Posted on May 31 2019
I Updated June 11, 2019 at 5:11PM EST - See bottom of entry for Covington’s response to Defendants Subpoenas../
Apologies, it occurred to me that I have neglected to update the RAFIEKIAN et al EDVA Case, in my customary timely fashion. In order to bring you up to speed in this criminal matter, listed below are the various write ups. The list is in chronological order:
See March 13th update, as it relates to Flynn’s Sentencing and this EDVA matter. As Flynn (based on the Government’s and Defense Motions) will likely be a material witness.
See March 17th update, in this entry I walked you through the complexity of Giglio Materials. The Defense Strategy Of preemptively impeaching Flynn’s credibility and further particularized the oddity of Flynn’s plea deal. Coupled with the Government’s unexplainable defense and shielding of Flynn. (Also you should check out the MAGA and/or QAnon comment on this entry, apparently someone is super triggered)
See March 31st update: here I explained how Flynn and Covington’s position of urging the Court to withhold the “client file” is/was problematic. And further explained that the Defendants arguments had significant merit, specifically as it relates to the Flynn Intel Group FARA Filing. And how withholding the FIG file would and could have unintended consequences.
See April 15th update, I explained the various pre-Trial motions
Understandably the Defendant moved to ask the Court to delay. Given that the Government had notified all parties that the production of classified discovery was extensive and unclear if they could meet the previously agreed upon schedule. Full disclosure, out of an abundance of caution I took the liberty of redacting the Attorneys contact information in Document #102
And because the Rafiekian Case (1:18-cr-00457-AJT) is so closely and inextricably tied to Mike Flynn, you might find this May 15th and Updated May 17th entry informative.
See May 15th Flynn Case Update,. Judge Ordered the release of transcripts, which will be forthcoming in a matter of days, the transcripts will include Flynn & Kislyak - Voicemail and Hearings. What should be interesting is with the Flynn & Kislyak call we might learn if Flynn was acting on behalf of president-elect Trump and/or what role KT MacFarland and Jared Kushner had. Remember it was this call that caused then acting AG Yates to make multiple calls and at least one in person meeting with Don McGahn...
Now that you have a decent background, it’s timely to provide you with a plethora of updates.
May 23, 2019 Superseding Indictment
Case No 1:18-cr-00457-AJT, superseding Indictment can be found via this Open Source Link. For reference this is the December 12, 2018 original Indictment No, your eyes are not failing you. The December 2019 Indictment is nearly identical to the May 2019 Superseding Indictment.
The only exception occur on page 15 and 16. This is how those pages read
Now compare to the May 23, 2019 Superseding Indictment. Based on a comparative reading of both Indictments, it appears Paragraphs 57 - 63 all inclusive of the superseding indictment adds multiple new paragraphs. Insofar as to add far more details concerning the Turkish Officials and one could argue the Government added these paragraphs to the superseding Indictment based on additional information from Flynn (and possibly others). Thereby strengthening the Government’s argument of “criminal intent”. Which appears to be a decent prosecution strategy as this will undoubtedly limit and/or wholly foreclosing the Defendant’s likely strategy of “reasonable doubt” and arguments of Attorney Client Priveldge.
At least that’s how I read it. Granted I could be way off the mark because I’m not an attorney and according to some I’m otherwise preoccupied shoving bon bons in my calorie hole. One day (hopefully sooner rather than later) I’ll work on moving pass the absurdity and falsity of said baseless accusations, made by anonymous twitter trolls and one actual bored drug addled chubby housewife (you know exactly who I’m referring to, so I need not name names)
Also noteworthy in October of 2016 - Mike Boston complained about Trump and his stance on Turkey.
“Republican Presidential candidate has not defended subject’s home country publicly. He should specifically ask questions about subject’s operations and funding,”
It is still amazing to me what a Traitor Mike Flynn is. Yet MAGA and the Qanon crew have all but canonized Flynn as some Patriotic Saint. Flynn isn’t patriotic nor is he as Saint. I hope that Flynn faces a Courts-Martial, striped of his pension and ends up in the Brig. Sorry not Sorry but FUCK FLYNN and his Son. The treachery runs deep in the Flynn cabal.
As many of you know, both on Twitter and in this blog, I’ve repeatedly discussed, sometimes in painful granular detail: the Crime-Fraud Exemption - See previous detailed explanation in the Higginbotham write up
The American Bar Association defines the “crime-fraud exemption” as:
The attorney-client privilege is one of the oldest privileges in law. Without such a privilege, clients may not feel compelled to fully and openly communicate with their attorneys. The privilege is not absolute, however, and there are certain exceptions that allow the opposing side access to communications that would normally be protected. One such exception, known as the crime-fraud exception, involves communications in furtherance of a contemplated or ongoing crime or fraud.
The crime-fraud exception was first recognized in the United States over one hundred years ago, and the policy behind it is well-defined. (The crime-fraud exception was first recognized in the United States in Alexander v. U.S., 201 U.S. 117, 121 (1906).) The legal community does not deem discussions concerning future wrongdoings, such as fraud, that occur during an attorney-client communication worthy of protection. Id. at 562–63. While the practice of law encourages full and frank communications between the attorney and client, only communications concerning past wrongdoings are protected.
In non-legalese if you, as an attorney (an officer of the Court) can not engage in conduct (both A/C privilege and work product privilege) in the furtherance of a crime or fraud. Hence privilege is then likely disregarded provided a Court adjudicates that privilege is waived. One thing to keep in mind: Crime-fraud exception only applies when the legal advice "gives direction for the commission of future fraud or crime.” Pallon v. Roggio, 2006 (Aug. 23, 2006). Also to refresh your memory as it relates the DC:
See May 28, 2019 (document No 154) Memorandum in Support by Bijan Rafiekian re 154 MOTION in Limine to Exclude Out-Of-Court Statements by Co-Conspirators:
memorandum of law in support of his motion in limine to exclude out-of-court statements by alleged co- conspirators or in the alternative to hold a hearing to require the government to meet its burden before allowing the admission of such statements.
In simpler terms the Defense strategy is, the “out-of-court” Statements are highly prejudicial and are taken out of context, therefor the Government should be precluded from using aforementioned statements as part of the evidence. Frankly it’s not a very strong argument that the Defense used. At all.
See May 29, 2019 Memorandum in Support by Bijan Rafiekian re 163 MOTION to Suppress Privileged Information. Essentially the Defense strategy here is, said evidence is “privilege” pursuant to the Attorney Client Privilege and Work Privilege Doctrine.
Defendant Bijan Rafiekian respectfully submits this Memorandum of Law in support of his motion to (1) dismiss sub-paragraph (b) of Count One of the indictment on the grounds of the government’s violation of Mr. Rafiekian’s Fourth and Fifth Amendment rights, or alternatively (2) exclude and suppress privileged information belonging to Flynn Intel Group, Inc. (“FIG”) and Mr. Rafiekian in his capacity as a director of FIG. If the Court determines that factual issues preclude resolution of this motion on the current record, Mr. Rafiekian respectfully requests that the Court hold an evidentiary hearing in order to take testimony and otherwise establish the facts and evidence relevant to this motion.
And now this brings us to the Government’s response (document no 173) to the Defense’s Motions...eschewing in the Crime-Fraud Exemption and the burden the Government must meet. GOVERNMENT’S MOTION IN LIMINE TO ESTABLISH CRIME-FRAUD EXCEPTION
“...to establish a crime-fraud exception to the attorney-client privilege, the government must make a prima facie showing that the defendant was engaged in or planning a criminal scheme when he sought the advice of counsel and that the statements by the defendant to the attorney bear a close relationship to the defendant’s scheme to commit the crime..”
What I find interesting is the Government (properly) drew a significant distinction as it relates to Flynn Intel Group’s Attorney and their Firm - essentially putting it on the record that Covington nor its attorneys are in the “clear” of any wrong doing. From a Reputational (risk) standpoint it actually makes a lot of sense that the Government proffered the following statement:
We wish to make clear at the outset that there is no evidence – and no contention here – that FIG’s attorneys, Covington & Burling and Kristen Verderame, were aware that the statements that the defendant made to them were false or that they were otherwise in furtherance of any crime or fraud. No such showing is needed, however, to dissolve the attorney-client privilege
Given that I had previously drawn your attention to the Mueller Report and the iterations. of Flynn in both Volume I & II and noted that Flynn & FIG’s attorney (same one mentioned above) had a proffer with the Special Counsel’s Office
And just when you think the Docket gods have decided to ignore your many many prayers, they unexpectedly answer by delivering eight attachments whereby the Government makes an incredibly strong showing of Crime-Fraud Exemption - meaning the Defendants argument will likely be unavailing. Sadz face.
The In Limine To Establish Crime-Fraud Exception Hearing now set for June 7, 2019
In other docket activity, sorry there isn’t an open source link (paywall) Order - Document No 181 which DENIED the Government’s MOTION In Limine on Advice of Counsel and the Lobbying Disclosure Act by USA as to Bijan Rafiekian.
The aforementioned Government’s Motion In Limine is Document No: 127, which was filed on May 14, 2019. From a plain reading of the Government’s filing, it appears that the Defendants potential argument to the Jury is, that the Defendants “confused” the FARA and LDA. This argument should ring a bell, given that last Summer this is the exact argument Manafort offered. That said (this is not me defending the Defendants) that is in fact a smart argument because there was/is some ambiguity that even well seasoned FARA Attorneys cite confusing.
my Lordt that was an exhausting write up. Pardon me, I must get some Red Bull...as this entry took a lot of SpicyFiles brain power...or what little brain cells I have left
June 11, 2019 Update
As previously explained the Defendants have deadlock of judicial horns since March 2019 concerning matters of FARA guidance involving Flynn, Flynn Intel Group and Flynn’s firmer business Partners who are facing a Criminal Trial I’m EDVA. This previous entry will provide you a lot of context. Late last night Covington Filed:
NON-PARTY COVINGTON & BURLING LLP’S RESPONSE TO DEFENDANT RAFIEKIAN’S MOTION FOR IN CAMERA INSPECTION OF ATTORNEY-CLIENT COMMUNICATIONS the reason this is actually important is (in my opinion) this is a very clear indication of where Flynn’s mindset is. And it’s certainly not contrite or accepting responsibility for Flynn betraying his country or accepting his role in actually planning an unlawful rendition of a legal US Resident, cleric Muhammed Fethullah Gülen. The fact that Flynn is impermissibly asserting Attorney-Client and Work Privileges for Covington’s redacted pages, is absolutely offensive.
Also - yes late last week Judge Sullivan approved Covington’s request to withdrawal as Counsel in Flynn’s DC Criminal Case, apologies I haven’t updated that entry.
Concurrently the Government filed their Opposition to Defendants Motion In Limine -the Defendants also requested a James Hearing - this William and Mary Law Library will take you to:
or alternatively found here.
In USA v James the Court held:
“...when all evidence on an issue has been received, considered and weighed, and it appears from a preponderance of the evidence that the predicate facts exist, there is no error in the admission of the statements of coconspirators”
Which established the James Hearing Standards. In non-legalese a James Hearing is a Court Proceeding to determine the admissibility of an out of court statement made by a coconspirator. Typically these kind of statements fall under the “hearsay” exemption. The James Hearing’s purpose allows the Court to determine if a coconspirator’s (out of Court) statement should be considered as evidence both in terms of Exculpatory and Inculpatory. The court must determine if said statement would be considered highly prejudicial. Hence why these Defendants are trying to “make the case” for said Hearing. Unsurprisingly the Government is pretty adamant in their Opposition.
I know in the past you’ve heard me tangentially explain why “splits” in the Appeals Circuit can be confounding. In the Government’s Oppo they highlight the Bourjaily both in the 4thCCOA and SCOTUS rulings. Given that Bourjaily was decided in 1987 some 18 years after USA v James. I suppose we should wait and read what Judge Trenga will decide but the Government does make an impressive argument, especially citing Shores (4thCCOAs 1994) conversely the Defendants also makes a compelling argument re James Hearing - so for once I’m actually sitting on the fence. Weird right?
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