United States District Court, D. Minnesota
J. MacLaughlin and Benjamin F. Langner, Assistant United
States Attorneys on behalf of Plaintiff.
Patrick J. Egan, Esq., on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
December 20, 2018, the undersigned United States District
Judge heard oral argument on Defendant Scott Phillip
Flynn's (“Flynn”) Motion to Continue
Sentencing [Docket No. 113] and Motion to Withdraw Guilty
Plea [Docket No. 115]. For the reasons set forth below, the
Motion to Continue Sentencing is granted and the Motion to
Withdraw Guilty Plea is denied.
December 21, 2016, a grand jury indicted Flynn with
conspiracy to defraud the United States in violation of 18
U.S.C. § 371, tax evasion in violation of 26
U.S.C.§ 7201, and filing false tax returns in violation
of 26 U.S.C. § 7206(1). See generally
Indictment [Docket No. 1]. Flynn retained attorney Earl Gray
in 2015 and added attorney Paul Engh as co-counsel in March
of 2017. Gray and Engh are two of the most experienced and
well respected federal criminal defense attorneys in
several continuances of the trial date, trial was set for
June 11, 2018. On June 4, 2018, just one week before trial
was scheduled to begin, Flynn reached a Plea Agreement with
the Government and entered a plea of guilty to Count 1
(conspiracy to defraud the United States) and Count 3 (false
tax return - 2007) of the Second Superseding Indictment
(“SSI”) [Docket No. 83]. See Plea
Agreement [Docket No. 90]; Min. Entry [Docket No. 89]; Plea
Tr. [Docket No. 93]. In return for Flynn's pleas of
guilty, the Government agreed to dismiss the remaining five
counts in the SSI. Plea Agreement ¶ 2. Because
“trial [was] only one week away, and the government
ha[d] expended considerable resources preparing for the
trial, ” the Plea Agreement did not include the third
point typically awarded by the Government for acceptance of
responsibility. Plea Agreement ¶ 6(d).
in the change of plea hearing on June 4, the Court made
certain Flynn understood the finality of the guilty plea:
COURT: There is a degree of finality to today's
proceedings, because if I accept your guilty plea at the end
of the questioning, that closes the door to whether you ever
have a trial. So one of my last questions will be do you want
me to accept the plea agreement, and that's a way of
saying that's the end of it then with regard to trial or
no trial. Do you understand that?
FLYNN: I do.
COURT: There'll be issues about sentencing and other
things to talk about, but not whether or not you have a
trial. Do you understand that?
Plea Tr. at 4:11-23.
an extensive inquiry reflected in a 29 page transcript of
Flynn's understanding of his constitutional rights, his
plea agreement and the factual basis for his plea, the Court
made certain that Flynn understood he could not change his
mind about pleading guilty and not going to trial:
COURT: All right. Mr. Flynn, I'm up to that question I
predicted, that I was telling you about, which is kind of the
final one, and that is whether you want me to accept your
plea agreement knowing that that's final on the issue of
whether or not you will have a trial.
FLYNN: Yes, Your Honor.
COURT: Okay. Do you want me to accept it?
COURT: The plea agreement is accepted.
Id. at 27:25-28:8.
October 30, 2018, nearly five months after the plea hearing,
Flynn filed a sentencing memorandum in which he again
“agree[d] with, and reaffirm[ed], the factual basis of
[his] plea agreement.” Def.'s Sentencing Mem.
[Docket No. 106] at 15.
until December 11, 2018, more than half a year after his
guilty plea and just nine days before he was scheduled to be
sentenced, did Flynn reverse course. Through new counsel,
Flynn moves to substitute new counsel for his former counsel,
continue his sentencing, and withdraw his guilty plea.
Withdrawal and Substitution of Counsel
initial matter, the withdrawal and substitution of counsel in
this case is in contradiction of Local Rule 83.7(b), which
permits substitution of counsel only if “the withdrawal
and substitution will not delay the trial or other progress
of the case.” Flynn's change in counsel has delayed
the progress of this case, and there is no legally sound
basis for justifying the delay. Flynn does not assert that
his former attorneys were ineffective. His new counsel's
arguments for withdrawing Flynn's plea are based on
alleged deficiencies in the Plea Agreement and plea hearing,
which took place half a year ago, and on a Supreme Court case
decided in March of 2018, nearly three months before Flynn
entered his plea. Nevertheless, substitution of counsel will
be permitted based on the Court's judgment that Flynn is
facing lengthy sentencing guidelines and should be able to
have retained counsel of his choice represent him. No further
delays will be occasioned by this change in counsel.