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United States v. Flynn

United States District Court, D. Minnesota

January 8, 2019

United States of America, Plaintiff,
Scott Phillip Flynn, Defendant.

          David J. MacLaughlin and Benjamin F. Langner, Assistant United States Attorneys on behalf of Plaintiff.

          Patrick J. Egan, Esq., on behalf of Defendant.




         On 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.


         On 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 Minnesota.

         After 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).

         Early 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.

         After 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.

         Then on 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.

         Not 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.


         A. Withdrawal and Substitution of Counsel

          As an 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.

         B. ...

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