Posted on March 17 2019
Bijan Rafiekian & Flynn...
as previously discussed here, Bijan Rafiekian & Kamil Ekim Alpeteki EDVA case no: 1:18-cr-00457 held a hearing yesterday afternoon in the matter of Giglio Materials. Upon reading the papers and oral arguments Judge Trenga granted and denied the Defendants motion to compel.
🌶SpicyFiles Sidebar🌶 it only just occurred to me that some of you may not understand the disclosure requirements, specifically Brady, Jenks and Giglio Materials. The common thread is evidence and not all evidence is bad for the defendant. Also shocker everyone knows Brady but few understand that Jenks v USA set the stage for subsequent SCOTUS rulings pertaining to evidence.
Jenks v USA (1957):
The question presented to the Court (keep in mind this was during our Country’s red scare) yet it’s interesting to see how this ruling continues to guide and impact current criminal cases, particularly those surrounding our National Security and the likelihood of the Government invoking “state secrets”. Again the oral arguments are fascinating and I highly recommend you listen to them, via this Oyez link.
Can a defendant request testimonial documents for admissibility in trial if those documents potentially contain classified information and possible disclosure of state secrets?
In a 7:1 majority opinion:
..the government's reports should have been produced for review for their admission in court. A concern for national security must be weighed against prosecuting criminal action if the criminal action prosecution relies on documents that, if released, would threaten national security. Based on this weighing test, the documents should have been provided for review of admissibility in a new trial. Criminal action must be dismissed if the government refuses to release information as a matter of national security.
Interesting though is at the time of the Jenks ruling, Justice Burton stated the following in his concurring opinion but deviated in one specific area:
..”documents should be reviewed and, if found to contain information that discredited the FBI informants’ testimony, then there should be a new trial...”
Brady v. USA (1963):
In 1963 SCOTUS was presented with two questions, I highly recommend you listen to the oral arguments embedded (upper right hand corner) of this Oyez link.
(1) Did the prosecution’s suppression of Boblit’s confession deny Brady due process?
(2) Was the Maryland Court of Appeals wrong to remand only on the question of punishment?
In a 7:2 Ruling that affirmed the State of Maryland’s Court ruling while simultaneously ruling:
The Supreme Court held that the prosecution's suppression of evidence violated the Due Process Clause of the Fourteenth Amendment. (emphasis added)
Giglio v USA (1971)
The question before SCOTUS:
Is the prosecution’s failure to disclose a promise of immunity made to a key witness grounds for a new trial?
The premise of Giglio’s Case was the Government withheld key evidence that a witness was granted immunity to testify against Giglio, which resulted in Giglio’s conviction.
SCOTUS unanimously held:
The Supreme Court held that evidence of the agreement was relevant to the witness’ credibility. Because the new evidence affected the witness’ credibility and the prosecution’s case rested almost entirely on this witness’ testimony, the original trial violated due process and entitled Giglio to a new trial
You can read and/or listen to the Giglio v USA SCOTUS case via this Oyez link.
Spicy’s summary: colloquially known as Brady Material, it is exculpatory evidence (which helps the defendant). Brady Violation typically means the Prosecution withheld and/or suppresses exculpatory evidence. Sometimes colloquially known as prosecutorial misconduct. When this occurs this is bad for all parties involved but particularly bad for the prosecution. The reality is our Judicial System is meant to allow both sides to have equal access to discovery, evidence...by leveling the judicial playing field, of you will.
The reality is all defendants are afforded constitutional rights such as (but not limited to) due process, equal protection and strict adherence to the current Federal Rules of Criminal Procedure. Absent this collective body of rights and rules that can unfortunately undermine our entire Judicial Process and System. Again I am not defending the defendant(s) or castigating Flynn (okay maybe I’m a bit biased against Flynn, it’s personal at least for me it is) and by proxy the FBI or AUSAs. I’m merely explaining why all parties are obligated to follow the rules at all times. Any deviation would adversely impact the entire foundation of our Judicial System and sadly erode trust.
I also think it would be prudent for me to acknowledge that our current Criminal Justice System is in need of a serious overhaul (not the corrupted Trump reform which is heavily weighted to unjustly enrich his rich friends that run private prisons). From my sixteen years of experience I can unequivocally tell you: if you’re a wealthy white man/woman and can afford a “Tier A” firm and attorney then you as a criminal defendant tend to fair far better than a person of color or a person one step removed from poverty. The social and economic inequities are glaring, but that deserved a far more detailed and fulsome discussion for a later date.
For the record I will admit that both the Warren and Burger Court(s) are some of my favorite SCOTUS rulings. These various rulings have shaped the current Federal Rules of Criminal Procedure, hopefully for the betterment of all of us. Globally speaking these two Courts established many landmark rulings that currently guide our Federal Court System. I suppose my fond affinity towards Chief Justice(s) Warren and Burger have to do with the time in our Contry’s history where many men and women died, bleed and marched for civil rights and equal protection for ALL Americans irrespective of what color of skin you were born with...which many of us take for granted. Now on to the main event of this particular entry...
Flynn, Rafiekian & Alptekin meets Giglio
What continues to interest me is Flynn’s role in this matter and so many other matters such as then Saudi Nuclear Deal, Russian Sanctions etc. In yesterday’s letter from the Defense Counsel to the Government...the defense partcularlized 8 (current) areas where they believe the Government has withheld relevant Giglio Materials.
Candidly I do not see how the Defense can argue that Flynn’s dismissal from the DIA is relevant to the current criminal proceedings. Keep in mind that’s not me making any excuses for the Defense. I just don’t see how that’s relevant to the criminal charges. Unless the Defense’s strategy is to completely annihilate Flynn’s overall credibility, thereby impeaching his testimony by portraying Flynn as a felon and admitted liar. Which could in fact be there end goal.
I should probably note that I for one have unapologetic inherent bias against Flynn, his conduct during the Trump Campaign Transition and Inauguration (he was texting from the platform “we are good to go”..), his insane rendition plot to kidnap Gülen and return him to Turkey for a multimillion dollar pay day.
When Flynn decided to “flip” I was oddly okay with giving him the benefit of the doubt, while rationalizing with myself if Flynn delivers the “goods” on Jared Kushner, Brad Parscale and Donald Trump Sr & Jr I’d be okay with him copping to a plea. I currently find myself vacillating between #LockHIMUP to sweet baby Jesus let is proffer sessions continue, but as of late I find myself questioning why the Government seems to be protecting Flynn.
From a 30 thousand foot view, you are some what forced to look at the totality and breadth of Flynn’s crimes (of which the vast majority he was not charged) I am unapologetically in favor of justice. As in I want to see Flynn Sr court-martialed, he has brought shame on the uniform of an Army Officer. I also want to see Flynn Jr charged with “conspiracy to obstruct justice”, given how craven his twitter account was and Jr’s repeated amplification of actual Russian Active Measures.
See SCOTUS citation at the bottom of this entry regarding retired Military Officers and the uniform code of Military Justice, trust me it’s worth reading...
Not to belabor this point, as previously reiterated the Defendants (currently) have eight areas pertaining to Giglio Materials...
In December of 2018 I wrote a pretty exhaustive write up about Flynn, payments from Russian Entities and his exposure as it relates to his FARA filings, you can read that entry here. See April 2018 Archived Twitter Thread where I dragged Flynn Jr with nothing but actual facts, found here. See February 2019 archive of twitter thread found here.
In a weird twist or irony the Defendants in the aforementioned EDVA criminal case are asking for nearly the same documents requested by members of the House Oversight Committee asked for in their March of 2017 letter, which you can find here.
It is also important to note that the Trump White House was warned by then President Obama not to hire Flynn, and even after not heeding the saged advise of his predecessor Trump hired Flynn any way. What is often over shadowed by Trump’s unceremonious firing of (then) FBI director James Comey is, by then Acting Attorney General Sally Q Yates who repeatedly warned White House Counsel Don McGahn yet the White House allowed Flynn to stay on staff until February 2017.
I would argue that if investigators really are taking a good hard look at Donald Trump actions equating to obstructing justice. The I would argue that the Obstruction STARTED with the firing of AAG Yates, not Comey.
Even after two in person discussions wirh White House Counsel Don McGahn and a follow up phone call from AAG Yates, the White House still did not fully understand the gravity of the situation or they simply did not care. I’m of the belief it’s the later versus prior.
To that end sometimes if you’re paying attention to Congress and respective House Committees, such as the House Oversight Committee you actually know that some of the information requested in the aforementioned Giglio Materials has already been made available to the U.S. House of Representatives and to the American people at large.
Flynn Emoluments Violation:
On page 3 of the April 7, 2017 Defense Information Agency’s (DIA) unclassified letter to (then) Chairman Chaffetz and (then) ranking Member Cummings the DIA was crystal clear.
Flynn was advised in 2014 by the DIA’s General Counsel what was permissible as it relates to accepting foreign emoluments...he was warned but he opted to ignore the restrictions placed on him as a retired military officer who receives a tax payer funded retirement payment(s).
Although while Flynn’s emoluments issue is of great import and could have actual criminal implications, most likely under the purview of the DOD-OIG and/or DIA meaning the military court system its this particular paragraph on page six that I previously overlooked, in the DIA letter to Congress they note that Flynn provided them with a thumb drive with documents but they redacted who Flynn was meeting with.
DOD-OIG and Flynn Investigation:
More precisely on April 11, 2017 the Department of Defense Office of Inspector General (DOD-OIG) sent the following letter to (then) Chairmain Chaffetz which unequivocally confirmed that the DOD-OIG had opened a formal investigation into General Flynn’s impermissible acceptance of Foreign Emoluments:
“This office has initiated an investigation to determine whether Lieutenant General (LTG) Flynn, U.S. Army (Retired) failed to obtain required approval prior to receiving any emolument from a foreign government”
SCOTUS Larrabee v USA
STEVEN M. LARRABEE, Petitioner, v. UNITED STATES, Respondent SCOTUS DOCKET No. 18-306
Question posed to SCOTUS:
Whether Congress’s determination in Article 2(a)(6) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 802(a)(6), that the UCMJ applies to military servicemembers like petitioner—a Staff Sergeant in the United States Fleet Marine Corps Reserve—is a constitutional exercise of Congress’s authority “[t]o make Rules for the Government and Regulation of the land and naval Forces,” U.S. Const. Art. I, § 8, Cl. 14.
In the spirit of full transparency even if I do not agree with the Petitioner’s arguments or position, I almost always find them a fascinating read because I crave learning new or opposing arguments of law or actual constitutional questions of which SCOTUS is best suited to weigh in.
As is the case with Larrabee’s petition. I should add that I am by no means a Constitutional Scholar given there are some mornings I can barely function my coffee maker. The arguments and constitutional questions set forth by Larrabee, intellectually it is an excellent exercise of jurisprudence and the confluence of Military Courts vs Article IIII Courts. The petitioner sets forth two straight forward questions/issues, the ‘constitutionality of a military court-marshal of retired personnel” and the CAAF...
Court has never resolved whether the Constitution permits the trial by court-martial of retired military personnel—either in general or, as in this case, for non-military offenses committed after they leave active duty. Nor has this Court settled whether, once the U.S. Court of Appeals for the Armed Forces (CAAF) “grants a petition for review on some issues, [this] Court has the power to consider other issues in the case that were not granted review.
On the merits, the government claims that, even though Petitioner no longer performs any military function, the fact that he chose to retire—and receive a pension.
The Government Opposition to Larrabee’s Petition:
The plain reading of the Government’s Filing, essentially the Government’s position was Larrabee merely had a change in status and was still under the Jurisdiction of the Uniform Code of Military Justice.
In the end SCOTUS denied Larrabee’s petition thus leaving the status quo in tact. Essentially allowing the long standing authority to the Defense Department's ability to prosecute retired service members for crimes they commit, post retirement. The reality is military retirees are subject to the Uniform Code Of Military Justice, especially if they are the recipient of Military Retirement Benefits.
Hence why I continue to assert that Flynn’s legal troubles are far from over. Particularly in light of the DOD-OIG, DIA and Congressional Investigations. The fact that Trump and the Trump White House continue in their vulgar spectator of subterfuge and equivocation, when directly asked to produce documentation surrounding Flynn’s time (as the shortest serving NSA in modern history).
Furthermore Trump and the White House plainly refuse to truthfully and forthrightly answer the growing question of why did Flynn lie, who instructed Flynn to lie, why did Trump ask Director Comey “to let the Flynn thing go” and why did it take so long for Trump to fire Flynn. I believe there was a 14 to 18 day delay when then Acting Attorney General Yates repeatedly notified the White House of Flynn’s “exposure”.
If you want to know why I hold so much contempt for Flynn Sr and Jr, I recommend you watch his February 2015 AUMF testimony, whereby he espoused his own radical and extreme views on Islam. I found his remarks beyond offensive but then again it sort of makes sense why Trump would bend over backwards to protect Flynn. Apparently Flynn is totally okay with the renditioning of a legal Foreign Resident for a multi-million dollar payday. You do see the hypocrisy in that? Although to be fair the vast majority of us haven’t any idea what it’s like to be a military officer in a live war theater. Perhaps Flynn was frustrated by the constraints that he and other military officers were tethered to but that does not excuse his actual vitriol towards the religion of Islam. At least for me it doesn’t.
So yes it’s weird how the Government has all but insulated Flynn from the other legal landminds and the current EDVA criminal case while withholding some giglio materials. ...
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