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United States v. Flynn

United States District Court, District of Columbia

December 16, 2019

UNITED STATES OF AMERICA
v.
MICHAEL T. FLYNN, Defendant.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge

         I. Introduction

         On December 1, 2017, Defendant Michael T. Flynn (“Mr. Flynn”), a retired United States Army Lieutenant General and the former National Security Advisor to the President of the United States, pled guilty to willfully and knowingly making materially false statements and omissions to the Federal Bureau of Investigation (“FBI”), in violation of 18 U.S.C. § 1001(a)(2). Mr. Flynn admitted to lying about his conversations with Russia's Ambassador to the United States (“Russian Ambassador”) during his FBI interview on January 24, 2017. The case was originally assigned to Judge Rudolph Contreras. Judge Contreras accepted the guilty plea, finding that Mr. Flynn-who was represented by experienced attorneys-knowingly, voluntarily, and intelligently entered into the Plea Agreement.

         Six days later, on December 7, 2017, the case was randomly reassigned to this Court, which scheduled a sentencing hearing for December 18, 2018. During that hearing, the Court conducted an extension of the plea colloquy in view of statements made in Mr. Flynn's sentencing memorandum that raised questions as to whether Mr. Flynn sought to challenge the circumstances of his FBI interview. In response to the Court's questions, Mr. Flynn maintained his plea of guilty upon the advice of counsel. Mr. Flynn neither challenged the conditions of his FBI interview nor expressed any concerns with the government's obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and this Court's Standing Brady Order of February 16, 2018. According to the government, Mr. Flynn's substantial assistance to law enforcement authorities led to criminal charges against individuals in the United States District Court for the Eastern District of Virginia. Rather than imposing a sentence on December 18, 2018, this Court permitted Mr. Flynn to continue his cooperation with the government. Seven months later, however, the government decided not to call Mr. Flynn as a witness in its case-in-chief in the Eastern District of Virginia. Before that trial, Mr. Flynn retained new counsel. Mr. Flynn now asserts his innocence, claims prosecutorial misconduct, prays for dismissal, and urges this Court to hold the prosecutors in civil contempt for alleged Brady violations.

         Pending before the Court are several motions filed by Mr. Flynn: (1) Motion to Compel the Production of Brady Material and for an Order to Show Cause, ECF Nos. 109 & 111; (2) Sealed Motion to Compel the Production of Brady Material, ECF No. 112; (3) Sealed Motion for an Order to Show Cause, ECF No. 113; and (4) Motion to Compel the Production of Newly Discovered Brady Evidence, ECF No. 124. Upon careful consideration of the parties' submissions, the applicable law, the entire record herein, and for the reasons explained below, the Court DENIES Mr. Flynn's motions.

         II. Background

         The Court assumes the parties' familiarity with the factual and procedural background in this case. The Court briefly summarizes the relevant background-drawn from the parties' submissions and the Statement of the Offense (“SOF”) accompanying the Plea Agreement-to resolve the pending motions. See SOF, ECF No. 4 at 1-5; see also Plea Agreement, ECF No. 1 at 1 ¶ 2.[1]

         Mr. Flynn served as a surrogate and national security advisor for then-candidate Donald J. Trump during the 2016 presidential campaign. SOF, ECF No. 4 at 1 ¶ 1. After the November 2016 election, Mr. Flynn became a senior member of the President-Elect's Transition Team. Id. Mr. Flynn served as the National Security Advisor to President Trump between January 22, 2017 and February 13, 2017. Def.'s Ex. 1, ECF No. 133-1 at 1-2.

         A. Mr. Flynn's Criminal Conduct

         The criminal conduct underlying the offense, as set forth in the Information, was admitted to by Mr. Flynn when he entered his guilty pleas in this case. See, e.g., Information, ECF No. 1 at 1-2; Plea Hr'g Tr. (Dec. 1, 2017), ECF No. 16 at 18-19; Sentencing Hr'g Tr. (Dec. 18, 2018), ECF No. 103 at 9-10. The Information, which was filed on November 30, 2017, charged Mr. Flynn with one count of willfully and knowingly making materially false statements to the FBI, in violation of 18 U.S.C. § 1001(a)(2), during his interview with two FBI agents on January 24, 2017 in the White House. See Information, ECF No. 1 at 1-2; see also Sentencing Hr'g Tr., ECF No. 103 at 32. Under oath and with the advice of counsel, Mr. Flynn pled guilty to the crime on December 1, 2017. Plea Hr'g Tr., ECF No. 16 at 30-31; see also Plea Agreement, ECF No. 3 at 10. The SOF sets forth the events relevant to this case. See generally SOF, ECF No. 4 at 1-5.[2]

         On December 21, 2016, Egypt introduced a resolution to the United Nations (“U.N.”) Security Council regarding Israeli settlements, and the vote on the resolution was scheduled for December 22, 2016. Id. at 4 ¶ 4. On December 29, 2016, then-President Barack H. Obama imposed sanctions on Russia for its interference in the 2016 presidential election. See Id. at 2 ¶ 3(a). Before the President-Elect was sworn into office, Mr. Flynn engaged in conversations with the Russian Ambassador between December 22, 2016 and December 31, 2016. Id. at 2-5 ¶¶ 3-4.

         The FBI opened an investigation into Russia's efforts to interfere in the 2016 election, which included determining the existence of any links between Russia and individuals associated with the Trump campaign. Id. at 1 ¶ 1.[3] As part of the investigation, Mr. Flynn made a series of materially false statements about his conversations with the Russian Ambassador. Id. at 1-2 ¶ 2 (stating that “[Mr.] FLYNN's false statements and omissions impeded and otherwise had a material impact on the FBI's ongoing investigation into the existence of any links or coordination between individuals associated with the [Trump] Campaign and Russia's efforts to interfere with the 2016 presidential election”); see Id. at 2-5 ¶¶ 3-4; see also Information, ECF No. 1 at 1-2. Mr. Flynn admitted to lying to the FBI about his request on or about December 29, 2016 to the Russian Ambassador that Russia refrain from escalating the situation in response to the sanctions imposed by the United States against Russia, and the Russian Ambassador telling Mr. Flynn that Russia decided to moderate its response to the sanctions. SOF, ECF No. 4 at 2-3 ¶ 3. In addition, Mr. Flynn admitted to making false statements to the FBI about his request on or about December 22, 2016 to the Russian Ambassador that Russia vote against or delay Egypt's resolution to the U.N. Security Council, that the Russian Ambassador never described to Mr. Flynn Russia's response to his request, that Mr. Flynn did not request certain countries to take a particular position on the resolution, and that Mr. Flynn only asked the countries for their respective positions on the vote. Id. at 4-5 ¶ 4.

         Mr. Flynn also admitted to making false statements in the documents that he submitted to the United States Department of Justice (“DOJ”) on March 7, 2017 under the Foreign Agents Registration Act, 22 U.S.C. §§ 611-621 (“FARA”). Id. at 5 ¶ 5; see also Addendum to Gov't's Mem. in Aid of Sentencing, ECF No. 75 at 3 (stating that “[Mr. Flynn] stipulated and agreed that he violated FARA by making materially false statements” in the FARA filings). Those FARA filings concerned a project that Mr. Flynn and his company, Flynn Intel Group, Inc. (“FIG”), performed on behalf of the Republic of Turkey. SOF, ECF No. 4 at 5 ¶ 5. Mr. Flynn, however, was not charged with any FARA violations. See Information, ECF No. 1 at 1; see also Status Hr'g Tr. (Sept. 10, 2019), ECF No. 114 at 20. For purposes of sentencing, Mr. Flynn did not dispute the relevance of the FARA references in the government's description of the nature and circumstances of his offense. See Gov't's Mem. in Aid of Sentencing, ECF No. 46 at 3-5; see also Def.'s Mem. in Aid of Sentencing, ECF No. 50 at 12. Indeed, the government confirmed that Mr. Flynn could have been charged with making false statements in the FARA filings. Sentencing Hr'g Tr., ECF No. 103 at 28. Under the terms of the Plea Agreement, the government agreed not to further prosecute Mr. Flynn for the criminal conduct described in the SOF. Plea Agreement, ECF No. 3 at 2 ¶ 3. In the final analysis, the government did not charge Mr. Flynn with violating the Logan Act, 18 U.S.C. § 953, or with being a foreign agent. See Information, ECF No. 1 at 1.

         B. The Government's Discovery and Disclosure Obligations

         Prior to Mr. Flynn signing the Plea Agreement, the government, on November 22, 2017, provided Mr. Flynn's attorneys with the FBI's FD-302 (dated February 15, 2017), which summarized Mr. Flynn's January 24, 2017 FBI interview. Gov't's Notice of Disc. Correspondence, ECF No. 123 at 1; see also Def.'s Ex. 15, ECF No. 133-15 at 1. Mr. Flynn and defense counsel participated in post-January 24, 2017 interviews. See Gov't's Opp'n, ECF No. 122 at 4 n.1; see also Def.'s Ex. 15, ECF No. 133-15 at 1. During five of those interviews, the government provided “[Mr. Flynn] with dozens of relevant documents.” Gov't's Surreply, ECF No. 132 at 3 n.2.

         On November 30, 2017, before Mr. Flynn signed the Plea Agreement, the government made certain disclosures to Mr. Flynn's counsel. The government informed defense counsel that the DOJ's Inspector General (“IG”) reviewed allegations involving certain electronic communications of Peter Strzok (“Mr. Strzok”), one of the FBI agents who interviewed Mr. Flynn on January 24, 2017, that showed a preference for a presidential candidate. Gov't's Opp'n, ECF No. 122 at 5-6. This included information about certain text messages between Mr. Strzok and former FBI attorney Lisa Page (“Ms. Page”). See Id. at 8-9; see also Gov't's Surreply, ECF No. 132 at 9 n.6. The government also disclosed to defense counsel “the IG's review, including the IG's assessment as to whether those communications constituted misconduct by [Mr.] Strzok.” Gov't's Opp'n, ECF No. 122 at 5-6. The government then informed defense counsel that Mr. Strzok and the other interviewing FBI agent “had the impression at the time that [Mr. Flynn] was not lying” or that the FBI agents “did not think he was lying” during the January 24, 2017 FBI interview. Id. at 6 (emphasis added). The government answered defense counsel's questions after disclosing this information. Id. at 6. Those disclosures were provided prior to Mr. Flynn signing the Plea Agreement on November 30, 2017 and pleading guilty before Judge Contreras on December 1, 2017. See Def.'s Ex. 1, ECF No. 133-1 at 3.

         After receiving the government's disclosures and productions, Mr. Flynn signed the Plea Agreement upon the advice of counsel. See Plea Agreement, ECF No. 3 at 10. Judge Contreras accepted Mr. Flynn's guilty plea on December 1, 2017, finding that Mr. Flynn entered the plea knowingly, voluntarily, and intelligently with the advice of counsel. Plea Hr'g Tr., ECF No. 16 at 4, 30-31. Mr. Flynn attested that his attorneys from Covington & Burling LLP rendered legal services to his satisfaction as part of the Plea Agreement and the related matters. Plea Agreement, ECF No. 3 at 10; see also Plea Hr'g Tr., ECF No. 16 at 6.

         On December 7, 2017, this case was randomly reassigned to this Court. See generally Docket for Crim. Action No. 17-232. This Court entered its operative Standing Brady Order on February 16, 2018, requiring the government to produce any evidence in its possession that was favorable to the defendant and material to either the defendant's guilt or punishment. See, e.g., Order, ECF No. 20 at 1-4. On February 21, 2018, the Court entered the Protective Order Governing Discovery pursuant to Federal Rule of Criminal Procedure 16(d). Protective Order, ECF No. 22 at 1-6. Shortly thereafter, the government produced additional documents to Mr. Flynn and defense counsel to comply with this Court's Standing Brady Order. See Gov't's Opp'n, ECF No. 122 at 8, 18 n.9; see also Def.'s Ex. 15, ECF No. 133-15 at 1.

         The government's production consisted of more than 22, 000 pages of documents. See Joint Status Report, ECF No. 107 at 5 (“Among those documents are all versions in the government's possession of the FBI report of the January 24, 2017 interview of [Mr. Flynn] and the interviewing agents' notes.”); see also Gov't's Notice of Disc. Correspondence, ECF No. 123 at 1-3 (providing an itemized inventory of discovery correspondence and its productions). More than 21, 000 pages of those documents related to Mr. Flynn's March 7, 2017 FARA filings, and the remainder related to his false statements to the FBI on January 24, 2017. Gov't's Opp'n, ECF No. 122 at 8, 8 n.3. The government contends that Mr. Flynn was not entitled to Brady material until he was charged on November 30, 2017, but the government nonetheless provided Mr. Flynn with materials before and during the voluntary interviews. Gov't's Surreply, ECF No. 132 at 3 n.2. According to the government, Mr. Flynn “agree[d] to forgo the right to any further discovery or disclosures of information not already provided at the time of the entry of [his] guilty plea.” Plea Agreement, ECF No. 3 at 6 ¶ 9(C); see also Gov't's Opp'n, ECF No. 122 at 1, 5.

         C. The Continuance of Mr. Flynn's Sentencing

         On December 18, 2018, this Court accepted Mr. Flynn's guilty plea a second time. Sentencing Hr'g Tr., ECF No. 103 at 5, 16. During that hearing, the Court extended the plea colloquy in view of Mr. Flynn's statements in his sentencing memorandum, which raised questions as to whether Mr. Flynn sought to challenge the conditions of the FBI interview. See generally Def.'s Mem. in Aid of Sentencing, ECF No. 50 at 6-18. In response to the Court's question, defense counsel did not express “any concerns that potential Brady material or other relevant material was not provided to [Mr. Flynn].” Sentencing Hr'g Tr., ECF No. 103 at 10. Defense counsel affirmed to this Court that Mr. Flynn was not entitled to any additional information. Id. at 10-11. Under oath, Mr. Flynn confirmed that his rights were not violated as a result of the circumstances of his January 24, 2017 FBI interview and the allegations of misconduct against FBI officials. Id. at 11-12. And Mr. Flynn declined the Court's invitation for the appointment of independent counsel to advise him. Id. at 9-10.

         Noting that the Court's usual practice is to impose a sentence after the completion of a defendant's cooperation, the Court granted Mr. Flynn's request to continue the sentencing hearing to allow him to further cooperate with the government after considering defense counsel's representations that Mr. Flynn was prepared to continue his cooperation in the criminal case in the Eastern District of Virginia. Id. at 47-48. The trial in that case was scheduled to begin in July 2019. See Joint Status Report, ECF No. 71 at 1; see also Status Hr'g Tr. (June 24, 2019), ECF No. 94 at 5-6. In June 2019, Mr. Flynn retained new counsel. See Min. Order of June 14, 2019. Mr. Flynn did not testify at the trial in the Eastern District of Virginia. See, e.g., Min. Order of July 9, 2019; Gov't's Resp. to Order of the Court, ECF No. 97 at 1-2; Def.'s Resp. to Order of the Court, ECF No. 98 at 1-11; Def.'s Suppl. Status Report, ECF No. 121 at 1.[4] Motions practice ensued.

         D. Mr. Flynn's Brady Motions

         Mr. Flynn moved to compel the production of Brady material on August 30, 2019, and October 15, 2019, respectively. See generally Def.'s Br. in Supp. of Def.'s Mot. to Compel Produc. of Brady Material & Mot. for Order to Show Cause (“Def.'s Br.”), ECF No. 109; Def.'s Redacted Mot. to Compel & Mot. for Order to Show Cause, ECF No. 111 (“Def.'s Mot.”); Def.'s Sealed Mot. to Compel Produc. of Brady Material, ECF No. 112; Def.'s Suppl., ECF No. 116; Def.'s Mot. to Compel Newly Discovered Brady Evid., ECF No. 124. Defense counsel's theory is that “[t]he evidence the defense requests, if produced, would defeat the factual basis for the plea.” Def.'s Reply, ECF No. 133 at 27 (footnote omitted).

         Thereafter, the government filed its opposition briefs, arguing that it has satisfied its obligations under Brady and this Court's Standing Brady Order. See Gov't's Opp'n, ECF No. 122 at 2; see also Gov't's Opp'n, ECF No. 124 at 1-2. According to the government, Mr. Flynn “fails to establish that [the requested] information is relevant-let alone favorable and material-in this criminal case.” Gov't's Opp'n, ECF No. 122 at 2. Mr. Flynn filed his reply briefs. See Def.'s Reply, ECF No. 133; see also Def.'s Reply, ECF No. 134. Because Mr. Flynn raised issues for the first time in one of his reply briefs, see Gov't's Notice of Claims Raised for the First Time in Reply, ECF No. 131 at 1-4, the Court directed the parties to submit sur-replies, see Min. Order of Oct. 29, 2019. The briefing is now complete, and the Court exercised its discretion to cancel the previously-scheduled motions hearing. See Min. Order of Oct. 28, 2019; see also LCrR 47(f). The motions are ripe and ready for the Court's adjudication.

         III. Legal Standard

         Pursuant to Brady and its progeny, the government has “an affirmative duty to disclose exculpatory evidence to the defense, even if no request has been made by the accused.” United States v. Borda, 848 F.3d 1044, 1066 (D.C. Cir.), cert. denied, 137 S.Ct. 2315 (2017). In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. “Impeachment evidence, . . . as well as exculpatory evidence, falls within the Brady rule.” United States v. Bagley, 473 U.S. 667, 676 (1985) (citing United States v. Giglio, 405 U.S. 150, 154 (1972)). However, “the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” United States v. Ruiz, 536 U.S. 622, 633 (2002).

         To prove a Brady violation, a movant must establish three elements: “[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the [government], either willfully or inadvertently; and [3] prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). “To satisfy the prejudice component, the defendant must show that ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'” United States v. Sitzmann, 893 F.3d 811, 826 (D.C. Cir. 2018) (quoting Bagley, 473 U.S. at 682). “The defendant bears the burden of showing a reasonable probability of a different outcome.” United States v. Gale, 314 F.3d 1, 4 (D.C. Cir. 2003) (citing Strickler, 527 U.S. at 291).

         IV. Analysis

         Mr. Flynn moves to compel the production of alleged Brady material under several theories, claiming that newly discovered evidence and the government's suppression of evidence will exonerate him. See Def.'s Br., ECF No. 109 at 4, 12. Mr. Flynn contends that “[t]he only way to achieve justice in this case is to provide transparency and the full disclosure of all information relevant to the defense of Mr. Flynn.” Def.'s Mot., ECF No. 111 at 9. Mr. Flynn accuses the government of suppressing certain information and alleges improprieties regarding the circumstances leading up to his guilty plea- including allegations of misconduct by the FBI, DOJ, and the Special Counsel's Office-that, in his view, call into question the entire investigation, raise ethical concerns, warrant findings of civil contempt, and demand dismissal. See Def.'s Br., ECF No. 109 at 4-17; see also Def.'s Reply, ECF No. 134 at 2-5. Mr. Flynn, however, fails to explain how most of the requested information that the government has not already provided to him is relevant and material to his underlying offense-willfully and knowingly making materially false statements and omissions to the FBI, in violation of 18 U.S.C. § 1001(a)(2)-or to his sentencing. See generally Def.'s Br., ECF No. 109 at 4-17.

         The Court first considers Mr. Flynn's requests and the parties' arguments, then analyzes Mr. Flynn's request for classified information, and concludes that Mr. Flynn has failed to establish a single Brady violation. Before turning to the specific requests, the Court will address the ethical concerns with Mr. Flynn's brief and Mr. Flynn's misapplication of Brady and its progeny.

         A. Ethical Concerns with Mr. Flynn's Brief

          The Court notes that Mr. Flynn's brief in support of his first Brady motion lifted verbatim portions from a source without attribution. Compare Def.'s Br., ECF No. 109 at 11-12, 15-16, 15 n.21, with Brief of the New York Council of Defense Lawyers et al. as Amici Curiae Supporting Petitioner, Brown v. United States, 566 U.S. 970 (2012) (No. 11-783), 2012 WL 242906 at *5-6, *8, *12-13, *12 n.6. In a footnote, Mr. Flynn's brief merely provides a hyperlink to the “excellent briefing by Amicus [sic] in support of the Petition for Writ of Certiorari in Brown v. United States.” Def.'s Br., ECF No. 109 at 16 n.22.

         The District of Columbia Rules of Professional Conduct apply to the proceedings in this Court. See LCrR 57.26. Rule 8.4(c) provides that “[i]t is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” D.C. Rules of Prof'l Conduct R. 8.4(c); see In re Ayeni, 822 A.2d 420, 421 (D.C. 2003) (per curiam) (lawyer's plagiarized brief violated Rule 8.4(c)). “[C]itation to authority is absolutely required when language is borrowed.” United States v. Bowen, 194 Fed.Appx. 393, 402 n.3 (6th Cir. 2006); accord LCrR 47(a). “The [C]ourt expects counsel to fully comply with this [C]ourt's rules and submit work product befitting of pleadings [and briefs] in a federal court.” Kilburn v. Republic of Iran, 441 F.Supp.2d 74, 77 n.2 (D.D.C. 2006).

         B. Mr. Flynn Misconstrues Brady and its Progeny

         Mr. Flynn misconstrues Brady and its progeny in two fundamental ways. First, Mr. Flynn asserts that he was “entitled to all the Brady evidence in the government's possession well before November 2017.” Def.'s Reply, ECF No. 133 at 24. The government responds that “Brady imposes no such requirement for uncharged individuals.” Gov't's Surreply, ECF No. 132 at 2. Mr. Flynn cites no controlling precedent holding that an uncharged individual is entitled to Brady evidence during an ongoing criminal investigation. See Def.'s Sur-Surreply, ECF No. 135 at 1; see also Gov't's Surreply, ECF No. 132 at 2. This Court's Standing Brady Order requires the government to produce any evidence in its possession that is favorable to the defendant and material to either the defendant's guilt or punishment, Order, ECF No. 20 at 1-4, notwithstanding Mr. Flynn's waiver of his right to any further discovery or disclosures of information, see Plea Agreement, ECF No. 3 at 6 ¶ 9(C). Contrary to Mr. Flynn's assertion, however, “[t]he holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and ‘material either to guilt or to punishment.'” Bagley, 473 U.S. at 674 (quoting Brady, 373 U.S. at 87) (emphasis added); cf. D'Angio v. United States, No. 3:07-CV-474, 2007 WL 9757556, at *4 (M.D. Pa. Nov. 6, 2007) (“Premature disclosure of Brady material could impede and/or frustrate a federal criminal investigation.”).[5] Accordingly, the Court agrees with the government that Brady and its progeny does not require the disclosure of exculpatory or impeachment material to an uncharged individual during an ongoing criminal investigation.

         Next, Mr. Flynn claims that he is entitled to inculpatory evidence “to evaluate the government's allegations against him and to determine how to proceed.” Def.'s Br., ECF No. 109 at 7. Under Brady, however, “the Government has no duty to disclose evidence that is neutral, speculative, or inculpatory, or evidence that is available to the defense from other sources.” United States v. Pendleton, 832 F.3d 934, 940 (8th Cir. 2016); cf. United States v. Martinez, 764 F.Supp.2d 166, 169 (D.D.C. 2011) (observing that “a defendant only has a right to receive from the government exculpatory information, not inculpatory information”).

         The government's Brady obligations are separate and distinct from its obligations under Rule 16 of the Federal Rules of Criminal Procedure, see Fed. R. Crim. P. 16, which mandates the disclosure of any evidence that is material to the preparation of a defense. United States v. Marshall, 132 F.3d 63, 67 (D.C. Cir. 1998) (“[Rule 16] as written does not compel the conclusion that inculpatory evidence is immune from disclosure.”); cf. United States v. Libby, 429 F.Supp.2d 1, 5 (D.D.C. 2006) (“Rule 16 provides for the pre-trial disclosure by the government of [, inter alia, ] . . . the defendant's oral, written or recorded statements[.]”). Rule 16 has certain recognized exceptions, see United States v. Armstrong, 517 U.S. 456, 463 (1996) (“[U]nder Rule 16(a)(2), [a defendant] may not examine Government work product in connection with his case.”), and the Court retains the discretion under Rule 16 to “for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief[, ]” Fed. R. Crim. P. 16(d)(1).

         C. Mr. Flynn's Brady Requests

         The Court next considers Mr. Flynn's fifty separate requests for information in which he seeks multiple documents in various categories. See, e.g., Def.'s Mot., ECF No. 111 at 3-9; Def.'s Mot. to Compel Newly Discovered Brady Evid., ECF No. 124 at 1-2; Gov't's Opp'n, ECF No. 122 at 14-17. To evaluate Mr. Flynn's requests, the Court divides them into six categories, acknowledging that there is some overlap within certain categories: (1) information that does not exist; (2) information that is not within the government's possession; (3) information that Mr. Flynn concedes he is not entitled to; (4) information that the government has already provided to Mr. Flynn; (5) information that is unrelated to the charges against Mr. Flynn in this case or to his sentencing; and (6) remaining requests. For ease of reference, the Court has attached an Appendix to this Memorandum Opinion, which includes the exact language from Mr. Flynn's requests and the government's responses thereto.

         1. Information that Does Not Exist

         Request 5-“[t]he Flynn 302 dated January 19, 2017, mentioned in the Mueller Report, ” Def.'s Mot., ECF No. 111 at 4- does not exist as the year of 2017 in the relevant portion of the Mueller Report was a typographical error. See Gov't's App. A, ECF No. 122-1 at 2 (clarifying that “January 19, 2017” is a typographical error, and that Mr. Flynn's interview took place on January 19, 2018). Mr. Flynn does not dispute the government's response. See generally Def.'s Reply, ECF No. 133 at 5-36.

         2. Information the Government Does Not Possess

         Request 13-“[a]n unredacted copy of all of [former FBI Director] James Comey's testimony before any Congressional committees, ” Def.'s Mot., ECF No. 111 at 5-is not within the government's possession. See Gov't's App. A, ECF No. 122-1 at 3. The government responds that to the extent Mr. Flynn seeks unredacted copies of Director Comey's Congressional testimony after he was fired, the government does not possess them. Id. Mr. Flynn does not dispute the government's response. See generally Def.'s Reply, ECF No. 133 at 5-36.

         3. Information Mr. Flynn Concedes He Is Not Entitled to

         Mr. Flynn concedes the government's responses to Request 39-seeking all communications between DOJ officials regarding the FARA registration for Mr. Flynn and FIG, see Def.'s Mot., ECF No. 111 at 7-that DOJ's communications are deliberative in nature and former defense counsel possesses his own notes from his interactions with DOJ, see, e.g., Gov't's App. A, ECF No. 122-1 at 6; Def.'s Reply, ECF No. 133 at 15 n.9 (noting that former counsel had an “extensive meeting” and a “follow-up call” with DOJ).

         4. Information that Has Already Been Provided

         a. Requests 18 and 20

         Mr. Flynn seeks certain alleged “exculpatory” statements in then-Acting Assistant Attorney General Mary McCord's (“Ms. McCord”) FD-302s or interviews, and a January 30, 2017 internal DOJ memorandum exonerating him of being an agent of Russia. E.g., Def.'s Mot., ECF No. 111 at 5-6; Def.'s Reply, ECF No. 133 at 14; Def.'s Ex. 1, ECF No. 133-1 at 2. The government responds-and Mr. Flynn does not dispute-that this information has already been provided to him, Gov't's App. A, ECF No. 122-1 at 4; see generally Def.'s Reply, ECF No. 133 at 5-36, and the government notes that the information in the internal DOJ document is irrelevant because Mr. Flynn was not charged with being an agent of Russia, Gov't's App. A, ECF No. 122-1 at 4. Indeed, “Brady only requires disclosure of information unknown to the defendant.” United States v. Derr, 990 F.2d 1330, 1335 (D.C. Cir. 1993) (emphasis added). This information was known to Mr. Flynn. See Gov't's App. A, ECF No. 122-1 at 4. For that reason alone, Mr. Flynn has failed to demonstrate that he is entitled to the requested information.

         Nonetheless, the government's response to Request 18 indicates that it has not disclosed all of the requested information in Ms. McCord's FD-302s or interviews because summaries of the relevant FD-302s and interviews were provided to Mr. Flynn. See id. at 4 (“The government has already provided [Mr. Flynn] with information from [Ms.] McCord's interview report that could reasonably be construed as favorable and material to sentencing.”). To the extent he seeks information in addition to what has already been provided, Mr. Flynn has failed to establish the first component of his Brady claim: favorability. See Strickler, 527 U.S. at 281-82.

         “Evidence is favorable to the accused under Brady if it has either exculpatory or impeachment value.” United States v. Sitzmann, 74 F.Supp.3d 128, 134 (D.D.C. 2014), aff'd, 893 F.3d 811 (D.C. Cir. 2018). Without offering a specific legal argument as to the exculpatory value of such information, Mr. Flynn appears to request that information and other documents to defend against an alleged smear campaign that he is a foreign agent. See, e.g., Def.'s Mot., ECF No. 111 at 5-6; Def.'s Reply, ECF No. 133 at 14; Def.'s Reply, ECF No. 134 at 3. The government argues that Requests 18 and 20 are irrelevant, immaterial, and not favorable to Mr. Flynn, see Gov't's Opp'n, ECF No. 122 at 15; see also Gov't's App. A, ECF No. 122-1 at 6, because “[t]his case does not involve, and the government does not ask that the Court consider at sentencing, an allegation that [Mr. Flynn] was ‘an agent of Russia'[, ]” Gov't's Opp'n, ECF No. 122 at 4. Mr. Flynn is entitled to evidence that is “relevant to the punishment to be imposed.” California v. Trombetta, 467 U.S. 479, 485 (1984) (emphasis added). Because the Court agrees that the requested information is irrelevant to Mr. Flynn's underlying offense and it is not favorable to his guilt or punishment, the Court need not consider the other two elements. See Sitzmann, 74 F.Supp.3d at 137 (declining to consider each element where defendant failed to identify the favorability element).

         b. Requests 6, 9, 10, 30 and 31

         Mr. Flynn seeks all of the Strzok-Page text messages, information concerning those text messages, and information concerning the destruction of the Strzok-Page cell phones and eradication of cell phone data. See Def.'s Mot., ECF No. 111 at 4-5, 7.[6] Mr. Flynn requests all of Mr. Strzok's unredacted electronic communications with various individuals and government employees regarding Mr. Flynn, as well as applications under the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq., “or any surveillance (legal or illegal) that would have reached Mr. Flynn's communications.” Id. at 5. Citing to the IG's three published reports, see Def.'s Br., ECF No. 109 at 12 n.14, 13 n.15, Mr. Flynn seeks all evidence concerning the IG's notification to the Special Counsel about the Strzok-Page text messages, the “gaps” in those text messages, and the destruction of their cell phones, see Def.'s Mot., ECF No. 111 at 5, 7.

         Mr. Flynn first argues that the government's “belated” production of the text messages did not comply with its Brady obligations because that information was not disclosed in time for him to use it, see Def.'s Br., ECF No. 109 at 12; he then contends that he could not download certain text messages from the government's hyperlink, Def.'s Reply, ECF No. 133 at 10; and he goes on to argue that the government's production was “long after the actual evidence would have made a material difference” to him, id. Mr. Flynn selectively quotes from a batch of the text messages, see id. at 11-17, and he points to one, dated January 10, 2017, that states: “Sitting with Bill watching CNN. A TON more out . . . We're discussing whether, now that this is out, we can use it as a pretext to go interview some people.” Id. at 11. According to Mr. Flynn, the government suppressed that text message, id., the word “pretext” means that the entire investigation of him had no basis, id., and Mr. Strzok admitted that he had “many meetings” with former FBI Deputy Director Andrew McCabe (“Mr. McCabe”) to decide whether to interview Mr. Flynn, Def.'s Sur-Surreply, ECF No. 135 at 3 n.3.[7] Mr. Flynn posits that the “belatedly-disclosed Strzok-Page texts” support his new claim that he was “honest with the agents to the best of his recollection at the time, and the agents knew it.” Def.'s Reply, ECF No. 133 at 27. Mr. Flynn claims that the government is “still hid[ing] countless” text messages that are “exculpatory and material.” Id. at 10.

         The government disagrees. The government notes-and Mr. Flynn does not challenge-that it “informed [him] about the existence of the text messages and their import on November 30, 2017” before Mr. Flynn signed the Plea Agreement and pled guilty on December 1, 2017, and it “later informed [him] that it had learned there were additional text messages that it did not have access to at that time[.]” Gov't's Surreply, ECF No. 132 at 9 n.6; see generally Def.'s Sur-Surreply, ECF No. 135 at 1-17. On March 13, 2018, the government produced to Mr. Flynn certain Strzok-Page text messages after this Court entered the Standing Brady Order and the Protective Order in this case. See Gov't's App. A, ECF No. 122-1 at 3; see also Def.'s Mot., ECF No. 111 at 5. Neither does Mr. Flynn dispute that the government provided him with hard-copy text messages when it became known that those documents were inaccessible at the hyperlink, see Gov't's Surreply, ECF No. 132 at 9 n.6, nor does Mr. Flynn deny the government's representation that the text messages are impeaching of Mr. Strzok rather than exculpatory as to Mr. Flynn, see Gov't's Opp'n, ECF No. 122 at 17. The government represents that the “CNN” reference in the January 10, 2017 text message concerns a “discussion to conduct interviews based on the public release of a report from Christopher Steele.” Gov't's Surreply, ECF No. 132 at 9; cf. Mueller Report, ECF No. 79-6 at 14 (“On January 10, 2017, the media reported that [then-FBI Director] Comey had briefed the President-Elect on the Steele reporting[.]”).

         The Court is not persuaded by Mr. Flynn's arguments. Although there is no exact deadline for the production of Brady material, it is a “longstanding constitutional principle that as long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner.” United States v. Coppa, 267 F.3d 132, 144 (2d Cir. 2001).[8] And Brady does not extend to information that is not within the government's possession, see United States v. Pollack, 534 F.2d 964, 975 (D.C. Cir. 1976), or information that the government is not aware of, see United States v. Turner, 104 F.3d 217, 220 (8th Cir. 1997). Here, the government maintains that, before the parties entered into the Plea Agreement, it disclosed to Mr. Flynn the existence of, but not the actual, Strzok-Page electronic communications of which it was aware at that time and responded to former defense counsel's questions regarding those communications. See, e.g., Gov't's Opp'n, ECF No. 122 at 6; Gov't's App. A, ECF No. 122-1 at 3; Def.'s Ex. 1, ECF No. 133-1 at 3 (stating that “[l]ate afternoon [on November 30, 2017], prosecutors ma[d]e [a] last minute telephonic disclosure of electronic communications” and “[Mr.] Flynn sign[ed] [the] [P]lea [A]greement”). The government provided Mr. Flynn with the Strzok-Page text messages in its possession in March 2018 and October 2018, and at the December 18, 2018 sentencing hearing, both Mr. Flynn and former defense counsel stated that they had no “concerns that potential Brady material or other relevant material was not provided to [Mr. Flynn].” Sentencing Hr'g Tr., ECF No. 103 at 10.

         Mr. Flynn argues that information in the Strzok-Page text messages is exculpatory. See Def.'s Reply, ECF No. 133 at 10. Assuming, without deciding, that the Strzok-Page text messages contain exculpatory material, Mr. Flynn must establish the other two elements: suppression and materiality. See United States v. Pettiford, 627 F.3d 1223, 1227 (D.C. Cir. 2010). Mr. Flynn cannot demonstrate that the government suppressed the allegedly exculpatory material in the Strzok-Page text messages if he had access to them. See United States v. Ballestas, 795 F.3d 138, 150 (D.C. Cir. 2015) (“Because [the petitioner] had access to [the Brady material] ‘in time to make effective use of it,' he [could not have] show[n] that the government suppressed the document.”) (citation omitted). It is uncontested that Mr. Flynn and former defense counsel were aware of the existence and import of the text messages before he accepted the plea offer and before he pled guilty before Judge Contreras. See Gov't's Surreply, ECF No. 132 at 9 n.6. It is also undisputed that Mr. Flynn confirmed his plea of guilty before he, along with former defense counsel, confirmed to this Court that they had no “concerns that potential Brady material or other relevant material was not provided to [Mr. Flynn].” Sentencing Hr'g Tr., ECF No. 103 at 10. Moreover, assuming, arguendo, that the text messages were exculpatory and suppressed, Mr. Flynn cannot overcome the materiality threshold for the reasons explained below. See Strickler, 527 U.S. at 296 (concluding that petitioner “satisfied two of the three components of a constitutional violation under Brady, ” but petitioner failed to demonstrate that “there [was] a reasonable probability that his conviction or sentence would have been different had [those] materials been disclosed”).

         Mr. Flynn pled guilty to the underlying offense with knowledge of: (1) the import of the Strzok-Page text messages, see Gov't's Surreply, ECF No. 132 at 9 n.6; and (2) the IG's reports concerning the text messages, which were released before Mr. Flynn's original sentencing hearing in 2018, see Def.'s Br., ECF No. 109 at 12 n.14. Prior to Mr. Flynn's acceptance of the Plea Agreement, the government informed Mr. Flynn that Mr. Strzok said that Mr. Flynn had a “sure demeanor and did not give any indicators of deception during the interview” and “both interviewing agents had the impression at the time that [Mr. Flynn] was not lying or did not think he was lying.” Gov't's Opp'n, ECF No. 122 at 16 (emphasis added). Those impressions, however, do not “exonerate” Mr. Flynn of his crime in this case. See, e.g., Def.'s Ex. 1, ECF No. 133-1 at 1 (Mr. Strzok described to Ms. Page that Mr. Flynn was “denying it all” during the January 24, 2017 interview); Def.'s Ex. 12 (Ms. Page's FD-302), ECF No. 133-12 at 1 (stating that “[i]dications of deception by [Mr.] Flynn in [the interviewing agents'] interaction with [Mr. Flynn] had been hard to see”); id. at 2 (stating that Mr. Strzok's text “‘denying it all' pertained to [Mr.] Flynn's response to questions in his interview as to whether his conversation with the Russian Ambassador pertained to sanctions”).

         The government points out-and Mr. Flynn does not dispute- that he made false statements to the FBI about his conversations with the Russian Ambassador, and those same false statements were repeated to the Vice President of the United States, the White House Chief of Staff, the White House Press Secretary, and The Washington Post. See Gov't's Surreply, ECF No. 132 at 7-8; see generally Def.'s Sur-Surreply, ECF No. 135 at 1-17. As noted by the government, those high-ranking government officials then repeated Mr. Flynn's false statements on national television. Gov't's Surreply, ECF No. 132 at 8-9; cf. Def.'s Reply, ECF No. 133 at 14-15. Furthermore, Mr. Flynn received the government's productions of the actual Strzok-Page text messages after the entry of the Standing Brady Order and before he reaffirmed his guilty plea to this Court on December 18, 2018. Mr. Flynn maintained his guilty plea following the government's disclosures. See Gov't's App. A, ECF No. 122-1 at 3. The Court therefore finds that Mr. Flynn has failed to demonstrate there is a reasonable ...


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