United States District Court, District of Columbia
G. Sullivan United States District Judge
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
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.
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.
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.
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.
Flynn's Criminal Conduct
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.
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
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 ¶
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.
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.
Government's Discovery and Disclosure Obligations
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.
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
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.
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.
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.
Continuance of Mr. Flynn's Sentencing
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.
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. Motions practice ensued.
Flynn's Brady Motions
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
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.
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).
prove a Brady violation, a movant must establish
three elements: “ The evidence at issue must be
favorable to the accused, either because it is exculpatory,
or because it is impeaching;  that evidence must have been
suppressed by the [government], either willfully or
inadvertently; and  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).
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.
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.
Ethical Concerns with Mr. Flynn's Brief
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.
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).
Mr. Flynn Misconstrues Brady and its
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.”). 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
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”).
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).
Mr. Flynn's Brady Requests
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.
Information that Does Not Exist
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.
Information the Government Does Not Possess
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.
Information Mr. Flynn Concedes He Is Not Entitled to
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).
Information that Has Already Been Provided
Requests 18 and 20
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.
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.
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).
Requests 6, 9, 10, 30 and 31
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. 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.
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
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.
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[.]”).
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). 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.
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
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”).
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