Undercover Huber has an interesting thread today regarding Michael Flynn's chances to prevail on his motion to withdraw his guilty plea. You can view the thread unrolled here. What prompts UCH to these reflections is that Judge Sullivan has asked the parties
to address whether there needs to be an evidentiary hearing on Flynn's effort to withdraw his guilty plea.
Hearing may include "testimony from Mr. Flynn and other witnesses under oath, subject to cross-examination"
As UCH puts it:
Might as well reschedule this to the 4th of July because if it happens, they'll [sic] be no need for any other fireworks
Sullivan cites the DC case of United States v. Cray (1995) as controlling precedent. Here's UCH's summary of the Cray holding, re what the standards are to allow a defendant to withdraw a guilty plea:
There will be 3 main components that Sullivan will use when deciding whether to accept Flynn's motion to withdraw his guilty pleas. Flynn will need to satisfy all three.
1. Make a "legally cognizable defense" to the charges against him.
This will need to be an *affirmative* defense of being *innocent* (not just not guilty), that is legally sound, as well as factually accurate. Flynn has never done this - yet - to the lying to FBI charge.
My guess is that Flynn's attorney, Sidney Powell, will rely heavily on two factors: The lack of predication behind the interview of Flynn, and the government's failure to produce the "original" 302--this would amount to the contention that Flynn was tricked into pleading to a set of facts in a "revised" 302 that misrepresented to him what actually took place at the interview. Flynn, of course, didn't take notes at the interview, but the TWO agents did.
2. Show either "an error in the taking of his plea" or some "more substantial" reason he failed to press his case rather than plead guilty.
That's going to be a very heavy burden, as there was almost certainly no error in the taking of the plea given the factual record.
Oh, and "more substantial reason" could be ineffective assistance of counsel, but that will have to go beyond counsel just not doing a good job - but egregious failures that had they not happened, would have caused Flynn to plead Not Guilty instead and go to trial.
Here, I think we can be sure that Powell's emphasis will be on prosecutorial misconduct, but she will likely also argue strongly that the conflict of Covington (Flynn's first lawyers) played into the guilty plea.
3. If 1 & 2 are both shown, the Court will ALSO need to be satisfied that the Government would not be "substantially prejudiced" by the "delay in going to trial".
Flynn will have to show that the gov could still go to trial and not be adversely impacted - e.g. loss of witnesses.
That doesn't seem to be a problem--except that the government's witnesses have, in the meantime, lost all credibility. That fact may be used by Flynn in her other arguments.
Conclusion: withdrawing a guilty plea is a tremendous uphill battle, but let's see how it goes.
I don't want to raise false hopes. UCH is right: this is an huge uphill battle. On the other hand, Flynn is not without hope. The three factors above are case law. The case law presents the DC Court of Appeals views on how to interpret the Federal Rules of Criminal Procedure, specifically Rule 11(d)(2)(B):
(d) Withdrawing a Guilty ... Plea. A defendant may withdraw a plea of guilty ...:
(2) after the court accepts the plea, but before it imposes sentence if:
(B) the defendant can show a fair and just reason for requesting the withdrawal.
In other words, the three factors that UCH sets out are the Cray court's view on what a "fair and just reason for requesting the withdrawal" would be. Those words "fair and just reason" tell us right away that the facts of each case will--or should--weigh heavily in Sullivan's decision. With that in mind, here are the basic facts of Cray:
Lyman Cray, John Whitaker, and Steven Bridgeforth were originally charged with various drug and firearm offenses in an 11-count indictment. Before their scheduled trial Whitaker pled guilty to two of the counts and agreed to testify against his codefendants. Bridgeforth and Cray then agreed to plead guilty on the same terms. When Bridgeforth and Cray appeared before the court to enter their guilty pleas, however, Cray's attorney told the judge that Cray had just changed his mind and decided to go to trial. ...
At some point during the recess, Bridgeforth and Cray were left together in a holding cell. After the recess, Cray's attorney informed the court that Cray had again reconsidered his position and would plead guilty after all. ...
During the Rule 11 colloquy, Cray admitted to each element of the crimes charged, fully agreed with the Government's proffer of evidence, and was advised of his possible sentence. When the court specifically said: “You're not going to be able to take [your plea] back after today. Do you understand that?” Cray answered: “Yes, I do understand that.” When asked: “Has anyone forced, threatened, or coerced you in any way into making a guilty plea here this afternoon?” Cray responded: “No, sir.” To the question: “Are you entering your pleas of guilty to each of these crimes knowingly, freely, and voluntarily, of your own free will, because you are in fact guilty, and for no other reason?” Cray said: “Yes, I am.”
Nevertheless, some two-and-a-half months later but still prior to his sentencing, Cray came before the district court asking to withdraw his plea of guilty. This time Cray said that in pleading guilty “I just went along with my codefendant without really thinking about the consequences for myself.” His attorney explained further: “Basically, as I understand it, he's saying that when the attorneys were not present, it was the pressure that was being placed upon him by his codefendant in this case that led him to go along with this.”
The district court held a two-day hearing on Cray's motion to withdraw his plea. Cray testified that Bridgeforth tried to convince him to accept the plea bargain so that Bridgeforth would not have to testify against him, and therefore be labeled a “snitch” in prison. Cray admitted that Bridgeforth had neither threatened nor physically intimidated him, but he maintained that he had pled only because Bridgeforth had pressured him to do so. “I've never turned my back on you, so you've got to help me and not turn your back on me.”) For his part, Bridgeforth denied having threatened, intimidated, or coerced Cray in any way. He testified that Cray told him he had decided to go to trial, and that Bridgeforth had simply replied: “Well, that's your right. You fight. I'm trying to take a cop.” Cray also testified that he had told his probation officer that he was guilty of only “some” of the offense behavior charged, though in response to questions from the court he acknowledged that he had made that statement with regard to the original 11-count indictment rather than the two-count information to which he ultimately pled guilty.
At the conclusion of the hearing, the court denied Cray's motion. The court found that Cray had not made an adequate assertion of his innocence of the charges against him. In addition, specifically crediting Bridgeforth's testimony and finding Cray's statements false, the court found that Cray's claim that Bridgeforth had intimidated or coerced him into pleading guilty was false, and therefore concluded that Cray's guilty plea was knowing, free, and voluntary, and was taken in full compliance with Rule 11. Finally, the court found that the delay between Cray's guilty plea and the filing of his motion would substantially prejudice the Government's ability to prosecute the case.
I've provided this lengthy set of facts because I think Powell can reasonably argue that the facts in Flynn's case are very different from the Cray facts. Specifically, Flynn will be relying on credible claims of a conflict on the part of Flynn's first lawyers as well as government misconduct and undue pressure brought against a vulnerable family member by prosecutors to coerce a guilty plea. Judge Sullivan will have to decide whether that constitutes "a fair and just reason for requesting the withdrawal". Cray will no doubt offer guidance, but the facts should provide Sullivan with the latitude to tailor a "fair and just" resolution.
Another interesting aspect to this evidentiary hearing is that, since Flynn is claiming government misconduct, Powell should have the opportunity to cross examine various government officials, including Brandon van Grack:
Powell is going to get Van Grack on the stand. One and only time I ever had to testify as an AUSA was in exact same situation - defendant trying to W/D plea and something I had said in plea hearing was subject of my testimony and CX.— shipwreckedcrew (@shipwreckedcrew) January 24, 2020
So, there is hope, even if by it's very nature such a motion is an uphill struggle. At the same time, Powell has prepared the case for an appeal.
Seems to me that the fact that the government threatened General's son in order to force the deal on him should be enough to allow Flynn to withdraw his plea. That just isn't kosher to me. The government should never force a deal on someone by either threatening a family member or trying to bankrupt them.ReplyDelete
It's still an uphill struggle, because Flynn made false statements re his plea to the court. Nevertheless, I find it a strong argument for a fair and just outcome.Delete
But Flynn can argue that he was agreeing with the FBI agents' characterization of what he said.Delete
Let's suppose you and I had a conversation last March that lasted an hour. Would either of us really remember anything other than the general nature of it? I don't even remember all the details of conversations that I had last week unless you prompt me. With Flynn, he had the notes of two FBI agents being used to prompt him 10 months later- is it reasonable to expect that Flynn would know whether or not the FBI agents were correct/not lying themselves?
Isolated as a single case, I could definitely argue that Flynn would only accept that plea in such a circumstance if he knew the notes were correct and that he knowingly lied during the interview. However, I don't think any reasonable person would take such a plea if he couldn't remember the details- he would make the government try the case.
However, with the FARA charges threatened against the son, a person might feel himself coerced into taking a plea that he doesn't actually know he was guilty of. I think this is what happened to Flynn- he couldn't remember the details of the interview, but took the plea to save his son from prosecution. The prosecutors also don't know that the plea was truly valid since only Flynn, Strzok, and Pientka were in the room, and if I were a prosecutor, I wouldn't take Strzok's word for anything in the matter, and I would definitely feel slimy for using Flynn's son's fate as a motivating factor.
That's the point I made, above. It's also the point that defense attorneys regularly make about the way prosecutors can use 302s to coerce pleas, even though the 302 isn't admissible as evidence.Delete
"My guess is that Flynn's attorney, Sidney Powell, will rely heavily on two factors: The lack of predication behind the interview of Flynn, and the government's failure to produce the "original" 302--this would amount to the contention that Flynn was tricked into pleading to a set of facts in a "revised" 302 that misrepresented to him what actually took place at the interview. Flynn, of course, didn't take notes at the interview, but the TWO agents did."
Mr. Wauck wroteDelete
"It's still an uphill struggle, because Flynn made false statements re his plea to the court. Nevertheless, I find it a strong argument for a fair and just outcome."
What a novel concept "a fair and just outcome."
Too much talk about law and not enough about justice. In fact the DOJ ought to be renamed the Department of Injustice.
Fair and just not taken into account nearly often enough.Delete
Well, there absolutely has to be an evidentiary hearing- I don't see how a judge can make a decision here without it.ReplyDelete
I think the original 302, if it exists, is an absolute key piece of evidence- it could well show significant deviations from the documents described/shown to Flynn in coercing his plea in the first place.
Of course, prosecutors are allowed to lie to defendants to try to bluff them into self-incrimination, but I don't think the situation with Flynn is that sort of matter. To explain- you lie to someone who you think pulled an armed robbery- you tell him that a surveillance camera caught him taking his mask off following the incident, and he confesses on the spot. You've tricked him into confessing, but that doesn't really matter since an innocent man would have known you were lying in the first place. With Flynn, that isn't the case- at least not obviously. There were no recordings of the conversation, just notes that weren't shown to Flynn, and his plea was taken 10 months following the actual interview. If you tell him that your notes show that he lied, can he be sure that the notes couldn't be construed that way? Additionally, there was the FARA matter that was being held over Flynn's head like a guillotine- can a man be blamed for not caring about whether or not his plea is false given that possibility.
I think the proper decision, if justice matters at all, is to allow him to withdraw the plea and force the government to try him on the evidence they claimed to have.
Since this decision will necessarily be decided on facts that are unique to the case, an evidentiary hearing had to happen. I think Flynn has a good argument, if not before Sullivan then on appeal.Delete
I guess the questions I would have as the judge is this:ReplyDelete
Would Flynn have taken this plea in the absence of the FARA threats against his son?
There are no recordings of the interview, and thus no way to make a case that Flynn lied in the interview that beats reasonable doubt. Between three people talking to one another, it isn't unreasonable to believe that the two FBI agents might have conspired to frame Flynn. I would feel this way even if neither of the two agents had proven biases in the matter.
UCH makes the point that Cray requires not merely a claim of not guilty but an affirmative case of innocence. I do think Flynn has such a case now, based on claims of misconduct, misrepresentation and possible concealing of evidence, now revealed misconduct of the agents, etc. It's not easy, but this is IMO a much stronger case than Cray.Delete
On the Cray case you quoted above, I actually believe Cray told the truth about the coversation with his co-defendant- that forcing him to testify would endanger him in prison. That isn't the sort of lie I think is fabricated easily. Where I think Cray really failed is that I don't think an innocent man would have accepted the plea even with such an argument made by a friend (thus, the need for an affimative and supportable claim of innocence).Delete
Don't forget, it's also in the record that Cray admitted guilt to some of the charges:Delete
"Cray also testified that he had told his probation officer that he was guilty of only “some” of the offense behavior charged, though in response to questions from the court he acknowledged that he had made that statement with regard to the original 11-count indictment rather than the two-count information to which he ultimately pled guilty."
My point being that the facts of the two cases aren't really all that similar. That a judge who wanted to distinguish the two cases on the facts could easily do so.
Just for the record, I found the back and forth between Yancey and Mark to be super informative. Nice work, and thanks.ReplyDelete
Tx, Brad. I've been blessed with some very articulate commenters.Delete
Flynn files Declaration with Court re: withdrawal of plea.ReplyDelete
Sounds like his lawyers were owned by the SCO.
Tx. Powell had promised more by 1/29.Delete
Supplemental Filing in support of...Delete
Appears to be jaw-dropping...
Tx again. Just finished the 12 pager.Delete
Again, Powell promised "stunning" revelations.Delete
Deserves a fresh Post?ReplyDelete