Case 1:18-cr-00083-TSE Document 304 Filed 10/17/18 Page 1 of 6 PageID# 6635

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA
v.
PAUL J. MANAFORT, JR.,

Crim. No. 1:18-cr-83 (TSE)

Defendant.

GOVERNMENT’S FILING IN RESPONSE TO THE COURT’S
OCTOBER 10, 2018 ORDER SETTING A STATUS CONFERENCE
The United States of America, by and through Special Counsel Robert S. Mueller, III,
submits this filing in advance of the status conference scheduled for October 19, 2018. See Doc.
299 (Oct. 10, 2018 Order, hereinafter “Order”). On October 10, 2018, the Court ordered the parties
to appear so that: (i) defendant Paul J. Manafort, Jr. can be advised regarding his right to the
preparation of a Presentence Investigation Report (PSR); (ii) a sentencing date can be set and a
PSR ordered; and (iii) the parties may address dismissal of the outstanding counts on which the
jury deadlocked at trial. Doc. 299 at 2.
As noted herein, the government does not oppose either the commencement of preparing
the PSR or the scheduling of a sentencing date.1 With respect to the outstanding counts in the
Eastern District of Virginia prosecution, the government prefers to have the disposition of those
counts deferred to the time of sentencing or the successful completion of the defendant’s
cooperation, as agreed to in the parties’ plea agreement, previously provided to the Court. In the

1

With the consent of defense counsel, the government had contacted the Probation
Department, prior to the Court’s October 10, 2018 Order, to inquire whether the PSR process could
be initiated.
1

 Case 1:18-cr-00083-TSE Document 304 Filed 10/17/18 Page 2 of 6 PageID# 6636

alternative, should the Court seek resolution of those counts now, the government does not oppose
the dismissal of those counts without prejudice.

Counsel for Manafort has informed the

government that Manafort does not oppose the government’s positions.
BACKGROUND
On August 21, 2018, a jury sitting in the Eastern District of Virginia found defendant
Manafort guilty of five counts of subscribing a false tax return, one count of failing to file reports
of foreign bank accounts, and two counts of bank fraud. Doc. 280. The Court declared a mistrial
as to the remaining counts. Doc. 264. On August 30, 2018, the Court extended the deadline for
the government to file notice of its intent to retry the ten outstanding counts to within one week of
the Court’s ruling on the post-trial motions of the defendant. Doc. 292.
On September 14, 2018, Manafort pled guilty, pursuant to a cooperation agreement, to a
two-count superseding information in the United States District Court for the District of Columbia,
Case No. 17-cr-201-ABJ (D.D.C.). In that agreement, the parties agreed that the government
would move to dismiss the outstanding counts in the Eastern District of Virginia “at the time of
sentence or at the completion of [Manafort’s] successful cooperation, whichever is later.” Id. at
2-3. Manafort also admitted his liability for the conduct forming the basis of the outstanding
counts before this Court. The government notified this Court of the plea on the day it was entered
and accepted. Doc. 296.
On September 20, Manafort submitted notice to the Court that, pursuant to the plea
agreement in the District of Columbia prosecution, he would not be filing any post-trial motions
in this Court. Doc. 297. On September 26, the government filed a notice explaining that, in
accordance with the D.C. plea agreement, it would “move to dismiss the hung counts and any other

2

 Case 1:18-cr-00083-TSE Document 304 Filed 10/17/18 Page 3 of 6 PageID# 6637

remaining counts at the time of sentence or at the completion of [Manafort’s] successful
cooperation, whichever is later.” Doc. 298.
DISCUSSION
The government has no objection to the Court scheduling a sentencing date prior to the
conclusion of any cooperation. Although some district courts prefer to sentence at a later date—
so that the full scope of cooperation is before the court and it can sentence once (as opposed to
entertaining a Rule 35 application for reduction of sentence)—it is well within the Court’s
discretion to require sentencing at an earlier point. The government has no objection to proceeding
in that manner, and defense counsel has indicated that Manafort does not either.
With respect to the mistried counts, as agreed by the parties, the government believes that
they should be dealt with at either the time of sentencing or when the defendant’s successful
cooperation is complete. The government has not found any rule or case law, including any rulings
by this Court, that would preclude the dismissal of outstanding counts at sentencing. See, e.g.,
United States v. Lewellyn, Nos. 91-5530, 91-5531, 1992 WL 9318, at * 3 (4th Cir. 1992) (“Under
each agreement, the government promised to dismiss other counts of the indictment at the time of
sentencing.”); United States v. Lindh, 227 F. Supp. 2d 565, 566 n.2 (E.D. Va. 2002) (where
defendant pleaded guilty to some counts, “[t]he remaining nine counts of the ten-count Indictment
were dismissed on the government’s motion at the time of sentencing”); Stewart v. United States,
No. 3:05-cr-104, 2008 WL 4811474, at *1 (W.D.N.C. Oct. 31, 2008) (the defendant “entered into
a written plea agreement with the Government wherein he agreed to plead guilty to Count One and
Counts Two and Three would be dismissed at the time of sentencing”). The government has not
found precedent suggesting that outstanding counts must be dismissed before sentencing.

3

 Case 1:18-cr-00083-TSE Document 304 Filed 10/17/18 Page 4 of 6 PageID# 6638

Notwithstanding the absence of controlling authority to the contrary, to the extent the Court
requires the resolution of the outstanding counts prior to sentencing, the government does not
oppose the dismissal of those counts without prejudice.2
CONCLUSION
For these reasons, the government submits that the PSR can be prepared now and the
government has no opposition to the Court’s scheduling the matter for sentencing.

The

government also submits that the outstanding counts properly can be dismissed either at sentencing
or at the completion of the defendant’s successful cooperation. To the extent the Court seeks
immediate action on the outstanding counts, the government does not oppose their dismissal
without prejudice.

2

As another district court has explained, “there is a strong presumption in favor of a
dismissal without prejudice over one with prejudice.” United States v. Florian, 765 F. Supp. 2d
32, 34-35 (D.D.C. 2011). Courts in this circuit and elsewhere have regularly followed that practice
in cases involving mistrials declared due to the jury’s failure to reach a verdict. See, e.g., United
States v. Whittemore, 776 F.3d 1074, 1077 (9th Cir. 2015) (“The jury could not reach a verdict on
a second charge of making a false statement to a federal agency. The district court declared a
mistrial on that count and granted the government’s motion to dismiss without prejudice.”); United
States v. Moore, 763 F.3d 900, 908 (7th Cir. 2014) (following guilty verdicts on Counts Two and
Three and a failure to reach a verdict on Count One, “the court formally entered findings of guilt
on the latter two counts, declared a mistrial on Count One, and, on the government’s motion,
dismissed Count One without prejudice”); United States v. Smith, 705 F.3d 1268, 1271 (10th Cir.
2013) (“The district court declared a mistrial as to four other counts on which the jury could not
reach a verdict, later dismissing these counts without prejudice.”); see also United States v. Steele,
No. 99-4589, 2000 WL 690494, at *2 (4th Cir. 2000) (unpublished) (“After two days of
deliberations the jury reported twice to the district court that it was hopelessly deadlocked. The
court declared a mistrial, and the [Office of Independent Counsel] elected not to retry Steele. The
indictment was dismissed without prejudice.”). Dismissal with prejudice is available only in
extreme circumstances, such as where the government acts in bad faith. See United States v.
Goodson, 204 F.3d 508, 512-513 (4th Cir. 2000); Florian, 765 F. Supp. 2d at 35. No such
circumstances are present here. 
4

 Case 1:18-cr-00083-TSE Document 304 Filed 10/17/18 Page 5 of 6 PageID# 6639

Respectfully submitted,
ROBERT S. MUELLER, III
Special Counsel
Dated: October 17, 2018

/s/
Andrew Weissmann
Greg D. Andres
Brandon L. Van Grack
U.S. Department of Justice
Special Counsel’s Office
950 Pennsylvania Avenue NW
Washington, D.C. 20530
Telephone: (202) 616-0800

Uzo Asonye
Assistant United States Attorney
Eastern District of Virginia

Attorneys for United States of America

5

 Case 1:18-cr-00083-TSE Document 304 Filed 10/17/18 Page 6 of 6 PageID# 6640

CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of October, 2018, I will cause to be filed electronically
the foregoing with the Clerk of Court using the CM/ECF system, which will then send a
notification of such filing (NEF) to the following:
Thomas E. Zehnle (VA Bar No. 27755)
Law Office of Thomas E. Zehnle
601 New Jersey Avenue, N.W., Suite 620
Washington, D.C. 20001
tezehnle@gmail.com
Jay R. Nanavati (VA Bar No. 44391)
Kostelanetz & Fink LLP
601 New Jersey Avenue, N.W., Suite 620
Washington, D.C. 20001
jnanavati@kflaw.com

/s/
____
Uzo Asonye
Assistant United States Attorney
U.S. Attorney’s Office
Eastern District of Virginia
2100 Jamieson Avenue
Alexandria, VA 22314
uzo.asonye@usdoj.gov
Phone: (703) 299-3700
Fax: (703) 299-3981
Attorney for the United States of America

6