Case 1:21-cr-00245-AJT Document 83 Filed 09/16/22 Page 1 of 19 PageID# 361

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

UNITED STATES OF AMERICA :

:
v. : Criminal Case No. 1:21-CR-245 (AJT)
:
IGOR Y. DANCHENKO, :
:
Defendant. :

GOVERNMENT’S OPPOSITION TO DEFENDANT’S

MOTION TO DISMISS THE INDICTMENT

The United States of America, by and through its attorney, Special Counsel John H.

Durham, respectfully submits this opposition to the defendant’s Motion to Dismiss the Indictment

for Failure to State an Offense (Docket No. 79, hereinafter “Def. Mot.”). For reasons stated below,

the Government submits that the motion should be denied.

FACTUAL BACKGROUND

The defendant is charged in a five-count indictment (“Indictment”) with making

materially false statements to FBI agents in violation of Title 18, United States Code, Section

1001. The Government assumes the Court’s familiarity with the facts contained in the Indictment

and in its prior filings.

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LEGAL STANDARD

In a criminal case, a motion to dismiss tests not the sufficiency of the evidence

supporting the indictment but rather whether the indictment sufficiently charges the offense set

forth against the defendant. See United States v. Lewis, 387 F. Supp. 2d 573, 577 (E.D. Va.

2005). Accordingly, an indictment need only contain “a plain, concise, and definite written

statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). This

requirement is satisfied when the indictment contains the elements of the offense charged, fairly

informs the defendant of the charge (so that he may prepare his defense), and enables the

defendant to plead double jeopardy as a defense to future prosecutions for the same offense. See

United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007); see also United States v. Brandon,

150 F. Supp. 2d 883, 884 (E.D. Va. 2001) (“In general, if an indictment sets forth the essential

elements of [an] offense in sufficient detail so as fairly to inform the defendant of the nature of the

charge, then it is immune from attack on a motion to dismiss.” (footnote omitted)). “[T]to give a

defendant sufficient notice of the charges against him, the indictment need only track the

language of the statute at issue.” United States v. Lindh, 212 F. Supp. 2d 541, 575 (E.D. Va.

2002).

Where, as here, a motion has been filed to dismiss an indictment containing

multiple counts, “each count is viewed as a separate indictment for purposes of determining its

sufficiency.” United States v. Smith, 44 F.3d 1259, 1264 (4th Cir. 1995). “Yet, while each count

must stand on its own, incorporated and realleged paragraphs from another count must be

considered.” United States v. Le, 310 F. Supp. 2d 763, 772 n.5 (E.D. Va. 2004). Ultimately, to

warrant dismissal of an indictment, the defendant must demonstrate that the allegations in the
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indictment, even if true, would not state an offense. See United States v. Thomas, 367 F.3d 194,

197 (4th Cir. 2004). “It is elementary that a motion to dismiss an indictment implicates only the

legal sufficiency of its allegations, not the proof offered by the Government.” United States v.

Terry, 257 F.3d 366, 371 (4th Cir. 2001) (King, J., concurring).

ARGUMENT

The defendant asks this Court to dismiss the Indictment arguing that the FBI’s

questions to the defendant were “fundamentally ambiguous and/or that the defendant’s responses

were either “literally true, non-responsive or ambiguous.” See Def. Mot. at 10. The defendant

alternatively argues that the defendant’s statements were not material to any function or decision

of the FBI. Id. As addressed below, the arguments set forth by the defendant are plainly questions

of fact within the purview of a jury. As such, the Government respectfully submits the Court should

deny the defendant’s motion to dismiss the Indictment.

I. The Questions Posed by the FBI Were Not Fundamentally Ambiguous Nor Were
the Defendant’s Answers Literally True

A. Legal Standard

The defendant exhausts the majority of his 25-page motion attempting to shoehorn the valid

false statement counts at issue here into two extremely narrow and rarely-sustained defenses to false

statement charges: literal truth and fundamental ambiguity. See United States v. Bronston, 409 U.S.

352, 354 (1973) (reversing perjury conviction where statement was literally true but not responsive

to the question posed); United States v. Sarwari, 699 F.3d 401, 407 (4th Cir. 2012) (noting that “the

answer to a fundamentally ambiguous question may not, as a matter of law, form the basis for a

false statement”). As an initial matter, whether any of the counts in the Indictment lend themselves

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to such a defense is plainly a factual issue that must be decided by the jury based on all of the

evidence in this case. Under controlling Fourth Circuit law, the Court must only look to the face

of the Indictment to resolve a motion to dismiss, and here, the Indictment properly alleges false

statements.

The Bronston literal truth defense is exceptionally narrow and only applies where a

defendant’s alleged false statements are “undisputedly literally true.” Sarwari, 669 F.3d at 407; see

also United States v. Chujoy, 207 F. Supp. 3d 626, 655 (W.D. Va. 2016) (“Bronston addresses

answers that are both non-responsive and literally true and is inapplicable to answers that are

responsive or not indisputably true”). A question is fundamentally ambiguous only when it “is not

a phrase with a meaning about which men of ordinary intellect could agree, nor one which could

be used with mutual understanding by a questioner and answerer unless it were defined at the time

it were sought and offered as testimony.” Sarwari, 699 F.3d at 407 (quoting United States v. Lighte,

782 F.2d 367, 374 (2d Cir. 1985)). But a defendant cannot establish that questions are

“fundamentally ambiguous” by isolating them from their context or by showing that words used in

a question are amenable to multiple meanings, or that an answer “might generate a number of

different interpretations.” Lighte, 782 F.2d at 375; see also United States v. Strohm, 671 F.3d 1173,

1178 (10th Cir. 2011) (“Simply plumbing a question for post hoc ambiguity will not defeat a

perjury conviction where the evidence demonstrates the defendant understood the question in

context and gave a knowingly false answer.”). Where a question is merely susceptible to multiple

interpretations, and a defendant’s answer is true under one understanding of the question but false

under another, there is no fundamental ambiguity as a matter of law and the jury determines whether

the defendant knew his statement was false. Sarwari, 669 F.3d at 407-408 (stating that “[w]here a
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question is only arguably ambiguous, the issue of the defendant’s guilt is properly one for the jury”).

Even statements that “could be literally true in isolation” can support a false statements conviction

if they are “materially untrue” in “the context in which the statements were made.” Id. (citing

United States v. Schafrick, 871 F.2d 300, 304 (2d Cir. 1989)).

B. Discussion

The charged statements here fall squarely within the realm of properly-alleged false

statements. On June 15, 2017, the defendant was interviewed by the FBI. During this interview,

which was recorded, the FBI agent’s question to the defendant about Charles “Chuck” Dolan

(anonymized in the Indictment as “PR Executive-1”) was not fundamentally ambiguous, or even

arguably ambiguous. To the contrary, the agent’s question was decidedly straightforward:

FBI AGENT-1: Okay, so you’ve had . . . was there any . . . but

you had never talked to Chuck Dolan about
anything that showed up in the dossier [Steele
Reports] right?

THE DEFENDANT: No.

FBI AGENT-1: You don’t think so?

THE DEFENDANT: No. We talked about, you know, related issues

perhaps but no, no, no, nothing specific.

The defendant argues that the “reasonable reading of this question is whether Mr. Danchenko and

[Dolan] talked about the Company Reports themselves after they were published.” Def. Mot. at

14 (emphasis in original). As an initial matter, the question must be viewed in context. And

given the context discussed below, the defendant’s reading is entirely unreasonable. Indeed, the

central focus of this interview was to uncover the defendant’s sub-sources who provided the

information that would later appear in the Steele Reports. The defendant had previously met
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with the FBI on multiple occasions over the course of six months to the same end and made it

expressly clear to them that he had communicated with his sub-sources during the 2016 time

period in order to collect information that Steele would later include in the dossier. Whether the

defendant had communicated with Dolan – or anyone for that matter – about the information in

the Steele Reports after they were published would be of little, if any, moment to the FBI, which

was endeavoring to uncover the defendant’s sources who provided the information underlying the

dossier. Further, the question immediately preceding the question at issue was whether Mr. Steele

and Danchenko had other sources beside the defendant for the dossier reports. 1 Thus, viewed in

the proper context of the extensive interview and the multiple prior interviews, the question was

clearly directed at learning whether the defendant had communicated with Dolan about

information that later appeared in the Steele Reports. See United States v. Graves, 593 F. App’x

164, 167 (4th Cir. 2014) (in discussing the inapplicability of the literal truth and fundamental

ambiguity defense, the court noted that “the jury had the opportunity to gauge for itself, in the

context of the full conversation, whether the [defendant] had made a false statement”). Even

assuming, arguendo, that the question was “arguably ambiguous,” the issue of a defendant’s guilt

is properly one for the jury. Sarwari, 669 F.3d at 408.

The defendant next seizes on the fact that the question posed by the agent used the

word “talked” rather than a broader term such as “communicated” or a more specific term liked

1
The defendant spends significant time arguing about the ambiguity of the agent’s question
regarding whether Charles Dolan was an additional source for Christopher Steele. This question,
however, does not form the basis of the false statement charged in Count One. Rather, the charged
false statement relates to whether the defendant spoke to Mr. Dolan about any material contained
in the Steele Reports. See Indictment ¶ 103.
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“emailed.” See Def. Mot. at 14. Courts have repeatedly held, however, that a defendant cannot

establish that a question is “fundamentally ambiguous” by isolating it from its context or by

showing that words used in a question are amenable to multiple meanings, or that an answer

might generate several different interpretations. See Sarwari, 669 F.3d at 407 (citing Lighte, 782

F.2d at 375); see also United States v. Strohm, 671 F.3d 1173, 1178 (10th Cir. 2011) (stating that

“given the nature of language, in hindsight, many questions could be susceptible to differing

interpretations. Simply plumbing a question for post hoc ambiguity” does not establish

fundamental ambiguity where the evidence demonstrates the defendant understood the question in

context and gave a knowingly false answer). Indeed, such a rigid standard would completely

override the purpose of Section 1001. In this case, the defendant made clear to the FBI in

numerous meetings that he had communicated with his sub-sources through a variety of methods,

including email, phone, social media messages, and in-person. It therefore would be nonsensical

for the FBI to have intentionally limited the scope of its questions to phone calls and in-person

meetings with Dolan, but not other forms of communication. Under the defendant’s reading, in

order to elicit truthful answers, the FBI would have been forced to inquire specifically if the

defendant used any number of methods to communicate with Dolan – email, landline phone,

cellular telephone, encrypted application, carrier pigeon, etc. Plainly, the law does not

contemplate such particularity requirements in cases where the defendant (and any reasonable

listener) clearly would understand the context of the question. Importantly, the Government’s

evidence will demonstrate that the defendant plainly understood that the word “talked” was

directed at all forms of communications with Charles Dolan. In fact, the defendant himself

demonstrated an understanding that his email communications were relevant to the FBI’s inquiry,
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because he chose to provide them with selective emails and social media postings on multiple

occasions over the course of his relationship with the FBI. Accordingly, the agent’s question was

not fundamentally ambiguous.

In the same vein, the defendant argues that his answer to the agent’s question was

“literally true” because the defendant did not “talk” with Mr. Dolan, but rather exchanged emails.

See Def. Mot. at 14-15. This argument is equally unavailing. “When a question is not

‘fundamentally ambiguous,’ but merely susceptible to multiple interpretations, and a defendant’s

answer is true under one understanding of the question but false under another, the fact finder

determines whether the defendant knew his statement was false.” Sarwari, 669 F.3d 401

(emphasis added); United States v. Purpera, 844 F. App’x 614, 632 (4th Cir. 2021) (“[the literal

truth defense] does not apply to an answer [that] would be true on one construction of an

arguably ambiguous question but false on another”); see also United States v. Thomas, 612 F.3d

1107, 1114-18 (9th Cir. 2010) (same). As discussed above, the question posed by the agent was

not “fundamentally ambiguous,” and thus, it is for the jury to decide whether the defendant’s

statement was knowingly false.

The defendant next argues that the “distinction between talking about ‘anything’ or

‘related issues’ and something ‘specific’ is at best vague and open to subjective interpretation, and

consequently cannot support a false statement charge under § 1001.” Def. Mot. at 15. To the

contrary, there is nothing vague about the defendant’s answer, e.g., that he did not speak with

Charles Dolan about any specific information that appeared in the Steele Reports. The

defendant’s answer “no, no, no, nothing specific,” could not be more responsive. And the

purported information that Danchenko obtained from Dolan concerning Manafort (and which
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appeared in the Steele Reports) was not a “related issue[];” it was the issue being discussed in the

relevant report. “An answer that is responsive and false on its face does not come within [a]

literal truth analysis simply because the defendant can postulate unstated premises of the question

that would make his answer literally true.” United States v. Bollin, 264 F.3d 391, 411 (4th Cir.

2001), overruled on other grounds by United States v. Chamberlin, 868 F.3d 290 (4th Cir. 2017).

In any event, the evidence at trial will demonstrate that, in fact, Dolan and the defendant did

discuss very specific allegations regarding the Trump Campaign – allegations that appeared in a

Steele Report a mere two days after the defendant received the information from Dolan.

The defendant’s attempts to claim “literal truth” with respect to his statements

concerning Sergei Millian are equally unavailing. As noted above, the Bronston literal truth

defense applies where a defendant’s answers are both non-responsive and literally true but “is

inapplicable to answers that are responsive or not indisputably true.” Chujoy, 207 F.Supp.3d 626,

655 (W.D.Va. 2016) (quoting Strohm, 671 F.3d at 1185). Here, defendant does not dispute that

his statements were responsive to questions posed by the FBI about contacts with Mr. Millian.

On that basis alone, the literal truth defense is unavailable to the defendant. In addition to this

fatal deficiency, the defendant’s self-serving and conclusory assertions as to the literal truth of his

statements to the FBI concerning his contacts with Millian cannot satisfy the literal truth defense.

In fact, the defendant did not provide the FBI with the two emails he sent to Millian that on their

face directly contradict his claim that he believed he spoke to Millian on the phone. The conflict

between the emails – which make no mention of a call or missed meeting in New York – and his

own statements, create an issue of fact for the jury, and not an issue of law that can be resolved by

the Court prior to trial. Further undermining these arguments is the fact that the defendant stated
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that information contained in a June 2016 Steele Report might have come from Sergei Millian,

notwithstanding the fact that his first attempt to contact Millian by email was not until July 21,

2016 – an email that he conveniently withheld from the FBI. The Government also plans to

introduce evidence which reflects that every phone call received by the defendant from July 21,

2016 2 through August 2016 on the phone number that he provided to Sergei Millian was from

individuals other than Millian who were known to the defendant (either from his contacts list or

through other means), and thus, the defendant’s contention about an “anonymous caller” is not

supported by the evidence. 3 Presented with all these facts, a jury could reasonably conclude that

the defendant fabricated the alleged call with Millian. Again, the defendant’s statements

concerning Millian cannot be viewed in isolation, but must be viewed in the context and scope of

his previous interviews with the FBI, including the January 2017 interviews. In that context,

there are ample facts set forth in the Indictment alone by which a jury could reasonably determine

that defendant’s statements regarding his alleged communication with Millian were false.

II. The Indictment Sufficiently Alleges that the Defendant’s False Statements to the
FBI Were Material

A. Legal Standard

The defendant’s arguments based on materiality are similarly unavailing. As a

preliminary matter, these arguments are premature. The Supreme Court in United States v. Gaudin

2
The evidence at trial will establish that the defendant first reached out to Mr. Millian by
email on July 21, 2016.
3
The contention that the defendant may have received an “anonymous call” from someone
he believed to be Millian on an internet-based application is also not supported by the evidence.
Indeed, at no time did the defendant inform Millian that he could be contacted on an internet-based
application, to say nothing of the particular application Millian should utilize.
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held that materiality is an essential element of Section 1001 that must be resolved by a jury. 515

U.S. 506, 509 (1995). Whether the Government has proved facts beyond a reasonable doubt

illustrating that a false statement is material to an agency decision is a mixed question of fact and

law typically resolved by a properly instructed jury. See id.; see also United States v. Garcia-

Ochoa, 607 F.3d 371, 376 (4th Cir. 2010) (“Materiality, [as an element of 18 U.S.C. 1001], is a

question of fact (or at the very least a mixed question of law and fact) to be resolved by the fact

finder ”) (emphasis added); United States v. David, 83 F.3d 638, 646 (4th Cir. 1996) (“[I]t is

obvious error today not to submit the question of materiality to the jury in a false

statements prosecution.”).

Although Section 1001 does not define “materially,” the Supreme Court has held

that a materially false statement has “a natural tendency to influence, or [be] capable of influencing,

the decision of the decision-making body to which it was addressed.” Kungys v. United States, 485

U.S. 759, 770 (1988). But as the Supreme Court explained in Gaudin, a statement need not actually

influence an agency for it to be material; it need only have “a natural tendency to influence, or [be]

capable of influencing” an agency function or decision. 515 U.S. at 509. Thus, materiality is not

dependent upon whether a particular government agency was actually influenced by a defendant’s

false statements. See United States v. Arch Trading Co., 987 F.2d 1087, 1095 (4th Cir. 1993)

(affirming false statements conviction where defendant’s misrepresentations did not prompt any

official action); United States v. Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988). Indeed, whether

the false statement in fact influenced an agency’s action is irrelevant. United States v. Hamilton,

699 F.3d 356, 362 (4th Cir. 2012); see also United States v. Raza, 876 F.3d 604, 616-617 (4th Cir.

2017) (collecting cases). This proposition is well-settled throughout the Circuits. See e.g., United
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States v. Moore, 612 F.3d 698, 701–02 (D.C. Cir. 2010) (a false statement is material if it has the

capability to influence a “discrete decision” or “any other function of the agency.”); United States

v. White, 270 F.3d 356, 365 (6th Cir. 2001) (“‘materiality’ is a fairly low bar . . . . [T]he government

must present at least some evidence showing how the false statement in question was capable of

influencing federal functioning.”); United States v. Moore, 446 F.3d 671, 681 (7th Cir.

2006) (statement is material if it “has a natural tendency to influence, or . . . is capable of affecting,

a government function”); United States v. Calhoon, 97 F.3d 518, 530 (11th Cir. 1996) (“it is enough

if the statements had a natural tendency to influence [ ] or [were] capable of affecting or influencing

a government function”) (internal quotation marks deleted); United States v. Alemany Rivera, 781

F.2d 229, 235 (1st Cir. 1985) (“test for materiality under 18 U.S.C. § 1001 is . . . whether [the

statement] had the capacity to influence a government function”); United States v. Lichenstein, 610

F.2d 1272, 1278 (5th Cir. 1980) (“false statement must simply have the capacity to impair or pervert

the functioning of a government agency”).

Moreover, the capacity of a false statement to influence a government agency or

function must be measured at the point in time that the statement was uttered. See United States v.

Sarihifard, 155 F.3d 301, 207 (4th Cir. 1998) (citation omitted). Finally, “materiality is not

dependent upon the believability of the false statement. Id. (affirming conviction for false

statements even where United States Attorney immediately recognized defendant’s statements were

false). It is black letter law that materiality does not turn on the actual knowledge of investigators

at the time of the false statement. Indeed, as Justice Scalia stated in Brogan v. United States:

It could be argued, perhaps, that a disbelieved falsehood does not

pervert an investigation. But making the existence of this crime turn
upon the credulousness of the federal investigator (or the
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persuasiveness of the liar) would be exceedingly strange; such a

defense to the analogous crime of perjury is certainly unheard of.

522 U.S. 398, 402 (1998). In fact, a statement can be material even if the decision-maker has

already arrived at a conclusion before the statement is made. See United States v. Safavian, 649

F.3d 688 (D.C. Cir. 2011); see also Moore, 612 F.3d at 701-702. To that end, “[w]hen statements

are aimed at misdirecting agents and their investigation, even if they miss spectacularly or stand

absolutely no chance of succeeding, they satisfy the materiality requirement of [Section] 1001.”

United States v. Lupton, 620 F.3d 790, 806-807 (7th Cir. 2010). As the Fifth Circuit has opined:

“Con[] men often succeed in persuading the gate keeper to allow

them to enter. Agency protocol is not always followed and those
familiar with protocol are not always on duty. The test is whether
the statement tests these protocols, or has the natural tendency to
influence or be capable of influencing the decision maker, not
whether it actually influenced the decision on this one occasion.

United States v. Abrahem, 678 F.3d 370, 374 (5th Cir. 2012).

B. Discussion

Here, the defendant’s false statement with respect to Charles Dolan’s role as a source

for the Steele Reports was plainly material. The defendant’s sole argument appears to be that Mr.

Dolan provided the defendant with information from public news sources and thus his false

statement could not be material. See Def. Mot. at 16-17. As an initial matter, this assertion is

simply incorrect. Mr. Dolan’s August 20, 2016 email to the defendant clearly states that he

received information from a “GOP friend of mine” who provided information both contained in the

Politico article Dolan attached and additional information not contained in the article. Indeed, the

email states “she [the purported GOP friend] also told me that Corey Lewandowski, who hates

Manafort and still speaks to Trump regularly played a role. He is said to be doing a happy dance
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over it.” This information is not contained in the article. Thus, it is only reasonable that the

defendant would assume this information (and other information) contained in the email was from

a non-public source. It also is of no help to the defendant that – as will become clear through

Dolan’s testimony at trial – Dolan fabricated the genesis of this information. Indeed, Dolan’s

fabrication makes the defendant’s false statement all the more material, because it underscores that

had the FBI known Dolan was the source of these allegations, it might have interviewed him and

determined that it was not, in fact, reliably sourced.

Moreover, the defendant misunderstands the Government’s theory of materiality. The

defendant’s lie was material because, as the Indictment plainly lays out, had the FBI known that

Charles Dolan was a source for the Steele Reports, it is more likely that they would have (or should

have) also interviewed Dolan, given Dolan’s (1) relationship to several key players who appear in

the Steele Reports and (2) proximity to the defendant at the time the defendant was allegedly

gathering information that would later appear in the Steele Reports. Indeed, Dolan had relationships

with several Russian government officials, including, but not limited to, Dimitry Peskov

(anonymized in the Indictment as “Russian Press Secretary-1”), Mikhail Kalugin (anonymized in

the Indictment as “Russian Diplomat-1”) and Sergei Kislyak (anonymized in the Indictment as

“Russian Ambassador-1”). Further, Dolan was present with the defendant in June 2016 at the Ritz

Carlton Moscow when the defendant allegedly personally gathered information on Donald Trump’s

purported salacious sexual activity at that hotel. Again, had the FBI known that Dolan was a source

for the Steele Reports – in addition to his ties to some of the key protagonists – the FBI logically

would have interviewed Dolan. The fact that the FBI was aware that Dolan maintained some of

these relationships and failed to interview Dolan is of no moment. See Arch Trading Co., 987 F.2d
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at 1095 (holding that a material fact is one that has “a natural tendency to influence agency action

or is capable of influencing agency action . . . . [W]hile it may be a fact that [defendant’s]

misrepresentations did not prompt any official action, the prompting of such action is not an element

of a § 1001 offense.”) (emphasis added). See Abrahem, 678 F.3d at 374.

The defendant’s false statements with respect to Sergei Millian are also plainly

material. The defendant argues that the false statements could not be material because “none of

these statements could have impacted the government’s decision to obtain its first or second FISA

warrants against Advisor-1 [Carter Page], which were issued on or about October 21, 2016, and

January 12, 2017, because Mr. Danchenko’s statements were made months later, with the first

charged statement occurring on March 16, 2017.” See Def. Mot. at 23. Further, the defendant

argues that the defendant’s false statements made on October 24, 2017 and November 16, 2017

should be dismissed “because they occurred after the government obtained its last FISA warrant

against Advisor-1 on or about June 29, 2017 . . . and, therefore, could not have impacted the

government’s decision to obtain any of the FISA warrants.” Id. (emphasis in original). The

defendant fundamentally misunderstands the government’s obligations to the Foreign Intelligence

Surveillance Court (“FISC”). As an initial matter, two of the defendant’s false statements (March

16, 2017 and May 18, 2017) were made during the pendency of the FISA surveillance against Carter

Page. Notwithstanding when the false statements were made, had the defendant been truthful about

his purported interactions with Sergei Millian, the FBI and DOJ would have been under an

affirmative obligation to inform the FISC – at any time during the pendency of the surveillance of

Page or thereafter – about information that would have undermined the statements it had made in

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its four FISA applications regarding the information allegedly provided by Millian. Indeed, FISC

Rules of Procedure dictate that:

If the government discovers that a submission to the Court contained

a misstatement or omission of material fact, the government, in
writing, must immediately inform the Judge to whom the submission
was made of:

(1) the misstatement or omission;

(2) any necessary correction;
(3) the facts and circumstances relevant to the misstatement or
omission;
(4) any modification the government had made or proposes to make
in how it will implement any authority or approval granted by the
Court; and
(5) how the government proposes to dispose of or treat any
information obtained as a result of the misstatement or omission.

See United States Foreign Intelligence Surveillance Court Rules of Procedure 13. Thus, the FBI

and DOJ would be required to inform the FISC about the misrepresentations made in each of the

applications it provided to the FISC. Had the FISC known of these misrepresentations, it could

have terminated the surveillance of Carter Page and/or ordered the FBI and DOJ to destroy the

information it had already collected.

The defendant next argues that his false statements regarding Millian are not

material because he provided the FBI with the email that “the indictment now alleges is the

smoking gun that proves Mr. Danchenko did not in fact believe he spoke with Chamber

President-1 [Millian].” Def. Mot. at 24. The defendant, however, conveniently omits pertinent

and inculpatory facts from his argument. Indeed, in his January 2017 interview with the FBI, the

defendant stated, in sum, that he emailed Millian twice and received no response back. The

defendant further stated, that following his second email to Millian, he received a telephone call

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in late July 2016 from an “anonymous” caller he believed to be Millian. He further stated that

during this purported call, the defendant and the “anonymous” individual he believed to be

Millian agreed to meet in New York City at the end of July. During the January 2017 interviews,

the defendant did in fact provide the FBI with a Russian-language email to Dimitry Zlodorev

(anonymized in the Indictment as “Russian Journalist-2”) dated August 24, 2016, which stated

that Millian had not responded to his emails. But as discussed above, the defendant did not

provide the FBI with the two additional emails that he sent to Millian , including an August 18,

2016 email which made clear that Danchenko had not, in fact, heard back from him by that date –

thus making a late July phone call and planned meeting in New York an impossibility. Put

another way, the defendant wanted the FBI to believe that he emailed Millian twice in July 2016,

received no response, but received a phone call from someone he believed to be Millian in late-

July.

The Government will argue at trial that the defendant provided the FBI with the

August 24, 2016 email to Zlodorev in an effort to show that he had, in fact, asked Zlodorev for

Millian’s contact information. However, reflecting the fact that the defendant could not keep his

lies straight, he provided the August 24, 2016 email not realizing it would demonstrate that he had

not, in fact, spoken to the “anonymous” caller he told the FBI he believed was Millian by late

August 2016. That the defendant slipped up by providing the FBI with an email that contradicted

his own prior lies is of no moment. The defendant cites no law – nor could he – stating that a

defendant’s unintentional exposure of his own prior misstatements undermines their falsity or

their materiality. To the contrary, such evidence only underscores the defendant’s intent to

deceive the FBI. And the fact that the FBI apparently did not identify or address these
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inconsistencies which the Special Counsel’s evidence at trial will show is, again, of no moment

when evaluating falsity or materiality. See Arch Trading Co., 987 F.2d at 1095; Abrahem, 678

F.3d at 374.

CONCLUSION

For the foregoing reasons, the Court should deny the defendant’s Motion to Dismiss the

Indictment.

Respectfully submitted,

JOHN H. DURHAM
Special Counsel

By:

/s/
Michael T. Keilty
Assistant Special Counsel
michael.keilty@usdoj.gov

Brittain Shaw
Assistant Special Counsel
brittain.shaw@usdoj.gov

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 Case 1:21-cr-00245-AJT Document 83 Filed 09/16/22 Page 19 of 19 PageID# 379

Certificate of Service

I hereby certify that on the 16th day of September, 2022, I electronically filed a copy of

the foregoing with the Clerk of the Court using the CM/ECF system, which will send a

notification of such filing (NEF) to all counsel of record.

By:

/s/
Michael T. Keilty
Assistant Special Counsel
michael.keilty@usdoj.gov

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