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(January 28, 2025) (unpublished)...........................................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California (February 16, 2024) (unpublished)..................... 3a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(May 20, 2021) (unpublished)....................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California (September 11, 2019) (unpublished)................. 23a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(January 28, 2025) (unpublished)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.
2a
Appendix B - Order & Opinion
United States District Court for the Central District of California
(February 16, 2024) (unpublished)
3a
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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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S. James Otero
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Victor Paul Cruz
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Deputy Clerk
Court Reporter/Recorder, Tape No.
Assistant U.S. Attorney
U.S.A. v. Defendants'):
Daniel Flint
Present Cust. Bond
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Attorneys for Defendants:
Gregory Nicolaysen
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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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T) —
~ .c
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
Enter
Closed
JS-5/JS-6
Scan Only
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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Case 2:17-cr-00697-PA
''mmMrEs'MMiMKI P’q^ofl{ 7 Pa9e ID #:2637
CENTRAL DISTRICT OF CALIFORNIA
Send
Enter
Closed
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.
MINUTES FORM 11
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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
40a
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Image #1: Waveform and spectral spot testing results
/
I
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.