U.S. Department of Justice United States Attorney District of Maryland Southern Division Krist O'Malley Matting Address: Office Location: DIRECT: 301-344-4431 Sates Anomey {5500 Cherrywoad Lane, Suite 200 6406 ry Lane, $* Floor MAIN: 301-344-1833 usd go8 Greenbelt MD 207701219 Greenbelt MD 20770-1249 FAN: 301-344-1516 June 24, 2015 Barry J. Pollack Miller & Chevalier 655 Fifteenth Street, NW Suite 900 Washington, DC 20005 Re: United States v. Peter Flynn, Criminal No. GIH-1 Dear Mr. Pollack: This letter confirms the plea agreement, together with the sealed supplement, which has been offered to the Defendant by the United States Attorney's Office for the District of Maryland (“this Office”), If the Defendant accepts this offer, please have him execute it in the spaces provided below. If this offer has not been accepted by 5:00 p.m. on June 26, 2015, it will be deemed withdrawn, The plea agreement is entered into and will be submitted to the Court pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). The terms of the agreement are as follows: Offense of Conviction 1. The Defendant agrees to plead guilty to Count Two of the Indictment now pending against him, which charges him with possession of child pornography, in violation of 18 US.C. § 2252A(a)(5)(B). ‘The Defendant admits that he is, in fact, guilty of this offense and will so advise the Court. Elements of the Offense 2. The elements of the offense to which the Defendant has agreed to plead guilty, and which this Office would prove if the case went to trial, are as follows: (1) the Defendant knowingly possessed a visual depiction; (2) the visual depiction was transported in or affecting interstate of foreign commerce or the visual depiction was produced using materials that had been transported in or affecting interstate of foreign commerce; (3) the visual depiction was child pomography, as defined in Title 18 United States Code Section 2256(8), or material which contained such child pornography; and, (4) the Defendant knew of the sexually explicthe material and that the visual depiction was of an actual minor engaged in that sexually explicit conduct. Penalti 3. The maximum sentence provided by statute for the offense to which the Defendant is pleading guilty is as follows: a term of imprisonment of ten years, lifetime supervised release, and a fine of $250,000. In addition, the Defendant must pay $100 as a special assessment pursuant to 18 U.S.C. § 3013, which will be due and should be paid at or before the time of sentencing. This Court may also order him to make restitution pursuant to 18 U.S.C. §§ 3663, 363A, and 3664.' If a fine or restitution is imposed, it shall be payable immediately, unless, pursuant to 18 U.S.C. § 3572(d), the Court orders otherwise. The Defendant understands that if he serves a term of imprisonment, is released on supervised release, and then violates the conditions of his supervised release, his supervised release could be revoked — even on the last day of the term — and the Defendant could be returned to custody to serve another period of incarceration and a new term of supervised release. The Defendant understands that the Bureau of Prisons has sole discretion in designating the institution at which the Defendant will serve any term of imprisonment imposed. Waiver of Rights 4, The Defendant understands that by entering into this agreement, he surrenders certain rights as outlined below: a. If the Defendant had persisted in his plea of not guilty, he would have had the right to a speedy jury trial with the close assistance of competent counsel. That trial could be conducted by a judge, without a jury, if the Defendant, this Office, and the Court all agreed. b. If the Defendant elected a jury trial, the jury would be composed of twelve individuals selected from the community. Counsel and the Defendant would have the opportunity to challenge prospective jurors who demonstrated bias or who were otherwise unqualified, and would have the opportunity to strike a certain number of jurors peremptorily. All twelve jurors would have to agree unanimously before the Defendant could be found guilty of any count, The jury would be instructed that the Defendant was presumed to be innocent, and that presumption could be overcome only by proof beyond a reasonable doubt. c. If the Defendant went to trial, the Government would have the burden of proving the Defendant guilty beyond a reasonable doubt. The Defendant would have the right to confront and cross-examine the Government's witnesses. The Defendant would not have to present any defense witnesses or evidence whatsoever. If the Defendant wanted to call witnesses in his defense, however, he would have the subpoena power of the Court to compel the witnesses to attend. : Pursuant to 18 U.S.C. § 3612, if the Court imposes a fine in excess of $2,500 that remains unpaid 15 days after it is imposed, the Defendant shall be charged interest on that fine, unless the Court modifies the interest payment in accordance with 18 U.S.C. § 3612(f(3).d, The Defendant would have the right to testify in his own defense if he so chose, and he would have the right to refuse to testify. If he chose not to testify, the Court would instruct the jurors that they could not draw any adverse inference from his decision not to testify. ¢. If the Defendant were found guilty after a trial, he would have the right to appeal the verdict and the Court’s pretrial and trial decisions on the admissibility of evidence, to see if any errors were committed that would require a new trial or dismissal of the charges against him. By pleading guilty, the Defendant knowingly gives up the right to appeal the verdict and the Court's decisions. f. By pleading guilty, the Defendant will be giving up all of these rights, except the right, under the limited circumstances set forth in the “Waiver of Appeal” paragraph below, to appeal the sentence. By pleading guilty, the Defendant understands that he may have to answer the Court’s questions both about the rights he is giving up and about the facts of his case. Any statements the Defendant makes during such a hearing would not be admissible against him during a trial except in a criminal proceeding for perjury or false statement. g If the Court accepts the Defendant’s plea of guilty, there will be no further trial or proceeding of any kind, and the Court will find him guilty. h. By pleading guilty, the Defendant will also be giving up certain valuable civil rights and may be subject to deportation or other loss of immigration status. The Defendant recognizes that if he is not a citizen of the United States, pleading guilty may have consequences with respect to his immigration status. Under federal law, conviction for a broad range of crimes can lead to adverse immigration consequences, including automatic removal from the United States. Removal and other immigration consequences are the subject of a separate proceeding, however, and the Defendant understands that no one, including his attorney or the Court, can predict with certainty the effect of a conviction on immigration status. Defendant nevertheless affirms that he wants to plead guilty regardless of any potential immigration consequences. Advisory Sentencing Guidelines Appl 5. The Defendant understands that the Court will determine a sentencing guidelines range for this case (henceforth the “advisory guidelines range”) pursuant to the Sentencing Reform Act of 1984 at 18 U.S.C. §§ 3551-3742 (excepting 18 U.S.C. §§ 3553(bY(1) and 3742(e)) and 28 U.S.C. §§ 991-998. The Defendant further understands that the Court will impose a sentence pursuant to the Sentencing Reform Act, as excised, and must take into account the advisory guidelines range in establishing a reasonable sentence. Factual and Advisory Guidelines Stipulation 6. This Office and the Defendant understand, agree and stipulate to the Statement of Facts set forth in Attachment A hereto, which this Office would prove beyond a reasonable doubt, and to the following applicable sentencing guidelines factors:a, Pursuant to United States Sentencing Guidelines (“U.S.$.G.") § 2G2.2(a)(1), the base offense level is 18. b. Pursuant to U.S.S.G. § 2G2.2(b)(2), the base offense level is increased by 2levels to 20, because the material involved images of prepubescent minors who had not attained the age of 12 years. ©. Pursuant to U.S.S.G. § 2G2.2(b)(3)(F), the offense level is increased by 2 levels to 22, because the offense involved distribution. 4. Pursuant to U.S.S.G. § 2G2.2(b)(6), the offense level is increased by 2levels to 24, because the offense involved the use of a computer for the possession, transmission, receipt, or distribution of the material. e. Pursuant to U.S.S.G. § 2G2.2(b)(7), the offense level is increased by 5 levels to 29, because the offense involved 600 or more images of child pornography. f This Office does not oppose a 2-level reduction in the Defendant's adjusted offense level, based upon the Defendant's apparent prompt recognition and affirmative acceptance of personal responsibility for his criminal conduct. This Office agrees to make a motion pursuant to U.S.S.G. § 3E1.1(b), for an additional 1-level decrease in recognition of the Defendant's timely notification of his intention to plead guilty. This Office may oppose any adjustment for acceptance of responsibility if the Defendant (a) fails to admit each and every item in the factual stipulation; (b) denies involvement in the offense; (c) gives conflicting statements about his involvement in the offense; (d) is untruthful with the Court, this Office, or the United States Probation Office; (e) obstructs or attempts to obstruct justice prior to sentencing; (f) engages in any criminal conduct between the date of this agreement and the date of sentencing; or (g) attempts to withdraw his plea of guilty. If the Defendant obtains a 3-Level reduction, the final offense level will be 26. 7. This Office and the Defendant agree that with respect to the calculation of the advisory guidelines range, no other offense characteristics, sentencing guidelines factors, potential departures or adjustments set forth in the United States Sentencing Guidelines will be raised or are in dispute. Rule 11(c)(1(C) Plea 8. The parties stipulate and agree pursuant to Federal Rule of Criminal Procedure 11(©)(1\(C) that a sentence of at least 24 months imprisonment but no more than 78 months imprisonment in the custody of the Bureau of Prisons is the appropriate disposition of this case. This agreement does not affect the Court’s discretion to impose any lawful term of supervised release or fine or to set any lawful conditions of probation or supervised release. In the event that the Court rejects this plea agreement, either party may elect to declare the agreement null and void. Should the Defendant so elect, he will be afforded the opportunity to withdraw his plea pursuant to the provisions of Federal Rule of Criminal Procedure 11(c)(5)..Obligations of the Parties 9. At the time of sentencing, this Office and the Defendant will recommend a sentence within the stipulated range of 24 months imprisonment to 78 months imprisonment, and this Office will dismiss any open counts. 10. The parties reserve the right to bring to the Court’s attention at the time of sentencing, and the Court will be entitled to consider, all relevant information concerning the Defendant's background, character and conduct, including the conduct that is the subject of any open counts that this Office has agreed to dismiss at sentencing. Registration as a Sex Offender 11. The Defendant understands and agrees that, as a consequence of his conviction for the crime to which he is pleading guilty, he will be required to register as a sex offender, and to keep that registration current, in the place where he resides, where he is employed, and where he is a student, pursuant to the Sex Offender Registration and Notification Act (“SORNA”), and the laws of the state of his residence. Failure to do so may violate the terms of his supervised release and subject him to new criminal charges pursuant to 18 U.S.C. § 2250. Forfeiture 12, The Defendant understands that the Court will, upon acceptance of his guilty plea, center an order of forfeiture as part of his sentence, and that the order of forfeiture may include assets directly traceable to his offense, substitute assets, and/or a money judgment equal to the value of the property derived from, or otherwise involved in, the offense. Specifically, the Court will order forfeiture of (1) any visual depiction described in Title 18, United States Code, §§ 2251, 251A, or 2252, or any book, magazine, periodical, film, videotape, or other matter which contains any such visual depiction, which was produced, transported, mailed, shipped or received in violation of Title 18, United States Code, Chapter 110; (2) any property, real or personal, constituting or traceable to gross profits or other proceeds obtained from the offenses and (3) any property, real or personal, used or intended to be used to commit or to promote the commission of the offenses, including a black custom tower computer labeled “NZXT” and a Dell E520 tower computer with serial number G28R8CI. The Defendant agrees to consent to the entry of orders of forfeiture for such property and waives the requirements of Federal Rules of Criminal Procedure 11(b)(1)(J), 32.2 and 43(a) regarding notice of the forfeiture in the charging instrument, advice regarding the forfeiture at the change-of-plea hearing, announcement of the forfeiture at sentencing, and incorporation of the forfeiture in the judgment. This Office agrees to seek the Attorney General’s approval to apply forfeited assets to any Restitution Order. 13, The Defendant agrees to assist fully in the forfeiture of the foregoing assets. The Defendant agrees to disclose all of his assets and sources of income to the United States, and to take all steps necessary to pass clear title to the forfeited assets to the United States, including but not limited to executing any and all documents necessary to transfer such title, assisting in bringing any assets located outside of the United States within the jurisdiction of the United States, and taking whatever steps are necessary to ensure that assets subject to forfeiture are not, 5sold, disbursed, wasted, hidden or otherwise made unavailable for forfeiture. The Defendant further agrees that he will not assist any third party in asserting a claim to the forfeited assets in an ancillary proceeding and that he will testify truthfully in any such proceeding. Waiver of Further Review of Forfeiture 14, The Defendant further agrees to waive all constitutional, legal, and equitable challenges (including direct appeal, habeas corpus, or any other means) to any forfeiture cartied out in accordance with this Plea Agreement on any grounds, including that the forfeiture constitutes an excessive fine or punishment. The Defendant also agrees not to challenge or seek review of any civil or administrative forfeiture of any property subject to forfeiture under this agreement, and will not assist any third party with regard to such challenge or review or with regard to the filing of a petition for remission of forfeiture. Restitution 15, The Defendant agrees to the entry of a Restitution Order for the full amount of the victims’ losses. The Defendant agrees that, pursuant to 18 U.S.C. §§ 2259, 3663 and 3663A and §§ 3563(b)(2) and 3583(d), the Court may order restitution of the full amount of the actual, total loss caused by the offense conduct set forth in the factual stipulation. The Defendant further agrees that he will fully disclose to the probation officer and to the Court, subject to the penalty of perjury, all information, including but not limited to copies of all relevant bank and financial records, regarding the current location and prior disposition of all funds obtained as a result of the criminal conduct set forth in the factual stipulation. The Defendant further agrees to take all reasonable steps to retrieve or repatriate any such funds and to make them available for restitution, If the Defendant does not fulfill this provision, it will be considered a material breach of this plea agreement, and this Office may seek to be relieved of its obligations under this agreement. Waiver of Appeal 16. In exchange for the concessions made by this Office and the Defendant in this plea agreement, this Office and the Defendant waive their rights to appeal as follows: a. The Defendant knowingly waives all right, pursuant to 28 U.S.C. § 1291 or otherwise, to appeal the Defendant's conviction. b. If the Court accepts the plea agreement and imposes the agreed-upon sentence, the Defendant and this Office knowingly waive all right, pursuant to 18 U.S.C. § 3742 or otherwise, to appeal whatever sentence is imposed (including the right to appeal any issues that relate to the establishment of the advisory guidelines range, the determination of the Defendant's criminal history, the weighing of the sentencing factors, and the decision whether to impose and the calculation of any term of imprisonment, fine, order of forfeiture, order of restitution, and term or condition of supervised release). c. Nothing in this agreement shall be construed to prevent the Defendant or this Office from invoking the provisions of Federal Rule of Criminal Procedure 35(a), or fromappealing from any decision thereunder, should a sentence be imposed that resulted from arithmetical, technical, or other clear error. d. The Defendant waives any and all rights under the Freedom of Information Act relating to the investigation and prosecution of the above-captioned matter and agrees not to file any request for documents from this Office or any investigating agency. Obstruction or Other Violations of Law 17, The Defendant agrees that he will not commit any offense in violation of federal, state or local law between the date of this agreement and his sentencing in this case. In the event that the Defendant (i) engages in conduct after the date of this agreement which would justify a finding of obstruction of justice under U.SS.G. § 3CI.1, or (ii) fails to accept personal responsibility for his conduct by failing to acknowledge his guilt to the probation officer who prepares the Presentence Report, or (iii) commits any offense in violation of federal, state or local law, then this Office will be relieved of its obligations to the Defendant as reflected in this agreement, Specifically, this Office will be free to argue sentencing guidelines factors other than those stipulated in this agreement, and it will also be free to make sentencing recommendations other than those set out in this agreement. As with any alleged breach of this agreement, this Office will bear the burden of convincing the Court of the Defendant's obstructive or unlawful behavior and/or failure 10 acknowledge personal responsibility by a preponderance of the evidence. The Defendant acknowledges that he may not withdraw his guilty plea because this Office is relieved of its obligations under the agreement pursuant to this paragraph. Agreement 18. This letter supersedes any prior understandings, promises, or conditions between this Office and the Defendant and, together with the Sealed Supplement, constitutes the complete plea agreement in this case. The Defendant acknowledges that there are no other agreements, promises, undertakings or understandings between the Defendant and this Office other than those set forth in this letter and the Sealed Supplement and none will be entered into unless in writing and signed by all parties. If the Defendant fully accepts each and every term and condition of this agreement, please sign and have the Defendant sign the original and return it to me promptly. Very truly yours, Rod J. Rosenstein United States Attomey } Assistant United States AttorneyT have read this agreement, including the Sealed Supplement, and carefully reviewed ‘every part of it with my attorney. I understand it, and I voluntarily agree to it. Specifically, I have reviewed the Factual and Advisory Guidelines Stipulation with my attorney, and I do not wish to change any part of it. I am completely satisfied with the representation of my attomey. Date Peter Flynn Iam Peter Flynn’s attorney. I have carefully reviewed every part of this agreement, including the Sealed Supplement, with him, He advises me that he understands and accepts its terms. To my knowledge, his decision to enter into this agreement is an informed and voluntary one, Date Barry J. Pollack, Esq.ATTACHMENT A ‘Statement of Facts The United States and Defendant Peter Flynn stipulate and agree that if this case proceeded to trial, the United States would prove the facts set forth below beyond a reasonable doubt. They further stipulate and agree that these are not all of the facts that the United States would prove if this case proceeded to trial. At all times relevant to this case, the Defendant, PETER FLYNN (“FLYNN”), was a resident of Silver Spring, Maryland. On April 3, 2014, a Maryland State Police (“MSP”) Corporal was conducting an online investigation into individuals sharing child pornography on a peer-to-peer file sharing network. On that date, the MSP Corporal downloaded approximately 205 images and videos of children engaged in sexually explicit conduct that FLYNN made available for sharing through a peer-to- peer file sharing network. The following is an example of one of the files FLYNN made available for sharing on April 3, 2014: © A video titled (Pthe) 6yo Favela Full (1+2).avi that is 15 minutes and 44 seconds long and starts with an adult male shoving his hands in the shorts in what appears to be the vaginal area of a prepubescent female. The video changes to several different scenes in which the adult male digitally penetrates and then uses his penis to penetrate the vagina of the child. ‘At some point after the above-described video was downloaded by the MSP Corporal in April 2014 and before September 30, 2014, FLYNN placed the video in the recycle bin on his computer. On September 30, 2014, law enforcement officers executed a search warrant at FLYNN’s residence in Silver Spring, Maryland. Pursuant to the warrant, law enforcement seized, among other items, a black custom tower computer labeled “NZXT” and a Dell E520 tower computer with serial number G28R8C1, both of which were located in the basement of FLYNN’s residence. ‘Also on September 30, 2014, FLYNN waived his Miranda rights and agreed to be interviewed by members of law enforcement, FLYNN admitted to having a file sharing program ‘on his computer for at least two or three years. FLYNN also admitted that law enforcement may find child pornography on his computer and that approximately 75% of the pornography on his computer was “young stuff.” AA forensic analysis of the custom tower computer revealed a “downloads” folder on the hard drive associated with the peer-to-peer file sharing program that contained approximately 27,255 images and 715 videos of child pomography and child erotica, the majority of which constitute child pornography. ‘The Recycle Bin folder on the same computer contained approximately 22,635 images and 436 videos of child pornography and child erotica, the majority of which constitute child pornography. The forensic analysis also revealed that FLYNN downloaded the peer-to-peer file sharing program onto the custom tower computer on 2November 26, 2012 and deleted the program in July 2014. Even after deleting the program, FLYNN maintained and continued to access the “downloads” folder associated with the program in which he stored images and videos of child pornography through at least September 21, 2014. {A forensic analysis of the Dell E520 computer revealed that FLYNN downloaded a peer- to-peer file sharing program onto that computer on July 28, 2008 and last accessed the “downloads” folder containing child pornography on May 2, 2011. The Dell computer contained approximately 1,530 images and 80 videos of child pornography and child erotica, the majority of which constitute child pornography. The Recycle Bin folder on the Dell computer also contained 248 images of child pornography and child erotica. The following are descriptions of some of the videos and images of children engaged in sexually explicit conduct recovered from FLYNN’s computers in addition to the video previously described that was downloaded by the MSP Corporal: «A video titled ! New ! (Pthe) Tara 8Yr - Tara Gets Molested By A Clown(taraPart 1).mpg that is 11 minutes and 38 seconds in length and depicts an adult male with a clown mask digitally penetrating a naked prepubescent female, having the child perform fellatio on him, and then engaging in sexual intercourse with the child. The child, at times, makes sounds as if she is in At one point during the video, the adult male asks the child, “Do you like being raped?” to which the child responds, “Yes.” The video ends with the adult male telling the child to say, “Rape me” and with the child then complying. * A video titled !!!NEW!! (pthe) nablot_2.avi that is 25 minutes and 17 seconds in length and depicts a prepubescent female lying on her stomach with her buttocks in the air. An adult male inserts beads into the child’s anus and then pulling the beads out as the girl makes noises suggesting pain. The video also depicts the adult male performing cunnilingus on a second child, a prepubescent girl inserting a dildo into her vagina and anus, and other girls penetrating their vaginas with dildos and fingers. © An image titled touch-01 1b-054 jpg that depicts a prepubescent girl naked sitting ona circular red raft. The gir! has her legs spread wide open exposing her vagina. She is looking at the camera smiling. An “LS Models” label is in the top left comer of the photo. © An image titled natur-03-061 jpg that depicts a prepubescent girl lying naked on her back with her legs spread open. The camera is positioned close to her vagina and her face is visible as well. The “LS Models” logo is written in the top right comer of the photo. © Animage titled pthe_ptsc_9yo jenny in nylons and collar tied up.jpg that depicts a prepubescent girl wearing only thigh high black stockings lying on her back. Her knees are bent and spread wide apart exposing her vagina. Her legs and wrists are bound together with yellow rope. 10‘The images and videos depict real children engaged in sexually explicit conduct. The images and videos possessed by FLYNN were transported through the Internet and therefore traveled in interstate and foreign commerce. T have read this statement of facts, and have carefully reviewed it with my attomey. I understand it, and I voluntarily agree to it. I do not wish to change any part of it. I acknowledge that it is true and correct. Date Peter Flynn Iam Peter Flynn’s attomey. I have carefully reviewed every part of this Statement of Facts with him. To my knowledge, his decision to sign it is an informed and voluntary one. Date Barry J. Pollack, Esq. nl