The filing was drafted as part of the government’s case against Bijan Rafiekian, a former business partner of Flynn who was prosecuted by Robert Mueller on charges of conspiracy and acting as a foreign agent. The development marks a departure from the DOJ’s decision last month to drop charges against Flynn.

Rafiekian’s defense recently wrote to Jeff Jensen — the U.S. Attorney that Attorney General Bill Barr appointed to review the Flynn case — to request that Rafiekian’s case get a similar review, but the DOJ is pressing ahead with a request to the 4th Circuit Court of Appeals to move forward with its case.

“Defendant argues that the district court should have instructed the jury not on law but on a specific fact: that Michael Flynn was not a part of any conspiracy. That argument is unsustainable,” the DOJ says in its brief, which was filed on Sunday.

“Wrongful and wasteful use of scarce taxpayer resources,” Flynn’s lead attorney Sidney Powell told Politico on the decision to include Flynn in the case against Rafiekian. Flynn’s case has yet to be dropped, with the D.C. Circuit hearing oral arguments this week after the judge overseeing Flynn’s case refused to comply with the DOJ’s request.

Rafiekian was found guilty by a jury — only for a judge to later overturn the conviction — after Flynn said in his initial 2017 guilty plea that he had made “materially false statements and omissions” related to Foreign Agents Registration Act (FARA) filings for his Flynn Intel Group.

Prosecutors used Flynn’s admission to say Rafiekian, a former Trump transition team adviser, had secretly worked as a Turkish agent to hide the fact that Flynn signed a contract in 2016 for $530,000 to investigate Fethullah Gulen, an exiled cleric and critic of the Turkish government who lives in the U.S.

Flynn wrote an op-ed for The Hill on Election Day 2016 that said Gulen was the “primary bone of contention” between Turkey and the U.S., calling him a “radical Islamist” and a “shady Islamic mullah.” Prosecutors also looked into reports that Flynn had been involved in trying to kidnap Gulen to return him to Turkey, but Flynn denied any such plot.

Flynn initially agreed to serve as the government’s star witness against Rafiekian, but later backed out after dropping his initial defense team, which also had handled FARA filings on behalf of Flynn Intel Group.