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 DEFENDANT
LEIHINAHINA SULLIVAN’S
“MOTION TO SQUASH/SUPPRESS
ALL WARRANTS SIGNED BY
JUDGE KEVIN S. CHANG
VIOLATION OF SULLIVAN’S DUE
PROCESS,” ECF NO. 293
ORDER DENYING DEFENDANT LEIHINAHINA SULLIVAN’S
“MOTION TO SQUASH/SUPPRESS ALL WARRANTS SIGNED BY
JUDGE KEVIN S. CHANG VIOLATION OF SULLIVAN’S DUE
PROCESS,” ECF NO. 293
I. INTRODUCTION
Before the court is pro se Defendant Leihinahina Sullivan’s
(“Sullivan”) November 4, 2019 “Motion to Squash/Suppress all Warrants Signed
by Judge Kevin S. Chang [in] Violation of Sullivan’s Due Process.” ECF No. 293
(the “Motion to Squash/Suppress”).1 For the following reasons, the Motion to
Squash/Suppress is DENIED.
///
///
1 The United States filed an opposition to the Motion to Squash/Suppress on November
29, 2019, ECF No. 378. Sullivan did not file an optional reply, which was due December 13,
2019. See ECF No. 314. The court held a hearing on January 6, 2020.
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II. ANALYSIS
Sullivan argues, in essence, that Magistrate Judge Chang was required
to recuse himself from any matter relating to the instant criminal case, including
signing a search warrant that led to the initial indictment against her. The court
disagrees.
A judge must recuse from a case where the “probability of actual bias
on the part of the judge or decisionmaker is too high to be constitutionally
tolerable.” Rippo v. Baker, 137 S. Ct. 905, 907 (2017) (per curiam) (quoting
Withrow v. Larkin, 421 U.S. 35, 47 (1975)).2 This inquiry is objective—that is, the
court asks “whether, considering all the circumstances alleged, the risk of bias was
too high to be constitutionally tolerable.” Id. See also Williams v. Pennsylvania,
136 S. Ct. 1899, 1905 (2016) (“The Court asks not whether a judge harbors an
actual, subjective bias, but instead whether, as an objective matter, the average
judge in his position is likely to be neutral, or whether there is an unconstitutional
potential for bias” (internal quotation marks and citation omitted)).
“[J]udicial rulings alone almost never constitute a valid basis for a
bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). And,
2 Under 28 U.S.C. § 455(a), any judge of the United States “shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.” And under
§ 455(b)(1), a judge must disqualify himself “[w]here he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding.”
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opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the
current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless
they display a deep-seated favoritism or antagonism that
would make fair judgment impossible.
Id. Finally, under the “extrajudicial source doctrine”—where a judge is allegedly
biased based on obtaining information outside of judicial proceedings—opinions
must be formed outside of the judge’s judicial duties. See United States v.
Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010).
Here, Sullivan claims that Magistrate Judge Chang was involved in a
prior qui tam case that she brought,3 and that she “was ordered by Judge Chang not
to reveal any information on the qui tam cases in her defense for the seven (7)
counts of unauthorized computer access while employed with [the Department of
Human Services] or Sullivan would be held in contempt and sent to prison.”
Motion to Squash/Suppress at 3, ECF No. 293 at PageID #2441. She further
claims that Magistrate Judge Chang should have recused himself from this matter
because he “is directly related to disputed evidentiary facts concerning the criminal
3 Sullivan was a Relator in two qui tam actions. First, in United States of America ex. rel.
Leihinahina Sullivan v. United Heathcare Insurance Company, d/b/a/ Evercare, Civ. No. 09-
00341 SOM-KSC, Judge Susan Oki Mollway was the assigned district court judge and Judge
Chang was the assigned magistrate judge. In United States of America ex rel. v. WellCare
Health Insurance of Arizona, Inc. d/b/a Ohana Health Plan, Civ. No. 09-00342 SOM-RLP,
Judge Mollway was the assigned district court judge, and Judge Richard L. Puglisi was the
assigned magistrate judge. The docket of the second case, Civ. No. 09-00342 SOM-RLP, does
not reflect any involvement by Magistrate Judge Chang.
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charges of unauthorized computer access, . . . which was used to establish probable
cause in other search warrants” signed by Magistrate Judge Chang. Id. at 4.4
Sullivan does not allege an “extrajudicial source” giving rise to
potential bias, or some deep-seated favoritism on the part of Magistrate Judge
Chang. Instead, she claims, in conclusory fashion, that his involvement in her qui
tam case, including issuing an order that she not reveal information about the case,
gives rise to potential bias rising to the level of a due process violation. But
Magistrate Judge Chang’s actions in the qui tam case were all related to judicial
functions that cannot serve as a basis for recusal under these circumstances. In
short, any adverse rulings (assuming, for the purposes of this Order only, that any
sealing orders were “adverse” to Sullivan) in the qui tam case do not equate to
bias. See Johnson, 610 F.3d at 1148; see also United States v. McTiernan, 695
F.3d 882, 893 (9th Cir. 2012) (rejecting litigant’s argument that magistrate judge
“prejudged” her, was biased, and therefore was required to recuse himself merely
because the magistrate judge presided over a related criminal case).
4 Although not clear, it appears that Sullivan was convicted in Hawaii state court on
seven counts of “unauthorized computer access” that relate to her qui tam case. She further
appears to claim that she was unable to defend the state court case, at least in part, because Judge
Chang ordered her not to disclose information in Civ. No. 09-00341 SOM-KSC. Judge Chang,
in fact, did enter several orders granting the Government’s application to extend the intervention
period and ordering that the case remain sealed during those extension periods. See Civ. No. 09-
00341 SOM-KSC, ECF Nos. 26, 34, 41, 45, 49, 53, and 58.
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III. CONCLUSION
Based on the foregoing, Sullivan’s Motion to Squash/Suppress, ECF
No. 293, is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 6, 2020.
United States v. Sullivan, Cr. No. 17-00104 JMS-KJM, Order Denying Defendant Leihinahina
Sullivan’s “Motion to Squash/Suppress all Warrants Signed by Judge Kevin S. Chang Violation
of Sullivan’s Due Process,” EFC No. 293.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
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