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United States v. Sullivan

United States District Court, D. Hawaii

December 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LEIHINAHINA SULLIVAN, Defendant.

          ORDER DENYING DEFENDANT LEIHINAHINA SULLIVAN'S MOTION TO DISMISS FOR LACK OF PROVIDING DISCOVERY FOR THE LAST THREE (3) YEARS, ECF NO. 256

          J. Michael Seabright Chief United States District Judge

         I. INTRODUCTION

         Before the court is Defendant Leihinahina Sullivan's (“Sullivan”) September 30, 2019 “Motion to Dismiss for Lack of Providing Discovery for the Last Three (3) Years.” ECF No. 256 (the “Motion to Dismiss”).[1] In her Motion to Dismiss, Sullivan claims that her Constitutional and statutory rights to discovery have been violated by the United States, and thus seeks dismissal of the third superseding indictment against her. Because the court finds that there is insufficient evidence that Sullivan has been denied discovery, the motion is DENIED.

         II. BACKGROUND

         On February 17, 2017, a federal grand jury returned an eleven-count indictment against Sullivan that charged seven counts of false claims pursuant to 18 U.S.C. § 287; two counts of wire fraud pursuant to 18 U.S.C. § 1343; and two counts of aggravated identity theft in violation of 18 U.S.C § 1028A. ECF No. 1. Sullivan made her initial appearance on February 24, 2017, and was represented by retained counsel William Harrison. ECF No 8.

         The federal grand jury then returned a fifty-five count first superseding indictment against Sullivan on November 8, 2017 that charged 22 counts of wire fraud pursuant to 18 U.S.C. § 1344; two counts of mail fraud pursuant to 18 U.S.C. § 1341; 21 counts of false claims pursuant to 18 U.S.C. § 287; six counts of aggravated identity theft pursuant to 18 U.S.C. § 1028A; and four counts of money laundering pursuant to 18 U.S.C. § 1956(a)(1)(B)(i). ECF No. 27.

         On March 28, 2018, the federal grand jury returned a 59-count second superseding indictment against Sullivan that charged 24 counts of wire fraud pursuant to 18 U.S.C. § 1344; two counts of mail fraud pursuant to 18 U.S.C. § 1341; 22 counts of false claims pursuant to 18 U.S.C. § 287; six counts of aggravated identity theft pursuant to 18 U.S.C. § 1028A; four counts of money laundering pursuant to 18 U.S.C. § 1956(a)(1)(B)(i); and one count of obstructing an official proceeding pursuant to 18 U.S.C. § 1512(c)(2). ECF No. 95.

         William Harrison withdrew as Sullivan's counsel on July 13, 2018, and Assistant Federal Public Defender Craig Jerome was appointed as new counsel. ECF No. 128. On December 13, 2018, Mr. Jerome's motion to withdraw as counsel was granted by the court, and CJA counsel Megan Kau was appointed to represent Sullivan on December 14, 2018. ECF Nos. 154-55.

         On July 25, 2019, the federal grand jury then returned a 60-count third superseding indictment (“TSI”) against Sullivan that charged 24 counts of wire fraud pursuant to 18 U.S.C. § 1344; two counts of mail fraud pursuant to 18 U.S.C. § 1341; 21 counts of false claims pursuant to 18 U.S.C. § 287; six counts of aggravated identity theft pursuant to 18 U.S.C. § 1028A; four counts of money laundering pursuant to 18 U.S.C. § 1956(a)(1)(B)(i); two counts of obstructing an official proceeding pursuant to 18 U.S.C. § 1512(c)(2); and one count of Hobbs Act extortion pursuant to 18 U.S.C. § 1951. ECF No. 188. No further indictments have been returned by the grand jury.

         Defendant then sought removal of Megan Kau as counsel and to represent herself pro se. The court held a Faretta inquiry on September 6 and 11, 2019, and approved of her request to proceed pro se. ECF Nos. 229, 236. CJA counsel Richard Gronna was appointed as standby counsel on September 11, 2019, and on October 25, 2019 Sullivan moved to dismiss Richard Gronna as standby counsel. ECF Nos. 236, 280.[2]

         Prior to filing the Motion to Dismiss on September 30, 2019, neither Sullivan's three defense counsel nor Sullivan (appearing pro se) had filed a motion to compel discovery. Nonetheless, Sullivan now claims that the United States has been withholding discovery since 2017, and makes a number of unrelated allegations[3] in an apparent effort to support her motion.

         III. ANALYSIS

         Federal Rule of Criminal Procedure 16 “grants criminal defendants a broad right to discovery.” United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010). Specifically, under Rule 16(a)(1)(E), the government must, upon request, [4] turn over any documents within the government's possession, custody, or control that: are material to preparing the defense; the government intends to use in its case-in-chief; or was an item obtained from or belongs to the defendant. The defendant “must make a threshold showing of materiality, which requires a presentation of facts which would tend to show that the Government is in possession of information helpful to the defense.” United States v. Muniz-Jaquez, 718 F.3d 1180, 1183-84 (9th Cir. 2013) (quoting Stever, 603 F.3d at 752).

         Under Federal Rule of Criminal Procedure 16(d)(2), if a party fails to comply with its discovery obligation, the court may “(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (B) grant a continuance; (C) prohibit that party from introducing the undisclosed evidence; or (D) enter any other order that is just under the circumstances.” Although Rule 16(d)(2) provides a “broad allowance to prescribe any sanction that is ‘just, '” Ordonez v. United States, 680 F.3d 1135, 1140 (9th Cir. 2012), any sanction should not be “harsher than necessary to accomplish the goals of Rule 16, ” United States v. Gee, 695 F.2d 1165, 1169 (9th Cir. 1983), or “disproportionate to the conduct of counsel, ” United States v. Aceves-Rosales, 832 F.2d 1155, 1157 (9th Cir. 1987). If sanctions are appropriate, the court should typically consider three factors: “(1) the reason for the government's delay in production; (2) the ...


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