Petition for Writ of Certiorari — In Re Wesley Mark Sudbury, Petitioner

EXHIBITS OF DECISIONS BELOW

Exhibit A: Order of United States District Court, District of Hawaii

dated June 16, 2021

Exhibit B: Order of United States District Court, District of Hawaii

dated August 19, 2021

Exhibit C: Order of the United States Court of Appeals for the Ninth

Circuit dated February 18,2022

Exhibit D: Mandate of United States Court of Appeals for the Ninth

Circuit dated March 14, 2022

EXHIBIT A

Case 1:10-cr-00384-LEK Document 1343 Filed 06/16/21 Page 1 of 3

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MINUTE ORDER

CASE NUMBER:

CRIMINAL NO. 10-00384-6 LEK

CASE NAME:

USA vs. Wesley Mark Sudbury

JUDGE:

Leslie E. Kobayashi

DATE:

06/16/2021

COURT ACTION: EO: ORDER DENYING DEFENDANT’S MOTION FOR RELIEF

UNDER 18 U.S.C. 3504(a)(1), FILED 4/26/21 [DKT. NO. 1334]

Before the Court is Defendant Wesley Mark Sudbury’s (“Sudbury”) Motion for

Relief Under 18 U.S.C. 3504(a)(1) (“Motion”), filed on April 26,2021. [Dkt. no. 1334.]

Plaintiff United States of America (“the Government”) filed is opposition to the Motion

on April 30, 2021 (“Opposition”), and Sudbury filed his reply on June 1, 2021 (“Reply”).

[Dkt. nos. 1337,1340.] The Motion came on for hearing on June 15, 2021 by

videotelephone conference. Present at the hearing were Sudbury, his counsel, Jason Z.

Say, Esq., and Assistant United States Attorneys Thomas Muehleck and Margaret

Nammar.

In his Motion, Sudbury argues that evidence obtained by the Government through

a confidential informant is inadmissible because it is the product or was obtained by the

exploitation of an unlawful act and, pursuant to 18 U.S.C. § 3504(a)(1), the Government

is required to provide a sworn declaration or affidavit that affirms or denies the

occurrence of the alleged unlawful act. [Motion at 1-2.] The Government denies that an

unlawful act took place and argues that the Court has already ruled on the admissibility of

the evidence in prior motions. [Opposition at 2-3.]

According to 18 U.S.C. § 3504(a),

[i]n any trial, hearing, or other proceeding in or before any court,

grand jury, department, officer, agency, regulatory body, or other

authority of the United States—

upon a claim by a party aggrieved that evidence is

(1)

inadmissible because it is the primary product of an unlawful

act or because it was obtained by the exploitation of an

unlawful act, the opponent of the claim shall affirm or deny

the occurrence of the alleged unlawful act[.]

An “aggrieved party” is “a person who was a party to any intercepted wire, oral, or

electronic communication or a person against whom the interception was directed[.]” 18

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U.S.C. § 2510(11). This statutory provision “provides a procedure through which the

Government can be requested to disclose information relating to possible illegal

electronic surveillance that has been utilized against a defendant.” United States v.

Yagman, CR 06-227(A) SVW, 2007 WL 9724370, at *1 (C.D. Cal. July 17, 2007).

Sudbury argues that a confidential informant

worked at entering the private areas of the home of Roger Christie

and Sherryanne Christie, and in the private areas of their ministries,

and surreptitiously photographing, videoing, and recording

conversations of everyone present for a period in excess of five (5)

years, with no knowledge or consent of anyone present. This

information and evidence were used in his application for search

warrants to record the conversations on the phones of Roger Christie

and Sherryanne Christie.

[Reply at 13.]

First, Sudbury has failed to demonstrate that he is an “aggrieved party” as defined

in 18 U.S.C. § 2510(11). His arguments center around recorded conversations of

“everyone present” by a confidential informant, and wiretapped conversations taken from

the telephones of Roger Christie and Sherryanne Christie. He has not established that he

was a party to any intercepted communication or a person against whom the interception

was directed. See United States v. Alter, 482 F.2d 1016,1026 (9th Cir. 1973) (movant

must “make a prima facie showing that good cause exists to believe that” he was

subjected to illegal surveillance).

Second, Sudbury has already challenged the admissibility of the evidence at issue.

See Motion to Exclude Evidence Pursuant to 18 U.S.C. § 2515, filed 9/16/19 (dkt. no.

1239) (“9/16/19 Motion”). Although the Motion relies on a different statute than the

9/16/19 Motion, both motions assert the same position that the Government cannot rely

upon any evidence obtained through improper use of a confidential informant. This Court

has found otherwise. [Entering Order: Court Order Denying Defendant’s Motion to

Exclude Evidence Pursuant to 18 U.S.C. § 2515, filed 12/05/19 (dkt. no. 1254).]

Sudbury appears to seek discovery in that he requests “an order directed to the

United States to disclose all sources of their evidence, or schedule an evidentiary hearing,

where the Defendant can develop the sources of evidence from witnesses produced by the

United States.” [Reply at 14.] If this is the object of the Motion, then Sudbury is directed

to Rule 16, Federal Rules of Criminal Procedure, and his duty to demonstrate materiality:

To obtain discovery under Rule 16, a defendant must make a prima

facie showing of materiality. United States v. Little, 753 F.2d 1420,

1445 (9th Cir. 1984); United States v. Cadet. 727 F.2d 1453, 1468

(9th Cir. 1984). Neither a general description of the information

sought nor conclusory allegations of materiality suffice; a defendant

must present facts which would tend to show that the Government is

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in possession of information helpful to the defense. See Little. 753

F.2d at 1445; Cadet. 727 F.2d at 1466-68.

United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990).

For the foregoing reasons, the Motion is DENIED.

IT IS SO ORDERED.

Submitted by: Agalelei Elkington, Courtroom Manager

__ J

EXHIBIT B

A

Case 1:10-cr-00384-LEK Document 1350 Filed 08/19/21 Page 1 of 8

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UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

UNITED STATES OF AMERICA,

CR. NO. 10-00384 LEK

Plaintiff,

vs.

WESLEY MARK SUDBURY,

Defendant.

ORDER CLARIFYING COURT'S ORDER AND DENYING RECONSIDERATION

On June 16, 2021, this Court issued its Order Denying

Defendant's Motion for Relief under 18 U.S.C. § 3504(a)

("6/16/21 Order").

[Dkt. no. 1343.]

Defendant Wesley Mark

Sudbury ("Sudbury" or "Defendant") requests clarification, and

the Court hereby clarifies that Sudbury failed to establish that

he was a party to any intercepted communication.

BACKGROUND

This matter arises out of the original indictment

filed on June 24, 2010 against Sudbury and thirteen other

defendants involving a conspiracy to distribute and possess with

intent to distribute marijuana involving 100 or more marijuana

plants as well as harvested and processed marijuana and products

containing marijuana and, as against Sudbury individually, the

manufacture of, and possession with intent to distribute,

marijuana involving 100 or more marijuana plants.

[Indictment,

Case 1:10-cr-00384-LEK Document 1350 Filed 08/19/21 Page 2 of 8

filed 6/24/10 (dkt. no. 1), at 2-5, 6-7.]

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The allegations arise

out of the operation of the "THC Ministry" or "Hawaii Cannabis

Ministry" formerly operating in Hilo, Hawai'i and directed by

Roger Cusick Christie ("Christie") with the assistance of

Sherryanne L. St. Cyr ("St. Cyr").1

[Id. at 2-3.]

At this time,

all the defendants except Sudbury have entered guilty pleas and

have been sentenced.

On April 26, 2021, Sudbury filed his Motion for Relief

Under 18 U.S.C. 3504(a)(1)

no. 1334.]

("Underlying Motion").

[Dkt.

A court hearing was held on June 15, 2021, and the

Underlying Motion was denied in the 6/16/21 Order.

[Dkt.

no. 1343.]

Sudbury files the instant motion asking for

clarification, but it essentially is a motion for

reconsideration of the 6/16/21 Order.

For instance, Sudbury

states he

also requests the Court's clarification why the

[6/16/21] Order did not consider that the

illegally obtained evidence by the unidentified

person, working for [the Hawai'i Police

Department ("HCPD")] as a paid employee of HCPD,

that was proven by [Drug Enforcement

Administration ("DEA")] Agent Clement Sze's

affidavits in support of his 3 application for

search warrants, that the evidence was illegally

obtained by the state, and that it was evidence

1 Christie and St. Cyr subsequently married, and St. Cyr is

also referred in this case as Sherryanne L. Christie. See,

e.g., First Superseding Indictment, filed 1/17/13 (dkt.

no. 509), at 2.

2

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that was prohibited from being used by DEA Agent

Clement Sze's affidavits in support of his 3

application for search warrants by the United

States Supreme Court decision in Elkins v. United

States, 364 U.S. 206 (1960), where the US Supreme

Court decision held the "silver platter

doctrine", which allowed federal prosecutors to

use evidence illegally gathered by state police,

to be a violation of the Fourth Amendment to the

United States Constitution.

[Request for Clarification of Court's Order ("Motion"), filed

7/27/21 (dkt. no. 1346), at 5 (emphasis in Motion).]

Similarly,

he states:

Defendant also seeks clarification on the

Court's reliance on United States v. Alter, 482

F.2d 1016, 1026 (9th Cir. 1973).

Defendant believes the Court's reliance on

United States v. Alter, 482 F.2d 1016, 1026 (9th

Cir. 1973) was misplaced, where the court used it

to show (movant must "make a prima facie showing

that good cause exists to believe that" he was

subjected to illegal surveillance) .

[Id. at 6.]

The Court therefore construes the Motion as a

motion for reconsideration.

STANDARD

There is no rule in the Federal Rules of Criminal

Procedure expressly authorizing the filing of motions for

reconsideration.

However, many courts - including the Ninth

Circuit - have recognized that motions for reconsideration may

be filed in criminal cases.

See, e.g., United States v. Hee,

Cr. No. 14-00826 SOM, 2015 WL 6510345, at *11 (D. Hawai'i

Oct. 27, 2015)

(listing cases).

"[M]otions for reconsideration

3

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in criminal cases are governed by the rules that govern

equivalent motions in civil proceedings."

Hee)

Id.

(citations and quotation marks omitted).

(alteration in

Thus, Local

Rule 60.1 also applies in criminal cases to motions for

reconsideration of non-dispositive orders.

See, e.q., United

States v. Naeem J. Williams, CR. No. 06-00079 DAE, 2007 WL

1294519, at *3 (D. Hawai'i Apr. 30, 2007).

Local Rule 60.1

states, in pertinent part:

Motions seeking reconsideration of casedispositive orders shall be governed by Fed. R.

Civ. P. 59 or 60, as applicable, Motions for

reconsideration of interlocutory orders may be

brought only upon the following grounds:

(a) Discovery of new material facts not

previously available;

(b)

Intervening change in law; and/or

(c)

Manifest error of law or fact.

In the instant case, Sudbury does not allege newly

discovered evidence, an intervening change in the controlling

law, or that allowing the 6/16/21 Order to stand would result in

manifest injustice.

Sudbury's Motion is based upon alleged

errors of law and errors in the application of the law to the

facts of this case.

Whether to grant or deny a Local Rule 60.1

motion for reconsideration "is committed to the sound discretion

of the court."

Abbey v. Haw. Emps. Mut. Ins. Co., 760 F. Supp.

2d 1005, 1023 (D. Hawai'i 2010)

(quotation marks and some

4

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citations omitted)

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(citing Navajo Nation v. Confederated Tribes

& Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th

Cir. 2003)).

Sudbury apparently contends that he is entitled to

reconsideration based on manifest error of law or fact.

A

motion for reconsideration based on manifest error of law or

fact must be filed within fourteen days after the written order

is issued.

Local Rule LR60.1 ("Motions asserted under

subsection (c) of this rule must be filed and served within

fourteen (14) days after the court's order is issued.").

DISCUSSION

In the Underlying Motion, Sudbury argued: that there

was a "conspiracy of retribution" and DEA Special Agent Clement

Sze's testified that a confidential source entered Christie's

home without consent and recorded conversations; [Underlying

Motion at 3;] and that conversations between Sudbury and

Christie were recorded,

[id. at 6] .

Sudbury also filed an Ex

Parte Motion to Seal Exhibit "A" of Defendant Wesley Sudbury's

Motion for Relief Under 18 U.S.C. §3504 (a) (1) on April 26, 2021

("Motion to Seal") in which he sought to file Special Agent

Sze's Affidavit in Support of Application ("Sze Affidavit") as

Exhibit "A".

[Dkt. no. 1335 at 1.]

The Sze Affidavit was

submitted "in support of an application to intercept wire

communications" and sworn to on April 8, 2009.

Exh. A (Sze Aff.

[Motion to Seal,

(dkt. no. 1335-1)) at pgs. 89-90.]

5

The targets

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of the wire communication interception were identified as

Christie, Robert Armitage, William Canfield, Pauly Lnu, St. Cyr,

Jordan Scambos, and Nathaniel Griswold.

[Id. at pg. 5.]

Sudbury was not identified as a target nor is he mentioned by

name in the Sze Affidavit.

The crux of Sudbury's argument is that he believes,

without any specific reference, that he was recorded by a

confidential informant for law enforcement while he was in the

private home of Christie and St. Cyr:

DEA Agent Clement Sze also provided proof by

three (3) separate affidavits that the

unidentified person was hired by HCPD to

intentionally invade the private areas of the

home of Roger Christie and Share Christie, and

private areas of the Christie's ministry, a

religious organization, for the purpose of

surreptitiously recording private conversations,

and photographing and videoing everyone present

without their knowledge or consent for a period

believed to be in excess of five years.

[Motion at 4.]

Sudbury however neglects to point to any

recording, transcript or other evidence that he was recorded,

photographed or captured on video.

Sudbury asserts that he "has made a prima facie case

showing that electronic surveillance occurred in this case,

which is proven by the application for three separate search

warrants . . . ."

[Reply to United States' Response to

Defendant's Request for Clarification of Court's Order

("Reply"), filed 8/16/21 (dkt. no. 1349), at 6.]

6

He has not.

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What he fails to perceive is that his right to protection

against an unreasonable search is premised on the search having

yielded evidence against him.

See, e.g., United States v.

Pulliam, 405 F.3d 782, 786 (9th Cir. 2005)

(finding that "a

person seeking to exclude evidence allegedly obtained in

violation of the fourth amendment must have standing to

challenge the illegal conduct").

Lastly, Sudbury continues to raise the so-called

"silver platter" doctrine pertaining to fruit of unreasonable

state searches.

This doctrine no longer exists:

The silver-platter doctrine was based on the fact

that the state searches to which it applied did

not at that time violate federal law. Once the

Fourth Amendment was incorporated against the

States, the status of those state searches

changed. Now they did violate federal law, so

the basis for the silver-platter doctrine was

gone. See Elkins, 364 U.S. at 213, 80 S. Ct.

1437 ("The foundation upon which the

admissibility of state-seized evidence in a

federal trial originally rested — that

unreasonable state searches did not violate the

Federal Constitution — thus disappeared [with

incorporation]").

Gamble v. United States, 139 S. Ct. 1960, 1979 (2019)

(alteration in Gamble).

Sudbury's Motion is untimely because it was filed more

than fourteen days after the 6/16/21 Order was issued.

Even

though untimely, the Court has reviewed the arguments made in

the Motion and Reply, and finds that Sudbury merely rehashes

7

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arguments previously raised and again fails to provide evidence

that he was illegally recorded, photographed or captured on

video.

"[A] motion for reconsideration should not be granted,

absent highly unusual circumstances . .

Nakatani, 342 F.3d 934, 945 (9th Cir. 2003)

citation omitted).

//

Carroll v.

(quotation marks and

Merely disagreeing with a previous order is

insufficient for reconsideration, and reconsideration may not be

based on evidence and legal arguments that could have been

presented in connection with the underlying motion.

See United

States v. Anthony T. Williams, CR NO. 17-00101(01) LEK, v2019 WL

984273, at *3, *5 (D. Hawai'i Feb. 28, 2019).

For the foregoing reasons, the Motion is DENIED.

IT IS SO ORDERED.

DATED AT HONOLULU, HAWAII, August 19, 2021.

is1 LesKe E- Kobavashi

Leslie E. Kobavashi

United States District Judge

USA V. WESLEY MARK SUDBURY; CR 10-00384-06 LEK; ORDER CLARIFYING

COURT'S ORDER AND DENYING RECONSIDERATION

8

EXHIBIT C

Case l:10-cr-00384-LEK Document 1381 Filed 02/18/22 Page 1 of 2

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FILED

UNITED STATES COURT OF APPEALS

FEB 18 2022

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WESLEY MARK SUDBURY,

No. 21-10300

D.C.No. 1:10-cr-00384-LEK-6

District of Hawaii,

Honolulu

ORDER

Defendant-Appellant.

Before:

FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.

Appellee’s motion (Docket Entry No. 7) to dismiss this appeal for lack of

jurisdiction is granted. A review of the record and appellant’s responses to this

court’s November 17, 2021, order to show cause and appellee’s motion

demonstrates that the court lacks jurisdiction over this appeal because the district

court’s order clarifying and denying reconsideration of its order denying

appellant’s motion for relief under 18 U.S.C. § 3504(a) is not a final judgment or

an order that comes within the collateral order doctrine. See 28 U.S.C. § 1291;

Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989) (in criminal

cases, finality requirement generally “prohibits appellate review until after

conviction and imposition of sentence”).

To the extent that this appeal can be construed as a petition for a writ of

mandamus, the petition is denied because appellant has not shown that he is

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Case l:10-cr-00384-LEK Document 1381 Filed 02/18/22 Page 2 of 2

PagelD#:9342

entitled to the extraordinary remedy of mandamus relief. See Bauman v. United

States Dist. Cl, 557 F.2d 650, 654-55 (9th Cir. 1977).

DISMISSED.

2

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21-10300

V

EXHIBIT D

*

Case l:10-cr-00384-LEK Document 1385 Filed 03/14/22 Page 1 of 1

UNITED STATES COURT OF APPEALS

PagelD #: 9360

FILED

FOR THE NINTH CIRCUIT

MAR 14 2022

MOLLY C DWYER, CLERK

U S COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

No. 21-10300

D.C.No. 1:10-cr-00384-LEK-6

U.S. District Court for Hawaii,

Honolulu

WESLEY MARK SUDBURY,

MANDATE

Defendant - Appellant.

The judgment of this Court, entered February 18,2022, takes effect this

date.

This constitutes the formal mandate of this Court issued pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: David J. Vignol

Deputy Clerk

Ninth Circuit Rule 27-7

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