Case 1:18-cr-00032-DLF Document 381 Filed 03/16/20 Page 1 of 9

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
CONCORD MANAGEMENT
AND CONSULTING LLC and
CONCORD CATERING,

Criminal No. 18-CR-32 (DLF)

Defendants.
MOTION TO DISMISS CONCORD DEFENDANTS
On February 16, 2018, a grand jury in this district returned an eight-count indictment
against thirteen Russian individuals and three corporate defendants, including Concord
Management and Consulting LLC (hereinafter, “Concord”) and Concord Catering (collectively
with Concord Management and Consulting LLC, the “Concord Defendants”). The indictment
alleges that the defendants engaged in what they dubbed “information warfare against the United
States of America”—a systematic effort to sow political discord and influence the outcome of the
2016 U.S. presidential election—and charged the defendants with conspiring to defraud the federal
agencies responsible for preventing and counteracting improper foreign influence on U.S.
elections. On April 11, 2018, Concord voluntarily entered an appearance in this case through its
U.S.-based counsel. See ECF Nos. 2, 3. Soon thereafter, at the May 9 initial hearing, counsel
confirmed to the Court that it was authorized “to enter a voluntary appearance in this matter and
to subject [Concord] to the jurisdiction of this Court.” 5/9/18 Tr. 5 (ECF No. 9). And the Court
confirmed Concord’s understanding that by submitting to the Court’s jurisdiction, Concord “must
also comply with the Federal Rules of Criminal Procedure, the rules of this Court, and with the
orders of this Court.” Id. Recent events reveal Concord’s intent to do otherwise.

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Although Concord has availed itself of the Court’s jurisdiction to obtain discovery from
the United States regarding efforts to detect and deter foreign election interference (some of which
was leaked online, in violation of the Court’s protective order and, apparently, to discredit the
investigation, see ECF No. 94, at 8-11), when pressed to comply with its obligations as a party to
this litigation, it has refused to do so. Most recently, in the government’s view, Concord failed to
comply with two Court-issued trial subpoenas, see ECF Nos. 362, 367, ignored a Court order to
make available a corporate representative, see ECF Nos. 364, 367, and submitted a misleading (at
best) declaration from an incredible declarant, Yevgeniy Prigozhin, the Russian oligarch and codefendant who controls Concord and is alleged in the indictment as having funded and directed
the defendants’ election interference campaign. See ECF Nos. 376-1, 377, 378. In short, Concord
has demonstrated its intent to reap the benefits of the Court’s jurisdiction while positioning itself
to evade any real obligations or responsibility.
Upon careful consideration of all of the circumstances, and particularly in light of recent
events and a change in the balance of the government’s proof due to a classification determination,
as well as other facts described in more detail in a classified addendum to this motion, the
government has concluded that further proceedings as to Concord, a Russian company with no
presence in the United States and no exposure to meaningful punishment in the event of a
conviction, promotes neither the interests of justice nor the nation’s security. The government has
therefore decided that the calculation of whether a substantial federal interest is served by this
prosecution, see Justice Manual § 9-27.230, has changed since the indictment was returned, and
the better course is to cease litigation as to the Concord Defendants. 1

1

Although Concord Catering has not appeared in this case, the government is seeking its
dismissal based on the likelihood that its approach to litigation would be the same as Concord if it
did appear. Like Concord, Concord Catering is a Russian company controlled by Prigozhin that
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Accordingly, and respectfully, pursuant to Federal Rule of Criminal Procedure 48(a), the
government moves to dismiss with prejudice Count One of the indictment as to the Concord
Defendants.
LEGAL PRINCIPLES
Under Federal Rule of Criminal Procedure 48(a), the government may move to dismiss
charges in a pending case. See, e.g., United States v. Poindexter, 719 F. Supp. 6, 10-11 (D.D.C.
1989). When the government moves to dismiss a criminal case before trial, courts do not play a
“substantial role” in “the determination whether to dismiss.” United States v. Fokker Servs. B.V.,
818 F.3d 733, 742 (D.C. Cir. 2016). Rather, a court’s determination is a “narrow one.” Id. A
court “reviews the prosecution’s motion under Rule 48(a) primarily to guard against the prospect
that dismissal is part of a scheme of ‘prosecutorial harassment’ of the defendant through repeated
efforts to bring—and then dismiss—charges.” Id. (citing Rinaldi v. United States, 434 U.S. 22, 29
n.15 (1977)). Here, there is no danger of such prosecutorial harassment, as the government is
moving to dismiss the charge against Concord with prejudice.
A court may not deny the government’s motion to dismiss charges “based on a
disagreement with the prosecution’s exercise of charging authority” such as “a view that the
defendant should stand trial.” Fokker Servs., 818 F.3d at 742. The decision whether to proceed
to trial or to dismiss a charge “lie[s] squarely within the ken of prosecutorial discretion.” Id.. The
government’s exercise of prosecutorial discretion must take into account myriad factors beyond
simply the strength of the government’s case and likelihood of conviction. See, e.g., United States

has no presence in the United States and no exposure to meaningful punishment in the event of a
conviction.

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v. Armstrong, 517 U.S. 456, 465 (1996); Wayte v. United States, 470 U.S. 598, 607 (1985); see
also Heckler v. Chaney, 470 U.S. 821, 831-832 (1985).
Among other things, the government must weigh the benefits of securing a guilty verdict
against the costs of presenting the case at trial, including the potential harms of exposing
information and sensitive techniques of great importance to law enforcement, the intelligence
community, or both. “[N]o governmental interest is more compelling than the security of the
Nation.” United States v. Poindexter, 725 F. Supp. 13, 34 (D.D.C. 1989) (quoting Haig v. Agee,
453 U.S. 280, 307 (1981)); see also CIA v. Sims, 471 U.S. 159, 175 (1985) (“The Government has
a compelling interest in protecting both the secrecy of information important to our national
security and the appearance of confidentiality so essential to the effective operation of our foreign
intelligence service.”). In protecting that interest, the government must remain vigilant about
safeguarding even “bits and pieces of data,” which can aid sophisticated actors intent on harming
this country. Id. at 178. “Even a small chance” of disclosing national security information is a
serious matter. Tenet v. Doe, 544 U.S. 1, 11 (2005). Sometimes in a criminal case, the government
should “drop the charges if it fears that litigation presents unacceptable security risks.” Sterling v.
Tenet, 416 F.3d 338, 344 (4th Cir. 2005); see United States v. Reynolds, 345 U.S. 1, 12 (1953).
DISCUSSION
Typically, it is a requirement of federal criminal proceedings that a defendant be “present.”
See Fed. R. Crim. P. 43(a). This requirement protects the rights of a defendant; it also subjects the
defendant to the court’s authority and orders, and ensures the enforcement of consequences if the
defendant flouts the court’s authority, violates the court’s orders, or is ultimately convicted of a
crime. In this case, Concord, a corporate legal entity organized in Russia, is “present” only through

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its U.S.-based counsel. See Fed. R. Crim. P. 43(b)(1) (permitting organizational defendants to
appear through counsel).
When defense counsel first appeared on behalf of Concord, counsel stated that they were
“authorized” to appear and “to make representations on behalf” of Concord, and that Concord was
fully subjecting itself to the Court’s jurisdiction. 5/9/18 Tr. 5 (ECF No. 9). Though skeptical of
Concord’s (but not counsel’s) asserted commitments at the initial appearance, the government has
proceeded in good faith—expending the resources of the Department of Justice and other
government agencies; incurring the costs of disclosing sensitive non-public information in
discovery that has gone to Russia; and, importantly, causing the Court to expend significant
resources in resolving dozens of often-complex motions and otherwise ensuring that the litigation
has proceeded fairly and efficiently. Throughout, the government’s intent has been to prosecute
this matter consistent with the interests of justice. As this case has proceeded, however, it has
become increasingly apparent to the government that Concord seeks to selectively enjoy the
benefits of the American criminal process without subjecting itself to the concomitant obligations.
Concord has been eager and aggressive in using the judicial system to gather information
about how the United States detects and prevents foreign election interference. Concord filed
numerous motions to dismiss, motions for bills of particulars, motions to conduct discovery of
prosecutorial decision-making, motions seeking grand jury materials, and motions to compel other
discovery. See, e.g., ECF Nos. 11, 36, 46, 78, 93, 104, 181, 229, 241, 251, 256, 257, 264. Concord
also received substantial discovery and engaged in extensive litigation aimed at housing that
discovery in Russia. See, e.g., ECF Nos. 27, 37, 39, 77, 121, 187. But Concord has failed to
protect at least some of that discovery from improper use. See ECF No. 94, at 8-11; Classified
Addendum. And Concord has been reticent, to say the least, to comply with obligations that cannot

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simply be handled by American counsel. Thus, when the government sought to serve trial
subpoenas on Concord through its counsel in this case, Concord claimed that service was a legal
impossibility and argued that because it is a foreign corporation, the Court lacks jurisdiction to
require Concord to produce records located abroad. See ECF Nos. 287, 311; 12/12/2019 Tr. 5055. Concord even asserted that to serve a subpoena on its counsel created an unconstitutional
conflict of interest because Concord would be better off if the attorneys never transmit the
subpoenas to Concord. See ECF Nos. 287, 311; 1/24/2020 Tr. 22-23. When Concord ultimately
produced records, the government believes that it concealed responsive documents pertinent to the
upcoming trial. See, e.g., ECF Nos. 361, 362, 377, 378. Indeed, the Court ordered Concord to
show cause regarding its compliance and to produce a corporate representative. 2/27/20 Minute
Order. In response, Concord initially did not even so much as assert that it had complied with the
Court’s order, and Concord made no effort to make available a representative. See ECF Nos. 364,
367. Throughout this case, although Concord has “appeared” through counsel, counsel has always
been explicit that they were not a representative of the company. See, e.g., ECF Nos. 287; 3/2/2020
Tr. 5-6. Ultimately, when the Court required that Concord submit an affidavit regarding its
response to the subpoena, Prigozhin, the thrice-sanctioned Russian oligarch who has declined to
subject himself to the Court’s jurisdiction, filed a purportedly “sworn” declaration. See ECF No.
376-1. That declaration, the government has reason to believe, contains false and misleading
statements—it is evidently calculated to conceal facts that are relevant to this case and that a typical
defendant would be required to reveal or else face sanctions. See ECF Nos. 377, 378; Classified
Addendum.
While a corporate defendant is not required by Rule 43(b) to have a corporate
representative physically present in the courtroom for court proceedings, there is no question that,

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for a criminal case to proceed, a corporate defendant must at all times be “present” in the sense
that it must be available to respond to court orders to produce evidence or to produce a corporate
representative qualified to testify concerning relevant issues. It is now apparent to the government
that Concord is “present” only to the extent it benefits Concord—that is, to seek dismissal of the
charge against it, to gather discovery, and generally to impugn the government—but Concord is,
in effect, absent to the extent the rules and orders of the Court require it to take actions that are
against its own interests. That is not consistent with Concord’s assurances at its initial appearance,
nor is it consistent with the interests of justice or the purposes of a criminal prosecution. Informed
by the recent events described above, the United States will not permit Concord to continue to
garner the benefits of its appearance while evading other consequences thereof.
The government must also weigh the potential risks to the national security that are
necessarily associated with a trial of this nature. A trial of this case risks publicizing sensitive law
enforcement information regarding measures used to investigate and protect against foreign
influence over the political system. The government and the Court have invoked and utilized the
Classified Information Procedures Act, 18 U.S.C. App. III, to protect classified information. See
United States v. Yunis, 867 F.2d 617, 622 (D.C. Cir. 1989) (“The Supreme Court has long
recognized that a legitimate government privilege protects national security concerns.”). But even
with those procedures in place, trial in this matter would expose additional details about law
enforcement’s tools and techniques for investigating malign foreign influence, among other
crimes, potentially undermining their effectiveness. Moreover, as described in greater detail in the
classified addendum to this motion, a classification determination bearing on the evidence the
government properly gathered during the investigation, limits the unclassified proof now available
to the government at trial. That forces the prosecutors to choose between a materially weaker case

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and the compromise of classified material. These risks must be weighed against the benefit of
trying a corporate defendant that is, effectively, a fugitive from justice and just punishment for the
offense. See Justice Manual § 9-27.230 (“In assessing the strength of the federal interest in
prosecution, the attorney for the government should consider the sentence, or other consequence,
that is likely to be imposed if prosecution is successful, and whether such a sentence or other
consequence would justify the time and effort of prosecution.”).
Fundamental principles of our criminal justice system include that individual defendants
must be physically present before the court in order for proceedings against them to commence,
and that to enjoy the benefits attendant to our criminal justice system, defendants must
simultaneously accept its obligations and consequences. Indeed, fugitives from justice who refuse
to subject themselves to the jurisdiction of the Court cannot avail themselves of the benefits of
such an appearance by contesting or challenging the charges against them. See United States v.
Halkbank, --- F.Supp.3d ---, 2019 WL 6618026 (S.D.N.Y. 2019) (“There is no reason . . . why a
corporate defendant . . . should be permitted to simultaneously ignore and invoke the court’s
authority.”) (quotation marks and citation omitted); see generally Degen v. United States, 517 U.S.
820, 824 (1996); see also In re Assets of Martin, 1 F.3d 1351, 1356 (3d Cir. 1993) (noting the
“principle of mutuality” that “if a defendant is not willing to suffer the penalties of the crime,” the
court “should not afford the defendant an opportunity to improve his or her position”). These
principles weigh strongly against trying a foreign company not meaningfully present before the
Court, particularly when the national security is implicated.
CONCLUSION
There is a substantial federal interest in defending American democratic institutions,
exposing those who endeavor to criminally interfere with them, and holding them accountable,

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which is why this prosecution was properly commenced in the first place. In light of the
defendant’s conduct, however, its ephemeral presence and immunity to just punishment, the risk
of exposure of law enforcement’s tools and techniques, and the post-indictment change in the proof
available at trial, the balance of equities has shifted. It is no longer in the best interests of justice
or the country’s national security to continue this prosecution. And although the time and
resources expended to-date have been considerable, that factor “deserves no weight and should
not influence” our decision. Justice Manual § 9-27.230. “No amount of investigative effort
warrants commencing a federal prosecution that is not fully justified on other grounds.” Id. Nor
does it justify continuing such a prosecution. The United States will continue its efforts to
apprehend the individual defendants and bring them before this Court to face the pending charges,
but because substantial federal interests are no longer served by continuing with the proceedings
against the Concord Defendants, the government moves, respectfully, to dismiss with prejudice
Count One of the indictment as to them.
Respectfully submitted,

JOHN C. DEMERS
Assistant Attorney General for National Security

TIMOTHY J. SHEA
United States Attorney
D.C. Bar No. 437437

By: /s/ Heather Alpino
Heather N. Alpino
U.S. Department of Justice
National Security Division
950 Pennsylvania Ave. NW
Washington, D.C. 20530
Telephone: (202) 514-2000

By: /s/ Luke M. Jones
Luke M. Jones (VA 75053)
Peter Lallas (NY 4290623)
Adam Jed (NY 4978532)
555 Fourth Street NW
Washington, D.C. 20530
Telephone: (202) 252-7066

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