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 DENYING MOTION TO
SUBPOENA FOR PRETRIAL
MOTIONS HEARINGS, ECF NO.
352
ORDER DENYING MOTION TO SUBPOENA FOR PRETRIAL MOTIONS
HEARINGS, ECF NO. 352
I. INTRODUCTION
On November 21, 2019, pro se Defendant Leihinahina Sullivan
(“Defendant”) filed a “Motion to Subpoena For Pretrial Motions Hearings; Grand
Jury Testimony Printed Out no access to printer to provide defense for myself,
violation 8th Amend” (“Motion”). ECF No. 352. On December 5, 2019, the
Government filed a Response. ECF No. 412. For the reasons discussed below, the
Motion is DENIED.
II. DISCUSSION
Defendant requests subpoenas for certain individuals to testify at
scheduled hearings and for the Government to produce certain discovery at those
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hearings. More specifically, Defendant requests subpoenas for the following
witnesses:
(1) Craig Jerome and William Harrison (her prior counsel) to testify at a
December 9, 2019 hearing on Defendant’s motion to dismiss for failure to produce
discovery (ECF No. 256) “about discovery request and non-compliance resulting
in speedy trial violation,” ECF No. 352 at PageID #3607;
(2) Kapono Sullivan and William Harrison to testify at a January 6, 2020
hearing on a motion to suppress. Kapono Sullivan would testify about “his
interrogation for passcodes,” and William Harrison would testify about a “phone
call made to him on agent’s phone on June 1, 2019 about passcodes,” id.; and
(3) Special Agent Mark MacPherson to testify at a January 6, 2020 hearing
on a motion for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S.
154 (1978), (ECF No. 231), id.
In addition, Defendant requests subpoenas for the Government to
produce:
(1) at a January 6, 2020 hearing on a motion to dismiss for prosecutorial
misconduct (ECF No. 223), grand jury testimony of six individuals and for seven
individuals to testify about “[Assistant United States Attorney Rebecca]
Perlmutter’s misconduct,” id.; and
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(2) at a January 6, 2020 hearing on a motion to suppress (ECF No. 232), “all
9 boxes with all items taken” during a June 1, 2017 search of Defendant’s home,
id. at PageID #3608.
A. 	Legal Standards
Under the Sixth Amendment, every person charged with a federal
crime shall have compulsory process for obtaining witnesses in her favor. U.S.
Const. amend VI. And criminal defendants have the right under the compulsory
process clause of the Sixth Amendment to the government’s assistance in
compelling the attendance of favorable witnesses. See United States v. Valenzuela-
Bernal, 458 U.S. 858, 867 (1982); United States v. Collins, 551 F.3d 914, 926-27
(9th Cir. 2009).
In turn, Federal Rule of Criminal Procedure 17 provides for the
issuance of subpoenas in criminal proceedings. Under Rule 17(b):
Upon a defendant’s ex parte application, the court must
order that a subpoena be issued for a named witness if the
defendant shows an inability to pay the witness’s fees
and the necessity of the witness’s presence for an
adequate defense. If the court orders a subpoena to be
issued, the process costs and witness fees will be paid in
the same manner as those paid for witnesses the
government subpoenas.
“A motion under Rule 17(b) is addressed to the sound discretion of
the trial court, and a defendant does not have an absolute right to subpoena
witnesses at government expense.” United States v. Sims, 637 F.2d 625, 629 (9th
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Cir. 1980); see also United States v. Martin, 567 F.2d 849, 852 (9th Cir. 1977). In
the Ninth Circuit, if “the accused avers facts which, if true, would be relevant to
any issue in the case, the requests for subpoenas must be granted, unless the
averments are inherently incredible on their face, or unless the Government shows,
either by introducing evidence or from matters already of record, that the
averments are untrue or that the request is otherwise frivolous.” Sims, 637 F.2d at
627 (quoting Greenwell v. United States, 317 F.2d 108, 110 (D.C. Cir. 1963).
“[T]he trial court’s discretion is limited to determining whether issuing the
subpoena would constitute an abuse of process.” Id. at 629. Further, a district
court does “not abuse its broad discretion in refusing to authorize [a] fishing
expedition,” United States v. Callum, 410 F.3d 571, 578 (9th Cir. 2005), or where a
defendant fails to show “that the testimony of the requested witnesses would be
relevant to [her] case,” United States v. Merrill, 746 F.2d 458, 465 (9th Cir. 1984),
overruled on other grounds by Planned Parenthood of Columbia/Willamette, Inc.
v. Am. Coal. of Life Activists, 290 F.3d 1058, 1066 (9th Cir. 2002).1 Further,
1 Other courts have found that under Rule 17(b)’s required showing of the “necessity of
the witness’s presence for an adequate defense,” “necessity” requires a showing that the
witness’s testimony would be “relevant, material, and useful.” See United States v. Orr, 692
F.3d 1079, 1095 (10th Cir. 2012); United States v. Schaller, 401 F. App’x 419, 421 (11th Cir.
2010); United States v. Moore, 917 F.2d 215, 230 (6th Cir. 1990); United States v. Mount, 896
F.2d 612, 621 (1st Cir. 1990) (stating that before the absence of witness can violate either the
compulsory process or due process clause, a defendant must show that the proposed testimony
would be “relevant, material, and favorable”); United States v. LeAmous, 754 F.2d 795, 798 (8th
Cir. 1985) (“Mere allegations of materiality and necessity are not sufficient to establish that a
witness is necessary to an adequate defense.”).
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conclusory statements regarding the need for a witness do not satisfy Rule 17(b)’s
necessity requirement. See United States v. Oates, 173 F.3d 651, 658-59 (8th Cir.
1999); United States v. Pursley, 577 F.3d 1204, 1230 (10th Cir. 2009).
As for grand jury material, the court “may authorize disclosure—at a
time, in a manner, and subject to any other conditions that it directs—of a grand-
jury matter: . . . (ii) at the request of a defendant who shows that a ground may
exist to dismiss the indictment because of a matter that occurred before the grand
jury.” Fed. R. Crim. P. 6(e)(3)(E). To overcome the public interest in grand jury
secrecy, a defendant is required to make “a strong showing of a particularized need
for grand jury materials.” United States v. Sells Eng’g, Inc., 463 U.S. 418, 443
(1983); see also Dennis v. United States, 384 U.S. 855, 870 (1966) (citing
Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 405 (1959)). The
defense bears the burden of demonstrating a particularized need. Pittsburgh Plate
Glass Co., 360 U.S. at 400. Unsubstantiated or speculative assertions of
impropriety are not enough to overcome the public’s interest in grand jury secrecy.
United States v. DeTar, 832 F.2d 1110, 1113 (9th Cir. 1987).
And as for the Franks hearing:
A defendant is entitled to an evidentiary hearing if he
makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the
warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause. To justify a
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hearing, a defendant must make specific allegations,
allege a deliberate falsehood or reckless disregard for the
truth, and accompany such a claim with a detailed offer
of proof.
United States v. Craighead, 539 F.3d 1073, 1080 (9th Cir. 2008) (internal
quotations marks and citations omitted); see also Franks, 438 U.S. at 171-72.
B. 	Application of Legal Standards to the Motion
Here, Defendant has failed to meet her burden of establishing that the
requested witness testimony is relevant and necessary to the specified hearings.2
See Callum, 410 F.3d at 578; Merrill, 746 F.2d at 465. First, Defendant’s
conclusory statement that six grand jury witnesses will testify “to Perlmutter’s
misconduct” is simply insufficient. See Oates, 173 F.3d at 658-59; Pursley, 577
F.3d at 1230. Second, Defendant fails to explain why testimony regarding
passcodes is relevant to her motion to suppress. And third, Defendant fails to
indicate what testimony from Special Agent MacPherson is relevant and necessary
for the hearing to determine whether she is entitled to a Franks evidentiary
hearing. See Craighead, 539 F.3d at 1080; Franks, 438 U.S. at 171-72. If the
court determines, after the January 6, 2020 hearing, that Sullivan is entitled to an
2 The court has already ruled on Defendant’s motion to dismiss for failure to provide
discovery. See ECF No. 444. Thus, Defendant’s request to subpoena former counsel for a
hearing on that motion is moot. In any event, Defendant’s vague, conclusory assertion that
former counsel would testify “about discovery request and non-compliance,” ECF No. 352 at
PageID #3607, lacks the required specificity to establish both relevance and necessity. See
Callum, 410 F.3d at 578; Merrill, 746 F.2d at 465.
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evidentiary hearing under Franks, the court can then address the issue of
appropriate subpoenas. Thus, the request to subpoena Special Agent MacPherson
is premature.
Nor has Defendant met her burden of articulating a particularized
need for transcripts of grand jury testimony. See Sells Eng’g, Inc., 463 U.S. at 443;
Pittsburgh Plate Glass Co., 360 U.S. at 400; DeTar, 832 F.2d at 1113. And the
Government’s production of the “9 boxes” taken during a search of Defendant’s
home is the subject of other discovery motions pending before the magistrate
judge. See, e.g., ECF No. 403, 463.
Finally, during a December 17, 2019 hearing on a separate motion, the
court briefly addressed the deficiencies of the instant Motion. Following a
discussion with the parties, the court indicated that it would deny the instant
Motion without prejudice and directed Defendant’s stand-by counsel to work with
Defendant to secure necessary pretrial and trial subpoenas.
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III. CONCLUSION
Based on the foregoing, the Motion, ECF No. 352, is DENIED
without prejudice.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 19, 2019.
United States v. Sullivan, Cr. No. 17-00104 JMS, Order Denying Motion to Subpoena for
Pretrial Motions Hearings, ECF No. 352
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
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