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Case 1:17 Cr 00232 EGS Document160 2 Filed 01/29/20 Page1of55 Case 1:17 cr 00232 EGS Document160 2 Filed 01/29/20 Page1of55 UNITEDSTATESDISTRICTCOURT DISTRICTOFCOLUMBIA UNITEDSTATESOFAMERICA Plaintiff, v. CriminalActionNo.17-232-EGS MICHAELT.FLYNN, Defendant. SUPPLEMENTALMOTIONTOWITHDRAWPLEAOFGUILTY ANDBRIEFINSUPPORT SidneyPowell JesseR. Binnall MollyMcCann LindsayR. McKasson SidneyPowell, P.C. Harvey&Binnall, PLLC 2911 TurtleCreekBlvd., 717KingStreet, Suite300 Suite300 Alexandria, VA22314 Dallas, Texas75219 Tel: (703)888-1943 Tel: 214-707-1775 Fax: (703)888-1930 [email protected] [email protected] Admitted ProHacVice [email protected] [email protected] Admitted ProHacVice Admitted ProHacVice W. WilliamHodes TheWilliamHodesLawFirm 3658 ConservationTrail TheVillages, Florida32162 Tel: (352)399-0531 Fax(352)240-3489: Admitted ProHacVice AttorneysforLt.GeneralMichaelT.Flynn(USA)(Retired) 0007 Document ID: 0.7.4262.5747-000001 Case 1:17 cr 00232 EGS Document160 2 Filed 01/29/20 Page2of55 TableofContents I. THESTANDARDFORWITHDRAWINGA GUILTYPLEAPRIORTOSENTENCING.................................................................3 A. Mr. FlynnAssertsaViableClaimofInnocence...........................................4. B. TheGovernment'sAbilitytoProsecutetheCase hasnotbeenSubstantiallyPrejudiced.................................................................5 C. Six thAmendmentViolations TheIneffectiveness ofMr. Flynn’sFormerCounsel TaintedhisGuilty PleaaswellastheSubsequentColloquyathis December2018Hearing.........................................................................................6 II. IFTHEGOVERNMENTDOESNOTAGREE TOALLOWMR. FLYNNTOWITHDRAWHIS PLEA, ANDIFANYMATERIALFACTSARE ACTUALLYDISPUTED, THENTHISCOURT HOLDANEVIDENTIARYHEARING.......................................................................7 III. SUMMARYOFTHECONFLICTSANDARGUMENTS..............................7 IV. THEEVER-DEEPENINGCONFLICTSOF INTERESTRESULTINGINCOVINGTON’S DEFECTIVEASSISTANCEOFCOUNSEL...............................................................10 A. TheFARASectionandDavidLaufmanatDOJ PressureCovingtonfortheFARAFiling, andCovington MagnifiesItsMistake..........................................................................................12 B. BytheSummer, SCOTakesDownPaulManafort andSignalsFARAIssuesAreonitsRadar..........................................................14 C. AfterLearningtheSCOHastheFARAFilings inItsSights, CovingtonQuietlyBeginsItsFARA AssessmentAnew..............................................................................................15 D. JudgeHowellUnsealsaCrime-FraudOrder intheManafortFARACase, andCovington’s FearsofitsOwnEx posureIncrease.....................................................................16 E. TheSCOEtchesCovington’sConflictofInterest inStonebyPuttingCovingtononNoticeofFARA i 0008 Document ID: 0.7.4262.5747-000001 Case 1:17 cr 00232 EGS Document160 2 Filed 01/29/20 Page3of55 ChargesagainstMr. Flynn, AlongwithCharges under18U.S.C. §1001.........................................................................................18 F. Remarkably, SCOSpecificallyRaisesthe ConflictofInterestwithCovingtonandInstructs CovingtontoDiscusswithMr. Flynn....................................................................18 G. CovingtonDoesNotRaisetheLikely FARACharges MuchLesstheStunning ConflictwithMr. Flynn..........................................................................................19 H. CovingtonCallsSCOtoArrangeaDeal forTheFirm NotMr. Flynn................................................................................19 I. CovingtonMetwithMr. FlynntheNextDay butDidNotDisclosetheFARATarget, the Firm’sFARALiability, orCovington’sPernicious Lawyer-ClientConflictofInterest ...........................................................................20 J. CovingtonStillDidNotDiscusstheConflictwithFlynn ....................................22 K. Self-InterestedCovingtonSubjectedFlynntoTwo Daysof“Ex posure” on Russiaand“FalseStatements”to theFBI............................23 L. BeforethePleaDocumentswereEvenShared withMr. Flynn, CovingtonWasGleefullyPlanning itsMarketingCampaignBasedonFlynn’sPlea .............................................................24 M. CovingtonDoesNotSharewithMr. Flynnthe CrucialDetailsoftheGovernment’sLast-Minute“Disclosure.” ..................................25 N. CovingtonReceivesAwardsforFlynn’sGuiltyPlea ............................................26 O. March13, 2018, SCOBeganProducingExculpatory Evidence, WhichContinuestothisDay .........................................................27 P. CovingtonRecognizedSignificantDefenses asin2018, theAttorneysKeptMr. Flynnon“ThePath.” ..........................................28 Q. FortheHearinginthisCourt, CovingtonPrepared FlynnOnlytoAffirmHisPlea .................................................................................29 V.COVINGTON&BURLING’SLAWYER-TO-CLIENT ii 0009 Document ID: 0.7.4262.5747-000001 Case 1:17 cr 00232 EGS Document160 2 Filed 01/29/20 Page4of55 CONFLICTSOFINTERESTWEREEITHERNON-CONSENTABLE ORNOTVALIDLYCONSENTEDTO .................................................................................29 A. Non-ConsentableConflictsofInterest .................................................................29 B. EvenifAnyAspectsoftheDramaticCovington-Flynn Conflicts ofInterestwereConsentable,Mr. Flynn’s PurportedConsentwasnot“Informed.” .................................................................34 VI. BECAUSEOFTHEPERVASIVECONFLICTSOFINTEREST, COVINGTONREPEATEDLYFAILEDTOPROVIDEMR. FLYNN WITHTHECONSTITUTIONALLYMANDATEDEFFECTIVE ASSISTANCEOFCOUNSEL. ASACONSEQUENCE, HISDEFENSEWASIRREPARABLYPREEJUDICED ...................................................37 A. CovingtonWithheldCrucialInformationfrom Mr. FlynnthattheSCODisclosedImmediatelyBefore FlynnSignedthePleaAgreement ........................................................................38 B. CovingtonContinuedtoFailtoActonMr. Flynn’s BehalfasNewEvidenceCametoLightAfterHisPlea ........................................40 C. ByDecember18, 2018, CovingtonPreparedMr. Flynn toReaffirmhisPleaofGuiltyandNothingElse ......................................................40 D. CovingtonKnewSpecialCounsel’sStatements intheStatementofOffenseRegardingtheFARA FilingWereFalseorWrong, ButCovingtonSimplyStoodDown .........................41 i. The“SmokingGun”EmailShowsCovington KnewtheSCO’sAssertionsWereFalse ..................................................42 ii. CovingtondidnotinformMr. Flynnthatit wasthealleged“falsestatements”inthe StatementofOffensethatwerefalse .................................................42 iii. CovingtonCounseledFlynntoSignAStatement ofOffenseItKnewWasFalse ..............................................................43 iv. Covington Signed anAttorney’sAcknowledgement oftheStatementofOffense .....................................................................43 VII. TheLawofThisCircuitRequiresAllowingMr. Flynn iii 0010 Document ID: 0.7.4262.5747-000001 Case 1:17 cr 00232 EGS Document160 2 Filed 01/29/20 Page5of55 toWithdrawhisPlea.............................................................................................................44 VIII. Rule11 FailuresAlsoSupportWithdrawalPursuantto Cray.....................................46 IX. CONCLUSION.............................................................................................................48 iv 0011 Document ID: 0.7.4262.5747-000001 Case 1:17 cr 00232 EGS Document160 2 Filed 01/29/20 Page6of55 Morethanayearago, attheDecember18, 2018, SentencingHearing, this Courtdeclared that it could not “recall any incident in which the Court has ever accepted a plea ofguilty from someone who maintained that he was not guilty,” and that it did day. 1not “intend to start” that ) ”nny; seg l r F. ahc1 rM“(nny 001§. l C. F. does S Tl .U81eh eahc iM tfot neconn is ieht ah tn i a t n i am andhedidnotlietotheFBIagentswhointerviewedhimintheWhiteHouseonJanuary24,2017. y tl i ugs ’nny l F. rM, truoCs ih ty bde r edrog ni r aehy ra i t ned i vey nat adna, wol ebn ee se bl liwsA l esnuocf oe cna t s i s s ae vi t ce f fen ie htf ot lus e re hts aw) tw ia rdh t iwo te ru l i a fr et a ldna (a el p dna, ts e r e t n ifos tc i l fnoce lba t ca r t n ifop irge htn ie rewo hw, sr eywalr emro fs ihybd ed i vo rp severelyprejudicedhim. ThisbriefprovidesthisCourteveryreasontohonoritscommitmenttoprotectamanwho f oae l ps i hwardh t iwot , 0202, 31yr aunaJnodevomnny l F. rM. ecneconn is i hsn i a t n i amyl t s enr ae . tnemee rgaa el pe htfoh cae rbdna, ss enev i t c i dn i v, ht i a fd abs ’t nemnr evoge htfoe suaceby tl i ug r ia f“e byl nodl uowt iyhws nos ae re tanr e t l as es s e rddano i t oMla t nemel ppuSs ihT. 151. oNFCE . ae l ps iwha rdh t iwo tn ny l F. rMt imrepo tt ruoCeUnitedStatesv.Cray d htro3. F7 4, f” tsu jdna . )5991. riC. C.D(6021, 3021 d epo l eved) ”no t gn i voC“ (PLLgn i l ru& Bno t gn i voCtal esnuocr emro fs ’nny l F. rM, ts r i F e htn iy l r aet s e r e t n ifot c i l fnoct ne i l c - o t - r eywal”krowgn i y l r ednu“nas ao tde r r e fe rne t fos it ahw representation.2 Itarose frommistakes thatthefirmmade inthe ForeignAgents RegistrationAct (FARA) filings it had made for Mr. Flynn andhis companyFlynn Intel Group(“FIG”). Rather than disclosing the errors and insisting Mr. Flynn obtain new counsel to fixthe problem, or . 7t a8 102,1 81. ceD. rTg’ rH 2 GeoffreyHazard,WilliamHodes&PeterJarvis,TheLawofLawyering,§10.07.6(4thed.2015). 1 0012 Document ID: 0.7.4262.5747-000001 Case 1:17 cr 00232 EGS Document160
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