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Post by jamshundred on Oct 25, 2019 10:23:13 GMT
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Post by jamshundred on Nov 5, 2019 18:08:53 GMT
LATEST FILING: Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 1 of 18 (Copied text a bit messy - but the facts are pretty obvious in detailing the corruption). Here is the Scribd link which shows the notes and attachments ( important evidence). www.scribd.com/document/433411005/Flynn-Reply-Docket-Entry-135#from_embed 2 If accepted, the government’s approach would allow endless manipulation by prosecutors:target individuals, run search warrants, seize devices, interrogate for days, threaten familymembers, cajole, but never charge until the clock strikes midnight once a plea is extracted. Yet playing cat-and-mouse with the Due Process Clause is the opposite of what the Brady-Bagley-Giglio line of cases is all about. Perhaps even more significantly, the government’s positionwholly ignores this Court’s Standing Order, which not only has no such timing requirements, butis issued for the precise purpose of eliminating the games the government played here. One point is new. Mr. Van Grack finally admits he recognized a serious conflict of interest between Mr. Flynn and the counsel who prepared his FARA filing. Yet, he fails to respond to the point made in Mr. Flynn’s Reply that this conflict existed only because the government insisted ot only on incessantly attacking Flynn’s FARA registration (beginning within weeks of its filing), but also on demanding its pairing with the completely unrelated White House interview prosecution. Simultaneously, the government did not even advert to the primary argument that he conflict was non-consentable , which meant that even if former counsel had fully disclosed and eplained the risks associated with the conflict, Flynn could not agree to waive it. The Covington& Burling lawyers could not remain in the case. Most important of all, the government did notmove to disqualify the lawyers or bring the matter to the attention of any court.Far from addressing whatever it claims was “new” in Mr. Flynn’s Reply, the government argely regurgitates its prior denials of any Brady obligation before the first plea. But Mr. Flynn’s otion, Brief, and Reply also highlighted material the government suppressed long after thisCourt’s Brady order, through what was scheduled to be a sentencing hearing, and continuing to his day—despite persistent, detailed requests by new counsel. Thumbing its nose at this Court’s Brady Order, ignoring this Court’s gentle reminder of its primacy , and failing even to produce the requested evidence in camera , the government has stonewalled against producing so much as asingle document the government itself identified as exculpatory but provided only heavily-redacted or in meager “summary.” It is all this conduct that demonstrates contempt for thisCourt’s Order.The government has known since prior to January 24, 2017, that it intended to target Mr.Flynn for federal prosecution. That is why the entire “investigation” of him was created at leastas early as summer 2016 and pursued despite the absence of a legitimate basis. That is why PeterStrzok texted Lisa Page on January 10, 2017: “ 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. ” 3 The word “pretext” is key. Thinking he was communicating secretly only with his 2 A simple review of the confidential June 6 letter from new defense counsel to Deputy AttorneyGeneral Rosen before counsel even appeared officially in the case shows that Mr. Flynn gave thegovernment every opportunity to meet its Brady obligation on its own and without involving thisCourt. Indeed, counsel strongly hoped the government would do so. The government itself filedthat letter at Dkt.122-2, but instead of producing Brady and following the mandate of Berger v.United States, 295 U.S. 78, 88 (1935) “that justice shall be done,” Mr. Van Grack continues toharp on Mr. Flynn’s plea and little else. Nor was there “an extraordinary reversal” pursuant to which Mr. Flynn claims he is innocent.At no time did new, conflict-free counsel affirm the validity of Mr. Flynn’s guilty plea. In thatsame letter, counsel explained that “as was ingrained in [Mr. Flynn] from childhood,” he “tookresponsibility for what the SCO said he did wrong.” Counsel wrote that they “used the ancientLogan Act as a pretext” for his interview, the “FBI interview was worse than ‘entrapment,’” andthat Mr. Flynn was “truthful” with the agents. From undersigned counsel’s first brief in this Court,the defense cited Judge Jed Rakoff’s article on “ Why the Innocent Plead Guilty .” Dkt. 109 at n.1.Rather, as a matter of procedure, counsel advised the Court that we anticipated seeking dismissalrather than withdrawal. Nothing we have found in the law requires a defendant to withdraw hisguilty plea rather than seek dismissal for egregious government misconduct. Analogously, thisCourt did not have to grant a new trial to Ted Stevens before it could dismiss the entire prosecutionin the interest of justice. 3 The government claims, without support, that this “ pretext to interview some people ” does notapply to Mr. Flynn. But, Strzok’s admission that he and McCabe then had “many meetings” todecide whether, when, and how to interview Flynn in the next few weeks, and the small groupmeeting on the day before the interview to plan the ambush at the highest levels, belie thegovernment’s claim. Dkt. 133-6. Presumably, Mr. Van Grack was not part of that planning Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 3 of 18 4 paramour before their illicit relationship and extreme bias were revealed to the world, Strzok letthe cat out of the bag as to what the FBI was up to. Try as he might, Mr. Van Grack cannot stuffthat cat back into that bag. 4 Former Deputy Director Andrew McCabe as much as admitted the FBI’s intent to set upMr. Flynn on a criminal false statement charge from the get-go. On Dec. 19, 2017, McCabe toldthe House Intelligence Committee in sworn testimony: “ [T]he conundrum that we faced on theirreturn from the interview is that although [the agents] didn’t detect deception in the statementsthat he made in the interview . . . the statements were inconsistent with our understanding of theconversation that he had actually had with the ambassador. ” McCabe proceeded to admit to theCommittee that “ the two people who interviewed [Flynn] didn’t think he was lying, [which] wasnot great beginning of a false statement case
.” Ex. 1.Had the FBI not intended all along to create a false statement case, there would have beenno “conundrum” at all. The matter simply would have concluded with the interview. Further,there would have been no comment about “a false statement case”—because no such case would be assumed. Finally, there would be no lamenting the “poor start” of a false statement case,
5
because there would not have been “a start.” False statement cases normally arise incidentallywhen government agents are investigating a matter and the interviewee makes a misstatementabout that matter. Agents then seek to get to the truth by giving 1001 warnings to coax truthful process, so his unsupported assertions about what Strzok and Page had in mind when they textedabout pretext is pure speculation.
Brady
entitles a defendant to exculpatory evidence, notunsupported, self-serving denials.
4
Mr. Flynn requests the notes, 302s, statements, recordings of any and all the participants in themeetings of the small group to plan and then debrief his interview. The government did not attemptto rebut these issues because it cannot.
5
House Permanent Select Committee on Intelligence, Report on Russian Active Measures, 54(March 22, 2017), Ex. 1.
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 4 of 18
5information from the suspect. But here, to use Strzok’s own words, the investigation was “a pretext;” the object of the interview was to secure, rather than prevent, a 1001 violation. The “poorstart” further reveals Mr. McCabe’s determination to create a case despite the agents’ belief Mr.Flynn was telling the truth. Having such concrete evidence as to the prosecution’s thinking processes is rare; having it in text messages and sworn congressional testimony is priceless.
1.
The Original 302 Or Evidence of its Attempted Destruction Are BeingSuppressed.
The government attempts to gloss over the existence of at least one earlier draft of theFlynn 302, then asks this Court to leap blindly to the conclusion that
if it did exist
, it contained thesame information as the government has already deigned to produce. Aside from this inherentcontradiction, as explained in Mr. Flynn’s Reply, the FBI Sentinel system can retrieve any draft.Drafts are numerically serialized when placed in the system. Those numbers—apparently redactedfrom the 302 drafts that have been produced—would probably provide further information.It is no excuse that the original Flynn 302 is not “in the possession of” Mr. Van Grack atthis moment. Rather, his obligation is to reach out to his colleagues and obtain it
. Kyles v. Whitley
,514 U.S. 419, 437 (1995) (“Prosecutors ha[ve] a duty to learn of any favorable evidence known to[] others acting on the government’s behalf.”). It is in the FBI’s system, or can be retrieved, alongwith the audit trail, the A1 files, information about any attempt made to destroy it, and all themetadata for the changes which are more important now than ever in light of the absurdity of thegovernment’s Surreply. Tellingly, Mr. Van Grack does not deny that such information is, in fact,available.The Strzok-Page text messages confirm that Lisa Page had two opportunities to edit draftsof the crucial 302. Strzok returned to his FBI office the night of February 10, 2017, to input theedits she made on the draft she had earlier left in Bill [Priestap’s] office (about which they hatch a
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 5 of 18
6cover-story), then sent her another version over the weekend. The government thus implicitlyadmits there was at least one version prior to the February 10 edition.To add to its brazen disregard for its obligation to preserve and locate exculpatory evidence,the government claims entitlement to a favorable assumption about the suspiciously
lost
documentwhen it argues that “there is no reason to believe it would materially differ” from other drafts. Dkt.132 at 7. To the contrary, spoliation law requires the assumption that the evidence is favorable tothe defense.
See
United States v. Cooper
, 983 F.2d 928 (9th Cir. 1993) (the district court properlydismissed the indictment due to the government's destruction of evidence, relying on the testarticulated by the Supreme Court in
California v. Trombetta
, 467 U.S. 479, 489 (1984) and
Arizonav. Youngblood
, 488 U.S. 51, 58 (1988)).
2.
The Handwritten Notes Raise Questions that Mandate Production of theOriginals and More.
The government contends—without any support—that Mr. Flynn’s assertion that AgentStrzok’s notes were not taken contemporaneously with the interview is “divorced from the facts.”Surreply at 4. But according to Mr. Strzok himself, in a 302 created from an interview he gave toSenior Assistant Special Counsel Andrew Goldstein and FBI Supervisory Special Agent EricRuona, on July 19, 2017—for which he was warned—Strzok said he asked the questions and thatAgent 2 was “primarily responsible for taking notes and writing the FD-302.”Moreover, even a layman can look at the two sets of notes and discern that Strzok’sminiscule, printed, within-the-lines, longer, and more detailed notes bear none of the hallmarks of being written during the press of an interview—much less by the secondary note-taker. Thatobservation is even more obvious when compared with Agent 2’s notes, which do appear to becontemporaneous. Of course, the defense cannot prove this without handwriting samples and theoriginal notes, but there is sufficient basis for this Court to compel the government’s production
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 6 of 18
7of that original evidence (including the 1A files, the audit trail, and the metadata) and handwritingsamples for analysis in light of the government’s dogged insistence that Strzok wrote the notescontemporaneously. The FBI already breached its own protocols in this case and is apparentlywilling to send a man to prison based on notes that do not seem to be as represented.
6
In addition, the notes bear no signature and date as required by the FBI, casting doubt ontheir authenticity. If the signatures and dates are present in the originals, the government hasunjustifiably redacted that information, possibly without leaving a black mark to disclose aredaction, which itself is a form of deception.
3.
The Notes Do Not Support the Factual Basis for the Plea.
Most importantly, the notes, which the government claims are the most “original”interview documents and “detail the defendant’s multiple false statements,” do nothing of the sort.Surreply at 4. Two allegations depend on Ambassador Kislyak’s
response
to purported questionsabout the UN vote and sanctions. Read the notes of both agents for hours, and you won’t find aquestion or an answer about Kislyak’s
response
on either the UN vote or the sanctions—yet thoseassertions underpin the factual basis for the plea. Dkt. 133. By failing to join issue on these points,the government has effectively conceded that the notes do not support the purported falsestatements in the factual basis for the plea.
6
Ironically, neither the Court nor defense counsel even knows what differences exist betweenwhat Mr. Flynn told the agents and the actual recordings of the calls to Ambassador Kislyak,Surreply at 5-6, as neither defense counsel nor the Court has ever heard the calls. One wouldimagine there are differences between the recordings of the calls and what Mr. Flynn recalled tothe agents who stopped by his office that day, but that is not evidence that he lied, and he did not.As the agents themselves realized when they spoke to him, he may have been wrong, but he washonest to the best of his recollection at the time. Unlike Lisa Page, Mr. Flynn was not shown thetranscript of the call (or a text message) and given an opportunity to say “oh yes, that’s right.” Dkt.133-12. The upper echelon of the FBI decided in their strategy meeting they would deny him thatopportunity, contrary to standard FBI practice when a violation of 18 U.S.C. § 1001 is suspected.
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 7 of 18
8Similarly, the notes do not state that Mr. Flynn “made the specific false statements” towhich he pled guilty. The notes do not say that he made any false statement at all. The agentsreported back believing he either was honest or believed he was telling the truth. There is nothingin the 302s—draft or final—that says he made false statements. And, the notes do not even matcheach other—especially on the statements regarding the UN vote and sanctions.As Mr. Comey testified to the House Permanent Select Committee on Intelligence, onMarch 2, 2017, “
the agents . . . discerned no physical indications of deception. They didn’t see anychange in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to themthat he knew he was lying to them.” Ex. 1.
As many people have used the same language todescribe the agents’ reactions, it strains credulity to suggest the original 302 or some other 302does not exist from the interview of Mr. Flynn that includes these statements or similar ones.
7
ThisCourt should order the government to conduct a thorough search of its records, including the FBI’sSentinel database, and produce unredacted versions of every 302 in this case, including redactionhistory, audit trail, and metadata. Given the already well documented history of “pretext,”manipulation, violation of standing rules and practices (“screw it”) and other malfeasance by theFBI in this case, there can be no justification for withholding this information from the defenseand the Court.
4.
There Were Material Changes Made in the 302 Overnight on February 10, 2017.
Contrary to the government’s bald assertion that no material changes were made to theFlynn 302, Surreply at 5-6, the drafts of the 302s, the agents notes, and the Strzok-Page texts show
"
Even in its claim of disclosure, the government elides that it shared a minimized version of thisinformation only by last minute phone call with conflicted counsel the day
after
Mr. Flynn agreedto plead guilty and as they were signing the deal—while it also insisted that the unrelated FARAadmissions be included in the plea.
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 8 of 18
9material changes were made, and this is why, among other reasons, Mr. Flynn requested thesedocuments in his original Motion to Compel. MTC 2, 6, 40. We know that on February 10, 2017,McCabe and possibly Strzok went to the White House to visit Vice President Pence. Then news broke asserting that Mr. Flynn had lied to the Vice President and others about his calls withAmbassador Kislyak.
8
That same night, Lisa Page texted Peter Strzok: “[Y]ou need to finalize that asap. Iwouldn’t be surprised if following this evening’s events that a request comes in to see it.” Strzokreplied: “I’m going back in tonight to do so.” Page then told Strzok that she “gave my edits to Billto put on your desk.”We do know that the same evening, Strzok went into the office, picked up Page’s edits,and made changes that any reasonable person would deem material to the 302. He added adefinitive statement: “
FLYNN stated he did not
.” This was in response to whether, on the issue ofUN vote, Flynn had asked Kislyak to vote in a particular way. This is materially different fromthe notes which state Flynn
did not recall
speaking to Kislyak on the UN vote issue. Anothermaterial change was to add the entire phrase: “
or if KISLYAK described any Russian response toa request by FLYNN
” to which Flynn answered “no.” The notes reflect neither a question nor ananswer about a “
Russian response
” to anything at all. This is what the Surreply characterizes as
#
See
Timeline for January-February 2017, Ex. 2.
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 9 of 18
10“largely grammatical and stylistic” edits.
9
Surreply at 6. Defendant is entitled to compare LisaPage’s suggested edits with the changes made by Strzok to determine whether his changesreflected his purported recollection of the event or fabrications suggested by McCabe’s specialcounsel.Previously, someone added an entire assertion untethered from either set of notes: “Theinterviewing agents asked FLYNN if he recalled any conversation with KISLYAK in whichKISLYAK told him the Government of Russia had taken into account the incomingadministration’s position about the expulsions, or where KISLYAK said the Government of Russiahad responded, chosen to modulate their response, in any way to the U.S.’s actions as a result of arequest by the incoming administration.” Although absent from the notes of both agents, this“Russian response” underpins the alleged crime.
10
The government does not even attempt to rebutthis issue, because it cannot.
$%
See
Flynn Reply Dkt. 133-2 at 11.
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 10 of 18
11
5.
Mr. Flynn’s Statements Were Not Material.
The government has been on notice since December 18, 2018, that this Court had seriousquestions about the materiality of Mr. Flynn’s statements from the factual basis for the plea. Afterexpressing concern earlier in the hearing about the facts that surrounded Mr. Flynn’s statements tothe FBI agents on Jan. 24, this Court reiterated its concern at the end of the hearing: “t probablywon't surprise you that I had many, many, many more questions . . . such as, you know, how thegovernment's investigation was impeded? What was the material impact of the criminality? Thingslike that.” Hr’g Tr. 50:12-13, 20-22, Dec. 18, 2018. Defendant is entitled to access thegovernment’s documents that show there was none.Trying to shoehorn the FBI’s interview of Flynn into its investigation of whether the Trumpcampaign was “coordinating with the Russian government in its activities to interfere with the2016 presidential election,” the government claims that Mr. Flynn’s “conduct and communicationswith Russia went to the heart of that inquiry. Actions such as the defendant’s communicationswith the Russian Ambassador about U.S. sanctions could have been indicative of suchcoordination.” Surreply at 10.There are serious problems with this mantra. First and foremost, the agents already knewexactly what Mr. Flynn said in all his communications with the Russian Ambassador, so the FBIagents did not ask questions to discover the existence or substance of those communications. And,second, the agents did not ask Mr. Flynn a single question about anything even approaching“interference with the 2016 election.” Nor did the agents try to connect the post-electioncommunications to pre-election interference. The interview, by “pretext,” was purely to “start” a“false statement case” as McCabe admitted in his congressional testimony.
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 11 of 18
12The government’s claim that “it was imperative that the FBI determine whether and whysuch communications with the Russian Ambassador had occurred,”
id.
at 11, is belied by theunalterable truth that the FBI had recordings and transcripts of those very conversations. It knewexactly whether, what, and why “such communications” “occurred” between Mr. Flynn and theAmbassador. It heard the calls.
11
Nothing the agents asked Mr. Flynn on January 24 was materialto any valid investigation, and because the agents and Mr. Flynn knew they had the transcripts,recordings, and knew exactly what was said, nothing impeded their purported investigation.In this Circuit,
Brady
evidence is to be produced promptly to the defense—in time for it to
use
it. The government here used every conceivable strategy and tactic to circumvent
Brady
’sletter and spirit, and its own responsibility as a servant of the law, from the inception of this entireoperation. The government attempts to paint its pre-plea interactions with Mr. Flynn as cordialand completely voluntary, but that defies reality.Mr. Flynn was one of the Special Counsel’s first four targets—following on from Mr.Comey and Mr. McCabe’s pretextual target selection of mid-2016. After having been compelled by the facts to clear Mr. Flynn in January, Mr. McCabe opened the obstruction case on PresidentTrump and the FBI re-entered the 302 of Mr. Flynn’s interview into the Sentinel system on May31, 2017, for Mr. Mueller’s special use. Mr. Flynn was named in Mr. Mueller’s first targetauthorization letter. The Mueller team soon obtained a search warrant and took possession of all
11
Likewise, whatever the Vice-President and others in the White House said publicly or privatelythat Mr. Flynn told them was not grist for an FBI investigation. The Executive Branch has differentreasons for saying different things publicly and privately, and not everyone is told the details ofevery conversation. If the FBI is charged with investigating discrepancies in statements made bygovernment officials to the public, the entirety of its resources would be consumed in a week.Furthermore, Mr. Van Grack’s team interviewed all the relevant White House officials. Thedefense has reason to believe there is exculpatory evidence from those interviews, requested atMTC 17, 28, IV(g), that has been withheld as well.
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 12 of 18
13Mr. Flynn’s electronic devices—phones and computers—which they hold to this day. Then, theyobtained authority to target his son, and they seized all his devices. Moreover, the prosecutorsmislead by omission when they claim Mr. Flynn was “afforded protections by the governmentagainst his statements during those [proffer] meetings being used against him.” Dkt. 132, 2.
12
As the
Brady
Court made clear, a prosecutor should not be the “architect of a proceedingthat does not comport with standards of justice.”
Brady v. Maryland
, 373 U.S. 83, 88 (1963). ThisCircuit has excoriated the government for failing to produce exculpatory evidence as soon as theyfinished the conversation that revealed it.
United States v. Pasha
, 797 F.3d 1122, 1133 (D.C. Cir.2015). In
United States v. Nelson
, the district court discussed the government’s pre-plea
Brady
12
The letter sent by the Special Counsel to Mr. Flynn’s then-counsel, Covington & Burling, beforethe proffer interviews made clear that, “by receiving [Mr. Flynn’s] proffer, the government doesnot agree to make any motion on [his] behalf or to enter into a cooperation agreement, pleaagreement, immunity agreement or non- prosecution agreement with Client.” Although the lettermade a general promise not to use statements made in the interviews against Mr. Flynn, the promise included an important final clause: “Should Client be prosecuted, no statements made byClient during the meeting will be used against Client in the government's case-in-chief at trial orfor purposes of sentencing,
except as provided below
.” (emphasis added). The listed exceptionsrender the “promise” a practical nullity.It is disingenuous to suggest that the proffer sessions were not adversarial when the governmenthad permission to target Mr. Flynn, seized all his electronic devices, targeted his son, and seizedhis son’s devices. The government fails to mention that, to obtain the plea, it threatened Mr. Flynnwith indictment
the next day
, the indictment of his son who had a new baby, promised him "theManafort treatment,” and promised to pile on charges sufficient to put him in prison the rest of hislife. The short fuse was no doubt motivated by the government’s knowledge, which it did notdisclose to Flynn, that the salacious Strzok-Page emails, disclosing their vitriolic hatred ofPresident Trump and his team, the key agents’ affair, and their termination from Mueller’s SpecialCounsel operation were going to be exposed the very next day. No individual, no matter howinnocent, can withstand such pressure, particularly when represented by conflicted defensecounsel. The advice a client is given by his lawyer in such fraught circumstances can make all thedifference between standing his ground or caving to the immense pressure. Mr. Flynn caved, not because he is guilty, but because of the government’s failure to put its cards on the table, as
Brady
,requires, and its failure to ensure that Mr. Flynn was represented by un-conflicted counsel whenhe was forced to make that decision.
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 13 of 18
14obligations and held the government has the obligation to disclose
Brady
before a plea.
UnitedStates v. Nelson
, 979 F. Supp. 2d 123, 129 (D.D.C. 2013). The
Nelson
court noted that “adefendant who is forced to make a choice about going to trial or pleading guilty unaware that thegovernment has not disclosed evidence which if made available, would tend to exculpate him,suffers unfair treatment unworthy of the bedrock ideal inscribed on the Justice Department walls,”and that “precluding a defendant from raising such a
Brady
claim after a guilty plea could create arisk too costly to the integrity of the system of justice to countenance—tempting a prosecutor tostray from that bedrock ideal and deliberately withhold exculpatory information as part of anattempt to elicit guilty pleas.”
Id.
at 130 (internal quotes omitted).This district and most circuits agree that if this question were put to the Supreme Court, it“would find that the government has an obligation to disclose exculpatory evidence at the pleastage.”
Id
. at 129. As Judge Betty Fletcher wrote in a companion case to
United States v. Stevens
,it is “an affront to the integrity of our system of justice” that the prosecutors had withheld “materialdocuments—including FBI reports, memoranda, and police reports” and knowingly suppressed“information that undermine[d] the prosecution’s star witness.
United States v. Kohring
, 637 F.3d895, 914 (9th Cir. 2011) (B. Fletcher, J. concurring).
6.
Covington’s Non-Consentable Conflict of Interest Was Not Ameliorated by Mr.Van Grack’s Discussion with Conflicted Counsel.
When the government’s Response relied pervasively on Mr. Flynn’s representation by and(theoretical) ability to consult with chosen counsel at all stages of the proceedings, the conflict ofinterest necessarily became an element of his Reply, and the government is wrong to complain thatMr. Flynn strayed outside the bounds of a proper Reply. Dkt. 131; Surreply at 11. Since it wasthe government that first raised the supposed impartial advice Mr. Flynn received from his lawyers
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 14 of 18
15at the time of his plea and then, again, when he confirmed his plea before this Court, this becamea proper subject for addressing in Mr. Flynn’s Reply.Even given leave to file a Surreply, however, the government completely ignores thegravamen of Mr. Flynn’s argument. While Mr. Van Grack admits he was aware of the seriousconflict of interest inherent in Covington & Burling’s representation of Mr. Flynn in this case because of its responsibility for the FARA registration, Surreply at 11, he concedes he did nothingmeaningful about it. In fact, his reaction was wholly inadequate: he accepted at face value theconflicted lawyers’ report that Mr. Flynn was aware of the problem, that they had discussed it, andthat Mr. Flynn had agreed to waive the conflict.
Id.
In such circumstances, the government mustdo more—much more.The government’s response is not only inadequate as a matter of legal ethics, which it alsofailed to address, but it ignores the crux of Mr. Flynn’s argument in his Reply. The conflict was
non-consentable
. Instead of seeking Flynn’s consent to their continued representation of him,Covington lawyers were obligated to
withdraw
from the representation, regardless of his wishes.Dkt. 133-2, Reply at 16-18. Continued representation under these circumstances, in turn, amountsto constitutionally inadequate representation under the Sixth Amendment. It must be rememberedthat in
Wheat v. United States
, 486 U.S. 153 (1988), the district court
overrode
the formallyexpressed wishes of both the defendant and his lawyers; the defendant’s chosen counsel wasremoved from the case on the government’s contested motion.Mr. Van Grack could have avoided this part of the government’s present difficulty bymoving to disqualify Flynn’s original counsel years ago, thus putting the ultimate decision into acourt’s hands, as in
Wheat
and other cases. But, he chose to speak only to the very counsel thathad either not adverted at all to consentability, or had already reached the self-serving
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 15 of 18
16determination both that the conflict was consentable
and
that the client’s purported consent wasadequately informed.Mr. Van Grack unilaterally eliminated the possibility that the Court would learn enough toinvestigate further. He was content to allow hopelessly-conflicted counsel not merely to walk Mr.Flynn into five days of interviews with the Special Counsel team, but into an immediate, high- pressured plea of guilty without any demands for or production of
Brady
material, facilitated thewaiver of countless rights, and signed an agreement for endless years of cooperation with thegovernment at extraordinary personal expense. In addition to those benefits, the government wasable to turn Mr. Flynn’s own counsel into the equivalent of adverse witnesses against him in theRafiekian FARA case in the Eastern District of Virginia.All the while, the government was suppressing the evidence we outlined comprehensivelyin Mr. Flynn’s Reply and this Sur-Surreply. Some conflicts of interest are not waivable as a matterof constitutional law, but a court cannot realistically press the inquiry further unless alerted to it by the parties. By the time of the sentencing hearing before this Court in December 2018, it wassimply impossible for the Court to unearth the seriousness of conflict of interest.The normal plea colloquy was insufficient to alert this Court to the problem, and Mr. Flynndid not know what Mr. Flynn did not know. When Mr. Flynn was asked if he was satisfied withthe representation he was receiving, he had no way of knowing of the depths of the conflict ofinterest, and he had no way of knowing that some conflicts of interest are non-consentable. The prosecutors were more than just aware of this issue, they took full advantage of it. Their failure toaddress the issue in their Surreply concedes the non-consentable conflict. This is precisely whythe government is
required
to focus the court’s attention to the issue by moving to disqualify
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 16 of 18
17counsel and thus letting the Court—not the government in cahoots with uber-conflicted counsel— persuade a defendant that he is getting advice from a safe source.
CONCLUSION
In conclusion, yes, the government engaged in conduct so shocking to the conscience andso inimical to our system of justice that it requires the dismissal of the charges for outrageousgovernment conduct.
See United States v. Russell, 411 U.S. 423, 428 (1973)
. However, as fully briefed in our Motion to Compel and Reply, at this time, Mr. Flynn only requests an ordercompelling the government to produce the additional
Brady
evidence he has requested—in fulland unredacted form—and an order to show cause why the government should not be held incontempt. At the appropriate time, Mr. Flynn will file a separate motion asking that the Courtdismiss the prosecution for egregious government misconduct and in the interest of justice. Mr.Flynn is entitled to discovery of the materials he has requested in these motions and briefs that willhelp him support such a motion.Respectfully submitted,/s/ Jesse R. BinnallJesse R. Binnall, VSB # 79292Lindsay R. McKassonHarvey & Binnall, PLLC717 King Street, Suite 300Alexandria, VA 22314Tel: (703) 888-1943 jbinnall@harveybinnall.comW. William HodesThe William Hodes Law Firm3658 Conservation TrailThe Villages, Florida 32163Tel: (352) 399-0531wwh@hodeslaw.comAdmitted
Pro Hac Vice
/s/ Sidney PowellMolly McCannSidney Powell, P.C.2911 Turtle Creek Blvd., Suite 300Dallas, Texas 75219Tel: (214) 07-1775sidney@federalappeals.com
Admitted Pro Hac Vice
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 17 of 18
18
CERTIFICATE OF SERVICE
I hereby certify that on November 4, 2019, a true and genuine copy of Mr. Flynn’s Sur-Surreply in Support of His Motion to Compel Production of
Brady
Material and for an Order toShow Cause was filed using the Court’s CM/ECF system, which will serve a copy of the filingupon all counsel and record.Jessie K. Liu, U.S. Attorney for the District of ColumbiaBrandon L. Van Grack, Special Assistant U.S. AttorneyDeborah Curtis, Assistant U.S. AttorneyJocelyn Ballantine, Assistant U.S. Attorney555 4thStreet, NEW Washington, D.C. 20530/s/ Jesse R. BinnallJesse R. Binnall, VSB # 79292Harvey & Binnall, PLLC717 King Street, Suite 300Alexandria, VA 22314Tel: (703) 888-1943 jbinnall@harveybinnall.com
Case 1:17-cr-00232-EGS Document 135 Filed 11/04/19 Page 18 of 18
Case 1:17-cr-00232-EGS Document 135-1 Filed 11/04/19 Page 1 of 7
Case 1:17-cr-00232-EGS Document 135-1 Filed 11/04/19 Page 2 of 7
(U) The
Trump
campaign
did
not
re-
ceive general co
unterinte
lligence b
ri
efing
until
August
20
16, and
even
then,
it
was
never
specifically
notified about
Papado-poulos,
Page, Manafort,
or General Flynn's
Russia
ties.
1
o.;
Further,
the
counterintelli-
gence
brie
fing
provided
to
Trump
and his
t
op
advisors
did
not
identify
any individuals
by
name
but rath
er
focused
on
the
general
th
reat
posed
by
adversaries, including
Rus-
sia
and
China.(U) Finding
4
:
The
February
2 18
indict-
ment
·
of
the
Internet
Resee1rch
Agency
and
Russian nationals exposes Russian actors
and
their intent
to
spread
distrust
towards
the
candidates and
the
political system in
general.
(U) In
mid-February
2018,
the
Depart-
ment
of Justice
charged
12
Russians and
the
Russia-based
Internet
Research
Agency
LLC
with
interference operations targeting
the
United States
pol
itical and
electoral
process·
es
The
lndictment
cla
ims
that
th~ stated
goa
l of
the
Russian
actors
was
to
spread
distrust
towards
the
candidates
and
the
po-
litical system
in
general
and
pro
vides
in-
sight
in
to
the
metl10ds
used
by
the
IRA
such
as
the
use
of stolen identities,
trave
l
to
the
U.
S.
for the
purpose
of collecting i
ntelli
gence
,
and
the
procurement
of
computer
infrastructure
to
hide
the Russian
origin
of
activi
ti
es
. ~
05
The
indictment
by
SpecialCounsel
Mueller
conta
ins
assertions
that
re
· consistent
with
information
examined
by
the
Comm
i
ttee during
i
ts investigation.
Spe
cifically, according
to
an
accompanying
DOJ
announcement,
T
here
ls
no
allegation
in
the
indictment
that
any
Amer
ican
was a
knowing participant
in
the
alleg
ed
unlawfu
l
activit
y.
There
is
no a
ll
ega
ti
on
in
the
ind
ict-
ment
that
the
charged conduct altered t
he
outcome
of
th~
2016
election.''
107
PROP
ER
TY
OF
:HE
u.
s_
HOUSE OF
REPRESECl. TA.Tl\icS
55
Case 1:17-cr-00232-EGS Document 135-1 Filed 11/04/19 Page 3 of 7
v
l.
Hr
SCI,
"RuS$la1l
/\clive
Mc
a~
ure~
nv
e5ti
;:otion ,
Mar
.
20,
201,,
7.
.
HPSC
f,
''Russl
a11
Actlvn
Moasuw~
lnvc~tlgot1on",
M.:ir
. 20, 2017,
3.
d.
s.
G
7.
8.
9. Hr
SCI,
Executive Session
Interview oUake
Sullivan,
Dec.
21,
2.017,
10
.
I-IPSCJ,
"Russian
Active
rvteasurns
investigation»,
Mar.
20,
2017.
11.
HPSCI,
"RUS5ia
Investigative
Task
Force
Heating
with
former
Secretaf'/
of
Homeland
Setu
rit
y Jeh
Johnson
,
J
une
.21,
2017.
12.
HPSCI,
"Russia
Investigative
Task
Force HearinB
with Former
Secretary
of
Homeland Security
Jeh
JohnsQn/
June
21,
2017.
13.
DHS,
Reodovt
of
Secretary
Johnso11
s
Cali
Wit/1
State Election Officials
About
Cybersecurity,
J t.eWwww.d
hs.
eov/
news/201
6/08/
15/[e<1dout·~ecret<lry-i
ohn
sgns-calr-$\
ii\e-
elec.lfQD:.officials-£Ybersecuri
1·,•.
Aug.15,
2016.
1c1.
F01,
FBI Flos/J:
Targeting
ctMry
Against Stat~
Boord
o
Election
Systems,
Aue.
18,
2016
.lS.
Flll,
FB/1- lash:
TorgetingAclivity
Agajnsc
Srate
Board
of
Election
Syscems,
Aug.
lll,
2016.
'16.
Fil
l,
FDI F os/1:
Toryetfog Activity Ayoin~t Stote
Boarcl
o
le
ction
Systems,
Avg.
18,
2016.
17.
or~s.
Stotemenr
/Jy
Secrera.ry
Joh11son
Concemlng the Cybersecurliy
o
rlle Nation s Election
Sy:,cems,
hltu;LL
www
.d h
~
ll,
o
v/11ow1:/7.Q
11:./~/
1
6/.i,t;
i
om"
n1
·MtWH
~Q
·
tlhn
r.
on
•
r.
on
r..,
ml
nrt-cy
b
r:( .
<'C
llr
y-na in
n·~-
e:cc
1ion
·
S'll m,
So
pL
16,
20
16.
18
.
DHS,
Statement
[)y
Sccrc101y Ja
ns
on
Con
c
r:rn
/11y
tlt
1.•
Cyb,ll'.11:
c
u lly
o
he Na.lion s
E(ecttun
Sy
mims,
b.\S
n.:LL
~,
cih<
.&2_•
/nf .filJ2,016/0
i
W,6/;, 1)lC
mr.
n
1:[,
n1
11.r.:t
~1
1v•
)Q
hl1
H
lJ
)•
Ci)
l\
r,g
m
ln~ lCmrt
l >Y
•ll
t1t
i
rm
;
·
r:l
1
~1
tP.
t)
~
Sopl. 16, 1016.
19.
Puul
O.
Rynn
,
Nancy
1>
01osl
,
Mitch
McConnull,
Harry
Rold,
Li:11 1r
to
Toud
Vulci1t/11a
,
Sep
t.
28
1
2
016
.
20.
DHS,
Statement
by
Sacretory
Johnson
About
EICGtton
Systems
C}'IJC r
sccurlty,
~ d
lli Y.l:.~.l?
-
OJ.6ll..QL 11.L
~li>kpir.
nt·
s
ecr<
~
ilrY
-1ohn;o1
.
,,~
0l
rt•s
l,
1c
11
oq-&
YW\
JI
S
c;:r:
b ~
Oct.
l,
2016.
21
.
DH~
.
Joint Stotemunr from the Deportme
nt o
iomeland
Secut/1)'
otld
0,(Jice
o
ileDirector
o
Noo·onal lnte
lll
at:n
ce
onElection
Secu
ri
ty,
Z Jt1l
~Jb
·1ww
,
t1h
u:cw/
"Q
~
01
C
/
10/07
lnl
Qt;llilt
eme
~
P..a . mJl
111
-
lro
tM
ln
nd•security·il n
d-office
·dlrector-
na1
f
onaJ,
Oct.
7, 2016.
22.
DHS,
Update
Dy
Secretcrry
Johnson
On
OHS
Election Cybersecurlty
Services,
btt1?$
://wv,w.dl
J .4.Qy/t1ew
s
n.
0
1G
/lO/lO/
Jtl2f .iti
P,·5PC{P,tar
y·
loh
nso
n,d lls,eJectlon-cybe
rs<lcurity-servlce.~.
Oct. 10, 2016.
23.
HPSCI,
"R
u~lll
lnYestiR'aiive
Task
force
Hearing
with
Fomier
S(melar,,
of
Homeland
S-ecur\ty
Jeh Joh
nsont
June
21,2017.
24.
HPSCI,
"Russia
Investigative
Task
Force
Hearing
with
Former
Secretary
oi
Hamel.i
nd
Securit>1
Je
h Johnson.''
Jtme
21,
2017.
25. The Office
o
Secretary of State of
G
eorgla,
L
etterto
Secretary
Jeh
lohnsor\
Dec.
8, 2016.26.
DHS,
Statement
by
~ecretary
Jeh
Johnson
on
the
Designation
of
Election
Infrastructure
as
a
Cr
itical
I
nfrast
ruct
ure
Subsec-
Lor,
.l: StmJb:.VV-'W.d
hs.gov/ncws/2017l01/0&/~totament-~?.cret:irv•
lo
imson-6oslgnallon-election
-l
nf;astructure
crirtc.a
l,
Jan. 6, 2017. ·
27.
HPSCI
, Executive
Session
lntarvlew of
Loretta Lynch, Oc
t.
20
,
2Q1/.
28.
'"Th
e
Global
DlglLaJ
Challenge
Initiative -
Xey
11ote
Address,''
.lil)arl:isan
Policy
Center
video,
38:2S,
http:
//
br.ove
.me/
zff9r41)q
,
May
18, 2016.
29.
HPSCI, E:<ec
utiva
Ses~lon
lnterYit~w
of
Loretta
Lynr.h,
Oct.
20,
2017.
30.
HPSCI,
hec
utivc Scs~lon lnterYlew
of
LOrutta
Lynd,,
Oct.
20,
2017;
llw
Prl11r.lpol
s
Committee,
con
vo
n~d
nnd
chaired
by
tl1c
No
t1
onol
S.r.
curlly
/\dvisor,
~
a
Cnl>lne1
level
h1teragc11c~·
forum
for
r.o
ns
ldcrln
r,
pollc
1
1
$~u
os
that
MftH:t
the
nationalu:curlty lntcro~ts
of
the United
Stutes. Regular
attendees
of
tho
Prlndp.ils
Commlttc<e
Include:
the SccretJry
of
Stntc, t
he
Soc
roLorv
of
he
Trc~surv.
tho
SocroLory
of
l>ofori~f.',
tho
At\ornuv
Goncrol,
thu
Sor.re
tary
ol
l:norgy,
th
o
hf
af
of
St
a
ff
to
the
Pr
o~
ldcnt.
tho Director
of
Notion
ul
rntclllgtmr.o,
the
CJiu
r
rm
on
of
the
Joint
Chlo#$
oi
Stn
lf,
the
Di
rector
of
th~ Centro I
lntolll11oncv
A
;
o
ncy.
the
Na
t1onol
Soc~ulty
Advisor,
tho
Homeland
Se
curi
ty
A<M
sor,
Md
t
ho
R
opr<:5r."
1miv
a
or
th
o
Un1totl
Stot11~
to
th
e
Unlted
Nol1ons
.
31.
HPSCI,
"Russian
AcL~v11
Measuras
Dunne
the 2016 Election
Campalen
,N
Mo\'
23,
2017.
32.
The
Gang
of
8 is
compr
ised
o
th
e
Speaker
of
the
House
of
Represr.otiltlvc-s,
th
e
Minority
I.en
der
of
the
Mouse
of
Repre-
sentatives, the Chairman and
Rankine
Member
of
the
Permanont
Select
Con1mittce
on
lnt~
lliRllnce
of
t
hP.
House or R
ep
.
PROPERTY
OF
THE
U.
S.
HOUSE
OF
REPRESENT,' >.TIVt:S
56
.
Case 1:17-cr-00232-EGS Document 135-1 Filed 11/04/19 Page 4 of 7
,esemati~s.
the
Majcf.ty .,rui
Min
orit
y
lead=
of
the
U..S.
Senate,
3J:td
the
Chai mrll\
and
V:~
Chairman
of
:he
Sc Ed
Com
mitt~
on
ln.effi
gC11ce
of
tr£
U.S.
~ate.
33.
>-IPSO,
Ex :cutive
52S1icn
lnte
Nle:.v
of
Susan Ri
ro,
Sap
. 8,
2017.
34.
l-ll'SCT,
"Russian
Aclive
Measures Ou
ring
the
2016
Election Cam~ai ;O.
May23,
2017.
35.
HFSO,
·Russi,:m Aai'-'e
r
·Jl. asu
rcs
Duri:,g 'the
2016
Election
Ca."n~;;ign."
May
23
,
2017.
36. H?SC ,
Ell <uti\'-e
Session
lnter.ri::w
of
Lorena
tynci1,
Oct.
20
,
W17.
37. 1-if'SO,
fxe.:um
•e
Session
loter>f,...,., ofS tSan
Rke,Sep.
8,
2011.
38. Dl"iS,Joinr
Statemellt rom the
OeporrmeflC
o
Hame/cr.d
Se
cvrizy
and
Ojficeof he
Ui:
ecto,
of
Nutionof lntelfig.:m:e
on
Eleaion
Secority,
N~ps,
f
/
ww,.-.
,.dt-s.go
·,.
/
r'l; w
}201
G/1
0/
07
A
o<
nt-s
ilt
t2.-ne
r,t-d
eoa
t-nent-
h
om
aland-secu
rit'{•
a:1
d-uifi
ce-
d
in
~g:cr-rc1tio
ni I,
Oc
t.
1,
201E.
3 t.
HPSCI,
"Russia
?1westig
ai;,;e
Ta
sk
Force Hearing
wi
,h
R;rmerSecreu,ry
of
Homeland
~curity
Je
h
lohn5o
n,
0
Ju
ne
2.l
.
2
0'.i.7.
40.
H~I
&.2cuti-1e
Session
lntel\liew
of
John
locksra
,
J
un
27,
201'1.
41.
Hl>.:-Ct,
uRu
ssia I
nvestigative
T~5k
Force
Hearing
wflh
Fomter
Secretary
of
Hoimiland
~curity
leh
Johmon,°
June
21
,
20l
7.
42.
HPSCI
, "'Russia
lm.
·~tigative
Task Force
Hearing
wi
,h
Fe<mer
Secretary
of
llcmel.ir,d Security
Jah
Jof
mson
,
.
June
2i.
2017.
-13
.
44.
45
.
46.47
.
48.
4
9.
so.
51.
52.
53.
54.
55.S7.
58.
S9.
60
.61.
52..
o3.
in
Septenbet
2015
Shari d similar
informati
on
in
a
or.2-on-one
meeting
with
nt
G2r.eral
COvns~
James
Baker
. KPSO, Executi-.'e
Sessicn
cf
,
Oec.
18,
2017.
il.rcund
the
same
time
as
ms
meeting
with
f
BI
shared
tfle information
with
jcurnatiru,
lttclodir.
of
Slate,
who
pub-
lished
an
2rticle
atthe
e.nd
of
October. r PSO,
E.~ecut:v2
S~ion
of
Dec
.
: 13,
2017;
"'
Wa5
a
Trump
~fceCcmmunicating
Wi
th
Russia?," Slate, Oct.
3 ,
2016. Candidate
Ointon
promoted
tile:-
artidetv
lier
soti;;
media
follCT,
.,crs
,f-,e
same day
it
wc1s
published.
Twitt:er,
@hil~iClintoo.
Oct.
31,
2.016,
4:32
PM.
White
House.
Stotemenr
by
Che
PreslrteJlt on
A.ccrons
in
RespMSe
to
R ssi'an
Mclidous
Cyb.?1
Ac:c
lllicy
am;
Ha
rcssmer.
t
D~
29,
201.
6.
DP.S,
Sta~emenc
rt
Secretory
Jen Jo
hnson
on
the
Des:gnotfoa
of
Election
lnfrost.wcwr:
as
a
C ictcol
fflf
rc;;r:-ucture
Subsec
-
tor,
ntt
ls:
l
·
•
N
Lw
.dhs.
e
c,·/
ne
ws/20
17
iO
l/06
/5 -. re
me
nt-se c:
,H
ary-
jc
hr
son-d~sie
na
ti :
r,-elccti
un--i
rr<3
~t=
=
e--:rit
ca I,
JEill..6,2017.
OONI,
Assessing
Russian
Acti
v:cies
and
'ntenr:ions
ln
R~enl
US
cfeettons.
Ian.
6, 2017.
OONJ,
,'nte
/fr
9eme
Comrn
nity
Directive 203: Analytic
St
onr o;d5,
Ja".
2,
2015.
HP5
C
I,
EXc:cutr,e
Se,slon
lll
teivlew
of
Mary McCord, No
...
1,
2017.
HPSCI
, E
r.c
rotiva
So...sslol'l
lntuMew
of
A.nprew
McC,1be
,
Dec.
19, 2017.
U.S.
v.
Ge:irge
?opadciµoulos
{3:1
7-cr-182, D
istrict
of
Columbia).
U.S.
v.
Gecrge
?ap,.d-0~oufos
( :17-
cr
,
182
, Distrli:t
ofCclumbe}
.
U.S.
v. GEC'ge
Papad
Dpi;,ulos
(l:l
7-cr-UR
District
of
•Col
umh
e}.
Post
Opimons
Staff
"A
crans.crlpl
of
Deana d
Trump' .
meeting
with
The Wilsh
,n
~o,
~
Post
ei:frtoriai
board/
;•/mh,r.gtan
Fort.
Mar.21
,
2016
.
U.S.·;. Ge-:lfge
Pa~;iopoutos
(1:17~-1S
2,
District:
of
Cohani'. 1,iJ
.U.S. v.
Geotgc
P~dopou:os
(
l:l?-c.-1&2,
District
of
Co
f11ml;;;1);
Email
from
George
Fapadop<,ulos
to
#Re:
Me~ti.."lg
·,,•il:r. Russi-am
leaderst-,ip-indud'ifll;
P(itin,"
Ma
~.
14,
2016.
DJTFP00010i1l
l.
U.S
.~
·-
Gecrge
~dcp0 .1fo5
(1:.17-cr-182,-District
of
Columbia};
Ema
il
from
Georg•:?f'.
;ipado;;oulos
t
--
wd
:
(R1mian
Outreadl)t
May
4,
2 16
{OJ1FFO() }U40S}
U.S
.•:
. George Popcdopo,
i
fos
(l:1
7-cr-182,
Distric::
of
Colu~t.
J).
U.S
.
v.
G2org~
>~padopc•.Jlos (1:11-cr-1S2,
Dislrict
ofColum~}.
PP.O?ERTY
OF
TIIE
U.S.
HOU~
OF
REPRE:.S~NTATl\fES
57
Case 1:17-cr-00232-EGS Document 135-1 Filed 11/04/19 Page 5 of 7
Case 1:17-cr-00232-EGS Document 135-1 Filed 11/04/19 Page 6 of 7
Case 1:17-cr-00232-EGS Document 135-1 Filed 11/04/19 Page 7 of 7
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Case 1:17-cr-00232-EGS Document 135-2 Filed 11/04/19 Page 2 of 7
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Case 1:17-cr-00232-EGS Document 135-2 Filed 11/04/19 Page 4 of 7
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Case 1:17-cr-00232-EGS Document 135-2 Filed 11/04/19 Page 6 of 7
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Case 1:17-cr-00232-EGS Document 135-2 Filed 11/04/19 Page 7 of 7
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