) under the STA clock.8
Time from September 25, 2018 through January 22, 2020 is excluded
from the STA clock pursuant to § 3161(h)(7)(A). See ECF Nos. 159, 160, 167,
181.
Thus, 36 days remain under the STA clock for counts 29, 47, 48, 59
that were newly charged in the Second Superseding Indictment.
///
///
§ 1343), and count 59 (obstruction in violation of 18 U.S.C. § 1512(c)(2)). The court concurs
with the Government’s assessment that false claims and obstruction counts are separate
offenses and would not be required to be joined for double jeopardy purposes with any of the
other asserted charges. See ECF No. 386 at PageID #3964-65.
And based on the law below, the court finds that counts 47 and 48 of the Second
Superseding Indictment are not required to be joined with previously asserted wire fraud
charges. See United States v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995) (applying the
Blockburger test and holding that multiple counts of mail fraud “are separately prosecutable
despite the presence of only one general scheme” because “it is not the plan or scheme that is
punished, but rather each individual use of the mails in furtherance of that scheme”); see also
Garlick, 240 F.3d at 793-94 (applying the Blockburger test in the context of determining
whether charges are multiplicitous and holding that “each use of the wires constitutes a separate
violation of the wire fraud statute,” even though “each count . . . revolved around the same
scheme to defraud”); United States v. Jefferson, 674 F.3d 332, 367 (4th Cir. 2012), as amended,
(explaining that Ҥ 1343 criminalizes each wire transmission in furtherance of a single fraud
scheme”).
8 Time from September 18 to 19, 2018 is automatically tolled from the STA clock
pursuant to § 3161(h)(1)(H), as set forth above.
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 16 of 25
PageID.<pageID>

17
4. 	Third Superseding Indictment
A new STA clock began on July 29, 2019 for charges newly asserted
in the Third Superseding Indictment.9 Time from July 29, 2019 through January
22, 2020 is excluded from the STA clock pursuant to § 3161(h)(7)(A). See ECF
Nos. 167, 181. Thus, no time has elapsed under the STA clock as to offenses
newly charged in the Third Superseding Indictment. And, as set forth above, 36
days remain as to offenses reasserted in the Third Superseding Indictment that
were newly asserted in the Second Superseding Indictment.10
Based on the foregoing, because newly-asserted counts are subject to
a new speedy trial clock, see Thomas, 726 F.3d at 1091; Karsseboom, 881 F.2d at
606, and because the court has already excluded time through January 22, 2020,
see ECF No. 181, the court finds that the STA is not violated as to counts 21, 23,
24, 26, 28, 46, 47, 58, 59, and 60 of the Third Superseding Indictment. The STA
is violated as to all other counts and thus these other counts must be dismissed.
9 Charges newly asserted in the Third Superseding Indictment include counts 21, 23, 24,
and 26 (false claims in violation of 18 U.S.C. § 287), count 59 (obstruction in violation of 18
U.S.C. § 1512(c)(2)), and count 60 (extortion in violation of 18 U.S.C. § 1951). The court
concurs with the Government’s assessment that these counts are separate offenses and would
not be required to be joined for double jeopardy purposes with any of the other charges asserted
in the Third Superseding Indictment. See ECF No. 386 at PageID #3964-65.
10 Counts 29, 47, 48, and 59 from the Second Superseding Indictment were reasserted as
counts 28, 46, 47, and 58 in the Third Superseding Indictment.
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 17 of 25
PageID.<pageID>

18
Accordingly, counts 21, 23, 24, 26, 28, 46, 47, 58, 59, and 60 of the
Third Superseding Indictment remain pending, and all other counts are
DISMISSED.
E. 	Dismissal is Without Prejudice
Although a STA violation requires the dismissal of the indictment
upon the defendant’s motion, 18 U.S.C. § 3162(a)(2), whether to dismiss with or
without prejudice rests within the discretion of the district court, and the STA
“does not prefer one remedy to the other.” United States v. Lewis, 611 F.3d 1172,
1179 (9th Cir. 2010) (citing United States v. Taylor, 487 U.S. 326, 335 (1988)).
District courts consider three factors, “among others,” in deciding
whether to dismiss with or without prejudice: “the seriousness of the offense; the
facts and circumstances of the case which led to the dismissal; and the impact of
reprosecution on the administration of this chapter and on the administration of
justice.” 18 U.S.C. § 3162(a)(2). Prejudice to the defendant is a factor for the
court to consider. Lewis, 611 F.3d at 1179 (citing Taylor, 487 U.S. at 334-35).
///
///
///
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 18 of 25
PageID.<pageID>

19
As to the first factor, there is no doubt that the charges against
Sullivan are extremely serious.11 The Third Superseding Indictment contains 60
counts—of which this order dismisses 50, including 22 counts of wire fraud
pursuant to 18 U.S.C. § 1343, two counts of mail fraud pursuant to 18 U.S.C.
§ 1341, 16 counts of false claims pursuant to 18 U.S.C. § 287, six counts of
aggravated identity theft pursuant to 18 U.S.C. § 1028A(a)(1), and four counts of
money laundering pursuant to 18 U.S.C. § 1956(a)(1)(B)(i). ECF No. 188. In
short, the offenses dismissed as charged in the Third Superseding Indictment are
serious and weigh in favor of dismissal without prejudice.
As to the second factor, the facts and circumstances of the case
leading to the STA violation and dismissal weigh heavily in favor of dismissal
without prejudice. When weighing this factor, courts consider “whether the delay
resulted from ‘prosecutorial bad faith,’ whether there was ‘any attempt to take
advantage of the delay,’ and whether ‘defendant can show a pattern of negligence
on the part of the United States Attorney’s Office.’” Sylvester, 868 F.3d at 512
(quoting United States v. Howard, 218 F.3d 556, 561 (6th Cir. 2000)); see also
United States v. Worthy, 772 F.3d 42, 46 (1st Cir. 2014) (examining “blame” for
11 “The strength of the allegations and of the evidence against a defendant is irrelevant to
this factor.” United States v. Koerber, 813 F.3d 1262, 1275 (10th Cir. 2016).
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 19 of 25
PageID.<pageID>

20
the delay when analyzing second factor); Koerber, 813 F.3d at 1277 (examining
“culpability of the conduct leading to delay” when analyzing the second factor).
Here, each continuance leading to the STA violation was sought by
defense counsel, and the need for those continuances clearly appear to have been
based on additional time needed by defense counsel to prepare for trial. First, at
the November 13, 2017 arraignment on the First Superseding Indictment, defense
counsel informed the magistrate judge that the parties jointly were requesting
additional time due to the need to provide discovery. Although never stated in
open court before the magistrate judge, it is obvious based on the record that both
the defense and the Government recognized that more time would be required,
given the complexity of the case, for the defense to obtain discovery, review that
discovery, and prepare for trial. In short, this continuance was both requested by
and benefitted the defense. And then during the April 5, 2018 arraignment on the
Second Superseding Indictment, defense counsel requested an additional thirty
days.12 Based on this record, the court concludes that both requests for
continuance were sought by defense counsel and approved given the complexity
and needs of the case.
12 It appears that defense counsel, the AUSA, and the court all mistakenly believed that
the return of the First Superseding Indictment automatically entitled Defendant to an additional
thirty days. Regardless of this error, it is clear that Defendant, not the Government, sought this
additional time.
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 20 of 25
PageID.<pageID>

21
Given this record, the court concludes that the violations of the STA
were technical. That is, defense counsel sought more time to prepare this complex
matter for trial (a reason that would easily have met the criteria to toll time under
18 U.S.C. § 3161(h)(7)), but apparently neither the government, the defense, nor
the court considered the need for the court to make specific findings to toll time
under the STA.
Further, there is simply no evidence of bad faith by the Government
as to the STA violation, nor any evidence that the Government sought to take
advantage of the delay. And, although over a decade ago, District Judge Alan C.
Kay found a similar STA violation by the United States Attorney’s Office, see
Low, 452 F. Supp. 2d at 1042-43, the court has not been presented with any
evidence of any pattern of neglect. At most, the AUSA was sloppy, and perhaps
negligent, in not requesting the magistrate judge make appropriate findings to toll
time under the STA.13 In short, because: 1) there is no evidence that the
Government acted in bad faith; 2) the defense requested the continuances that
resulted in the STA violations; and 3) the violations were technical, this factor
weighs in favor of dismissal without prejudice. United States v. Medina, 524 F.3d
974, 981-82 (9th Cir. 2008).
13 The court does caution the Government, however, that further violations of the STA
(whether in this case or others) may be sufficient for a court to find a pattern of negligence such
that this factor would weigh in favor of dismissal with prejudice.
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 21 of 25
PageID.<pageID>

22
The third factor, the impact of a reprosecution on the administration
of the STA and the administration of justice, also weighs (albeit only slightly) in
favor of dismissal without prejudice in this case.14 Here, the court examines
whether the delay caused by the government was intentional, the prejudice
suffered by the defendant, and the length of delay. See Koerber, 813 F.3d at
1285; Sylvester, 868 F.3d at 512.
There is no evidence that the Government intentionally caused any
delay; the defense, not the Government, sought the continuances resulting in the
STA violations. Further, although Sullivan, who is presently in custody,15 may be
prejudiced by delay in the proceeding, she has demonstrated no actual prejudice to
her case.16 That is, there is no evidence before the court of any lost evidence, or
that any witnesses have left the country, died, or are no longer available to testify
at trial. Finally, although there is some delay caused by the STA violation, the
delay is certainly not prolonged. See Taylor, 487 U.S. at 340 (“The longer the
14 Obviously, because this case has not proceeded to trial, there will be no retrial. See
Worthy, 772 F.3d at 47. The court thus focuses its analysis on the impact of a possible
reindictment of the administration of the STA and the administration of justice.
15 Sullivan was not initially detained, but was taken into custody prior to the July 29,
2019 arraignment and plea.
16 In passing the STA, Congress clearly intended prejudice to the defendant to be a
factor for a court to consider in determining whether to dismiss an indictment with or without
prejudice based on a STA violation. See Taylor, 487 U.S. at 333. Some courts appear to
consider prejudice as a stand-alone factor, while others consider it as part of the third statutory
factor. Regardless, the court finds prejudice to Defendant to be minimal in this case.
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 22 of 25
PageID.<pageID>

23
delay, the greater the presumptive or actual prejudice to the defendant . . . .”). In
short, the delay in this case was not so great as to weigh in favor of dismissal with
prejudice.
Considering the totality of these factors, the court dismisses without
prejudice the following counts in the Third Superseding Indictment: 1, 2, 3, 4, 5,
6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 25, 27, 29, 30, 31, 32, 33,
34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, and
57.
Dismissal without prejudice is not without sanctions—the
Government will be unable to seek reindictment of many dismissed counts as
barred by a five-year statute of limitations.17 But at the December 17, 2019
hearing, the AUSA stated that the Government may seek to reindict some of the
dismissed and time-barred charges, but under a different statute—that is, under
Title 26 which carries a six-year, not five-year, statute of limitations. See 26
U.S.C. § 6531. To the extent that the Government intends to proceed as such, the
court is unlikely to permit the Government to avoid the sanction of dismissal
without prejudice—that is, solely for purpose of any superseding indictment
addressing the dismissal of the fifty counts of the Third Superseding Indictment,
17 As stated by the Supreme Court, “[d]ismissal without prejudice is not a toothless
sanction: it forces the Government to obtain a new indictment if it decides to reprosecute, and it
exposes the prosecution to dismissal on statute of limitations grounds.” Taylor, 487 U.S. at 342.
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 23 of 25
PageID.<pageID>

24
the court is providing notice that it would likely dismiss any counts of a new
indictment that charges the same alleged conduct (as charged in the Third
Superseding Indictment and dismissed by this order) under a different statute with
a longer statute of limitations. The Supreme Court has recognized that dismissal
without prejudice does in fact sanction the government because it “exposes the
prosecution to dismissal on statute of limitation grounds.” Taylor, 487 U.S. at
342. The court is thus unlikely to permit the Government to end-run this sanction
by charging the same conduct under a Title 26 offense.
To be clear, this order does not prohibit the government from seeking
a further superseding indictment that recharges the dismissed counts not barred by
the statute of limitations, or that might contain additional or different charges than
those contained in the Third Superseding Indictment—the court recognizes that,
under separation of power principles, a court cannot generally prevent the
Government from seeking a superseding indictment that alleges new or different
charges.18 But, for the purpose of recharging specific counts dismissed without
prejudice by this order, it is unlikely the court would permit the Government to
avoid the sanction of dismissal without prejudice by proceeding on a further
18 The court is not suggesting that the Government does in fact intend to seek an
indictment that charges conduct beyond that charged in the Third Superseding Indictment.
Instead, the court is simply expressing its understanding of the separate roles of the executive
and judicial branches.
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 24 of 25
PageID.<pageID>

25
superseding indictment based on the same conduct and acts as those charged in
the Third Superseding Indictment, but charged under a different statute for the
purpose of extending the statute of limitations.
IV. CONCLUSION
Based on the foregoing, the court finds that the Speedy Trial Act was
violated in part. Thus, Defendant’s Motion to Dismiss for Violation of the Speedy
Trial Act, ECF No. 255, is GRANTED in part and DENIED in part. Counts 21,
23, 24, 26, 28, 46, 47, 58, 59, and 60 of the Third Superseding Indictment remain
pending. Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20,
22, 25, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 48, 49,
50, 51, 52, 53, 54, 55, 56, and 57 of the Third Superseding Indictment are
DISMISSED without prejudice.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 19, 2019.
United States v. Sullivan, Cr. No. 17-00104 JMS, Order Granting In Part and Denying In Part
Defendant’s Motion To Dismiss For Violation of the Speedy Trial Act, ECF No. 255
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Case 1:17-cr-00104-JMS-KJM Document 472 Filed 12/19/19 Page 25 of 25
PageID.<pageID>