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’S (1) MOTION FOR
A FRANKS HEARING, ECF NO.
231; AND (2) MOTION TO
SUPPRESS ALL EVIDENCE
OBTAINED FROM HER HOME
ON JUNE 1, 2016, ECF NO. 232
ORDER DENYING DEFENDANT’S (1) MOTION FOR A FRANKS
HEARING, ECF NO. 231; AND (2) MOTION TO SUPPRESS ALL
EVIDENCE OBTAINED FROM HER HOME ON JUNE 1, 2016,
ECF NO. 232
I. INTRODUCTION
At issue here are two motions filed by pro se Defendant Leihinahina
Sullivan (“Defendant” or “Sullivan”): (1) a “Motion for a Frank’s (sic) Hearing,”
ECF No. 231; and (2) a “Motion to Suppress All Evidence Obtained From her
Home on June 1, 2016,” ECF No. 232. For the reasons discussed below, both
motions are DENIED.
II. BACKGROUND
On May 25, 2016, Magistrate Judge Kevin S.C. Chang (“Judge
Chang”) issued a search warrant for a search of Sullivan’s home in Lihue, Hawaii
to seize various items. See ECF No. 357-1 (search warrant) at PageID #3639. The
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warrant was premised on alleged violations of 18 U.S.C. §§ 371, 1028A and 26
U.S.C. § 7206(1) & (2) for “[c]onspiracy to defraud the United States, Involving
the Internal Revenue Service [(“IRS”)]; Aggravated Identify Theft; Filing False
Tax Return; Aiding and Assisting Filing False Tax Return” (collectively,
“enumerated violations”). Id. This search warrant was supported by an affidavit
by IRS Criminal Investigation Division Special Agent Mark MacPherson (“SA
MacPherson”) (“MacPherson Affidavit”).1 Id. at PageID #3640.
Defendant now brings two separate motions raising a series of
arguments. First, Defendant seeks a hearing pursuant to Franks v. Delaware, 438
U.S. 154 (1978), alleging that the Macpherson Affidavit contained false statements
and omitted material facts. Second, she attacks the validity of the search warrant
on a variety of grounds.2
1 The paragraphs in SA MacPherson’s Affidavit appear to be mis-numbered. The
Affidavit goes up to paragraph 47, see ECF No. 357-1 at PageID #3672-73, and restarts at
paragraph 40 immediately after instead of starting at paragraph 48. See id. at PageID #3673.
Accordingly, and to avoid any confusion, the court will reference the page number of the
document, the corresponding paragraph on the page, along with the court-generated PageID
number when referencing the Affidavit.
2 Defendant’s motions were filed on September 11, 2019. ECF Nos. 231, 232. She filed
a supplement to her motion to suppress on November 3, 2019. ECF No. 317. The Government
filed its opposition to both of the motions on November 22, 2019. ECF Nos. 357, 360.
Defendant filed her replies on November 27, 2019. ECF Nos. 402, 403. The court held a
hearing on January 6, 2020.
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III. DISCUSSION
A. 	Motion for a Franks Hearing
Defendant first seeks a Franks hearing, arguing that the MacPherson
Affidavit contained false statements and omitted material facts.
“[A] defendant seeking an evidentiary hearing to determine whether a
facially valid affidavit contains false statements must make a substantial
preliminary showing that: (1) the affidavit contains intentionally or recklessly false
statements and (2) the affidavit cannot support a finding of probable cause without
the allegedly false information.” United States v. DeLeon, 979 F.2d 761, 763 (9th
Cir. 1992) (citing Franks, 438 U.S. at 156). Franks also applies to “omissions of
material facts.” Id. (citing United States v. Stanert, 762 F.2d 775, 781 (9th Cir.
1985)). Such allegations “cannot be merely conclusory; rather, they must be
accompanied by a detailed offer of proof.” United States v. Chesher, 678 F.2d
1353, 1360 (9th Cir. 1982) (citing Franks, 438 U.S. at 171).
Once a defendant has made such a “substantial preliminary showing”
and is granted a Franks hearing, a Franks hearing then requires a district court to
engage in a two-part process:
First, the district court determines whether the affiant
officer intentionally or recklessly made false or
misleading statements or omissions in support of the
warrant. If it finds by a preponderance of the evidence
that the officer so acted, the district court then inquires
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into whether . . . the affidavit’s remaining content is
insufficient to establish probable cause.
United States v. Martinez-Garcia, 397 F.3d 1205, 1214-15 (9th Cir. 2005)
(citations and quotation signals omitted); see also United States v. Silva, 470 F.
Supp. 2d 1202, 1210 (D. Haw. 2006) (same).
1. 	Sullivan’s Allegations of False Statements and Material Omissions
from SA MacPherson’s Affidavit
Defendant alleges the following grounds of misstatements or material
omissions in SA MacPherson’s Affidavit: (i) the affidavit does not correlate
specific IP addresses with the filing of specific tax returns and the deposit of
refunds into bank accounts; (ii) there is no “[p]roof [that the] 264 tax returns” were
prepared by Sullivan and “false,” (iii) there is no “[p]roof of [Sullivan] recruiting
and paying others to recruit for Sullivan to prepare [false] tax returns,” (iv) the IP
addresses 75.85.128.7[1], 98.155.64.26, and 98.150.158.162 identified in the
affidavit did not belong to Sullivan; (v) the tax returns of Witness 13 were
“encumbered by the State of Hawaii via Ryan K. Kaya State of Hawaii Department
of Taxation” and “not by Sullivan;”4 and (vi) a catch-all allegation that all the
3 Defendant refers to Witness 1 by the person’s name in her motions. The court refers to
this individual as “Witness 1.”
4 In Defendant’s motion, “v” was mis-numbered as “vi,” with “vi” mis-numbered as “v.”
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“false and omitted information” led to the issuance of the warrant.5 ECF No. 231
at PageID #2025.
In her reply, Sullivan raises the following new grounds: (vii) the
Government has not produced discovery on the “link analysis” between the IP
addresses referred to in the MacPherson Affidavit and how they were traced back
to Sullivan; (viii) the Government has not produced a letter regarding Witness 1;
(ix) the qualifications of SA MacPherson are “speculative” or “pretextual” and do
not support his affidavit; and (x) the search warrant failed to include reference to
an IRS ID number.6 Defendant also appears to request discovery of the tax returns
referenced in the search warrant. See Reply, ECF No. 398 at PageID #4115-17.
And at the January 6, 2020 hearing, Sullivan raised two additional
new grounds of misstatement relating to the MacPherson Affidavit: (xi) that a
Kauai Police Department (“KPD”) report referenced in the MacPherson Affidavit
was mischaracterized, including the fact that Witness 1 claimed Defendant did not
have permission to file tax returns on Witness 1’s behalf when, in actuality,
Defendant had such permission, and (xii) that the MacPherson Affidavit stated
5 The court need not address the catch-all allegation separately (or any further), because
it addresses and rejects each of the other arguments.
6 A device ID number is “a unique number that any machine that actually transmit[s] the
tax return is connected to,” which “the IRS started tracking” “[s]ince about 2015.” Dec. 11,
2017 Evid. H’rg Tr. at 11:14-18, ECF No. 65 at PageID #530.
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Mobile Native Hawaiian Health, Inc. (“MNHH”) was a “for profit” organization
when in fact it was a non-profit.
2. 	Analysis
The court ultimately determines that Defendant has not identified any
false statements or material omissions of fact from SA Macpherson’s Affidavit.
The court addresses each allegation, although not in the order listed above.
First, Defendant makes a series of conclusory allegations that certain
statements in the MacPherson Affidavit are “false,” including the allegations there
is no “proof” that Sullivan allegedly prepared approximately 264 tax returns, and
such statement is false (ground ii); and that there is no “proof” that Sullivan
recruited or conspired with others, and such statement is false (ground iii).
Sullivan does not elaborate or explain how such statements were false. And such
self-serving conclusory allegations are insufficient to demonstrate a need for a
Franks hearing. See United States v. Marcello, 731 F.2d 1354, 1358 (9th Cir.
1984) (“To mandate an evidentiary hearing, the challenger’s attack must be more
than conclusory . . . .”) (quoting Franks, 438 U.S. at 171); see also United States v.
Gonzalez, 270 F. App’x 702, 703-04 (9th Cir. 2008) (defendant’s “conclusory
allegations, not supported by an offer of proof, fall short of the showing required
for an evidentiary hearing”) (citing United States v. Chavez-Miranda, 306 F.3d
973, 979 (9th Cir. 2002)).
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Moreover, and in fact, these allegedly “false” statements are not false
and are corroborated by the MacPherson Affidavit. See, e.g., MacPherson Aff. at
22 ¶ 31 (breaking down where these tax returns were procured from which IP
addresses), 10 ¶ 20 (discussing how people associated with Defendant “recruited”
individuals on Defendant’s behalf), ECF No. 357-1 at PageID #3661, 3649-50.
Defendant’s bald-faced allegations are an insufficient offer of proof.
Second, Defendant makes a series of allegations relating to the IP
addresses from which the purportedly fraudulent tax returns were sent.
Specifically, she claims that the MacPherson Affidavit does not specify which IP
address was used to file specific tax returns or relate to refunds deposited into
specific bank accounts (ground i); that certain IP addresses listed did not belong to
Defendant (ground iv); and that the warrant failed to include a reference to an IRS
device ID number (ground x). Each of these fails. Defendant is mistaken as the
Affidavit does include which tax returns came from which IP addresses. See id. at
22 ¶ 31, ECF No. 357-1 at PageID #3661. Similarly, the fact that certain IP
addresses were not registered under Defendant’s name is not a misstatement—the
Affidavit did not claim that certain IP addresses belonged to Defendant; rather,
these IP addresses were associated with Defendant. See id. at 21 ¶ 29 (noting that
a trace through Sullivan’s bank accounts identified eight IP addresses), ECF No.
357-1 at PageID #3660. Further, to the extent the MacPherson Affidavit failed to
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list an IRS device ID number, any failure to include additional information does
not negate the probable cause that has already been established, and that the items
to be seized were itemized with sufficient particularity. See infra § III(B)(1)
(discussing the probable cause finding). Nor has Defendant shown how such
omission, if included, was material—that is, she has made no showing how the
inclusion of this information could have influenced the probable cause
determination.
Third, Defendant alleges that a number of documents referenced in
the search warrant have not been produced in discovery. Specifically, that the
Government failed to produce discovery as to how the IP addresses identified in
the search warrant relate to Defendant, i.e., the “link analysis” (ground vii); and a
letter discussing Witness 1 (ground viii). Defendant also appears to make a new
discovery request for all the fraudulently-prepared tax returns referenced in the
search warrant. But requests to compel discovery are not allegations of
misstatements or material omissions relating to the face of the search warrant, and
thus not appropriate for purposes of the court in determining whether a Franks
hearing is warranted.
Fourth, Defendant contests SA MacPherson’s description of his
qualifications (ground ix). Specifically, she argues that in his Affidavit, SA
MacPherson states he conducted “many” investigations, but that the specific
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reference to “nine. . . investigations” and “four search and seizure warrants”
executed are not “many.” See ECF No. 398 at PageID #4116. This argument fails
because these are not factual misstatements; rather, she disagrees with the
characterization of these qualifications as “many.” And, more importantly, even if
the use of the word “many” constituted a misstatement as to SA MacPherson’s
qualifications (which it does not), it has no bearing and completely irrelevant as to
whether the statements as to Sullivan were false and thus lacked probable cause.
Fifth, Defendant alleges that the tax returns of Witness 1 were
“encumbered by the State of Hawaii via Ryan K. Kaya State of Hawaii Department
of Taxation” and “not by Sullivan” (ground v). It appears Defendant is claiming
that she did not obtain Witness 1’s state tax refunds, which were instead returned
to the State of Hawaii. Even assuming this assertion is true, merely because the
State of Hawaii (and not Defendant) ultimately obtained a state tax refund does not
undermine probable cause as to the other criminal acts alleged against Defendant,
including fraudulently preparing tax returns on behalf of Witness 1 (and others).
Sixth, at the January 6, 2020 hearing (for the first time), Defendant
alleged that there is a misstatement in the Affidavit because MNHH is referred to
as a “for profit” organization when, in actuality, it is a non-profit organization
(ground xii), and that SA MacPherson mischaracterized the KPD report cited in his
Affidavit (ground xi). Both of these new allegations fail. As to the
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characterization of MNHH, the Affidavit clearly states that “MNHH was also
registered as a non-profit corporation, but appears to have been a for-profit tax
return preparation business . . . .” MacPherson Aff. at 26 ¶ 35, ECF No. 357-1 at
PageID #3665 (emphasis added). Further, to the extent this could be a
misstatement (which, it clearly is not), any such allegation is immaterial to the
probable cause determination.
As to the KPD report, Defendant claims that the MacPherson
Affidavit mischaracterized the contents of the report, although she failed to provide
the report for the court’s review. More importantly, even taking Defendant’s
allegation at face value, she has failed to identify any purported
mischaracterization. For example, Defendant claims that she had permission to file
tax returns for Witness 1, contrary to what the MacPherson Affidavit states, but
neither the KPD report nor the MacPherson Affidavit dispute whether she had
authorization to file tax returns on behalf of Witness 1; rather, it was the fraudulent
contents on behalf of Witness 1 that is, among other things, the basis for the
probable cause finding.
Last, Defendant asserts that the MacPherson Affidavit omitted a
conversation between an undercover agent and Defendant, where the agent
unsuccessfully attempted to solicit Defendant’s purported services to prepare a tax
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return, and Defendant declined.7 See ECF No. 232 at PageID #2037-38.
Defendant argues that the conversation shows that the information received from
informants was not corroborated, and accordingly, the search warrant lacked
probable cause. Id. Defendant is incorrect. Merely because this singular phone
conversation did not corroborate the reports of others does not mean the
Affidavit’s facts were otherwise false or incorrect. Nor is this omission otherwise
material to the probable cause determination. See, e.g., United States v. Norris,
942 F.3d 902, 910 (9th Cir. 2019) (noting that “materiality” means “necessary to
finding probable cause”) (citing United States v. Perkins, 850 F.3d 1109, 1116 (9th
Cir. 2017); see also United States v. Williams, 477 F.3d 554, 560-61 (8th Cir.
2007) (defendant failed to make substantial preliminary showing justifying a
Franks hearing, in part, because the alleged omitted facts “would not have altered
the probable cause determination”).
Accordingly, Defendant has not identified any false statements or
material omissions of fact in the MacPherson Affidavit. Thus, the court need not
discuss in detail the other factors for a Franks hearing—including whether
Defendant also made the requisite substantial preliminary showing that any
7 This argument was raised in Defendant’s motion to suppress, as opposed to her motion
for a Franks hearing. Nevertheless, because the court liberally construes her argument as
relevant to her request for a Franks hearing, the court addresses this argument in its Franks
analysis.
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statements were “intentionally or recklessly made,” or that such statements were
“necessary to find probable cause.” United States v. Perdomo, 800 F.2d 916, 920
(9th Cir. 1986). Given the court’s analysis, however, it follows that no false
statements or material omissions of facts were “intentionally or recklessly made,”
and that none of Defendant’s allegations could impact the probable cause
determination. For the foregoing reasons, the court DENIES Defendant’s Motion
for a Franks hearing, ECF No. 231.
B. 	Motion to Suppress All Evidence Obtained from June 1, 2016 Search
Defendant makes several arguments that the search warrant and the
subsequent seizures were improper and thus all evidence seized pursuant to this
warrant should be suppressed. The court addresses each of these arguments in turn
and, for the reasons stated below, finds none has merit.
1. 	SA MacPherson’s Affidavit Established Probable Cause for the
Issuance of the June 1, 2016 Search
The court first reviews the MacPherson Affidavit to determine
whether it established probable cause to search for evidence of the enumerated
crimes. For a search warrant to issue, the Fourth Amendment requires that there be
“probable cause, supported by Oath or affirmation.” U.S. Const. Amend. IV.
“[P]robable cause means a fair probability that contraband or evidence is located in
a particular place. Whether there is a fair probability depends upon the totality of
the circumstances, including reasonable inferences, and is a commonsense,
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practical question. Neither certainty nor a preponderance of the evidence is
required.” United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007) (citation
and quotation signals omitted); see also Illinois v. Gates, 462 U.S. 213, 238
(1983); United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc)
(“[P]robable cause means ‘fair probability,’ not certainty or even a preponderance
of the evidence.” (citation and quotation signal omitted)). Doubtful cases should
be resolved in favor of a warrant. Kelley, 482 F.3d at 1050-51.
After careful review, the court concludes that the MacPherson
Affidavit established probable cause for three “tax fraud schemes operated” from
Defendant’s home: (1) Defendant filed false federal tax returns that failed to report
her true taxable income; (2) MNHH filed false federal tax returns that failed to
report its true gross receipts; and (3) Defendant filed false federal and state tax
returns for others. MacPherson Aff. at 4-5, ¶¶ 10(a)-(c), ECF No. 357-1 at PageID
#3643-44. The court summarizes the evidence set forth in the MacPherson
Affidavit establishing probable cause for each of the alleged schemes, including
that evidence of the enumerated offenses would be found at Defendant’s home.
Defendant’s Tax Returns
For the tax years 2009 through 2014, Defendant signed her individual
tax returns as “self-prepared.” Id. at 5 ¶ 11, ECF No. 357-1 at PageID #3664. The
MacPherson Affidavit established, among other things, that Defendant’s bank
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deposits were in excess of her reported income on these returns, and that she
reported an excessive number of dependents.
For example, gross deposits into Defendant’s American Savings Bank
account 35588 for 2010 totaled $211,985, while she reported income of $95,557 on
her tax return; gross deposits in 2011 totaled $229,639 while she reported income
of $42,624 on her tax return; gross deposits in 2012 totaled $257,334 while she
reported income of $77,320 on her tax return; gross deposits in 2013 totaled
$211,150 while she reported income of $80,205 on her tax return; and gross
deposits in 2014 totaled $288,599 while she reported income of $85,043 on her tax
return. Id. at 19-20 ¶ 25, 23 ¶ 32(a), ECF No. 357-1 at PageID # 3658-59, 3662.
Further, an excess number of dependents that Defendant claimed on her returns,
which reduced her tax liability, changed by year: 9 dependents in 2009; 7
dependents in 2010; 9 dependents in 2011; 10 dependents in 2012; 11 dependents
in 2013; and 12 dependents in 2014. Id. at 23 ¶ 32(b), ECF No. 357-1 at PageID
#3662. For the years 2013 and 2014, Defendant did not report any income from
tax preparation services, although over $130,000 in tax refunds were deposited into
accounts controlled by her during those years. Id. at 23 ¶ 32(c), ECF No. 357-1 at
PageID #3662.
8 Account 3558 was in the name of Defendant and her husband, was opened in 2007, and
Defendant has sole authority over the account. MacPherson Aff. at 17 ¶ 23(a), ECF No. 357-1 at
PageID #3656.
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MNHH Tax Returns
Here, the MacPherson Affidavit established that MNHH filed false
federal tax returns, that MNHH operated from Defendant’s home, and that
Defendant was listed as the Secretary/Director of MNHH. Id. at 17 ¶ 22(c), ECF
No. 357-1 at PageID #3656. MNHH also maintained a business bank account
(American Savings Bank account number 4836), opened by Defendant in 2009,
and over which Defendant had joint authority. Id. at 18 ¶ 23(f), ECF No. 357-1 at
PageID #3657.
From 2011 through 2014, MNHH filed annual IRS form 990-N e-
postcards, all stating that MNHH’s gross receipts were $50,000 or less and listing
its address as Defendant’s residence. If MNHH reported gross receipts in excess
of $50,000, it would have required the filing of an IRS Form 990 or 990EZ—forms
that require much more detail. Id. at 26 ¶ 35, ECF No. 357-1 at PageID #3665.
And, in fact, according to the MacPherson Affidavit, MNHH’s gross deposits into
American Savings Bank account number 4836 were well in excess of $50,000 in
each of these years: $79,336 in 2011; $236,699 in 2012; $151,385 in 2013; and
$236,595 in 2014. Id. at 20 ¶ 25(h), ECF No. 357-1 at PageID #3659.
False Tax Returns for Others
Two witnesses, referred to in the MacPherson Affidavit as Witness 1
and Witness 2, provided information to the KPD and to SA MacPherson directly.
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Witness 1 reported, among other things, the following: Witness 1 paid Defendant
a total of $9,136 (by cash and check)9 for Defendant to prepare four amended tax
returns and one original return. Id. 12 ¶ 20(g), ECF No. 357-1 at PageID #3651.
An amended 2010 tax return was false—it lowered Witness 1’s income, claimed
false business expenses, and forged Witness 1’s signature. Id. at 12-13
¶ 20(h), ECF No. 357-1 at PageID #3651-52. The amended 2011 tax return was
likewise false—it lowered Witness 1’s income, claimed an earned income tax
credit to which Witness 1 was not entitled, and was also forged. Id. at 13 ¶ 20(i),
ECF No. 357-1 at PageID #3652. Finally, an original 2013 tax return was false—it
contained false unreimbursed employee business expenses, child care expenses,
and charitable contributions. Id. at 13 ¶ 20(j), ECF No. 357-1 at PageID #3652.
Each of these false tax returns caused a loss to the United States treasury. Id. at
12-13, ¶¶ 20(g)-(j), ECF No. 357-1 at PageID #3651-52. Witness 1’s tax return
was filed electronically with the IRS using IP address 75.85.128.71. Id. at 21 ¶ 28,
ECF No. 357-1 at PageID #3660. SA MacPherson identified 72 tax returns
submitted to the IRS using the same IP address, and 16 of those returns directed
refunds into bank accounts controlled by Defendant. Id.
9 Defendant referred to the tax preparation fee as a “donation” and told Witness 1 to
make the checks payable to MNHH. Id. at 12 ¶ 20(g), ECF No. 357-1 at PageID #3651.
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Witness 2 reported, among other things, the following: Witness 2
paid cash to Defendant to prepare amended tax returns. An amended 2011 tax
return was false—it falsely claimed moving and business expenses, and Witness
2’s signature on the return was forged. Amended 2012 and 2013 returns were
likewise false—they both claimed false medical expenses, charitable contributions,
unreimbursed business expenses, and both had the forged signature of Witness 2.
Id. at 15 ¶ 21(f)-(g), ECF No. 357-1 at PageID #3654. Each of these tax returns
caused a loss to the United States treasury. Id.
Further, the MacPherson Affidavit established that 48 tax returns,
using eight different IP addresses, directed that refunds be deposited into bank
accounts controlled by Defendant. Id. at 21 ¶ 29, ECF No. 357-1 at Page ID
#3660. One of those IP addresses, 204.210.111.244, was subscribed to by
Defendant at her home address. Id. at 30 ¶ 41, ECF No. 357-1 at PageID #3669.
From February 17, 2016 through April 20, 2016, 48 tax returns were submitted to
the IRS using this IP address. Id. at 30 ¶ 42, ECF No. 357-1 at PageID #3669.
Based on these facts and others, and given the “totality of the
circumstances” in the MacPherson Affidavit, it established a fair probability that
Defendant’s residence (i.e., “SUBJECT PREMISE”) contained evidence of the
enumerated violations from the three tax related schemes. Accordingly, there was
ample basis for Judge Chang to make the probable cause determination.
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2. 	The Search Warrant Was Not Overbroad
Defendant argues the MacPherson Affidavit was overbroad because it
sought “contextual information necessary to understand other evidence,” which,
Defendant argues, made the scope of the warrant “limitless.” ECF No. 232 at
PageID #2039-40. Defendant is mistaken and takes such phrasing out of context.
Contrary to Defendant’s assertion, read in context, this language does not permit
an overbroad search. See MacPherson Aff. at 34-37 ¶ 41, ECF No. 357-1 at
PageID #3673-76. Instead, this language is contained in a specific sub-paragraph
in context of a search protocol for electronic files. The entire sub-paragraph is as
follows:
d) The process of identifying the exact files, blocks,
registry entries, logs, or other forms of forensic evidence
on a digital device or other electronic storage media that
are necessary to draw an accurate conclusion is a
dynamic process. While it is possible to specify in
advance the records to be sought, digital evidence is not
always data that can be merely reviewed by a review
team and passed along to investigators. Whether data
stored on a computer is evidence may depend on other
information stored on the computer and the application of
knowledge about how a computer behaves. Therefore,
contextual information necessary to understand other
evidence also falls within the scope of the warrant.
Id. at 37 ¶ 41(d), ECF No. 357-1 at PageID #3676 (emphasis added). Accordingly,
it is clear that the “contextual information” needed was not limitless, as Defendant
claims, but rather applies to “information stored on the computer and the
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application of knowledge about how a computer behaves” in order to review,
identify, or process the relevant digital data. See, e.g., United States v. Loera, 59
F. Supp. 3d 1089, 1154 (D.N.M. 2014) (finding the phrase “contextual
information” when read in context to be sufficiently particular and not overbroad).
Defendant has failed to identify that the scope of the warrant was overly broad.10
3. 	Other Arguments
Defendant makes several other arguments, which the court now
addresses.
a. 	Seizures Were not Outside the Scope of the Warrant
Defendant argues that the seizures from the June 1, 2016 search were
beyond the scope of the warrant, in that “[a]gents came in and just started dumping
items into boxes without reviewing if it was covered under the 1st warrant. They
had time to review items but instead began taking brand new boxes (never used)
out of Sullivan’s shed, and began dumping whatever paperwork, pictures, and
other items they found into those boxes.” ECF No. 232 at PageID #2029. Because
10 Further, the listed items to be seized were within the scope of the search warrant, and
were described with sufficient particularity and limited by a specific time frame (January 2009-
present). See generally ECF No. 357-1 at PageID #3684-86. The list included four broad
categories: (i) documents relating to Defendant’s finances, including items showing income
received from preparing taxes; (ii) items to show ownership, operation, and finances of MNHH,
including tax-related matters; (iii) items establishing the preparation of state and federal taxes, a
tax preparation business, and receipt of refunds; and (iv) items relating to tax clients. All of
these categories relate to the enumerated violations and are supported by probable cause.
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of the alleged impermissible seizures, Defendant seeks an evidentiary hearing as to
whether all evidence should be suppressed.
In her motion, Defendant alleges in a conclusory fashion that the
Government has seized many items, including documents such as medical records,
living wills and trusts, preschool applications, and much more. See ECF No. 232
at PageID #2033. But other than these conclusory allegations set forth in a
memorandum, Defendant has offered no actual proof—such as an inventory
provided by the Government or even a declaration by her—that the Government in
fact seized such files. Accordingly, Defendant has not provided any actual proof
that the Government has seized documents outside the scope of the search warrant,
and thus, she is not entitled to an evidentiary hearing on this issue.11 United States
v. Ledesma, 499 F.2d 36, 39 (9th Cir. 1974) (moving papers must be “sufficiently
definite, specific, detailed, and nonconjectural to enable the court to conclude that
contested issues of fact going to the validity of the search are in question” for an
11 Defendant also seeks the suppression of all evidence seized from the June 1, 2016
search. See ECF No. 232 at 2033-34. Such request is an “extraordinary remedy [which] should
be used only when the violations of the warrant’s requirements are so extreme that the search is
essentially transformed into an impermissible general search” and in “cases where there is a
‘flagrant disregard’ for the terms of the warrant.” United States v. Chen, 979 F.2d 714, 717 (9th
Cir. 1992). Otherwise, “[o]rdinarily, only evidence that is obtained in violation of a warrant is
suppressed.” Id. (citing United States v. Tamura, 694 F.2d 591, 597 (9th Cir. 1982). Here,
Defendant has not provided actual proof that any evidence that has been improperly seized,
much less shown that the Government “flagrant[ly] disregard[ed]” the search warrant justifying
wholesale suppression. If, later on, Defendant identifies specific items, arguing such items
should be suppressed, the court will consider such a request at that time, if appropriate.
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evidentiary hearing) (citing Cohen v. United States, 378 F.2d 751, 760-61 (9th
Cir.), cert denied, 389 U.S. 897 (1967)).
b. 	Judge Chang’s Purported Bias When Issuing the Warrant
Defendant asserts that the search warrant issued by Judge Chang was
improper due to bias because he was the magistrate judge in an unrelated qui tam
matter against her and should have recused himself. This is identical to another
argument addressed in Sullivan’s other motion. See ECF No. 293. And as
discussed in a separate order denying Defendant’s “Motion to Squash/Suppress All
Warrants Signed by Judge Kevin S. Chang Violation of Sullivan’s Due Process,”
filed on January 6, 2020, see ECF No. 549, Defendant has failed to show any
purported bias from Judge Chang or that Judge Chang should have otherwise
recused himself.
c. 	Agent’s Purported Interrogation of Sullivan’s Son
Sullivan alleges that in execution of the search warrant, an agent
named “Derek” took her son aside and “interrogated him for passcodes, and other
information regarding iPhones & iPads, and where did [Sullivan] put stuff.” ECF
No. 232 at PageID #2031. During this time, her son was “not free to leave and the
request for [her son] to be with one of the parents was denied.” Id.
To the extent such alleged actions (if true) amounted to any
constitutional violations as against her son, Defendant has no standing to make
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such an assertion for any purported violations of his constitutional rights. See e.g.,
Jackson v. Official Representatives and Emps. of L.A. Dep’t., 487 F.2d 885, 886
(9th Cir. 1973) (per curiam) (litigant had no standing to allege that the search of his
parents’ home was illegal in his own § 1983 suit regarding his arrest and
conviction); see also Ramirez v. United States, 294 F.2d 277, 281 (9th Cir. 1961)
(noting appellant did not have standing to complain of the arrest of his wife or the
search and seizure incident thereto), disapproved on unrelated grounds by United
States v. Demma, 523 F.2d 981 (9th Cir. 1975).12
Defendant has failed to show that any evidence should be suppressed,
or that the search warrant was otherwise invalid.13 Accordingly, her Motion to
Suppress All Evidence Obtained from her Home on June 1, 2016, ECF No. 232, is
DENIED.
12 At most, construing Defendant’s allegations liberally, obtaining the passcodes from
her son in an improper manner could possibly constitute misconduct. The court considered this
claim separately as part of Defendant’s various motions to dismiss for prosecutorial misconduct
heard on January 23, 2020. See ECF Nos. 295, 223 & 306. There, Defendant was given the
opportunity to have her son brought to court to testify, but ultimately, her son was not called as a
witness. Thus, the court was left with Defendant’s bare assertion of fact, an insufficient basis to
find any misconduct. See ECF No. 606.
13 Defendant makes two more arguments in her motion to suppress—that SA
MacPherson was not qualified and that the warrant only identified one IP address registered
under her name, so the seizure of other computers was impermissible. These arguments fail in
her motion to suppress for the same reasons they failed in relation to her Franks motion. See
supra § III(A)(2) (discussing SA MacPherson’s qualifications are immaterial to probable cause
determination); see also id. § III(B)(2) (discussing probable cause, including various bank
accounts traced to multiple IP addresses associated with Defendant).
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IV. CONCLUSION
Based on the foregoing, the court DENIES Sullivan’s (1) “Motion for
a Frank’s (sic) Hearing,” ECF No. 231; and (2) “Motion to Suppress All Evidence
Obtained from her Home on June 1, 2016,” ECF No. 232.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 24, 2020.
United States v. Sullivan, Cr. No. 17-00104 JMS-KJM, Order Denying Defendant’s (1) Motion
for a Franks Hearing, ECF No. 231; and (2) Motion to Suppress All Evidence Obtained from her
Home on June 1, 216, ECF No. 232
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
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