Petition for Writ of Certiorari — Daniel Flint, Petitioner v. United States

Supreme Court briefApr 28, 2025

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APPENDIX

TABLE OF APPENDICES

Appendix A:

Judgment & Memorandum Disposition

United States Court of Appeals for the Ninth Circuit

(January 28, 2025) (unpublished)........................................... la

Appendix B:

Order & Opinion

United States District Court for the Central District of

California (February 16, 2024) (unpublished)..................... 3a

Appendix C:

Memorandum Disposition

United States Court of Appeals for the Ninth Circuit

(May 20, 2021) (unpublished).................... ............................ 17a

Appendix D:

Order & Opinion

United States District Court for the Central District of

California (September 11, 2019) (unpublished)................. 23a

Appendix E:

Appendix E — Visual Aids (Color)

Figure 1: Catch-22 Timeline (first coram nobis dismissal

vs. second)

Figure 2: 318-Day Remedy Gap (Rule 33 & § 2255

availability)............................................................................... 31a

Appendix F:

Email from Flint to Defense Counsel

(Pre-trial notice of missing transcript portion; October

2018)............................................................................................ 33a

Appendix G:

Email from Government to Defense Counsel

(Notice that interviewing air-marshal’s phone was wiped;

Feb 2019)..................................................................................... 36a

Appendix H:

Expert Audio Authentication Report

United States Forensics, LLC (March 12, 2019).............

38a

Expert Audio Authentication Report

United States Forensics, LLC (May 30, 2019).................

43a

Hearing Transcript Excerpt

North Carolina State Bar Hearing (August 3, 2021), pp.

97-101........................................................................................

Appendix K: Statutory Provisions

28 U.S.C. § 2241 & 28 U.S.C. § 2255 ......................... >......

48a

Appendix L:

58a

Appendix I:

Appendix J:

Order Below Appointing Counsel.......................................

54a

Appendix A — Judgment & Memorandum Disposition

United States Court of Appeals for the Ninth Circuit

(January 28, 2025) (unpublished)

la

Case 2:17-cr-00697-PA

nocument 214

Filed 01/28/25

P~ne 1 of 1 Page ID #:3603

FILED

UNITED STATES COURT OF APPEALS

JAN 28 2025

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U S. COURT OF APPEALS

UNITED STATES OF AMERICA,

No. 24-1807

D.C. No.

2:17-cr-00697-PA-1

Central District of California,

Los Angeles

Plaintiff - Appellee,

v.

ORDER

DANIEL FLINT,

Defendant - Appellant.

Before:

CLIFTON, CALLAHAN, and BENNETT, Circuit Judges.

Appellee’s motion (Docket Entry No. 20) to summarily affirm the district

court’s order denying appellant’s petition for writ of error coram nobis and

alternative motion for a new trial is granted. See United States v. Hooton, 693 F.2d

857, 858 (9th Cir. 1982) (stating standard). We agree with the district court that

Flint is not entitled to coram nobis relief, see United States v. Riedl, 496 F.3d 1003,

1006 (9th Cir. 2007), or a new trial under Rule 33, see Fed. R. Crim. P. 33; United

States v. Hinkson, 585 F.3d 1247, 1264-67 (9th Cir. 2009).

AFFIRMED.

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Appendix B - Order & Opinion

United States District Court for the Central District of California

(February 16, 2024) (unpublished)

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Notice of Electronic Filing

The following transaction was entered on 2/20/2024 at 3:16 PM PST and filed on 2/16/2024

Case Name:

USA v. Flint

Case Number:

2:17-cr-00697-PA

Filer:

Document Number:

|207[

Docket Text:

MINUTES IN CHAMBERS COURT ORDER by Judge Percy Anderson Denying [196]

PETITION for a Writ of Error Coram Nobis as to Daniel Flint (1): For all of the foregoing

reasons, the Court denies Defendant’s Petition for a Writ of Error Coram Nobis, or in the

Alternative, a New Trial, (see document for further details) (bm)

2:17-cr-00697-PA-l Notice has been electronically mailed to:

Ian Yanniello ian.yanniello@usdoj.gov, usacac.criminal@usdoj.gov

Christine Ro caseview.ecf@usdoj.gov, usacac.criminal@usdoj.gov, christine.ro@usdoj.gov,

usacac.civil@usdoj.gov

Gregory Nicolaysen gregnicolaysen@aol.com

Ethan Atticus Balogh eab@balcolaw.com, eab@ecf.courtdrive.com, nas@colemanbalogh.com

2:17-cr-00697-PA-l Notice has been delivered by First Class U. S. Mail or by other means BY

THE FILER to :

Daniel Flint

61405 North Ridge Trail

!

Washington MI 48094

US

4a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES - GENERAL

Case No.

CR 17-697 PA

Present: The Honorable

Interpreter

Date

February 16, 2024

PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

None

Kamilla Sali-Suleyman

Deputy Clerk

U.S.A. v. Defendants):

Not Reported

Court Reporter

Present Cust.. Bond

Christine M. Rho

Assistant JJ.S. Attorney

Attorneys for Defendants:

Present App. Ret.

Daniel Flint

Proceedings:

IN CHAMBERS — COURT ORDER

This matter is before the Court on Defendant Daniel Flint’s (“Defendant”) Petition for Writ of

Error Coram Nobis or, in the Alternative, Motion for a New Trial, filed on August 17, 2023. Defendant

is proceeding pro se. (Docket No. 196.) Plaintiff United States of America (the “Government”)

opposed Defendant’s Petition for a Writ of Error Coram Nobis, or in the Alternative, Motion for new

Trial, on December 8, 2023 (“Opposition”). (Docket No. 205.) Defendant replied on December 22,

2023 (“Reply”). (Docket No. 206.) Pursuant to Rule 78 of the Federal Rules of Civil Procedure and

Local Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A.

Factual Background

On July 20, 2017 Defendant presented himself as a diplomat with the International Human

Rights Commission (“IHRC”) to a Transportation Security Administration (“TSA”) official at Chicago

O’Hare International Airport (“O’Hare”). Defendant, intending to board a flight to Los Angeles

International Airport (“LAX”), insisted his carry-on luggage was exempt from screening under the

“Laws of the Vienna Convention” and presented an IHRC “Diplomatic Identification Card.” TSA

officials at O’Hare told Defendant that his credentials were insufficient to pass through security and

that he was required to present a valid diplomatic passport in order to be exempt from screening. (RT

137-148.) After TSA informed Defendant that his documents were insufficient to exempt his baggage

from inspection, he declined to submit his baggage to screening and did not board his flight. (RT 137,

139-48, 172-77 183; Trial Exhibits 2-6, 8-9, 11.)

Later that same day, Defendant booked a new flight from Chicago Midway International Airport

(“Midway”) to LAX for that afternoon. This flight included a connecting flight at Minneapolis-St. Paul

International Airport (“MSP”) before making its final arrival to LAX. Defendant again presented

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himself as an IHRC diplomat to TSA at Midway. Midway TSA officials permitted Defendant to travel

without submitting his baggage for TSA screening. (RT 189-96, 198-202.)

On July 25, 2017, Defendant again presented himself as a diplomat with the IHRC to Midway’s

TSA for a flight to MSP, with a later connecting flight to LAX. TSA officials accepted Defendant’s

representation, and he was allowed to travel without submitting his baggage for TSA security

screening. (RT 250-53, 242, 248, 160-63.) TSA officials at Midway subsequently discovered that

Defendant had not provided the correct credentials to be exempt from screening. (RT 227-29.) While

Defendant was en route to LAX, TSA officials reported the incident to the FBI and law enforcement

officials. FBI agents and other law enforcement officers arrived at Defendant’s boarding gate

approximately 15-20 minutes before his flight landed at LAX. Once the plane arrived at the terminal,

an air marshal and another law enforcement officer boarded the plane to escort Defendant off the

flight. (RT 336-37, 368, 386.)

After the authorities escorted Defendant to an interview room inside of LAX, the FBI (SA

Rebecca Marriott) and the Air Marshall who had escorted Defendant from the plane, Wesley Williams,

conducted an interview with him for approximately two hours. (Trial Exs. 47-55, 58.) Air Marshall

Williams recorded the interview on his government issued cell phone. Defendant was cooperative

throughout the interview and continued to assert that he was a bonafide diplomat with the IHRC. (Trial

Exs. 3,4-6, 8-9 & 38,47.) Defendant presented the same credentials and documents to the

interviewing agents and falsely represented that he had never been turned a way from a screening

checkpoint while attempting to travel with his diplomatic pouch. (RT 346-48; Trial Exs. 5, 53.)

During the interview, Defendant admitted that he helped manufacture the “diplomatic immunity card.”

(RT 350; Trial Ex. 58.) He also asserted that he had no idea there was an issue with the State

Department, despite his having been turned away from the security checkpoint at O’Hare just five days

earlier. (Trial Ex. 54.)

The agents ultimately conducted a search of Defendant’s bag and discovered approximately

$148,145 in U.S. currency stuffed inside plastic shopping bags. (Trial Ex. 30.) Agents from the United

States Department of State later confirmed that Defendant had no diplomatic status with the

Department’s Office of Foreign Missions (“OFM”), and that the ambassador Defendant claimed to be

working for was not a recognized ambassador for any organization. (RT 266-83).

B.

Procedural Background

On November 7, 2017, Defendant was indicted on one count of entering an airport area in

violation of security requirements under 49 U.S.C. §§ 46314(a), (b)(2). (Docket No. 15.) Defendant’s

three-day jury trial began on October 16, 2019. (Docket No. 117.) On October 18, 2018, the Court

delivered the following jury instructions as to the elements that the Government must prove beyond a

reasonable doubt to sustain a conviction under 49 U.S.C. §§ 46314(a), (b)(2):

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(1)

(2)

(3)

(4)

the defendant entered an airport area that serves as an air carrier, namely, the sterile area

of Terminal 3 at Los Angeles International Airport;

the defendant did so in violation of security requirements and regulations prescribed

under sections 44901, 44903(c) of Title 49 of the United States Code;

the defendant acted knowingly and willfully; and

the defendant also acted with the intent to evade the security regulation.

(Jury Instruction No. 14.)

The jury was instructed that the term “sterile area” is defined as meaning a “portion of an airport

where passengers have access to boarding aircraft and to which the access generally is controlled by the

Transportation Security Administration; an aircraft operator through the screening of persons and

property.” (Jury Instruction No. 13.) For a diplomatic pouch to be exempt from security screening at

TSA, the diplomatic courier “must possess and present to TSA a valid diplomatic passport.. . a courier

letter... and a diplomatic pouch ... [.]” (Id.) “Individuals who are not diplomatic couriers and who

do not possess valid diplomatic documentation must submit their items for screening and inspection

before entering the sterile area of an airport.” (Id.)

On October 19, 2018, the jury found Defendant guilty of intentionally evading airport security

requirements, in violation of 49 U.S.C. §§ 46314(a), (b)(2). (Docket No. 115.) On March 3, 2019,

Defendant filed a post-trial motion for a judgment of acquittal on two grounds: (1) the charged statute

did not apply to Defendant’s arrival at LAX; and (2) Defendant did not enter the terminal wilfully

because he was escorted off the plane by law enforcement officers. (Docket No. 140.) On May 14,

2019, the district court denied Defendant’s Motion for Judgment of Acquittal. (Docket No. 152.) On

April 8, 2019 the district court issued an order relieving his trial counsel and appointing another

attorney for all further proceedings. (Docket No. 149.)

On August 23, 2019, Defendant filed his first Writ of Coram Nobis Petition (“First Petition”).

(Docket No. 158.) Although Defendant was represented by counsel at the time, he filed the First

Petition “pro se.” (Id.) In that Petition, Defendant argued, as he does in his current Petition, that “the

government deleted relevant portions of [defendant]’s FBI interview to make it appear as though he

was intentionally attempting to evade TSA security requirements.” (Docket No. 158 at p. 9.)

Defendant argued that his trial counsel did not raise this argument at trial, a nd thus premised his First

Petition on an ineffective assistance of counsel claim. (Docket No. 158.) Defendant supported his First

Petition with a three page expert report dated May 2019, referencing a nine millisecond “event”

suggesting an “editing or an otherwise non-continuous recording,” or an “editing or equipment

malfunction.” (Docket Nos. 158-2 atpp. 2-3, 158-7 atp. 3.) This “event” occurred at the time

Defendant was asked in his interview about the last time he had tried to fly. and the Defendant argued

that his answer to that question had been omitted or deleted from the audio recording. The Government

did not seek to admit that portion of the audio recording at trial, but did present other portions of the

audio recording, including Defendant’s untruthful responses to the question of whether he had ever

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been turned away from an airport security checkpoint before the day of his interview. (Trial Exs 4755, 58.)

The district court denied the First Petition on both procedural and substantive grounds on

September 11,2019 (Docket No. 169), prior to sentencing.- In its ruling, the district court found that

the First Petition lacked merit because: (1) Defendant had not identified an error of “the most

fundamental character”; (2) Defendant failed to refute the Government’s evidence that the audio files

had not been altered or manipulated; and (3) any error was harmless given that the part of the recording

at issue was not played for the jury, and any claimed alteration was not exculpatory. (Id.) The district

court also held that the new trial motion lacked merit because the underlying evidence was not newly

discovered and Defendant could have discovered the alleged frequency inconsistency before his trial

began. (Id) The district court further found that given the overwhelming evidence of intent, Defendant

failed to show that the admission of the expert report would probably have resulted in acquittal. (Id.)

On September 16, 2019, the district court sentenced Defendant to 14 months in custody and a

three-year term of supervised release. (Docket No. 170.) Defendant appealed his judgment of

conviction. (Docket No. 167.) On May 20, 2021, the Ninth Circuit affirmed his conviction, ruling that

the district court properly denied Defendant’s First Petition on procedural grounds. (Docket No. 192.)

On September 7, 2021, the North Carolina State Bar disbarred Defendant from the practice of law in

the State of North Carolina. (Docket No. 205-9.) On March 22,2022, the State of Michigan revoked

Defendant’s law license, effective October 19, 2022. (Docket No. 205-10.) In connection with the

North Carolina state bar proceeding, on July 16, 2021, Defendant deposed SA Marriott, a trial witness

in Defendant’s criminal case, who testified regarding Defendant’s responses during his interview at

LAX on July 25, 2017. (Docket No. 199 at pp. 14-195.) SA Marriott also testified as a witness at the

state bar disciplinary hearing on August 3, 2021. (Docket No. 200 at pp. 253-318.)

Defendant now files a Second Petition for a Writ of Coram Nobis, or in the Alternative, Motion

for a New Trial (“Second Petition”), claiming that new evidence justifies a writ of coram nobis to

correct his allegedly wrongful conviction.

II.

LEGAL STANDARD

A.

Petition for a Writ of Error Coram Nobis

“The writ of error coram nobis affords a remedy to attack a conviction when the petitioner has

served his sentence and is no longer in custody. Specifically, the writ provides a remedy for those

suffering from the lingering collateral consequences of an unconstitutional or unlawful conviction

based on errors of fact and egregious legal errors.” Estate of McKinney v. United States, 71 F.3d 779,

781 (9th Cir. 1995) (citations and quotations omitted)). The errors must be of “the most fundamental

This case was originally assigned to the now retired district court judge, and then reassigned to

this Court on September 11, 2023. (Docket No. 201.)

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character, such that the proceeding itself is rendered invalid. Id (quotations and citations omitted). To

qualify for coram nobis relief, four requirements must be satisfied: (1) a more usual remedy is not

available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist

from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the

error is of the most fundamental character. Id. at 781-82 (citations omitted). “Because these

requirements are conjunctive, failure to meet any one of them is fatal.” Matus-Leva v. United States,

287 F.3d 758, 760 (9th Cir. 2002). A writ of coram nobis is a “highly unusual remedy, available only to

correct grave injustices in a narrow range of cases where no more conventional remedy is applicable.”

United States v. Riedh 496 F.3d 1003, 1005 (9th Cir. 2007); see also Matus-Leva, 287 F.3d at 760

(“Coram nobis is an extraordinary writ, used only to review errors of the most fundamental character.”).

B.

Motion for a New Trial

“Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the

interests of justice so requires.” Fed. R. Crim. P. 33. “Any motion for a new trial grounded on newly

discovered evidence must be filed within 3 years after the verdict or finding of guilty.” Rule 33(b)(1).

“Any motion for a new trial grounded on any reason other than newly discovered evidence must be

filed within 14 days after the verdict or finding of guilty.” Rule 33(b)(2).

To prevail on a motion for a new trial, a criminal defendant must satisfy a five part test: “(1) the

evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the

result of a lack of diligence on the defendant’s part; (3) the evidence must be material to the issues at

trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must

indicate that a new trial would probably result in acquittal.” United States v. Harrington, 410 F.3d 598,

601 (9th Cir. 2005). Moreover, there must be a showing of prejudice. Id. at 601 (Rule 33 requires a

defendant to show “that a new trial would probably result in acquittal.”).

III.

ANALYSIS

A.

Petition for Writ of Coram Nobis

The Government argues that Defendant’s Second Petition fails because he is unable to satisfy die

second and fourth requirements - Defendant has no valid reason for not seeking relief on these grounds

earlier, and there was no error of the “most fundamental character” here. United States v. McClelland,

941 F.2d 999,1002 (9th Cir 1991).

1.

Timeliness

A petitioner must establish there are “valid or sound reasons explaining why they did not attack

their sentences or convictions earlier.” United States v. Kwan, 407 F.3d 1005,1012 (9th Cir. 2005). In

his Second Petition, Defendant relies on the same expert report that he presented in his First Petition, to

challenge evidence that has been in his possession since before his first trial, the audio recording of his

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interview with law enforcement at LAX. He claims, however, that his Second Petition is timely

because it wasn’t until during his North Carolina disbarment proceeding that SA Marriott, who

interviewed him when he was questioned at LAX, testified inconsistently with her testimony at his

criminal trial.

During his interview at LAX, Defendant was asked whether he had ever been turned away from

a security checkpoint, and he answered “no,” and when asked again, he replied “not that I recall,” and

then when asked again, he answered “no.” (Trial Ex. 53 A.) That portion of the audio recording was

admitted at trial. (Trial Ex. 53.) The full transcript of the audio recordings, including portions not

admitted at trial, reflects the following colloquy that occurred after the series of questions and responses

regarding whether Defendant had ever been turned away from a security check point: SA Marriott

asked Defendant “when was the last time you tried to fly?” Defendant responded “today?” and SA

Marriott replied, “before today.” The transcript does not indicate an answer to that question, it

references something unintelligible (indicated by the term “UI”) and then a request from an unidentified

male to screen Defendant’s bag. (Docket No. 196 at p. 13.) Defendant’s expert report purports to show

the “event” after SA Marriott states “before today” and before the unidentified male requests to screen

Defendant’s bag. (Id.)

Defendant contends that during the state bar hearing, Defendant asked SA Marriott whether

during the interview Defendant had actually answered the question of “when was the last time you tried

to fly?” SA Marriott testified “yes” although the transcript of the interview does not indicate an

answer, and that SA Marriott had replied “no” to the same question at trial and during her deposition

prior to the hearing. Defendant argues that this purported evidence of a missing answer, combined with

the questions the expert report raised about the integrity of the audio recording at that point in time both

establishes a fundamental error and justifies his delay in seeking relief.

As an initial matter, the Court does not agree with Defendant’s characterization or the impact of

this “new evidence.” Defendant’s questioning of SA Marriott at her deposition and her responsive

testimony during the disciplinary hearing was confusing, and it fails to create the “bombshell” claimed

by Defendant. To the contrary, SA Marriott specifically tells Defendant during his cross examination

that she considered the two questions (about whether he been turned away and when was the last time

he tried to fly) as one and the same, so that she believed he had provided an answer. (See Docket No.

200 at pp. 277, 280-83, 306-309.) The Court’s review of the hearing transcript also confirms that SA

Marriott was confused about which of the two questions Defendant was asking her about (whether he

had been turned away from the security checkpoint or the last time he had flown by air). Defendant’s

questions lacked clarity, and they were interrupted by many objections and other distractions. (Id.)

Accordingly, the Court rejects Defendant’s characterization of SA Marriott’s testimony as“false” or

“inconsistent” as well as Defendant’s attempt to rely on her state bar related testimony as a justification

for his failure to seek relief earlier.

Moreover, this“new evidence” is not actually evidence - it is a new argument premised on the

same evidence - evidence that has been in Defendant’s possession for many years. Thus, even if the

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Court were to consider that SA Marriott’s testimony provides further support to the argument that the

Government may have tampered with the audio recording to omit Defendant’s answer to the question

regarding the last time Defendant flew, that does not change the fact that Defendant could have raised

the issue in a habeas petition under 28 U.S.C. § 2255 while he was still serving his sentence.-/

Accordingly, the Court finds that Defendant has provided no valid reason for not seeking relief

earlier, and has thus failed to satisfy the requirement that his Petition for a Writ of Coram Nobis be filed

in a timely manner.

2.

Fundamental Error

“Coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow

range of cases.” United States v. Riedl. 496 F.3d 1003, 1005 (9th Cir. 2007); Estate of McKinney. 71

F.3d at 781. The rare circumstances in which this extraordinary remedy is appropriate include when a

defendant is factually innocent, the jury instructions relieved the prosecution from proving an essential

element of the crime, or when some other “egregious” trial error occurred. See United States v.

Walgren, 885 F.2d 1417, 1424 (9th Cir. 1989) (defendant had been convicted of crime premised on

conduct that no longer violated mail fraud statute); McClelland. 941 F.2d at 1003 (flawed jury

instructions); United States v. McNeill. 812 F. App’x 515, 516 (9th Cir. 2020) (“coram nobis relief is

typically confined to addressing newly discovered fundamental errors (such as factual errors, egregious

legal errors, or extraordinary exculpatory evidence) that existed at the time of trial and which are not

otherwise subject to standard time constraints.”).

The Government contends that Defendant fails to establish any error, let alone an “error of a

fundamental character.” Defendant argues that he has satisfied this requirement because: (1) the expert

report shows that the Government intentionally deleted portions of his recorded interview “to make it

appear as though [defendant] was intentionally lying to the FBI” and (2) SA Marriott testified

untruthfully about whether Defendant responded to her interview question regarding the last the time he

had flown during his criminal trial and again in her deposition testimony. Defendant asserts a due

process violation based on the cumulative effect of alleged trial errors all relating to his interview and

SA Marriott’s testimony.

2/

Defendant — who obtained the audio recording and transcript in discovery before his trial - had

ample opportunity to review the audio recording and the transcript, to note a potential missing answer,

and to then contest the reliability of this evidence. Defendant was a party to his interview, and

presumably knew what he said in response to the FBI’s questions. If an answer - or any other

potentially exculpatory information - was missing from the recording or the transcript, Defendant could

have raised those issues in a habeas petition while still serving his sentence. Indeed, Defendant did not

even need SA Marriott’s allegedly inconsistent testimony regarding whether he answered the question

of when was the last time he flew — or the expert report for that matter — to request relief based on his

arguments regarding the audio recording.,

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As a threshold matter, the Government argues that none of these purported errors can be

considered “fundamental” given the overwhelming, unchallenged evidence, apart from the audio

recording, that Defendant acted knowingly and wilfully and with the intent to evade a security

regulation. At trial, the defense was that Defendant acted in good faith, and believed that he was acting

lawfully. (Docket No. 205 at p. 23.) Evidence at trial, however, established that Defendant knew that

he was acting illegally in his attempt to evade screening of his bag containing more than $148,000.

That evidence included: (1) that Defendant used a false and manufactured “diplomatic identity card”;

(2) that in actuality, Defendant did not have diplomatic status; (3) that Defendant told TSA officials that

he was a lawyer and showed them his bar card in order to bolster his false claim of diplomatic status;

(4) five days before the conduct in this case, TSA officials at Chicago O’Hare airport rejected his

credentials and refused to allow Defendant to bypass airport security; (5) instead of going through TSA

screening at O’Hare, and proceeding with his flight, Defendant left the airport and re-booked his travel

for that same day through Midway airport; (6) at Midway, Defendant used the same fraudulent

credentials, including the “diplomatic identity card” that had just been rejected, and a binder of

documents that disproved certain of Defendant’s representations on their face;- and (7) Defendant had

previously lied to a law enforcement officer in Michigan about being a diplomat during a traffic stop,

and had been arrested and convicted as a result.- Thus, the Court agrees with the Government that the

jury was presented with overwhelming evidence of Defendant’s guilt, even without the audio recording

evidence.-7 This alone justifies the denial of Defendant’s Second Petition. See McKinney. 71 F.3d at

"

For instance, the document entitled “Vienna Convention” stated that it was “not yet in force” on

the cover page, the international organization to which Defendant claimed affiliation was listed as

headquartered at a post office box in Pakistan, and the “appointment notice” actually states that there is

no formal diplomatic relationship between the United States and the IHRC. (RT 345-348.)

For the purpose of establishing Defendant’s knowledge and intent, the Government called a

Sheriffs Deputy from Ogema County, Michigan as a witness to testify that in September 2016, he

stopped Defendant’s vehicle because it had an expired registration tag. When the Deputy asked for

Defendant’s identification and proof of insurance, Defendant claimed that he was a civil rights attorney

for the United States government with “diplomatic immunity.” (RT 325-28.) Defendant was ultimately

arrested and convicted because, the Deputy testified, Defendant did not actually have diplomatic status

or immunity. (Trial Ex. 43.)

i'

While Defendant argues that the jury’s decision to convict him was dependent upon the audio

recording excerpts of Defendant’s interview, the Court has disregarded the evidence Defendant

submitted regarding his counsel’s conversation with the jury following the verdict. See Fed. R. Evid.

606(b)(1) (The Court “may not receive a juror’s affidavit or evidence of a juror’s statement” about,

among other things, “the jury’s deliberations” or “any juror’s mental process concerning the verdict”);

Warger v. Shauers, 574 U.S. 40, 47-48 (2014) (“Congress’ enactment of Rule 606(b) was premised on

the concerns that the use of deliberations evidence to challenge verdicts would represent a threat to both

jurors and finality in those circumstances not covered by the Rule’s express exceptions.”); Smith v. City

& Cty. of Honolulu, 887 F.3d 944, 954 (9th Cir. 2018) (“Rule 606 ... establishes a no-impeachment

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781 (Writ is available to those who were “unconstitutionally] or unlawfully] convicted based on errors

of fact and egregious legal errors”); Walgren, 885 F.2d at 1424 (writ available to a defendant that is

able to demonstrate he did not commit a crime).

Defendant’s claimed fundamental “error” is the admission of portions of the audio recording of

his interview with SA Marriott that he alleges was altered to omit his answer to the question of when

was the last time he had traveled. In support of this argument, Defendant relies on the expert report he

submitted to the district court in support of his First Petition, that he now claims is bolstered by SA

Marriott’s testimony during his 2021 disbarment proceeding. Defendant’s argument repeats what he

argued in his First Petition - that the alleged frequency inconsistency noted in the expert report

occurred right after he was asked about when the last time he had traveled by airplane, suggesting that

his answer was deleted from the audio recording.

The expert report, however, is speculative and conclusory. The expert concludes that because he

cannot explain the “event,” the recording must have been manipulated, despite the fact that the expert

also indicates that the event could have been caused by other factors, such as a non continuous

recording. Moreover, the report is directly contradicted by evidence presented by the Government in '

response to both Petitions, that the recordings were not altered in any way before being provided to the

defense in discovery. Defendant argues that there are inconsistencies in the Government’s

representations of the way in which the files were uploaded and maintained. However, the actual

evidence establishing that there was no alteration or manipulation before the audio recording was

provided to the FBI and the US Attorney’s Office, and maintained in the FBI case file is

uncontroverted.-

rule ... to attack the validity of the verdict.”).

The sworn evidence includes a declaration from Air Marshall Williams who interviewed

Defendant and recorded the interview on his phone on July 25, 2017. (Docket No. 162-1 at

1-2.)

Williams stated that after he recorded Defendant’s interview, he uploaded the three audio files directly

to the FBI’s internal computer system, made copies, and sent them to the U.S. Attorney’s Office. (Id. at

H 4.) Williams stated that the files he sent were identical to those recorded on his phone, and were not

altered or manipulated in any way. (Id.) The Government confirmed that the audio recording

Defendant received in discovery was the same audio recording which Williams immediately uploaded

to the FBI’s internal computer system. (Docket No. 158-3.) In denying Defendant’s First Petition, the

district court found that Defendant had not provided any evidence to refute these statements or show

that the Government deleted any “original” audio recordings from Defendant’s interview. (Docket No.

169 at p. 6.) The district court also noted that the disputed portion of the recording was not admitted at

trial. (Id.) There is no basis for disturbing this conclusion.

Moreover, in its Opposition to Defendant’s Second Petition, the Government provided the sworn

declaration of FBI Supervisory SA David Gates, who supervised the agents handling Defendant’s

criminal case. SA Gates’ declaration states that he reviewed the case file in this matter and that there is

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Moreover, Defendant fails to identify the substantive response he made that is missing from the

interview transcript, or even argue that the false statements he made to the FBI regarding never having

been turned away from a security checkpoint before the “event” in die audio recording were themselves

altered or taken out of context in some way. While it is true that it is the Government’s burden at trial

to demonstrate the reliability and admissibility of the evidence it presents, it is Defendant’s burden in

presenting his request for post conviction relief to show that a fundamental error occurred. Because

Defendant has made no attempt to explain what his answer to that question was, or how it could have

impacted any of his other false statements, he fails to meet this burden.

Finally, to the extent that Defendant relies on SA Marriott’s testimony at the state bar proceeding

as the “fundamental error,” his argument that SA Marriott committed peijury or testified falsely at trial

based on her testimony at Defendant’s disbarment hearing is confused and convoluted. However, after

close review of SA Marriot’s testimony in both the criminal trial, the deposition, and the hearing, the

Court does not see how the inconsistencies noted by Defendant amount to false statements, let alone

perjury. The Court agrees with the Government that the inconsistencies - if any - are more a matter of

confused questioning by the Defendant, the three year time period that had passed between the trial and

the disbarment proceeding, and simple semantics.

The Court has already addressed the confusion in the questioning regarding whether Defendant

had answered SA Marriott’s question, “when was the last time you tried to fly?” Another example of

how Defendant mis-characterizes SA Marriott’s testimony relates to Defendant’s confusing questions

over whether Defendant traveled with a diplomatic passport identification card or an actual diplomatic

passport - a fact that is not in dispute given that this whole case began because Defendant was turned

away from the O’Hare checkpoint for not having a diplomatic passport. At trial, SA Marriott testified

extensively regarding Defendant’s use of a fraudulent diplomatic passport card - a card that was

stamped with the term “DIPLOMAT” in red ink above the tenn “PASSPORT#,” and that included an

alleged passport identification number. During questioning about the card, the Government asked SA

Marriott whether Defendant claimed that he had looked up things online and researched whether he

could travel with this “diplomatic passport” (omitting the word “card”) and she replied “that’s correct.”

Defendant now claims that SA Marriott perjured herself at trial, and again during her deposition,

because he did not have a “diplomatic passport,” he had a “diplomatic passport card.” The Court

agrees with the Government that this does not evidence false testimony - semantics, or sloppy

questioning at most, but not peijury. Similarly, none of the other alleged inconsistencies support the

conclusion advanced by Defendant that a fundamental error exists because the Government knowingly

used SA Marriott’s false or deceptive testimony at trial.- (Docket No. 196.)

a physical copy of defendant’s recorded interview maintained as evidence at the FBI’s office in Long

Beach. (Docket No. 205-11.)

i<

In addition to the testimony discussed above, Defendant also claims there are inconsistencies in

SA Marriott’s testimony regarding whether the audio recording of the interview was continuous or

broken into three different files and in how the recordings were uploaded and maintained by the FBI.

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Defendant may also satisfy the “fundamental error” requirement for coram nobis relief by

establishing that he received ineffective assistance of counsel. Kwan, 407 F.3d at 1014. To prevail on

an ineffective assistance of counsel claim, a defendant must show that: (1) counsel’s actions were

outside the wide range of professionally competent assistance, measured under a standard of

“reasonably effective assistance”; and (2) he was prejudiced by reason of counsel’s actions - that is,

there is “reasonable probability” that “but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Hovey v. Ayers. 458 F.3d 892 904 (9th Cir. 2006) (quoting

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)). The standard a defendant must meet is both

“rigorous” and “highly demanding” and requires a showing of “gross incompetence” on the part of

counsel. Kimmelman v. Morrison, 477 U.S. 365, 381-82 (1986).

Defendant argues that his prior counsel’s strategic decision not to contest the authenticity of the

audio recording fell outside the range of professionally competent assistance. Defendant, however,

fails to show that his counsel’s decision not to investigate or pursue a motion to suppress the audio

recording was ineffective assistance, or that but for counsel’s decision, the proceeding would have been

different. As discussed above, the Government’s evidence confirms that the audio file Defendant

received in discovery is the same audio recording Air Marshal Williams recorded on his phone and then

provided to the FBI and the US Attorney’s Office. Nor was the allegedly compromised part of the

recording even admitted at trial. Moreover, Defendant fails to credibly challenge the authenticity or

accuracy of the overwhelming evidence of Defendant’s guilt that was actually presented at trial. The

Court thus finds that Defendant has not satisfied either prong of the Strickland test for ineffective

assistance of counsel.

Accordingly, Defendant’s Second Petition fails to establish that Defendant suffered a

fundamental error and is entitled to coram nobis relief.

B.

Motion for a New Trial

As discussed above, Defendant’s “newly discovered evidence” is not new - it is a new argument

regarding the same evidence Defendant has had in his possession for years.- See Baumann v. United

States, 692 F.2d 565, 580 (9th Cir. 1982) (“Because all of the underlying facts relevant to his present

allegation of newly discovered evidence were within his knowledge at the time of trial and could have

been substantiated with the exercise of reasonable diligence, the evidence is not newly discovered.”).

After its review, the Court can only conclude that Defendant’s Petition misrepresents SA Marriott’s

actual testimony in the state bar proceedings. The Court has reviewed the hearing transcript, and it is

apparent that after Defendant’s confusing and convoluted cross examination on these issues, SA

Marriott explained any discrepancies and was able to clarify her testimony regarding the nature and

handling of the audio recording on redirect. (See Docket No. 200 at pp. 309-311.)

*'

At most, the “new” evidence could be considered impeachment evidence that fails to satisfy the

requirements for granting a motion for a new trial.

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Moreover, Defendant has failed to show that admission of this evidence would have resulted in

acquittal. Even without any of the audio recording evidence of Defendant’s interview, the evidence

presented at trial was more than sufficient for a jury to find Defendant guilty beyond a reasonable doubt

of intentionally evading airport security requirements. See United States v. Jackson, 209 F.3d 1103,

1106-07 (9th Cir. 2000) (affirming denial of motion for new trial where new evidence was insufficient

to create reasonable doubt).

Conclusion

For all of the foregoing reasons, the Court denies Defendant’s Petition for a Writ of Error Coram

Nobis, or in the Alternative, a New Trial.

IT IS SO ORDERED.

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Appendix C - Memorandum Disposition

United States Court of Appeals for the Ninth Circuit

(May 20, 2021) (unpublished)

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FILED

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

MAY 20 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No.

Plaintiff-Appellee,

19-50300

D.C. No.

2:17-cr-00697-SJO-1

v.

DANIEL FLINT,

MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

S. James Otero, District Judge, Presiding

Argued and Submitted May 3, 2021

Pasadena, California

Before: KLEINFELD, WARDLAW, and GOULD, Circuit Judges.

Daniel Flint challenges his conviction for knowingly and willfully entering a

sterile airport area with the intent to evade security requirements under 49 U.S.C.

§46314(a), (b)(2).

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

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Flint argues that venue in the Central District of California was improper.

The district court’s failure to instruct the jury on venue was error, but because no

reasonable jury could find that venue in the Central District was improper for the

crime of entering the Los Angeles International Airport in violation of security

requirements, the error was harmless. See United States v. Moran-Garcia, 966

F.3d 966, 971 (9th Cir. 2020).

Flint further argues that the government presented insufficient evidence to

sustain his conviction. Specifically, Flint argues that he did not commit any

element of the crime charged because he did not violate any of Los Angeles

International Airport’s security procedures. The regulations, however, speak

generally of complying with procedures used to control access to sterile areas,

regardless of whether those procedures are at the departure or arrival airport. See,

e.g., 49 C.F.R. § 1540.107(a). Regardless of what occurred in Chicago, Flint was

charged with and convicted of criminal conduct at Los Angeles International

Airport.

Flint similarly claims that he did not “knowingly and willfully enter” the Los

Angeles International Airport terminal because he was escorted off the plane by

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law enforcement. A reasonable jury, however, could have concluded that Flint,

having voluntarily boarded a plane bound for Los Angeles International Airport,

intended to enter that airport, and did what he intended. It is generally permissible

to assume one intends the natural consequences of one’s actions. United States v.

Loera, 923 F.2d 725, 728 (9th Cir. 1991). In this case, Flint voluntarily boarded a

plane bound for Los Angeles International Airport, and a reasonable jury could

have concluded he intended to enter the Los Angeles International Airport in

violation of the procedures used to secure that area upon arrival. Furthermore,

Flint does not dispute that he physically entered the airport, albeit under the

watchful eye of law enforcement.

Flint also claims that the indictment was constructively amended because the

specific regulations in the jury instructions were not included in the indictment.

The indictment, however, tracked the statute of conviction, as did the jury

instructions and the judgment of conviction. Thus, the indictment was not

substantially altered at trial, such “that it was impossible to know whether the

grand jury would have indicted for the crime actually proved.” See United States

v. Davis, 854 F.3d 601, 603 (9th Cir. 2017) (quoting United States v. Adamson,

291 F.3d 606, 615 (9th Cir. 2002)). Flint further claims that the jury instructions

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were defective because the regulations do not address deplaning procedures and

were thus inapplicable. This contention, however, is based on Flint’s erroneous

contention that the relevant regulations do not apply at destination airports. See,

e.g., 49 C.F.R. § 1540.107(a) (containing no textual limitation to departure

airports).

Additionally, Flint argues that the prosecution committed reversible

misconduct by misconstruing testimonial and video evidence. Prosecutors,

however, are allowed to make reasonable inferences when arguing before the jury.

United States v. Flores, 802 F.3d 1028, 1035 (9th Cir. 2015) (citing United States

v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997)). Furthermore, contrary to Flint’s

assertions, the prosecution did not commit cumulative errors sufficient to warrant

reversal under plain error review. See id. at 1042.

Finally, Flint argues that the government may have altered an audio clip that

possibly contained exculpatory information. This claim, however, was in Flint’s

joint post-trial petition for a writ of coram nobis and motion for a new trial.

Because Flint had not yet been sentenced, coram nobis relief was not available to

him. Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994). Furthermore,

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because the audio recording was not new evidence, the motion for a new trial was

late. Fed. R. Crim. P. 33(b). Thus, the district court properly denied this claim on

procedural grounds.

AFFIRMED.

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Appendix D — Order & Opinion

United States District Court for the Central District of California

(September 11, 2019) (unpublished)

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Present: The Honorable

Interpreter

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Date

September 11, 2019

S. James Otero

Not Required

Victor Paul Cruz

Not Present

Not Present

Deputy Clerk

Court Reporter/Recorder, Tape No.

Assistant U.S. Attorney

U.S.A. v. Defendants'):

Daniel Flint

Present Cust. Bond

xx

Attorneys for Defendants:

Gregory Nicolaysen

xx

Present App. Ret.

xx

xx

PROCEEDINGS (in chambers): ORDERDENYING DEFENDANT’S PETITION FOR WRIT OF ERROR

CORAM NOBIS OR IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL [Docket No. 158 ]

This matter is before the Court on Defendant Daniel Flint's ("Defendant") Petition for Writ of Error Coram Nobis

or, in the alternative, Motion for New Trial ("Motion"), filed on August 23, 2019 ("Motion"). Plaintiff United

States of America (the "Government") opposed Defendant's Motion on September 3,2019 ("Opposition"). Plaintiff

replied on September 6, 2019 "Reply"). For the following reasons, the Court DENIES Defendant's Motion.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A.

Factual Background

On July 20, 2017 Defendant presented himself as a diplomat with the International Human Rights Commission

("IHRC") to a Transportation Security Administration ("TSA") official at Chicago O'Hare International Airport

("O'Hare"). (Mot. 2, ECF No. 140.) Defendant, intending to board a flight to Los Angeles International Airport

("LAX"), insisted his carry-on luggage was exempt from screening under the "Laws of the Geneva Convention"

and presented an IHRC "Diplomatic Identification Card." (Mot. 2-3.) TSA officials at O'Hare told Defendant that

his credentials were insufficient to pass through security and that he was required to present a valid diplomatic

passport in order to be exempt from screening. (Opp'n. 6-7,ECFNo. 147;Mot. 3.) After TSA informed Defendant

that his documents were insufficient to exempt his baggage from inspection, he declined to submit his baggage to

screening and did not board a flight. (Compl. 9, ECF No. 1.)

Later that same day, Defendant cancelled his flight out of O'Hare and booked a new flight from Chicago Midway

International Airport ("Midway") to LAX for that same afternoon. (Mot. 3.) This flight included a connecting

flight at Minneapolis-St. Paul International Airport ("MSP") before making its final arrival to LAX. (Mot. 3.)

Defendant again presented himself as an IHRC diplomat to TSA at Midway. (Opp’n. 8-9.) Midway TSA officials

permitted Defendant to travel without submitting his baggage for TSA screening. (Comp, f 10.) On July 25,2017,

Defendant again presented himself as a diplomat with the IHRC to Midway's TSA for a flight to MSP, with a later

connecting flight to LAX. (Mot. 4.) TSA officials accepted Defendant’s representation, and he was allowed to

travel without submitting his baggage for TSA security screening. (Mot. 4-5.) TSA officials at Midway

subsequently discovered that Defendant had not provided the correct credentials to be exempt from screening.

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(Opp'n. 10-11.) While Defendant was en route to LAX, TSA officials reported the incident to FBI and law

enforcement officials. (Mot. 4-5; Compl. 11.)

FBI agents and other law enforcement officers arrived at Defendant's boarding gate approximately 15-20 minutes

before his flight landed at LAX. (Mot. 5; Opp’n. 11.) Once the plane arrived at the terminal, an air marshal and

another law enforcement officer boarded the plane to escort Defendant off the flight. (Mot. 5; Opp'n. 11.)

Defendant cooperated with authorities and was observed "walking on his own accord" and "not fighting anyone."

(Opp'n. 11; Reporter's Transcript of Trial Proceedings Day 2 ("RT2") 378, ECF No. 118.) After the authorities

escorted Defendant to an interview room inside of LAX, the FBI conducted an interview with him for

approximately two hours. (Mot. 6.) Defendant was cooperative throughout the interview and continued to assert

that he was a bonafide diplomat. (Mot. 6; Opp'n. 11-12.) Defendant presented the same credentials and documents

to the interviewing agents and falsely told agents that he had never been turned away from a screening checkpoint

while attempting to travel with his diplomatic pouch. (Mot. 6-7; Opp'n. 12-13.)

The agents ultimately conducted a search of Defendant's bag and discovered approximately $148,145 in U.S.

currency stuffed inside plastic shopping bags. (Compl. 14.) Agents from the United States Department of State

later confirmed that Defendant has no diplomatic status with the Department's Office of Foreign Missions ("OFM")

and that the alleged ambassador Defendant claimed to be working for was not a recognized ambassador for any

organization. (Comp, f 17.)

B.

Procedural Background

On November 7, 2017, Flint was indicted on one count for entering an airport area in violation of security

requirements under 49 U.S.C. §§ 46314(a), (b)(2). (See generally Indictment, ECF No. 15.)

Defendant Flint's three-day jury trial began on October 16, 2018. (See generally Reporter's Transcript of Trial

Proceedings Trial Day 1 ("RT1"), ECF No. 117.) On October 18, 2018, the Court delivered the following jury

instructions as to the elements that the Government must prove beyond a reasonable doubt to sustain a conviction

under 49 U.S.C. §§ 46314(a), (b)(2):

the defendant entered an airport area that serves as an air carrier, namely, the sterile area of

(1)

Terminal 3 at Los Angeles International Airport;

(2)

the defendant did so in violation of security requirements and regulations prescribed under

sections 44901, 44903(c) of Title 49 of the United States Code1; and

1 The jury was also instructed that 49 U.S.C. § 44901 ("Section 44901") grants the head of the TSA (the

"Administrator") the authority to enact security requirements which "provide for the screening of all passengers and

property, including United States mail, cargo, carry-on, and checked baggage, and other articles that will be carried

aboard a passenger aircraft operated by an air carrier ... in air transportation or intrastate air transportation." 49

U.S.C. § 44901(a). Similarly, 49 U.S.C. § 44903(c) ("Section 44903(c)") states that the Administrator shall

prescribe regulations which require airport operators to "establish an air transportation security program that... is

adequate to ensure the safety of passengers." 49 U.S.C. § 44903(c). The relevant federal airport security

regulations and requirements prescribed under these enabling statutes were stated as follows:

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(3)

the defendant acted knowingly and willfully; and

(4)

the defendant also acted with the intent to evade the security regulation.

(.See Jury Instruction No. 14, ECF No. 131; RT3 445-48.)

The jury was instructed that the term "sterile area" is defined as meaning a "portion of an airport where passengers

have access to boarding aircraft and to which the access generally is controlled by the Transportation Security

Administration; an aircraft operator through the screening of persons and property." (See Jury Instruction No. 13.)

For a diplomatic pouch to be exempt from security screening at TSA, the diplomatic courier "must possess and

present to TSA a valid diplomatic passport... a courier letter ... and a diplomatic pouch ...[.]" (Id.) "Individuals

who are not diplomatic couriers and who do not possess valid diplomatic documentation must submit their items

for screening and inspection before entering the sterile area of an airport." (RT3 at 447.)

On October 19, 2018, the jury found Defendant Daniel Flint guilty of intentionally evading airport security

requirements, in violation of 49 U.S.C. §§ 46314(a), (b)(2). (See generally Reporter's Transcript of Trial

Proceedings Trial Day 4 ("RT4"), ECF No. 120; Jury Verdict, ECF No. 130.) Sentencing is set for Monday,

September 16,2019. (See ECF No. 156.)

1.

The Instant Motion

Defendant moves for the Court to vacate the jury's guilty verdict, dismiss all charges against him, or grant an

evidentiary hearing to address the issues he presents. (See Mot., ECF No. 158.)2 Alternatively, Defendant requests

that the Court vacates the judgment against him and grant Defendant a new trial pursuant to Federal Rule of

Criminal Procedure ("Rule") 33. (Id.) The Court addresses Defendant's requests in turn.

II.

DISCUSSION

The federal regulations and security requirements prohibit any person from entering a sterile area

of an airport or boarding an aircraft without submitting to screening and inspection of his or her

person and accessible property; circumventing or attempting to circumvent any security system,

measure, or procedure implemented to protect passengers and property on an aircraft; and/or

entering a sterile area without complying with the procedures being applied to the area. (See Jury

Instruction No. 13; RT3 445.)

2 The Court admonishes Defendant for violating the Court’s Standing Order, | 16(c). (See ECF No. 23 at Tfl6

("Memoranda of points and authorities in support of motions shall not exceed twenty-five (25) pages").)

Defendant's Motion is thirty-five (35) pages long. (See Mot.) In the future, the Court will strike or decline to

consider portions of Defendant's briefs which exceed the page limit imposed by the Standing Order.

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Legal Standard

1.

Petition for Writ of Error Coram Nobis

"Where the errors are of the most fundamental character, such that the proceeding itself is rendered invalid, the writ

of coram nobis permits a court to vacate its judgments." Estate ofMcKinney By & Through McKinney v. United

States, 71 F.3d 779, 781-82 (9th Cir. 1995) (quoting Hirabayashi v. United States, 828 F.2d 591, 604 (9th

Cir. 1987) (citation omitted)). District courts have authority to issue the writ under the All Writs Act, 28 U.S.C.

1651(a). Id. (internal citations omitted).

The writ of error coram nobis "affords a remedy to attack an unconstitutional or unlawful conviction in cases when

the petitioner already has fully served a sentence." Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994).

To qualify for coram nobis relief, a petitioner must demonstrate the following: (1) a more usual remedy is not

available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the

conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most

fundamental character."’ United States v. McClelland, 941 F.2d 999, 1002 (9th Cir.1991) (quoting Hirabayashi,

828 F.2d at 604).

2.

Motion For a New Trial

"Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest ofjustice so

requires." Fed. R. Crim. P. 33. "Any motion for a new trial grounded on newly discovered evidence must be filed

within 3 years after the verdict or finding of guilty." Id. at subd. (b)(1). "Any motion for a new trial grounded on

any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty."

Id. at subd. (b)(2).

A criminal defendant must satisfy a five-part test in order to prevail on a motion for a new trial: "(1) [T]he evidence

must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of a lack of

diligence on the defendant's part; (3) the evidence must be material to the issues at trial; (4) the evidence must be

neither cumulati ve nor merely impeaching; and (5) the evidence must indicate that a new trial would probably result

in acquittal." United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005); United States v. Hinkson, 585 F.3d

1247, 1283-84 (9th Cir. 2009) (same).

B.

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Defendant’s Petition for Writ of Error Coram Nobis is Denied

a.

Defendant's Petition is Procedurallv Barred

Defendant is not eligible for coram nobis relief because he has not yet been sentenced and therefore has not "fully

served" any sentence. Chaidez v. United States, 568 U.S. 342, 345 n.l (2013) (Petition for writ of coram nobis

provides a way to collaterally attack a criminal conviction for a person who is no longer in custody and therefore

cannot seek habeas relief.); United States v. Nosal, 743 F. App'x 816, 817 (9th Cir. 2018) ("The district court

properly denied Nosal's petition because the rare writ of coram nobis is not available until a petitioner already has

fully served [his] sentence.") (citing Telink, 24 F.3d at 45).

Defendant argues that the Ninth Circuit and the Supreme Court have never explicitly limited coram nobis relief to

“only” those petitioners who have already fully served their sentences, but this is not persuasive. The Ninth Circuit

and Supreme Court have made it clear that coram nobis relief exists to fill a "very precise gap in federal criminal

procedure"-it is meant for those who have already fully served their sentences and are therefore unable to pursue

habeas relief under 28 U.S.C. § 2255 to remedy any "lingering collateral consequences" from their unlawful

convictions. Telink, 24 F.3d at 45; Chaidez, 568 U.S. at 456 n.l. Defendant is not in that position. Defendant

presents no case law, and the Court is not aware of any, granting coram nobis relief to petitioners who have not yet

been sentenced.

Thus, Defendant is procedurally barred from seeking coram nobis relief.

b.

Defendant's Petition Lacks Merit

Even if Defendant were eligible to petition for coram nobis relief, the petition would fail on the merits because there

was no error of the "most fundamental character" here. McClelland, 941 F.2d at 1002.

Defendant requests coram nobis relief on a theory of ineffective assistance of counsel. (Mot. 15.) To prevail on

an ineffective assistance of counsel claim, Defendant must show that: (1) counsel's actions were outside the wide

range ofprofessionally competent assistance, measured under a standard of "reasonably effective assistance," Hovey

v. Ayers, 458 F.3d 892, 904 (9th Cir. 2006) (quoting Strickland v, Washington, 466 U.S. 668, 687 (1984); and that

(2) he was prejudiced by reason of counsel's actions, that is, there is "a reasonable probability" that "but for

counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland,

466 U.S. at 694). The standard a defendant must meet is both "rigorous" and "highly demanding," and requires a

showing of "gross incompetence" on the part of counsel. Kimmelman v. Morrison, 477 U.S. 365, 381-82 (1986).

Here, Defendant claims he received ineffective assistance of counsel because his appointed counsel in the Federal

Public Defender's Office (the "FPD") failed to contest the authenticity of the audio recording of his FBI interview,

despite his urging. (Mot. 15-27.) However, his trial counsel's strategic decision not to investigate or pursue a

motion to suppress the recording does not constitute ineffective assistance of counsel. In response to Defendant's

accusation, the Government provides a sworn declaration from Federal Air Marshall Wesley Williams who

interviewed Defendant on July 25, 2017/ (ECF No. 162-1 at

1-2.) Williams states that after he recorded

Defendant's interview on his iphone, he uploaded the audio files directly to the FBI's internal computer system,

MINUTES FORM 11

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Initials of Preparer

Case 2:17-cr-00697-PA

n%M^?TESFE{^^«JgRT P^m7 Pa9e ID #:2631

- CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

CASE NO.:

CR 2:17-00697 SJO-1

Send

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DATE: September 25.2019

made copies, and sent them to the Government. (Id. at 14.) Williams states that the files he sent were identical

to those recorded on his phone, and were not altered or manipulated in any way. (Id.) The Government confirms

that the audio recording Defendant received in discovery was the same audio recording which Williams

immediately uploaded to the FBI's internal computer system. (Mot. Ex. B, ECF No. 158-3.) Defendant provides

no evidence to refute these statements or show that the Government deleted any "original" audio recordings from

Defendant's interrogation. (See Reply.) Moreover, this recording was not admitted at trial. (Opp'n. 6.) Thus,

Defendant fails to show that his FPD’s failure to investigate or pursue a motion to suppress was ineffective

assistance, or that but for counsel's decision, the proceeding would have been different.

Defendant's petition for coram nobis relief fails on the merits.

c.

Conclusion

Defendant's Petition for coram nobis relief is DENIED.

2.

Defendant's Motion for a New Trial is Denied

a.

Defendant’s Motion for a New Trial is Untimely

Defendant argues that the expert report on the alleged "one-amplitude-frequency inconsistency" (the "Expert

Report") is newly discovered evidence warranting a new trial. (See Mot. Ex. A, ECF No. 158-1.) The Government

contends that all recorded audio was produced to counsel for Defendant on December 8, 2017, and produced the

audio clips for trial3 on October 10, 2018. (Opp'n. 7, ECF No. 162.) Defendant does not dispute that he received

this audio on December 8, 2017. (See Reply, ECF No. 163.) Because the audio itself, which is the basis of the

expert report, is not newly discovered, Defendant needed to hire an expert and if at all, file a Rule 33 Motion no

later than 14 days after October 19, 2018, the day that the jury rendered its verdict. Fed. R. Crim. P. 33(b)(2).

Thus, Defendant's Motion for a New Trial is untimely.

b.

Defendant's Motion for a New Trial Lacks Merit

As established, in order to receive a new trial: "(1) [T]he evidence must be newly discovered; (2) the failure to

discover the evidence sooner must not be the result of a lack of diligence on the defendant's part; (3) the evidence

must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5)

the evidence must indicate that a new trial would probably result in acquittal." Harrington, 410 F.3d at 601.

3 The evidence containing the alleged "one-amplitude-frequency inconsistency" was not admitted at trial. (Opp'n.

6.)

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''mmMrEs'MMiMKI P’q^ofl{ 7 Pa9e ID #:2637

CENTRAL DISTRICT OF CALIFORNIA

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CIVIL MINUTES - GENERAL

CASE NO.:

CR 2:17-00697 SJO-1

JS-5/JS-6

Scan Only

DATE: September 25.2019

Here, as the Government correctly points out and Defendant does not dispute, the underlying evidence is not newly

discovered. (Opp'n. 6; See Reply.) Further, Defendant could have discovered the alleged "one-amplitude-frequency

inconsistency" between December 8, 2017 and October 17, 2018, over ten months before his trial began. The

evidence that Defendant presents now was not material to issues at trial because it was not exculpatory, and it was

never presented. Moreover, Defendant does not challenge the accuracy of the audio exhibits that were introduced

as evidence at trial. (See Mot.; See Reply.) Moreover, Defendant fails to show that admission of this allegedly

newly discovered evidence would result in acquittal. Defendant does not challenge the authenticity or accuracy

of any ofthe evidence that actually was presented at trial. The evidence presented at trial was sufficient for the jury

to find Defendant guilty beyond a reasonable doubt of intentionally evading airport security requirements. As

such, is unlikely that presentation of the allegedly newly discovered evidence would result in acquittal.

Defendant's Motion for a New Trial is without merit.

c.

Conclusion

Defendant's Motion for a New Trial is DENIED.

III.

RULING

For the foregoing reasons, the Court DENIES Defendant's Motion in its entirety.

IT IS SO ORDERED.

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of

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Appendix E — Visual Aids (Color)

Figures 1 & 2:

• Catch-22 Timeline (first coram nobis dismissal vs. second)

• 318-Day Remedy Gap (Rule 33 & § 2255 availability)

31a

Flint's Catch-22 Timeline

Sentence Imposed / § 2255 Attaches

Sep 16 2019

Forensic Report

Mar 12 2019

N.C. Bar Hearing

Aug 3 2021

Hearing Transcript Received

Mar 23 2023

/

/

Jury Verdict

Oct 19 2018

1

BOP Release

Nov 16 2020

’ t

I

i r

I

2019

202U

Mich. Bar Case Concludes

Mar 28 2022

Supervised Release Ends

Nov 16 2023

7

7

2021

1

2022

202^*"

1st Coram Nobis Filed

Aug 23 2019

"T

I

2024

2d Coram Nobis Filed

Aug 5 2023

T

T

\

D.C. Denies:

"Has not fully served sentence"

Must wait until Nov 16 2023

Court Tefis Flint:

“ ' Should Have Filed After 1

D.C. Denies:

"Could have filed § 2255"

on Sept 16 2019

T

* i

C.A. Affirms:

"Not yet sentenced”

May 20 2021

C.A. Summarily Affirms

Jan 28 2025

Figure 1. District court dismissed Flint’s first coram-nobis petition as premature and his second as untimely,

leaving the claim unreviewable.

[AGap in Remedies, a Split Among Circuits

Rule 33 Deadline

(non-new evid.)

Nov 2 2018

Forensic Report Shows

Recording Manipulation

Mar 12 2019

Jury Verdic t

Oct 19 2018

1

SjT

14 days

Sentence Imposed

(§ 2255 Attaches)

Sep 16 2019

I

Dec

201'

Pter

i

Apr

¥

Ma<

Sep

318-Day Remedy Gap:

Rule 33(b)(2) Closed | § 2255 Not Yet Available

Oct

1st Coram Nobis Filed

Aug 23 2019

T

D.C. Denies:

Has not serverd sentence & is "in custody"

C.N. unavailable

Figure 2. During this 318-day gap—after Rule 33(b)(2) closed but before § 2255 attached—coram nobis is barred in five circuits,

allowed in three, and unsettled in four.

/

39.n

Appendix F - Email from Flint to Defense Counsel

(Pre-trial notice of missing transcript portion; October 2018)

33a

Original message

From: Craig Harbaugh

Date: 10/14/18 4:44 PM (GMT-05:00)

To: d2flint

Subject: Re: Hotels

We have it. I was planning to have you listen to it today when you arrive

Get Outlook for Android

On Sun, Oct 14, 2018 at 1:43 PM -0700, ,'d2flint"

wrote:

hey Craig, I am in the air reading over the transcript. Iam 100 percent certain a portion of the

questioning that was done is not included in the transcript. Specifically the portion relating to if I was ever

turned away before. The portion that is missing can be found on page 23 of the transcript. I will explain

more when I see you. Just wanted to give you a heads up. maybe we can pull that tape and listen to it

close

Sent from my Galaxy Tab® E

Original message

From: Craig Harbaugh

Date: 10/13/18 5:04 PM (GMT-05:00)

To: d2flint

, Courtney Bradford

Subject: RE: Hotels

Ok thanks. What time do you arrive tomorrow?

From: d2flint

Sent: Saturday, Octoberl3^2018fkl8AM

To: Courtney Bradford

34a

From:

To:

Craig_Harbaugh|

Date:

Monday, October 15, 2018, 8:04 AM EDT

I was right about the transcript. You can hear that they cut the audio!

I was right about the transcript. You can hear that they cut the audio!

35a

Appendix G — Email from Government to Defense Counsel

(Notice that interviewing air-marshal’s phone was wiped; Feb 2019)

36a

FW: USA v. Flint - Discovery Request

1 message

Craig Harbaugh

To: d2flint <91

Fri, Feb 8,2019 at 6:17 PM

Hi, Dan Here is the Government's response. I can call you next week to discuss.

Craig/Georgina,

We wanted to close the loop on your post trial request "for access to the original audio recording' of Mr. Flint's FBI

interview. As explained in my December email below, Air Marshall Williams recorded the Mirandized interview on his

government issued cell phone, and that phone was later returned to TSA because Mr. Williams was due for an phone

upgrade. TSA legal counsel confirmed that old phones turned into TSA are cleared of all data and then returned to

headquarters for disposal, and that is what we believe happened here. As you know, the government produced a copy of

Mr Flint' recorded interview on December 8 2017 a part of the government' fir t production Plea e give u a call if

you would like to meet and confer about the issue or discuss it further.

Best,

Ian

From: Craig Harbaugh^|^^^|^H|

Sent Monday Decembe^^2(H{^U)^l

To: Yanniello, Ian (USACAC)jmm

Cc: Georgina Wakefietdl

Subject: RE: USA v. Flint

k Ro, Christine (USACAC)I

ijscovery Request

Thanks!

From Yanniello Ian (USACAC) HHHHHHHHIII

Sent: Monday, December17i20^^^^^^^^^^^^^

|>; Ro, Christine (USACAC)

Harbaugh

Cc: Georgina WakeftelaH|^^^H^^^|

Subject RE USAv Flint Di coveryReque t

i>

Craig If you need additional time we don't oppo e your reque t for a hort continuance to the briefing chedule and

sentencing date. Thanks, Ian.

From: Craig Harbaugh_________________

Sent Monday December 17 201810 06 AM

37a

Appendix H - Expert Audio Authentication Report

United States Forensics, LLC (March 12, 2019)

38a

Phone: 727-777-4323

6295 Gulf Blvd. Suite #7 St. Pete Beach, FL 33706

Audio Authentication Report

USF Case Number: 1902124

Court Case Number: CR 17-697-SJO

United States of America v. Daniel Flint

I, Doug Camer (hereafter referred to as "expert") am an Audio-Video Enhancement and Authentication Forensic Expert

with United States Forensics, LLC. (Hereafter referred to as “USF”). I am a certified Audio Video Forensic Analyst,

Certified Forensic HiTech Investigator, Certified Computer Forensics Examiner, Certified Protection Professional.

Currently, I maintain the following Forensic Positions: Audio, Video & Photo Analysis expert (Los Angeles Superior

Court Panel of Experts - ICDA), Chair of the Forensic Working Group (American Society for Photogrammetry and

Remote Sensing), Digital and Multimedia Evidence subcommittee (American Society for Testing and Materials); Owner

of “Forensic - Audio Video Innovations and Solutions”. I am a member of the American Academy of Forensic Sciences,

Forensic Expert Witness Association, International Association for Identification, International Association of Forensic &

Security Metrology, and Scientific Association of Forensic Examiners. I have expertise in audio and video forensic

enhancement, assessment, authentication, tamper detection, and audio and motion detection.

I have personal knowledge of the following facts, certify that the following is true to the best of my knowledge, have no

personal interest as to the outcome of this case, performed all work in a forensically sound manner to reach the opinions

stated herein, and if called as a witness could and would testify competently thereto.

CASE BACKGROUND:

On March 11, 2019,1 was retained in the above case regarding evidence as described below. At issue is the integrity of the

evidence provided and whether there are any signs of alteration or tampering of the audio contents within.

EVIDENCE:

EON: 9091601

Description: Subject Audio

File Name: FLINT 592 - Daniel Flint 2.m4a

Hash Value: 2d7746fe3e5589e818c07cdf327edf4056440ed2

(Hash values are industry accepted digitalfingerprints used to uniquely identify electronic files)

EXAMINATION:

I performed identity, structural, meta, frequency and observational data analysis, inclusive of the tests listed upon the MAT

form (Exhibit A) on the evidence file:

1. Observational analysis:

A. Critical listening-viewing for synchronization inconsistencies, editing, or cloning.

B. Naturalism of dialog, frequency, and playing speed.

C. Detection of unexpected duplicate data.

RESULTS: Audio content flows without detected breaks or duplication. The observable audio frequencies and the

observed overall playing speed appear natural and consistent. No audio duplication was detected.

2. Metadata analysis:

A. Define types of data streams, anomalies, and the cumulative percentage.

39a

B. Compare the file naming and ’ ader/footer data, to known standards, the ^

*uring equipment, and case facts.

RESULTS: The reviewed recording is in an open and unprotected format saved in a lossy compression. The reviewed

recording’s chain-of-custody, equipment information, and geo location data was not present. The model number of

the capturing equipment is not known to me. Metadata indicates that the reviewed recording was created using

Apple’s VoiceMemos software, and is composed of one audio channel plus header/footer data. The reviewed

recording is in an open format audio file saved in two identical channels written with Apple’s VoiceMemos (iOS

10.3.2). The reviewed recording was created at 21:06:40 2017-07-27 UTC and modified 21:06:43 2017-07-27 UTC.

3. Audio analysis:

A. Noise profile range inconsistency to detect splicing or up-sampling.

B. DC ramping and subsonic spikes to detect stop-start events.

C. Detect amplitude and frequency range and distribution inconsistencies to detect post-production.

RESULTS: Noise profiles remain consistent. DC ramping and subsonic spike events were not detected. One

amplitude-frequency inconsistency was found at 5:58.14465 into the playing time, hereafter referred to as the

“Event”. Noise ceiling increases during the Event. The noise ceiling is maintained outside of the Event. Spike Event

occurs between utterances.

OPINIONS:

The Event (Exhibit A, Image #2) detected in the reviewed recording is not a natural occurrence. The Event contains

amplitude and spectral characteristics (Exhibit A, Image #1) that could not occur from normal file handling. The Event is

unique within the reviewed recording and consistent with editing or an otherwise non-continuous recording. The Event

occurs at five minutes and fifty-eight seconds into the reviewed recording’s playing time.

In summary, to a reasonable degree of expert confidence, the reviewed recording is found to be a manipulated

representation of the facts as they occurred.

Pursuant to 28 U.S.C. § 1746,1 declare under penalty of peijury that the foregoing is true and correct. I reserve the right to

perform additional services and to amend my opinions should additional facts become known.

Executed on: 03/12/2019

Executed in Los Angeles County

By:

Doug

Camer

EXHIBIT A

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Image #1: Waveform and spectral spot testing results

/

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41a

ultimedia Authentication Ter

'g

MAT (ver#4)

Analyst(s) name(s) Doug Carner

Testing date 03 / 11 / 2019

Tested file name FLINT 592 - Daniel Flint 2.m4a

Tested time range Entirety_____________________________ _ Size 12,966,606

bytes

MD5-\SHAl\hash 2d7746fe3e5589e818c07cdf327edf4056440ed2

File format

Data streams

Metadata

Date-times

Auditing data

\Open\-Proprietary in the m4a

extension identified as M4A

_ by file data

0____ % visual, 99

% audio (not entirely silent), and ]_

% other data

GPS No data_______

Hardware Apple

Created UTC 2017-07-27 21:06:40

Modified UTC 2017-07-27 21:06:43

Writing application: com.apple.VoiceMemos (iQS 10.3.2)

Image or Video Stream Analysis (check if testing is applicable!!])

Stream details

resized. _

interlaced.

color space.

x

resolution.

kb/s.___

_ writing library

codec using

Temporal analysis____ fps speed

unnatural.

duplicate frames.

time skipping.

Pass-Fail tests

PRNU____ . Data cloning

. PCA editing_____ . DCT editing _

JPEG editing

. HSV-Lab histogram

. Luminance gradient

Chromatic aberrations

. Double compression

. ELA-VELA

Thumbnail

. Noise

. Huffman table

. JPEG dimples

Threshold tests* ______________________________________________________________

* e.g. Temporal contrast, temporal diffusion, spatial predictability, temporal noise diversion, temporal histogram correlation, non-monotonous motion, etc.

Audio Stream Analysis (check if testing is applicable ■)

2 channels. 16 bit depth. 229 kb/s. 44.1 kHz sampling. mp4a-40-2 codec

Stream details

Perceptible up to about 5__

Spectral limits

kHz

Noise ceiling up to about 15.4

kHz

Simple analysis Resampling js___ detected

Audio data cloning not detected

Acute transitions Bias transition not detected

Noise profile transition not detected

Critical listening Speed inaccuracy

Stream de-synchronization no data detected

detected

Amplitude tests

No silence ( no data absent noise)

No

clipping ( no data in N/A time spans )

Not possible and found No temporally consistent signal frequencies to track

Signal tracking

Subsonic impulse Not possible and found No substantial subsonic events detected

Spot Testing (check if applicable■) Tested times are 5:58_____________________________

Acute shifts in:

Amplitude js___ detected. Content not detected. DC impulse not detected.

Frequency not detected. Noise profile not detected. Speed not detected.

(Reference relevant “Has", “Is" or “Fall" test results)

Additional tests, notes and observations:

Amplitude spike detected at 5:58.14465 Noise ceiling increase anomaly detected at spike event.

Spike event is unique to the recording. Spike event occurs between utterances._____________

Metadata denotes single channel source. The reviewed file contains two identical channels.

OPINION: To a definitive-high-ireasonable\(ieQree of expert confidence, the tested content is found

to be a faithful-questionable-\manipulated\representat\on of the facts as they occurred.

Answer with ("No", “Not", “Pass”) or (“Has", “Is", "Fail"). else "No data", where applicable. Select appropriate italic option. Forensic Wortring Group: 2018

Image #2: Multimedia Authentication Testing form

42a

Appendix I - Expert Audio Authentication Report

United States Forensics, LLC (May 30, 2019)

43a

Ujn.iflr<!j3i %Tr^,TJ*a5;

Phone: 727-777-4323

mju/vu unitfiH<fnt0<fnrfincir< mm

6295 GuifBlvd. Suite #7 St. Pete Beach, FL 33706

Audio Authentication Report

USF Case Number: 1902124

Court Case Number: CR 17-697-SJO

United States of America v. Daniel Flint

I, Doug Camer (hereafter referred to as "expert") am an Audio-Video Enhancement and Authentication Forensic Expert with

United States Forensics, LLC. (Hereafter referred to as “USF”). I am a certified Audio Video Forensic Analyst, Certified

Forensic HiTech Investigator, Certified Computer Forensics Examiner, Certified Protection Professional.

Currently, I maintain the following Forensic Positions: Audio, Video & Photo Analysis expert (Los Angeles Superior

Court Panel of Experts - ICDA), Chair of the Forensic Working Group (American Society for Photogrammetry and Remote

Sensing), Digital and Multimedia Evidence subcommittee (American Society for Testing and Materials); Owner of “Forensic

-Audio Video Innovations and Solutions”. I am a member of the American Academy of Forensic Sciences, Forensic Expert

Witness Association, International Association for Identification, International Association of Forensic & Security

Metrology, and Scientific Association of Forensic Examiners. I have expertise in audio and video forensic enhancement,

assessment, authentication, tamper detection, and audio and motion detection.

I have personal knowledge of the following facts, certify that the following is true to the best of my awareness, have no

personal interest as to the outcome of this case, performed all work in a forensically sound manner to reach the opinions

stated herein, and if called as a witness could and would testify competently thereto.

CASE BACKGROUND:

On March 11, 2019,1 was retained in the above case regarding evidence as described below. At issue is the integrity of the

evidence provided and whether there are any signs of alteration or tampering of the audio contents within.

EVIDENCE:

EON: 9091601

Description: Subject Audio

File Name: FLINT 592 - Daniel Flint 2.m4a

Hash Value: 2d7746fe3e5589e818c07cdf327edf4056440ed2

(Hash values are industry accepted digitalfingerprints used to uniquely identify electronicfiles)

Description: Verbatim transcription by the United States Department of Justice Federal Bureau of Investigation File

Name: flint_000785_flint_interview_transcript_redacted-2.pdf (hereafter referred to as the “Transcript”)

EXAMINATION:

I performed identity, structural, meta, frequency and observational data analysis, inclusive of the tests listed upon the MAT

form (Exhibit A) on the evidence file:

1. Observational analysis:

A. Critical listening-viewing for synchronization inconsistencies, editing, or cloning.

B. Naturalism of dialog, frequency, and playing speed.

C. Detection of unexpected duplicate data.

RESULTS: Audio content flows without detected breaks or duplication. The observable audio frequencies and the

observed overall playing speed appear natural and consistent. No audio duplication was detected.

2. Metadata analysis:

A. Define types of data streams, anomalies, and the cumulative percentage.

B. Compare the file naming and header/footer data, to known standards, the capturing equipment, and case facts.

RESULTS: The reviewed recording is in an open and unprotected format saved in a lossy compression. The reviewed

recording’s chain-of-custody, equipment information, and geo location data was not present. The model number of the

capturing equipment is not known to me. Metadata indicates that the reviewed recording was created using Apple’s

VoiceMemos software, and is composed of one audio channel plus header/footer data. The reviewed recording is in an

open format audio file saved in two identical channels written with Apple’s VoiceMemos (iOS

10.3.2). The reviewed recording was created at 21:06:40 2017-07-27 UTC and modified 21:06:43 2017-07-27 UTC.

3. Audio analysis:

A. Noise profile range inconsistency to detect splicing or up-sampling.

B. DC ramping and subsonic spikes to detect stop-start events.

C. Detect amplitude and frequency range and distribution inconsistencies to detect post-production.

RESULTS: Noise profiles remain consistent. DC ramping and subsonic spike events were not detected. One

amplitudefrequency inconsistency was found at 5:58.14465 into the playing time, hereafter referred to as the

“Event”. Noise ceiling increases during the Event. The noise ceiling is maintained outside of the Event. Spike Event

occurs between utterances “Before today?” and “[UI] and see if we can get this screened.” As defined by lines #17 and

#19 respectively on page #23 of the Transcript.

4. The waveform and spectral views (detailed in Exhibit A of this report) depict the Event as spanning 9ms and deviating in

both amplitude and frequency from the surrounding audio. During the Event, the auditory frequencies exceed the audio

beyond the Event, and thus the Event could not originate from the recorder’s microphone. The changes in amplitude and

frequency during the Event cannot result from any known file saving or compression method. Thus the event can only

originate from editing or equipment malfunction.

OPINIONS:

The Event occurs at five minutes and fifty-eight seconds into the reviewed recording’s playing time, and is composed of

unique spectral characteristics (Exhibit A of this report) that exceed the frequency ceiling of the non-Event audio. The

characteristics of the Event cannot result from normal file handling or compression, nor result from an audible event.

There is lost audio spanning either the duration of the Event, or of some missing or out of sequence time duration spliced

together, that resulted in the Event. Regardless of whether the Event is the result of recorder malfunction or human editing,

the audio of the reviewed audio file is an incomplete representation of the facts as they occurred.

The existence of the Event is fact, and its audio profile is inconsistent with known types of equipment malfunction.

However, it is possible to create the Event audio profile through audio editing manipulation. Since I am unable to explain

the Event by equipment malfunction, and the Event can be explained by editing manipulation, an opinion of content

manipulation is more likely than that of questionable content. Due to the absence of a definitive or high level of proof of

editing manipulation, the strength of my summary opinion shall not exceed a finding to a reasonable degree of certainty.

In summary, to a reasonable degree of expert confidence, the reviewed recording is found to be a manipulated representation

of the facts as they occurred.

Pursuant to 28 U.S.C. § 1746,1 declare under penalty of perjury that the foregoing is true and correct. I reserve the right to

perform additional services and to amend my opinions should additional facts become known.

Executed on: 05/30/2019

Executed in Los Angeles County

By:

Doug

Camer

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Image #1: Waveform and spectral spot testing results

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Multimedia Authentication Testing

MAT (ver#4)

Analyst(s) name(s) Doug Garner

Testing date 03 / 11 / 2019

Tested file name FLINT 592 - Daniel Flint 2.m4a

Size 12,966,606

Tested time range Entirety________________________________

bytes

MD5-\SHAl\hash 2d7746fe3e5589e818c07cdf327edf4056440ed2

File format

Data streams

Metadata

Date-times

Auditing data

|Open^Proprietary in the m4a

extension identified as M4A

by file data

% audio (not

entirely silent), and J_____ % other data

0_____% visual, 99

GPS No data

Hardware Apple__________________

Created UTC 2017-07-27 21:06:40

Modified UTC 2017-07-27 21:06:43

Writing application: com.apple.VoiceMemos (iOS 10.3.2)

Image or Video Stream Analysis (check if testing is applicable □)

resized. _

interlaced.

color space.

x

resolution.

Stream details

kb/s.___

codec using

writing library

Temporal analysis_____ fps speed

unnatural. ___ duplicate frames._____ time skipping.

Pass-Fail tests

PRNU_____ . Data cloning

. PCA editing______ . DCT editing______ .

JPEG editing _____ . HSV-Lab histogram

. Luminance gradient______ .

Chromatic aberrations^

. Double compression _

.ELA-VELA

Thumbnail

. Noise

. Huffman table

. JPEG dimples

Threshold tests*

'______________________________________ ________________________

* e.g. Temporal contrast, temporal diffusion, spatial predictability, temporal noise diversion, temporal histogram correlation, non-monotonous motion, etc.

Audio Stream Analysis (check if testing is applicable S)

Stream details

2_ channels. 16 bit depth. 229 kb/s. 44.1 kHz sampling. mp4a-40-2 codec

Noise ceiling up to about 15.4

kHz

Spectral limits

Perceptible up to about 5____ kHz

Simple analysis Resampling js___ detected

Audio data cloning not

detected

Acute transitions Bias transition not

detected

Noise profile transition not

detected

Critical listening Speed inaccuracy

detected

Stream de-synchronization no data detected

No

silence

(

no

data

absent

noise)

No

clipping ( no data in N/A time spans)

Amplitude tests

Not possible and found No temporally consistent signal frequencies to track

Signal tracking

Subsonic impulse Not possible and found No substantial subsonic events detected

Spot Testing (check if applicableffij) Tested times are 5:58_______________________________

Acute shifts in:

Amplitude js___ detected. Content not

detected. DC impulse not

detected.

Frequency not

detected. Noise profile not

detected. Speed not

detected.

(Reference relevant 'Has*, “Is" or "Fail" test results)

Additional tests, notes and observations:

Amplitude spike detected at 5:58.14465 Noise ceiling increase anomaly detected at spike event.

Spike event is unique to the recording. Spike event occurs between utterances.______________

Metadata denotes single channel source. The reviewed file contains two identical channels.

OPINION: To a definitive-high-lreasonableidegree of expert confidence, the tested content is found

to be a faithful-questionable-^nanipulated\representat\on of the facts as they occurred.

Answer with fNo", ’Not*, “Pass’) or (“Has’, ‘Is", "Fail*), else 'No data", where applicable. Select appropriate Italic option. Forensic Working Group: 2018

Image #2: Multimedia Authentication Testing form

Appendix J — Hearing Transcript Excerpt

North Carolina State Bar Hearing (August 3, 2021), pp. 97-101

48a

REBECCA MARRIOTT

Page 97

1

Verbatim transcript.

2

transcript?

3

actual document, not pdf 23.

4

pages.

Yeah.

Are you on the verbatim

Page 20 — oh, it's page 23

in the

So do down two more

5

MS. PERRY:

Okay, that's it.

6

MR. FLINT:

Right there.

Right there, yep.

7

Q

So page 23 there, line 13, if you scroll up.

8

A

Okay.

9

Q

Can you read please —

10

A

Okay.

11

Q

-- starting at line 13.

12

A

Line 13, "When was the last time you tried to

13

fly?"

"Today."

14

if we can get this screened."

15

"Before today."

"Unknown male, and see

On line 21, it's back to you.

"Do you want

16

to put it through or do you just want to — want to open

17

it?"

23, me, "I need to see what's in the bag."

18

Do you want me to keep going?

19

Q

Sure.

You can read

20

A

How far down did you —

21

Q

Read down to 27.

22

A

Okay.

23

Mr. Shumake.

24

Would it be all right?

25

not going to let it go out anyway, but I just wanted to

To 27.

Got it.

Number 25, "Hello,

They just want to see what's in the bag.

They are saying that they are

Date 8/3/2021

19 DHC 4

^»odeet&eimci

IRefi&rtceip

P.O. Box 1405, Elon, NC 27244

Bodenheimerreporting.com

49a

REBECCA MARRIOTT

1

Page 98

double check with you first."

(C

Q

So where is my answer? ( You testified under~^

(oath twice today that I answered your question.

(D

(it not in the transcript?

5

0

6

7

Why is")

(You did answer my questionT~)

Q

I know it.

to your question?

Sorry.

So do you see my answer

Do you see that in the transcript?

8

A

Yes.

(D

(Q

(Ts there an answer after "before"today"?

10

(there

an answer to that question?'])

\___ _______

11

0

m sorry.

Is )

Can you say that"again? )

12

Q

13

today"?

14

A

Okay.

(3D

(DC

(DD

(Q ;

(That was your question to me, when you said, )

("When was the last time you tried to fly before today?"

18

(l(m asking you why is my answer not in this transcript?

19

It would come after "before today," correct?

Sure.

Do you see where it says, "before

(You've testified twice that I answered that question.

(20C

(A]

)

(Well, I will_say we're not seeing the entire }

dD

(transcript right now, and you're showing me a portion ofj

(22^i

fit.

V:

@3~)

(provide an answer/whether or not it's the answer that I ~)

(24J

(wanted or you wanted to provide, but you did answer, and )

25

(you were speaking, so you did answer.

You answered.

I asked a question, and you did )

Date 8/3/2021

19 DHC 4

met fyeidatctH

P.O. Box 1405, Elon, NC 27244

Bodenheimerreporting.com

50a

REBECCA MARRIOTT

1

2

And again, I would like to go through the

entire transcript and not just a small portion of it.

3

4

Do you remember me telling you that I was

Q

turned away on June 20th?

5

6

Page 99

A

You did not tell me that you were turned

Q

That's your testimony.

away.

7

So what is

to the

8

best of your recollection, and you've already testified

9

twice that I in fact answered your question, "When was

10

the last time you tried to fly before today?"

11

best of your recollection, what was my answer?

A

12

13

To the best of my recollection, you told me,

"I do not recall," and you told me no.

14

15

To the

Okay.

Q

That is what I said a few lines above.

Can you see that on that same page?

16

A

Okay.

17

Q

So that was the answer to your question, but

18

- and this is line 2, "But you never -- but wait,

19

you've never been turned away from a screening

20

checkpoint."

21

"For?"

I said, "For?"

And you said, "For not wanting your bags to

So that answer that you just gave was not

22

be screened."

23

to your question, "When was the last time you tried to

24

fly?"

25

to your previous question.

The answer you just testified to was the answer

Date 8/3/2021

19 DHC 4

SadettAeimei fyei&atint

TQefi&ittttp

P.O. Box 1405, Elon, NC 27244

Bodenheimerreporting.com

51a

REBECCA MARRIOTT

1

Page 100

So my question again is, to the best to your

2

recollection, what was my answer to your question, "When

3

was the last time you tried to fly before today?"

4

Q

Can -- okay.

That was a lot.

Can you break

5

it down to your -- can I clarify to make sure that I'm

6

answering the correct question?

7

Q

Sure.

8

A

Okay.

You're wanting me to testify to my

9

question about whether or not you had been turned away

10

or the last time you flew.

11

of you can provide me either one.

12

you being turned away, it was a

13

was broad questions to try to elicit an answer.

14

To me it's one and the same

You flying before or

broad

all of this

I realize that you're wanting a specific

15

answer.

16

away or if you had flown before was me trying to elicit

17

if you had been turned away from a screening checkpoint

18

and if you were going to tell me that you had.

19

20

Q

However, me asking you if you'd been turned

Let's go back just one last time.

I asked

you twice under oath a very simple question; I asked you

21

22

A

Okay.

23

Q

I said -- when you asked me "When was the

24

last time you tried to fly before today?" and I told you

25

I answered you, and you agreed, and you said, "Yes, you

19 DHC 4

Date 8/3/2021

P.O. Box 1405, Elon, NC 27244

Bodenheimerreporting.com

52a

REBECCA MARRIOTT

1

answered me."

(D

Page 101

You testified to that twice under oath.

(My simple question"is, what was my answer to )

i^you when you asked me. "When was the last time you tried )

(D

B

B

(to fly before today?"

7

(question you're asking.

8

Q

(A~)

Q

)

You just testified under oath twice —

MS. CLOUTIER:

Q

11

12

(if it's not "in the' transcript, then that")

(answer to that question,_I do not recall, if that's the")

9

10

)

Objection.

He's badgering.

that I did.

MS. DAVIS:

Mr. Flint, can you go on to the

next question.

13

MR. FLINT:

We can move on.

14

MS. DAVIS:

She's answered that.

All right.

Earlier or -- I'm sorry.

15

16

17

Q

Okay, okay.

This

was a recorded conversation, correct?

A

I couldn't — just for the court's awareness,

18

I couldn't hear that conversa

19

conversation going on.

20

I know there was a

I just couldn't hear it.

MS. DAVIS:

Yes, ma'am.

There was an

21

objection, and I told Mr. Flint to ask another question.

22

You've already answered that question.

23

THE WITNESS:

24

MS. DAVIS:

25

THE WITNESS:

Okay.

Ask your next question please.

Okay.

Thank you.

19 DHC 4

Date 8/3/2021

‘S&dettA.eCm-e'i

P.O. Box 1405, Elon, NC 27244

Bodenheimerreporting.com

53a

Appendix K - Statutory Provisions

28 U.S.C. § 2241 & 28 U.S.C. § 2255

54a

28 U.S. Code § 2241 - Power to grant writ

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district

courts and any circuit judge within their respective jurisdictions. The order of a circuit judge

shall be entered in the records of the district court of the district wherein the restraint complained

of is had.

(b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an

application for a writ of habeas corpus and may transfer the application for hearing and

determination to the district court having jurisdiction to entertain it.

(c) The writ of habeas corpus shall not extend to a prisoner unless(1) He is in custody under or by color of the authority of the United States or is

committed for trial before some court thereof; or

(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an

order, process, judgment or decree of a court or judge of the United States; or

(3) He is in custody in violation of the Constitution or laws or treaties of the United

States; or

(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act

done or omitted under any alleged right, title, authority, privilege, protection, or

exemption claimed under the commission, order or sanction of any foreign state, or under

color thereof, the validity and effect of which depend upon the law of nations; or

(5) It is necessary to bring him into court to testify or for trial.

(d) Where an application for a writ of habeas corpus is made by a person in custody under the

judgment and sentence of a State court of a State which contains two or more Federal judicial

districts, the application may be filed in the district court for the district wherein such person is in

custody or in the district court for the district within which the State court was held which

convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to

entertain the application. The district court for the district wherein such an application is filed in

the exercise of its discretion and in furtherance of justice may transfer the application to the other

district court for hearing and determination.

28 U.S.C. § 2255 - U.S. Code - Unannotated Title 28. Judiciary and Judicial Procedure § 2255.

Federal custody; remedies on motion attacking sentence

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the

right to be released upon the ground that the sentence was imposed in violation of the

Constitution or laws of the United States, or that the court was without jurisdiction to impose

55a

such sentence, or that the sentence was in excess of the maximum authorized by law, or is

otherwise subject to collateral attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.

(b) Unless the motion and the files and records of the case conclusively show that the prisoner is

entitled to no relief, the court shall cause notice thereof to be served upon the United States

attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and

conclusions of law with respect thereto. If the court finds that the judgment was rendered without

jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to

collateral attack, or that there has been such a denial or infringement of the constitutional rights

of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate

and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial

or correct the sentence as may appear appropriate.

(c) A court may entertain and determine such motion without requiring the production of the

prisoner at the hearing.

(d) An appeal may be taken to the court of appeals from the order entered on the motion as from

a final judgment on application for a writ of habeas corpus.

(e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply

for relief by motion pursuant to this section, shall not be entertained if it appears that the

applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such

court has denied him relief, unless it also appears that the remedy by motion is inadequate or

ineffective to test the legality of his detention.

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period

shall run from the latest of—

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action

in violation of the Constitution or laws of the United States is removed, if the movant was

prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if

that right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.

(g) Except as provided in section 408 of the Controlled Substances Act, in all proceedings

brought under this section, and any subsequent proceedings on review, the court may appoint

counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory

56a

authority. Appointment of counsel under this section shall be governed by section 3006A of title

18.

(h) A second or successive motion must be certified as provided in section 2244 by a panel of the

appropriate court of appeals to contain—

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a

whole, would be sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.

57a

Appendix L - Order Appointing Counsel

58a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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