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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. MICHAEL T. FLYNN, Defendant Crim. No. 17-232 (EGS)

UNITED STATES’ SUPPLEMENTAL MEMORANDUM IN AID OF SENTENCING

The United States of America, by and through its attorney, the United States Attorney for the District of Columbia, hereby respectfully submits its Supplemental Memorandum in Aid of Sentencing for defendant Michael T. Flynn. In its initial sentencing memorandum, the government recommended that the defendant receive a sentence at the low end of the Guidelines range.

See

Government’s Memorandum in Aid of Sentencing,

United States v. Flynn

, No. 17-cr-232 (D.D.C. Dec. 4, 2018) (Doc. 46) (“Gov’t Sent’g Mem.”). At that time, the government represented that the defendant had accepted responsibility, and it filed a motion for a downward departure pursuant to Section 5K1.1 of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). At the initial sentencing hearing in December 2018, the Court raised concerns about proceeding to sentencing without “fully understanding the true extent and nature” of the defendant’s assistance. Hearing Transcript at 31,


, No. 17-cr-232 (D.D.C. Dec. 18, 2018) (“12/18/2018 Hearing Tr.”). Upon a motion of the defendant predicated on a desire to “complete his cooperation” in the case of

United States v. Bijan Rafiekian

, No. 18-cr-457, in the U.S. District Court for the Eastern District of Virginia (“EDVA”), the Court continued his sentencing. 12/18/2018 Hearing Tr. at 46-47.

Case 1:17-cr-00232-EGS Document 150 Filed 01/07/20 Page 1 of 33

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The defendant is now scheduled to be sentenced almost exactly three years from the date of his primary criminal conduct – lying to the FBI – and the intervening years have included periods where the defendant has sought to assist and aid the government, and periods where the defendant has sought to thwart the efforts of the government to hold other individuals, principally Bijan Rafiekian, accountable for criminal wrongdoing. Given the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in – and his affirmative efforts to undermine – the prosecution of Bijan Rafiekian, and the need to promote respect for the law and adequately deter such criminal conduct, the government recommends that the court sentence the defendant within the applicable Guidelines range of 0 to 6 months of incarceration.

I.

Background

On December 1, 2017, the defendant entered a plea of guilty to a single count of “willfully and knowingly” making material false statements to the Federal Bureau of Investigation (“FBI”) regarding his contacts with the Government of Russia’s Ambassador to the United States (“Russian Ambassador”) during an interview with the FBI on January 24, 2017 (“January 24 interview”), in violation of 18 U.S.C. § 1001(a)(2).

See

Information,


, No. 17-cr-232 (D.D.C. Nov. 30, 2017) (Doc. 1); Statement of Offense at ¶¶ 3-4,


, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (Doc. 4) (“SOF”). In addition, at the time of his plea, the defendant admitted making other material false statements and omissions in multiple documents that he filed on March 7, 2017, with the Department of Justice (“DOJ”) pursuant to the Foreign Agents Registration Act (“FARA”), which pertained to his work for the principal benefit of the Government of Turkey.

See

SOF at ¶ 5. These additional material false statements are relevant conduct that the Court can and should consider in determining where within the Guidelines range to sentence the defendant.


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The defendant was initially scheduled to be sentenced by this Court on December 18, 2018, even though the defendant had not completed his cooperation. The parties sought to hold the hearing at that time because the defendant had expressed a desire to be sentenced as soon as possible. The government assented to his request because the sole outstanding area of cooperation pertained to the

Rafiekian

case, and the defendant had already testified under oath before a federal grand jury in that matter. The government expected that, in the event the

Rafiekian

case went to trial, the defendant would testify at trial consistent with that grand jury testimony and the Statement of Offense. In anticipation of that hearing, the parties filed sentencing memoranda. As part of its submission, the government requested that the Court grant a downward departure for providing substantial assistance to the government. The government provided a detailed accounting of the defendant’s assistance to the government in several ongoing investigations, including the investigation by the Special Counsel’s Office (“SCO”).

See

Addendum to Government’s Memorandum in Aid of Sentencing,


, No. 17-cr-232 (D.D.C. Dec. 19, 2019) (Doc. 146) (“Addendum”). Notably, only the assistance he had provided in the

Rafiekian

case was deemed “substantial.”

Id.

at 2. The government recognized that “some of that benefit [of the defendant’s substantial assistance] may not be fully realized at this time,” but it represented that the government and the defendant “agree that sentencing at this time is nonetheless appropriate because sufficient information is available to allow the Court to determine the import of the defendant’s assistance to his sentence.”

Id.

at 2. In addition to asking the Court to credit the defendant with providing substantial assistance, the government recommended that the defendant receive credit for accepting responsibility. For the reasons detailed below, the government now withdraws both requests.
