Flynn DC Circuit Reply Brief
Flynn DC Circuit Reply Brief
No. 20-5143
TABLE OF CONTENTS
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TABLE OF AUTHORITIES
Cases
United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973) ................................ 4, 5, 7
* United States v. Hamm, 659 F.2d 624 (5th Cir.1981) .................................. 13, 14, 16
United States v. HSBC Bank USA, 863 F.3d 125 (2d Cir. 2017) ..................... 8, 15, 16
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Statutes
Other Authorities
Jed S. Rakoff, Why Innocent People Plead Guilty, The New York Review of Books
(Nov. 20, 2014) ........................................................................................................... 10
John Gleeson, David O'Neil, and Marshall Miller, The Case Isn’t Over Until the
Judge Says it’s Over, WASH. POST (May 11, 2020, 6:52PM),
https://tinyurl.com/4m7pc28 ....................................................................................... 6
Sean Davis, Declassified Flynn Transcripts Contradict Key Mueller Claims Against
Flynn, THE FEDERALIST (May 29, 2020) ................................................................... 11
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rare nor suspect. The Fourth and Fifth Circuits have ordered dismissals
F.3d 157 (4th Cir. 1995). This is especially true where that motion arises
investigating the matter, and then took decisive action to fulfil his duty
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consent (ECF Nos. 198, 199), Respondent issued a de facto call for amici.
Min. Order, May 12, 2020. The next day, Respondent appointed Amicus
need for time for “any additional factual development.” ECF No. 209.
requested. Min. Order, May 19, 2020. And, Amicus has now complied,
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occupied by another person.” In re United States, 345 F.3d 450, 453 (7th
Cir. 2003).
and defies this Court’s binding precedent. United States v. Fokker Servs.
B.V., 818 F.3d 733 (D.C. Cir. 2016). It collides with bedrock
branch “take Care that the Laws be faithfully executed” and the Article
Article III judge, has no authority to gin up his own case or controversy
where none exists. See United States v. Sineneng-Smith, 140 S. Ct. 1575
(2020). The game is over and this Court should order the umpire to leave
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United States v. Nixon, 418 U.S. 683, 693 (1974); Fokker Servs., 818 F.3d
at 737, 741.
United States v. Ammidown, 497 F.2d 615, 621 (D.C. Cir. 1973), this
Court explains that Rule 48(a) places the responsibility on the Executive
Practitioners point out, “[i]n the almost half century since, the Supreme
judges. First, Ammidown noted only that the court has “a role” in the
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new evidence.
“Third, the court does not have primary responsibility, but rather
reasons for dismissal ‘in order to prevent abuse of the uncontrolled power
Greater Blouse, Skirt & Neckwear Contractors Ass'n, 228 F. Supp. 483,
like Respondent and his bask of Amici, may disagree with those
reasons for dismissal” ensures transparency for the public record, but
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functions. This is decidedly not what Judge Leventhal had in mind when
innocent man. Mandamus lies when a court has exceeded its authority—
2 John Gleeson, David O'Neil, and Marshall Miller, The Case Isn’t
Over Until the Judge Says it’s Over, WASH. POST (May 11, 2020, 6:52PM),
https://tinyurl.com/4m7pc28; ECF No. 209 (Gleeson motion to establish
briefing schedule).
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when it is its duty to do so.” Roche v. Evaporated Milk Ass’n, 319 U.S.
Motion to Dismiss would erode the authority of this Court, its precedent,
except in the most “blatant and extreme case.” Ammidown, 497 F.2d at
622. The only thing “blatant and extreme” about the Government’s
Respondent and his pack of Amici have not cited, and Petitioner has not
Every single appellate case on which Respondent and his troop rely
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presumption of regularity on its head.” HSBC Bank USA, N.A., 863 F.3d
dismiss filed by the Government one year after their guilty pleas. App.81-
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Senator Ted Stevens after the jury convicted him on multiple counts, for
55 F.3d 157 (4th Cir. 1995), reversed a district judge’s denial of the
Government’s Rule 48(a) motion to dismiss, which was made after the
defendant had pleaded guilty and cooperated with the Government. The
en banc Fifth Circuit did also. United States v. Hamm, 659 F.2d 624 (5th
conduct that was not criminal. The guilty pleas were vacated for former
Christopher Calger.5
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guilt they do not have and plead to crimes they did not commit. “[T]he
committed.” Jed S. Rakoff, Why Innocent People Plead Guilty, The New
The Government’s Motion to Dismiss, ECF No. 198 and its Brief for
and the suppression of this evidence for as long as three years. The
Government’s filings also explain how the new evidence defeats one or
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investigating and prosecuting General Flynn have been fired from the
FBI for malfeasance, extreme bias, lies while under oath, or other
misconduct. Those remaining in the FBI who are responsible for the
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Agent Pientka’s notes that were omitted from the “final 302” weeks later.
interview General Flynn at all. The transcripts of the calls only reinforce
statements were not material. Yet the FBI purposely caught him
This included not giving him the standard 18 U.S.C. §1001 warnings; not
showing him the transcripts of his calls, as they routinely did; and, not
three separate hour-long briefings that they believed he “was not lying or
[that he] did not think he was lying” [either of which negates the
302, including the original version have never been produced to the
defense.
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General Flynn on August 17, 2016, in case he found his way to the White
House with Mr. Trump. U.S. Department of Justice (DOJ) Office of the
Election, 340, 404, 408 (June 2018). When they ambushed General Flynn
in his new White House office, they used that assessment as background.
en banc Fifth Circuit addressed this issue in United States v. Hamm, 659
F.2d 624 (5th Cir.1981) (en banc), where it reversed the trial court’s
at 628. The court wrote: “We continue to hold that even when the
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interest.’” Id. at 629 (quoting United States v. Cowan, 524 F.2d 504, 514
believe that the prosecutor (1) recieved a bribe, (2) wanted to attend a
social event rather than trial, or (3) personally disliked the victim of the
crime. Hamm, 659 F.2d at 630. None of these, or anything like them,
exist here.
v. Armstrong, 517 U.S. 456, 464 (1996). Third, none of his “questions”
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noted the judge’s own justification: his ability “to imagine circumstances
United States v. HSBC Bank USA, 863 F.3d 125, 136 (2d Cir. 2017).
HSBC Bank panel relied on this Court’s Fokker Servs. opinion, which it
Court and this Court require “clear evidence to the contrary” to overcome
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arbiters of the law. 863 F.3d at 138 (citing Inmates of Attica Corr. Facility
v. Rockefeller, 477 F.2d 375, 380 (2d Cir. 1973)). It is axiomatic that “the
trial judge cannot merely substitute his judgment for that of the
federal agents be rectified and false evidence not provide grist for
wrongly been hidden. The prosecutors weighed and balanced the interest
of the public, the Departments resources and priorities, the evidence, the
law, and other factors in its purview, and concluded that it would not
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enforcement decisions.” Fokker Servs., 818 F.3d at 741, 743. The “public
interest” simply does not expand judicial authority under Rule 48(a) to
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grant the Government’s Motion. See Wayte v. United States, 470 U.S.
or assume the mantle of a prosecutor under Article II. Fokker Servs., 818
F.3d at 742. “Neither this court on appeal nor the trial court may
Hamm, 659 F.2d 631. Indeed, even delaying its ruling is outside the
district court’s authority in this case. See Reeves Amicus Brief at 18.
are his computers, cell phones, and those of his son; and, his travel is
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additional attorneys’ fees, and the stress and anxiety of further criminal
prosecution.
See Meese Amicus Brief at 8-9 (citing Attorney General (later Justice)
U.S. 78, 88 (1935), “The United States Attorney is the representative not
not that it shall win a case, but that justice shall be done.”
IV. Conclusion
courts [administer the law impartially], they will inspire the public’s
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confidence. If courts aspire to do more, then law will become what the
judges say it is, and that will lead the nation into judicial supremacy
where the people are ruled by judges, not by the rule of law.” Meese
This Court must stop him before he further jeopardizes the legitimacy of
this case with prejudice, vacate the plea, and order any further
Respectfully submitted,
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CERTIFICATE OF SERVICE
foregoing brief with the Clerk of Court by using the appellate CM/ECF
system. I further certify that the participants in the case are registered
CM/ECF system.
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