USA v. Sullivan

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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 (1) “MOTION
FOR LEAVE TO FILE THIS
MOTION TO SUPPRESS,” ECF
NO. 622; (2) “MOTION FOR
LEAVE TO FILE
[SUPPLEMENTAL
MEMORANDUM],” ECF NO. 623;
(3) “MOTION FOR LEAVE TO
FILE” “MOTION TO SUPPRESS
INFORMATION TAKEN FROM
THE WARRANTLESS SEARCH
OF APPLE DESK TOP
COMPUTER,” ECF NO. 624; AND
(4) “MOTION FOR LEAVE TO
FILE THIS SUPPLEMENTAL
MEMORANDUM FOR
CLARIFICATION FOR ECF NO.
232,” ECF NO. 627
ORDER DENYING (1) “MOTION FOR LEAVE TO FILE THIS MOTION
TO SUPPRESS,” ECF NO. 622; (2) “MOTION FOR LEAVE TO FILE
[SUPPLEMENTAL MEMORANDUM],” ECF NO. 623; (3) “MOTION FOR
LEAVE TO FILE” “MOTION TO SUPPRESS INFORMATION TAKEN
FROM THE WARRANTLESS SEARCH OF APPLE DESK TOP
COMPUTER,” ECF NO. 624; AND (4) “MOTION FOR LEAVE TO FILE
THIS SUPPLEMENTAL MEMORANDUM FOR CLARIFICATION FOR
ECF NO. 232,” ECF NO. 627
Pro se Defendant Leihinahina Sullivan requests leave to file four
motions past the deadline for the filing of motions in this action. See ECF Nos.
622, 623, 624, & 627. The court construes all four motions as seeking leave to file
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motions to reconsider the court’s January 24, 2020 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 (“January 24,
2020 Order”). ECF No. 612.1 For the reasons discussed below, all four motions
for leave are DENIED.
Defendant’s four motions are: (1) “Motion to Suppress; Motion for
Leave to file this Motion to Suppress,” arguing that “newly [provided] discovery”
by the Government of bank statements show that funds for tax returns of Witness 1
were rejected and not received by Defendant’s company, information which
Special Agent Mark MacPherson was aware of and omitted from the search
warrant, ECF No. 622 at PageID #7053-54; (2) leave to file a “supplemental
memorandum to [ECF] No. 232,” arguing that there was no search warrant for the
seizure of her Apple Desktop Computer, ECF No. 623 at PageID #7061; (3) a
“Motion for Leave to File This Motion to Suppress; Motion to Suppress
Information Taken from Warrantless Search of Apple Desktop and Exclusionary
Rule Should Apply In This Case as Fruits of a Poisonous Tree,” asserting the same
argument as her motion for leave to file a supplemental memorandum to ECF No.
232—that there was no search warrant for the seizure of her Apple Desktop
1 The court assumes familiarity with the facts and analysis contained in the January 24,
2020 Order, and thus focuses on limited facts in this Order.
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Computer, ECF No. 624; and (4) a “Motion for Leave to File This Supplemental
Memorandum for Clarification for ECF No. 232,” arguing again that Special Agent
MacPherson should have included an IRS Device ID number on the June 1, 2016
search warrant, ECF No. 627. Because Defendant is pro se, the court liberally
construes these motions as motions for reconsideration of its January 24, 2020
Order.2
Although the Federal Rules of Criminal Procedure do not expressly
authorize the filing of motions for reconsideration, the Ninth Circuit has held that
motions for reconsideration may be filed in criminal cases. See United States v.
Martin, 226 F.3d 1042, 1047 n.7 (9th Cir. 2000); see also United States v. Fiorelli,
337 F.3d 282, 288 (3d Cir. 2003) (“As noted by the Second and Ninth Circuits,
motions for reconsideration may be filed in criminal cases”); United States v.
Williams, 2019 WL 984273 at *3 (D. Haw. Feb. 28, 2019). Further, Local Rule
60.1, setting forth the standard for motions to reconsider in civil cases, applies to
criminal cases through Criminal Local Rule 12.3.
2 The court notes that two of these motions were filed as “supplements” to her Motion to
Suppress, ECF No. 232. As the court has explained several times, Defendant may file
supplemental briefing, provided the Government has an opportunity to respond. Here, not only
does she file her supplements after the Government has responded to her motion, Defendant files
her “supplements” well after the hearing on January 6, 2020, and even after the Order was issued
on January 24, 2020. Accordingly, the court construes these “supplements” as motions for
reconsideration but cautions Defendant that she must comply with this court’s orders in filing
motions to supplement. Continued refusal to do so could result in sanctions.
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A motion for reconsideration requires a showing (1) of newly
discovered evidence, (2) that the court committed clear error or the initial decision
was manifestly unjust, (3) of an intervening change in controlling law, or (4) of
other, highly unusual, circumstances warranting reconsideration. Sch. Dist. No. 1J,
Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation
omitted); see also Local Rule 60.1. Reconsideration is “an extraordinary remedy,
to be used sparingly in the interests of finality and conservation of judicial
resources” and “may not be used to raise arguments or present evidence for the
first time when they could reasonably have been raised earlier in the litigation.”
Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citations
and internal quotation marks omitted). “Mere disagreement with a previous ruling
is not a sufficient basis for reconsideration.” McAllister v. Adecco Grp. N.A., 2018
WL 6682984, at *2 (D. Haw. Dec. 19, 2018) (citing White v. Sabatino, 424 F.
Supp. 2d 1271, 1274 (D. Haw. 2006)).
In all but her fourth motion (i.e., ECF No. 627), Defendant asserts
there is new information which was not available to her until discovery was
recently provided. But even assuming the evidence is “newly discovered,” none of
the evidence alters the court’s analysis set forth in its January 24, 2020 Order.3
3 To be clear, the court is not making any findings as to whether such evidence is “newly
discovered” and is merely assuming so for the purposes of this Order.
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First, as to the tax returns of Witness 1, Sullivan provides a bank
statement of Mobile Native Hawaiian Health, arguing that it shows two bank
deposits for Witness 1’s tax returns were “reversed” back to the State. The court
rejected this argument in Defendant’s Motion for Franks Hearing, finding that
“[e]ven assuming this assertion [was] true [that the tax returns of Witness 1 were
rejected or returned by Defendant or her company], 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).”
January 24, 2020 Order at 9, ECF No. 612 at PageID #6848 (emphasis added).
The same is true here.
Similarly, Defendant’s two other motions as to the seizure of her
Apple desktop computer also fail. The court ruled that the seizure (and subsequent
search) of other computers (which includes her Apple desktop computer) on June
1, 2016 was permissible because there was sufficient probable cause set forth in
the MacPherson Affidavit to support the seizure and search of the listed items to be
seized. See January 24, 2020 Order at 12-17 (establishing probable cause for the
June 1, 2016 search warrant), 18-19 (establishing that the listed items to be seized
were within the scope of the search warrant), ECF No. 612 at PageID #6851-56,
6857-58. This included “digital devices or other electronic storage media that are
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predominantly used” within Sullivan’s residence which “agents conducting the
search” may nonetheless seize if the agents “determine that it is possible that the
things described in this warrant could be found on those computers”—even
though, as Defendant argues, Special Agent MacPherson only identifies one device
ID number. See ECF No. 357-1 at PageID #3679 & 3684; see also January 24,
2020 Order at 22 n.13, ECF No. 612 at PageID #6861 (rejecting Defendant’s
arguments that seizure of other computers on June 1, 2016 was impermissible). In
short, merely because the warrant fails to specifically identify her Apple desktop
computer as an item to be seized does not negate what this court has already found
that the seizure of “other computers,” which necessarily includes her Apple
desktop computer, was based on probable cause and within the scope of the June 1,
2016 search warrant. See id.
As to Defendant’s fourth motion for leave pertaining to Special Agent
MacPherson’s purported failure to include an IRS device ID number, Defendant
does not even purport to allege “newly discovered” evidence and is merely
rearguing a point. This does not meet the standard for reconsideration. More
importantly, the court considered and rejected this argument. The court found that
“any failure to include additional information [including an IRS device ID
number] does not negate the probable cause that has already been established . . . .”
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January 24, 2020 Order at 7-8, ECF No. 612 at PageID #6846-47. Defendant’s
“supplement” does not change the court’s findings.
Accordingly, Defendant’s four motions for leave to file (ECF Nos.
622, 623, 624, & 627) are DENIED.4
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 6, 2020.
United States v. Sullivan, Cr. No. 17-00104 JMS-KJM, Order Denying (1) “Motion for Leave to
File This Motion to Suppress,” ECF No. 622; (2) “Motion for Leave to File [Supplemental
Memorandum],” ECF No. 623; (3) “Motion for Leave to File” “Motion to Suppress Information
Taken from the Warrantless Search of Apple Desk Top Computer,” ECF No. 624; and
(4) “Motion for Leave to File This Supplemental Memorandum for Clarification for ECF No.
232,” ECF No. 627.
4 The court again reminds Defendant that she has an upcoming trial date in April 2020.
The court previously granted a continuance of the trial date to permit Defendant more time to
prepare for trial. Defendant is cautioned that she should make careful use of her time to
adequately prepare for trial instead of repeatedly filing motions making meritless arguments
previously considered by the court.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
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