United States v. Flynn

1

UNITED STATES OF AMERICA, Plaintiff, v. CHRISTOPHER KENNETH FLYNN, Defendant.

No. 2:16-cr-00056-RJS

United States District Court, D. Utah

November 2, 2023

MEMORANDUM DECISION AND ORDER DENYING MOTION FOR A NEW TRIAL AND/OR DISMISSAL OF THE CASE [DKT. 680]

ROBERT J. SHELBY, United States Chief District Judge

Before the court is Defendant Christopher Kenneth Flynn's Motion for a New Trial and/or Dismissal of the Case^[1] and a supplemental brief in support of the Motion.^[2] For the reasons explained below, the Motion is DENIED.

BACKGROUND AND PROCEDURAL HISTORY^[3]

I. Investigation and Arrest

In 2015, a confidential informant approached Utah law enforcement with information about a drug trafficking organization (DTO) that was distributing methamphetamine cocaine, and heroin in the Salt Lake City area.^[4] The informant offered information about the DTO's leader, Hiram Gamaliel Perez-Tapia, and its major customers and sub-distributors.^[5] Agents obtained a search warrant for Perez-Tapia's residence and seized 18 firearms, 628 grams of cocaine, and trace amounts of methamphetamine.^[6]

The informant identified Flynn as one of Perez-Tapia's major customers and sub-distributors.^[7] According to the informant, 14 of the 18 firearms seized from Perez-Tapia's residence had been received from Flynn as payment for drugs.^[8] Law enforcement sought and obtained a wiretap of Flynn's phone to gather information about his illegal activities and identify other co-conspirators.^[9] Agents began intercepting Flynn's communications, including several conversations involving the exchange of guns for drugs and vice versa.^[10]

Flynn was arrested on February 4, 2016.^[11] At his arrest, he possessed ounce-quantities of marijuana, cocaine, and methamphetamine, along with 128 grams of heroin.^[12] Flynn admitted to dealing drugs with Perez-Tapia but denied contact with most of the seized weapons.^[13]

II. Flynn's Indictment and Pre-Trial Delays

Just before Flynn's arrest, a Grand Jury returned an Indictment charging Perez-Tapia and another member of the DTO.^[14] A Superseding Indictment issued on February 10, 2016, following the arrests of Flynn and other members of the DTO.^[15] The Superseding Indictment charged Flynn with: (1) Conspiracy to Distribute Methamphetamine in violation of 21 U.S.C. § 846, (2) Conspiracy to Distribute Heroin in violation of 21 U.S.C. § 846, (3) Conspiracy to Distribute Cocaine in violation of 21 U.S.C. § 846, (4) Possession of a Firearm in Furtherance of a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A), and (5) Possession of a Firearm by a Prohibited Person in violation of 18 U.S.C. § 922(g)(1).^[16]

In the intervening years, Flynn regularly moved to continue trial as he cycled through numerous lawyers, each of whom needed time to review the voluminous discovery.^[17] Flynn also filed two Motions to Suppress the wiretap evidence, which the court denied after receiving briefing and hearing oral arguments.^[18] Meanwhile, all other named Defendants pleaded guilty.^[19]

By early 2020, it seemed the parties were finally ready for trial, and a trial date was scheduled to begin March 31, 2020.^[20] In advance of trial, the United States obtained a Second Superseding Indictment, which omitted the other Defendants, dropped the Conspiracy to Distribute Cocaine count, but otherwise charged Flynn with counts identical to those in the Superseding Indictment.^[21]

Unfortunately, the advent of the COVID-19 pandemic in March 2020 meant Flynn's trial date had to be continued.^[22] In the intervening two years, the pandemic caused additional delays,^[23] Flynn changed counsel yet again,^[24] and Flynn filed several Motions to Continue, mostly stipulated, in light of Flynn's new counsel needing time to obtain and review voluminous discovery.^[25] Following these delays, a trial date was eventually scheduled for February 1, 2022.^[26] In advance of that trial date, in December 2021, the court held two pre-trial conferences and resolved several Motions in Limine, and three more Motions to Suppress the wiretap evidence filed by Flynn.^[27]

The Omicron wave of the COVID-19 pandemic hit the District of Utah in early 2022, causing the court to enter a general order vacating all jury trials between January 5, 2022 and February 15, 2022.^[28] Flynn's trial date was continued and reset to start July 26, 2022.^[29] Shortly before his trial date was continued, Flynn moved for a Faretta hearing to represent himself with court-appointed standby counsel.^[30] After a hearing on the matter, Magistrate Judge Jared C. Bennett found that Flynn knowingly and voluntarily waived his right to counsel and granted his then-attorney's Motion to Withdraw.^[31] Flynn has proceeded pro se since that time.

On February 15, 2022, Flynn filed a Motion to Reset Motion Deadlines, explaining that he “went pro se [because] he believes that his lawyer at the time was purposely [sabotaging] his case” and that he wanted the chance to submit motions and make arguments that his previous attorneys would not make on his behalf.^[32] The court granted that Motion in part, allowing Flynn to file three more Motions to Suppress and one Motion to Dismiss.^[33] The court denied those Motions in a written ruling on June 15, 2022.^[34]

III. Trial

Flynn's jury trial began on July 26, 2022, and lasted seven days.^[35] The United States provided testimony from over a dozen witnesses, including many officers from the federal Drug Enforcement Agency (DEA), and Perez-Tapia.^[36] The informant did not testify, as she had passed away during the case's pendency.^[37] The evidence included firearms, drugs, text message exchanges between Flynn and Perez-Tapia, and audio of wiretap conversations between Flynn and Perez-Tapia.^[38] Federal officers testified to the relevance and authenticity of the evidence.

Flynn proceeded on a theory that Perez-Tapia was a liar,^[39] the wiretaps and phone pings were plagued with inconsistencies,^[40] federal officers never saw Flynn deal drugs, and law enforcement provided conflicting testimony.^[41]

On August 3, 2022, the jury returned a guilty verdict on all four charges.^[42] The court then gave Flynn until Friday, September 2, 2022 (thirty days) to file post-trial motions.^[43] Shortly before his time expired, Flynn filed a Motion for Assistance to Get Transcripts, explaining the transcripts were necessary to his post-trial motions.^[44] Meanwhile, Flynn filed eleven post-trial motions.^[45] The government filed oppositions to the motions by October 20, 2022.^[46] The court held a hearing on October 7, 2022 to discuss the status of the post-trial motions and production of the trial transcript.^[47] Flynn had not yet received the transcript so the court arranged for his stand-by counsel to deliver the transcript to him at jail.^[48] Flynn was given until November 29, 2022 to file his replies in support of his post-trial motions.^[49] A hearing was set for December 22, 2022 to rule on the post-trial motions.^[50]

At the same time, Flynn was set for sentencing.^[51] Flynn moved the court to extend sentencing until after the post-trial motions were decided but the court denied that motion.^[52]Flynn was sentenced to 236 months with credit for time served.^[53]

Shortly before the court was set to rule on the post-trial motions, Flynn filed a new Motion for supplemental briefing.^[54] Specifically, Flynn requested the opportunity to “support his argument with trial transcripts.”^[55] Because Flynn did not receive the transcript until after he finished briefing the post-trial motions, and the United States did have full access to the transcript in their briefing, Flynn argued it would be “unfair prejudice” to deny him the opportunity to “file additional information to his motions using the trial transcripts.”^[56] In an oral ruling delivered at the scheduled time to rule on the post-trial motions, the court granted in part the Motion for supplemental briefing.^[57] The court determined three posttrial motions did not require additional briefing and issued oral rulings denying the motions at the hearing.^[58] One motion was denied as moot in a docket text order.^[59] The court granted Flynn's motion for supplemental briefing on the seven remaining post-trial motions:

1. [Dkt. 680] Motion for New Trial and/or Dismissal of the Case

2. [Dkt. 681] Motion to Dismiss Indictment Because the Evidence At Trial Proved A Fatal Variance from the Indictment

3. [Dkt. 684] Motion to Lower the Conspiracy Quantities of Drugs in Count One and Count Two

4. [Dkt. 685] Motion to Overturn the Jury's Verdict of Guilty to a Verdict of Not Guilty on All Counts (or At Least Make the Right Decisions)

5. [Dkt. 691] Motion for Mistrial (the Court and Prosecution Committed an Important Legal Error)

6. [Dkt. 695] Motion for Mistrial Because Agent Robert Guillen Testified He Does Not Recall The Alleged Confession but was Granted by the Court to Allow His Testimony About It In Front of the Jury

7. [Dkt. 702] Motion for Mistrial Because the United States Informed the Jury of a Pay-Owe Sheet that was Never Admitted Into Evidence

The court set a supplemental briefing schedule with the intention of scheduling a hearing to rule on the motions after briefing was complete.^[60] However, the court stayed the briefing the next month to allow the Federal Bureau of Prisons sufficient time to designate and transport Flynn to a facility, and to allow stand-by counsel additional time to ensure Flynn received his copy of the transcript.^[61]

On May 9, 2023, the court received notice that Flynn had been placed in a facility and received his copy of the trial transcript.^[62] The next day, the court entered a new supplemental briefing schedule.^[63]

Now that supplemental briefing...